JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES JOHN D. LUTHY and AMY J. OLIVER concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Following a multi-day bench trial, the juvenile court entered an order terminating A.M.’s (Mother) parental rights to her child, M.M. (Child). Mother contends the court erred in denying her reunification services and in concluding termination of her parental rights was strictly necessary. Because Mother has not persuaded us that the court committed reversible error, we affirm its order terminating Mother’s parental rights.
¶2 Mother is the biological parent of three children: Child, born in 2015; A.M. (Sister), born in 2018; and B.B. (Brother), born in 2019. All three children have different biological fathers. This appeal concerns only Child. Nevertheless, a complete understanding of the events giving rise to this case necessitates a recounting of the background as it relates to all three children.
¶3 In December 2016, prior to the birth of Sister and Brother, Child’s maternal grandmother (Grandmother) and maternal step-grandfather (Grandfather) noticed “large bruises on [Child’s] hips and thighs when they put him into the bath.” The following day, a caseworker from the Division of Child and Family Services (DCFS) met with Grandmother and Grandfather and examined Child. The caseworker observed the same bruising on Child that had been seen the day before, as well as a “small bruise in [Child’s] hairline above his forehead.” Child was transported to the hospital where a doctor observed the bruising and opined that “the bruising is concerning for abuse because of its location, linear component, the large size, and the lack of history explaining them.”
¶4 A few months later, in February 2017, Child was brought to the hospital for a breathing treatment for his asthma. While at the hospital, a doctor again observed “linear bruising on [Child’s] buttocks,” which she described as a “classic bruise found with spanking or inflicted trauma.” She explained the bruising was consistent with “excessive,” “repeated high-force spanking.”
¶5 During the time of these injuries, Child had been residing with Mother, Mother’s husband (Stepfather),[2] Grandmother, and Grandfather, and he had also attended daycare. Ultimately, no one was able to provide an explanation for the bruising. As a result, the juvenile court concluded that Child “has been abused by an unknown perpetrator” and adjudicated him dependent as to Mother. The court allowed Child to remain with Mother, contingent on her compliance with a safety plan and completion of court-ordered services. In December 2017, after Mother had received a year of services, the court terminated its jurisdiction and returned permanent custody and guardianship of Child to Mother.
¶6 The following month, Sister was born. Brother was born a year and a half later.
¶7 In August 2019, Brother suffered a series of abusive episodes. First, Mother said she “fell going down some stairs” while holding Brother. Thereafter, Brother’s father picked Brother up from a babysitter and became concerned that Brother was vomiting and appeared dehydrated. Brother was taken to the doctor for examination but was sent home with his father because the cause of the vomiting was “undetermined.” A few weeks later, Brother’s father again observed that Brother had been vomiting and appeared dehydrated. Brother was taken to the hospital for examination.
¶8 Upon examination, Brother’s head appeared “swollen.” A subsequent CT scan revealed a “large” brain bleed and a skeletal survey revealed “multiple healing rib fractures.” A doctor evaluated Brother the following day and expressed that Brother’s initial vomiting was “consistent with the brain injury” and a “sign” that the brain injury had occurred. She noted that although Brother’s head circumference had not been measured during his initial visit to the doctor, by the time of his second visit—which occurred approximately two weeks later—Brother “had a massive head.” She also opined that Brother’s injuries were caused by one of his caregivers and were “consistent with inflicted trauma and child abuse.” When questioned, both parents denied any involvement or knowledge of injuries to Brother. However, based on her conversation with both parents, the doctor had “much more concern” that Mother had caused Brother’s injuries.
¶9 Based on Brother’s injuries, the State filed a verified petition for custody and guardianship on behalf of all three children in August 2019. In the petition, the State asked the juvenile court to find that “[Brother] is severely abused by [Mother]” and that Child and Sister were “siblings at risk” and “neglected” as to Mother.
¶10 Over the next several months, the juvenile court transferred temporary custody of Sister and Brother to their respective fathers. Although the State requested that Child be removed from Mother’s custody, the court allowed Child to remain home with Mother on the condition that she comply with a safety plan. The safety plan required “line of sight supervision” by Grandmother and Grandfather for “any contact” between Mother and Child. But Mother did not abide by the safety plan, and in January 2020, after a DCFS caseworker observed a series of three events of non-compliance, the court transferred Child to DCFS’s custody, finding that Mother had “substantially endangered” Child’s welfare. Child was then placed in a foster care home.
¶11 In July 2020, Mother appeared before the juvenile court for adjudication of the State’s verified petition for custody.[3] After negotiations with Mother, the State agreed to amend the petition by removing the allegation that Mother had severely abused Brother, replacing it with an allegation that Brother suffered “severe physical abuse while in the care of [Mother].” Following this amendment, Mother proceeded with adjudication and entered a plea pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure by which she neither admitted nor denied the allegations but they were deemed admitted as a matter of law.
¶12 At the close of the hearing, the court found by clear and convincing evidence that Brother had suffered “severe physical abuse while in the care of [Mother].” Accordingly, the court found that “[Sister] and [Child] are siblings at risk” and were “neglected” as to Mother. In addition to adjudicating the children’s statuses, the court also substantiated the DCFS supported finding of severe physical abuse of Brother while in Mother’s care. The court ordered that Brother and Sister continue in the temporary custody of their respective fathers and that Child continue in the custody of DCFS.
¶13 Shortly thereafter, the juvenile court held a disposition hearing during which it resolved the custody petition as to Brother and Sister by granting custody and guardianship to their respective fathers and terminating jurisdiction. The court requested briefing on the issue of whether Mother should be provided reunification services for Child. Citing the allegations that Mother physically abused her children, even after receiving court-ordered services, as well as Child’s success in his current foster placement, the State and the guardian ad litem (GAL) argued that reunification services were not in Child’s best interest and accordingly requested that services not be provided. In September 2020, the court entered an order denying reunification services to Mother.[4] In April 2021, the court set Child’s primary permanency goal as adoption with his current foster parents.
¶14 The next month, the State filed a petition to terminate Mother’s parental rights to Child. The matter proceeded to an eight-day bench trial that took place in March and April 2022.
¶15 At trial, several therapists who had provided mental health services to Mother testified. All agreed that Mother suffered from trauma and that treatment was needed to address it. These therapists further testified that while Mother had attended some therapy sessions, Mother had either canceled, rescheduled, or failed to attend many of the sessions, and that although Mother had made some progress in therapy, she still had a long way to go to process her trauma.
¶16 Child’s therapist and foster parents testified regarding Child’s communications with them, as well as Child’s improvements since his removal from Mother’s custody. Child’s therapist explained that Child suffered from “separation anxiety disorder and unspecified trauma and stressor-related disorder” but that these conditions had greatly improved while Child was living with his foster parents. Likewise, Child’s foster mother testified that Child had grown emotionally while in her care. She detailed Child’s emotional bonds with the members of his foster family and recounted how it was “an easy decision” to pursue adopting Child. Moreover, Child’s therapist and foster mother both testified that Child had reported witnessing Mother “hit his sibling on the head” and that Child had also reported that Mother had hit him.
¶17 Following trial, the juvenile court issued an order terminating Mother’s parental rights to Child. The court found the testimony and evidence presented to be true, and therefore concluded that the State had proved by clear and convincing evidence three statutory grounds for termination. The court also found that it was in Child’s best interest and strictly necessary to terminate Mother’s parental rights. In reaching this conclusion, the court noted it had “considered the specific circumstances” of the case, including Child’s “wishes to remain in his current foster home” and the feasibility of an alternative to termination, such as a permanent guardianship.
ISSUES AND STANDARDS OF REVIEW
¶18 Mother now appeals the juvenile court’s order terminating her parental rights to Child, raising two issues for our review. First, Mother argues the court erred when it refused to order reunification services to her. We review the juvenile court’s interpretation of the law for correctness; however, “[t]he ultimate decision whether to provide or deny reunification services is a determination that we review for abuse of discretion.” In re Z.G., 2016 UT App 98, ¶ 4, 376 P.3d 1077.
¶19 Second, Mother argues the juvenile court erred when it concluded that termination of her parental rights was strictly necessary. “We review deferentially a lower court’s best-interest determination and will overturn it only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re J.J.W., 2022 UT App 116, ¶ 18, 520 P.3d 38 (quotation simplified).
ANALYSIS
I. Reunification Services
¶20 Mother first argues the juvenile court erred when it denied reunification services to her. Specifically, she contends the court misinterpreted the law and abused its discretion when it (1) failed to provide the “necessary findings for the presumption against reunification services to apply” and (2) improperly weighed the statutory factors a court must use when determining whether to order reunification services.
¶21 After a juvenile court adjudicates a child as abused, neglected, or dependent, the court must conduct a dispositional hearing. See Utah Code § 78A-6-311(1) (2020). At that hearing, if the court orders that the child continue in the custody of DCFS, the court shall (1) “establish a primary permanency plan” and (2) “determine whether, in view of the primary permanency plan, reunification services are appropriate.” Id. § 78A-6-312(2).
¶22 The decision to order reunification services is therefore discretionary with the juvenile court, and “parents have no constitutional right to receive these services.” In re A.K., 2015 UT App 39, ¶ 15, 344 P.3d 1153 (quotation simplified); see also In re N.R., 967 P.2d 951, 955–56 (Utah Ct. App. 1998); Utah Code § 78A6-312(20)(a) (2020). Accordingly, we will overturn the court’s decision only if it “either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re E.R., 2021 UT 36, ¶ 31, 496 P.3d 58 (quotation simplified).
¶23 In determining whether to order reunification services, the child’s “health, safety, and welfare shall be the court’s paramount concern.” Utah Code § 78A-6-312(5) (2020). And in making this determination, the juvenile court must consider a non-exclusive list of statutory factors, including the following:
· “failure of the parent to respond to previous services or comply with a previous child and family plan;”
· “the fact that the minor was abused while the parent was under the influence of drugs or alcohol;”
· “any history of violent behavior directed at the child or an immediate family member;”
· “whether a parent continues to live with an individual who abused the minor;”
· “any patterns of the parent’s behavior that have exposed the minor to repeated abuse;”
· “testimony by a competent professional that the parent’s behavior is unlikely to be successful; and”
· “whether the parent has expressed an interest in reunification with the minor.”
Id. § 78A-6-312(23). However, in cases involving “obvious sexual abuse, sexual exploitation, abandonment, severe abuse, or severeneglect,” the court has no duty to provide services. Id. § 78A-6-312(4). And several circumstances—if found by clear and convincing evidence—create “a presumption that reunification services should not be provided to a parent.” Id. § 78A-6-312(21).
¶24 Before the juvenile court, the State and the GAL argued that reunification services should not be offered to Mother. While only the State argued that the presumption against providing services should apply, both parties argued that the statutory factors weighed in favor of denying reunification services. Ultimately, the court denied services, finding they were not “appropriate” “given the fact that [Mother] had services before.”
¶25 Mother takes issue with the juvenile court’s determination on two grounds. As an initial matter, she asserts the court made “no findings in its reunification order, much less findings by clear and convincing evidence,” that would allow the court to apply the presumption against providing reunification services. But even if Mother’s assertion is correct and a presumption against reunification services does not apply in this case, Mother ignores that the court may still properly deny services regardless of whether a presumption exists.[5] And on the facts of this case, the court did not abuse its discretion in concluding that denying reunification services to Mother was appropriate.
¶26 Next, Mother asserts the juvenile court improperly weighed the statutory factors a court must consider when determining whether to provide reunification services. According to Mother, “four[6] of the seven factors weigh in favor of granting Mother reunification services” and “the remaining three factors do not tip the balance towards not offering reunification services.” We disagree.
¶27 First, Mother contends the juvenile court improperly determined she had failed to respond to reunification services in the past. See Utah Code § 78A-6-312(23)(a) (2020) (requiring courts to consider the “failure of the parent to respond to previous services or comply with a previous child and family plan” when determining whether to order reunification services). She claims that the dismissal of the first protective services case in December 2017 and the full restoration of custody of Child shows she responded to services and complied with her previous family plan. But in concluding that this factor weighed against Mother, the court considered Mother’s compliance in the first protective services case as well as her actions after that case was closed. The court explained,
I see that you’ve had services before on [Child]. We had a [protective supervision services] case. . . . You engage in services. We think things are good. We close the case.
Then not much longer . . . we have a severe abuse to [Child]’s younger sibling . . . . We’ve already done reunification services or services by DCFS for you on [Child] and here we are again with a severely abused child.
¶28 This explanation is sufficient to show that the court adequately considered whether Mother had failed to respond to previous reunification services. The court weighed Mother’s prior compliance against her actions following the completion of the original services. Because the court’s decision is not “against the clear weight of the evidence,” a “measure of deference is owing” to the court’s decision. In re E.R., 2021 UT 36, ¶ 32 (quotation simplified). Accordingly, we will not perform an “independent ‘reweighing’ of the evidence” but will instead “respect[]” the court’s decision. Id.
¶29 Second, Mother contends the juvenile court improperly weighed against her the factors concerning “any history of violent behavior directed at the child or an immediate family member” and “any patterns of the parent’s behavior that have exposed the minor to repeated abuse.” See Utah Code § 78A-6-312(23)(c), (e) (2020). Specifically, Mother asserts these factors do not weigh against her because she “was not adjudicated as abusing [Child] in 2017,” there are “no other allegations” that Child or Sister have been otherwise injured, and it has “never been established that Mother harmed [Brother].”
¶30 But Mother’s arguments on this point ignore substantial record evidence indicating that Mother did have a history of violent behavior directed at Child or Child’s immediate family members and that Mother’s behavior exposed Child to repeated abuse. While Mother is correct that she was not adjudicated as abusing Child in 2017, Child’s statements to his foster mother and therapist provide substantial evidence of Mother’s history of violent behavior toward Child and other immediate family members. Notably, the juvenile court found that during a therapy session, Child credibly reported to his therapist that he had witnessed Mother “hit his sibling on the head.” And at trial, Child’s foster mother testified that on multiple occasions, Child told her that Mother had hit him. Further, as the juvenile court found, Child, Brother, and Sister were all exposed to repeated abuse while in Mother’s care. Indeed, Child and Sister were found to be “siblings at risk” and “neglected” based on Mother’s rule 34(e) plea to the allegation that Brother suffered “severe physical abuse while in the care of [Mother].” This exposure occurred subsequent to the court’s 2017 determination that Child had been “abused by an unknown perpetrator” during a time when Mother “was the primary caregiver.”
¶31 The juvenile court did not abuse its discretion by deciding not to order reunification services for Mother. In reaching this decision, the court evaluated the evidence before it, and Mother has not demonstrated that the court’s decision was against the clear weight of the evidence.[7]
II. Strictly Necessary
¶32 Next, Mother argues the juvenile court erred in determining it was strictly necessary to terminate her parental rights to Child. In particular, Mother contends the court’s strictly necessary analysis was “improperly brief and conclusory.”
¶33 “Because the relationship between parent and child is constitutionally protected, a court may only terminate parental rights upon a finding that termination is strictly necessary to the best interest[] of the child.”[8] In re S.T., 2022 UT App 130, ¶ 25, 521 P.3d 887 (quotation simplified). “This analysis should be undertaken from the child’s point of view, not the parent’s.” In re B.T.B., 2020 UT 60, ¶ 63, 472 P.3d 827 (quotation simplified).
¶34 When evaluating whether termination is strictly necessary,
the juvenile court must address whether “the child can be equally protected and benefited by an option other than termination.” Id. ¶ 66. This inquiry cannot be satisfied merely by relying on the “categorical concern” that adoption offers the highest degree of permanency. In re J.A.L., 2022 UT 12, ¶ 25, 506 P.3d 606. Instead, the court must analyze the “particularized circumstances of the case” and “explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights.” In re S.T., 2022 UT App 130, ¶ 26 (quotation simplified). If another option exists where “the child can be equally protected and benefited,” then “termination is not strictly necessary” and “the court cannot order the parent’s rights terminated.” In re B.T.B., 2020 UT 60, ¶ 66.
¶35 In determining that it was strictly necessary to terminate Mother’s parental rights, the juvenile court explicitly stated that it “considered whether a placement with Permanent Guardianship would equally protect and benefit [Child].” Ultimately, the court decided against such an arrangement, finding it was not in Child’s best interest “as it does not provide the permanency that he seeks and wishes for.” Citing In re J.A.L., 2022 UT 12, 506 P.3d 606, Mother contends this conclusion was error because it is based on the categorical concern that a permanent guardianship is not as permanent as an adoption.[9] Mother’s argument is unavailing, however, because it selectively focuses on the court’s conclusion without considering it in the fuller context.
¶36 Here, the juvenile court was not presented with any feasible alternative option for a permanent guardianship placement, nor has Mother proposed one on appeal. At the time of trial, the only individuals that had previously been involved in the case were not feasible placement options. Indeed, Grandfather had failed to comply with the safety plan by allowing Mother to interact with Child outside his “line of sight,” which ultimately led to Child’s removal; Grandmother and Mother were estranged; and the State had initiated termination proceedings for Father.[10] Consequently, there was “no other option, short of termination and adoption, that would have otherwise been apparent to the juvenile court.” See In re D.G., 2022 UT App 128, ¶ 8 n.2, 522 P.3d 39, cert. denied, 527 P.3d 1106 (Utah 2023). And “where only one feasible custody option exists, the categorical concern that adoption is more stable than a permanent guardianship is not implicated.” In re S.T., 2022 UT App 130, ¶ 32 n.6 (quotation simplified).
¶37 In sum, given Child’s “strong emotional ties with [his] foster parents,” see id., and the lack of “any remotely feasible alternatives to termination and adoption,” see In re D.G., 2022 UT App 128, ¶ 8 n.2, it was entirely proper for the juvenile court to find that it was strictly necessary to terminate Mother’s parental rights.[11]
CONCLUSION
¶38 The juvenile court did not err in terminating Mother’s parental rights to Child. The court’s decision to deny Mother reunification services was not an abuse of discretion because the court’s decision is well supported by evidence in the record. And the court did not err when it found that termination of Mother’s parental rights was strictly necessary because there were no feasible alternative placement options other than termination and adoption. Affirmed.
[1] “We recite the facts in the light most favorable to the juvenile court findings.” In re S.T., 2022 UT App 130, n.2, 521 P.3d 887 (quotation simplified).
[2] Stepfather and Mother married one day after DCFS made the initial home visit to observe Child. Prior to the marriage, Stepfather spent “multiple nights in a row” in the home with Mother and Child.
[3] Although the juvenile court adjudicated Child’s status as to Mother in July 2020, the written order was not entered until August 2021—approximately one year after the adjudication hearing. Mother appealed the written adjudication order, arguing that she was deprived of due process by the court’s delay in entering the order, but this court affirmed.
[4] At the time reunification services for Mother were denied, an Interstate Compact on the Placement of Children (ICPC) request form had been sent to Child’s biological father (Father), who resides in South Carolina. Following denial of services for Mother, the juvenile court changed Child’s primary permanency goal from reunification with Mother to reunification with Father with a concurrent goal of adoption. During a subsequent permanency hearing, the court terminated reunification services to Father due to his failure to comply with any of the three ICPC requests initiated by DCFS and changed Child’s primary permanency goal to adoption with his current foster parents. Father’s parental rights to Child were then terminated in June 2022.
[5] Moreover, Mother’s position on this point seems to ignore the juvenile court’s own explanation of its reasoning to deny reunification services. At the disposition hearing, the court explicitly agreed with Mother’s counsel that Child did not qualify as a “severely abused child,” which would create a presumption against providing services. As a result, the court stated, “I don’t really attach the presumption that [Mother] should not receive reunification services. I’m kind of looking towards the presumption that she should . . . .”
[6] These factors are (1) “the fact that the minor was abused while the parent was under the influence of drugs or alcohol,” (2) “whether a parent continues to live with an individual who abused the minor,” (3) “testimony by a competent professional that the parent’s behavior is unlikely to be successful,” and (4) “whether the parent has expressed an interest in reunification with the minor.” See Utah Code § 78A-6-312(23)(b), (d), (f), (g) (2020).
[7] Mother challenges the adequacy of the juvenile court’s findings in support of its decision not to order reunification services by asserting that “the juvenile court made no findings in its reunification order.” But Mother’s assertion is overbroad; the juvenile court did make explicit factual findings regarding a number of the facts we have noted as supportive of its determination not to order services. And, while we acknowledge that the court did not explicitly disclose all the analytic steps it took in deciding not to provide services, this is a case where the court’s “unstated findings can be implied” because “it is reasonable to assume that the [juvenile] court actually considered the controverted evidence and necessarily made . . . finding[s] to resolve the controversy, but simply failed to record the factual determination[s] made.” Fish v. Fish, 2016 UT App 125, ¶ 22, 379 P.3d 882 (quotation simplified). It is not a case “where there is a matrix of possible factual findings and we cannot ascertain the [juvenile] court’s actual findings.” Hall v. Hall, 858 P.2d 1018, 1025–26 (Utah Ct. App. 1993) (quotation simplified). The evidence and arguments presented below, coupled with the juvenile court’s decision not to order services, necessarily imply that the juvenile court found the factors in Utah Code subsections 78A-6312(23)(c) and (e) weigh against the provision of services based on the findings and evidence we have outlined above. Although on this record the unstated steps of the juvenile court’s analysis can be implied, we caution courts to ensure that the analytic steps taken in support of such fact-sensitive decisions are fully articulated in an oral or written ruling, order, or judgment. Detailed findings aid appellate review and reduce the likelihood of reversal.
[8] “To terminate a parent’s rights, Utah law requires that both elements of a two-part test are satisfied. First, the court must find that one or more of the statutory grounds for termination are present. Second, the court must find that termination of the parent’s rights is in the best interest[] of the child.” In re S.T., 2022 UT App 130, ¶ 25 n.5, 521 P.3d 887 (quotation simplified). Here, Mother acknowledges the juvenile court properly found at least one ground to terminate her parental rights. Accordingly, our focus is limited to only the court’s best interest determination.
[9] In a related vein, Mother also asserts the juvenile court’s decision was conclusory because the court focused only on negative testimony and overlooked the positive testimony of several of Mother’s therapists. But this position ignores that “Lilt is the role of the juvenile court, not this court, to assess the weight and credibility of expert witnesses and to choose among their testimonies.” In re G.V., 916 P.2d 918, 920 (Utah Ct. App. 1996) (per curiam). As such, we decline to reweigh the evidence.
[10] The lack of alternative options was reiterated through the trial testimony of Child’s great-uncle (Uncle). Uncle testified that Mother and Grandfather were estranged, largely due to Grandfather’s role in having Child removed from Mother’s custody, and that Mother and Grandmother were estranged because Grandmother is “a very toxic individual” and “abusive toward” Mother. Uncle also explained that although he wanted to be “involved” with Child, he was not in a position for Child to be placed with him. Lastly, Uncle noted that his brother had applied for Child to be placed with him, but his application was not approved.
[11] We again caution juvenile courts to “adequately disclose[]”— either in an oral or written ruling—all the “analytic steps” they take when they conduct a best interest analysis. Keiter v. Keiter, 2010 UT App 169, ¶ 21, 235 P.3d 782 (describing a challenge to the adequacy of findings as raising the issue of whether “the findings as a whole adequately disclosed the analytic steps taken by the trial court”). Here, however, even assuming that the court’s articulation of its strictly necessary analysis could have or even should have been more robust, without any feasible alternatives to termination and adoption, Mother cannot show that the court’s finding on this point was against the clear weight of the evidence. See generally In re J.J.W., 2022 UT App 116, ¶ 19, 520 P.3d 38 (“[I]n some instances (e.g., where the existence of a particular option would not be readily apparent to the court), a parent may need to expressly ask a [juvenile] court to consider a specific non-termination option in order to properly preserve the right to argue, on appeal, that the court did not adequately consider that option.”). But in cases where a feasible alternative placement option does exist, a court assessing strict necessity must explain, “on the record,” why adoption and termination of the parent’s rights would better further the child’s best interest than the alternative option. See In re B.T.B., 2020 UT 60, ¶ 74, 472 P.3d 827.
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES JOHN D. LUTHY and AMY J. OLIVER concurred.
HARRIS, Judge:
¶1 This case arises from a protracted and multi-faceted dispute among siblings and stepsiblings regarding the use and distribution of the assets in a trust created by Dean Harding. After four years of litigation and a six-day bench trial, the trial court determined that Rickie Taylor, acting as trustee of his deceased stepfather’s trust, engaged in numerous acts of self-dealing and other breaches of fiduciary duties resulting in more than $5 million in damages. After trial, the court also determined—sua sponte—that Margene Harding (Taylor’s mother and the lifetime beneficiary of the trust) had been vicariously liable for Taylor’s actions, and therefore held Margene’s estate (the Estate) jointly and severally responsible for the damages Taylor caused. The court then entered judgment against Taylor and the Estate jointly and severally, and in favor of petitioner Robert Harding, in amounts approximating $5 million. Taylor and the Estate now each separately appeal.
¶2 In his appeal, Taylor raises several challenges. First, he takes issue with the court’s order denying his motion to amend his answer to add certain additional affirmative defenses. Second, he challenges the court’s summary judgment order in which the court determined, as a matter of law, that Taylor made unlawful distributions from the trust. Next, Taylor appeals the court’s orders excluding his expert witnesses. Finally, Taylor makes several complaints about the court’s judgment against him, including the amount of damages ordered. As discussed below, we reject most of Taylor’s complaints, although we find merit in one aspect of his challenge to the court’s damages award.
¶3 In its appeal, the Estate also raises several issues for our consideration. First, it challenges the court’s sua sponte determination that it should be jointly and severally liable for the damages caused by Taylor’s wrongdoing. Second, the Estate appeals the court’s decision regarding the appropriate interest rate to be applied to a debt two of Dean’s children owed the trust. Third, it raises several issues with the form of the judgment. Finally, it takes issue with the court’s decision not to award it attorney fees. We find merit in many of the issues the Estate raises.
¶4 For the reasons discussed herein, we affirm some of the court’s rulings, but detect error in others, and therefore vacate the court’s judgment and remand for further proceedings.
BACKGROUND
The Trust and Dean’s Death
¶5 During his lifetime, Dean Harding was a successful businessman who owned and operated a commercial heating, ventilation, and air conditioning company. With his first wife, Dean[1] had three children: Robert G. Harding, Jill H. Kendall, and Jeana Vuksinick. In the mid-1980s, after Dean’s first wife had passed away, Dean married Margene Harding. Margene had several children from previous marriages, including Taylor. After Dean married Margene, Taylor became Dean’s stepson and the stepsibling of Robert, Jill, and Jeana.
¶6 In 1994, in an effort to manage his assets and plan his estate, Dean created the A. Dean Harding Marital and Family Trust (Trust). The beneficiaries of the Trust were Dean’s “surviving spouse”—Margene—and Dean’s three children. Under the terms of the Trust, upon Dean’s death, and if Dean’s “spouse survives” him, “all property subject to [the Trust] shall be divided into two parts known as the marital share and the family share.” Dean’s surviving spouse was to have the use of certain Trust assets during her lifetime, and then after her death the Trust assets were to be distributed to Dean’s three children “in equal shares.” Margene’s own children—including Taylor—were not direct beneficiaries of the Trust.
¶7 Any income earned by any part of the Trust was to be paid to Dean’s spouse, and any excess “undistributed” income from the marital share was, upon the spouse’s death, to pass to the “spouse’s estate.” But aside from such income, “all other properties of” the Trust, including all unused principal, were to pass to Dean’s three children upon the spouse’s death.
¶8 With regard to Trust principal, the Trust documents did not authorize any distribution of principal out of the marital share; those documents state that only the surviving spouse was empowered to receive—but not empowered “to appoint”—“any part of” the marital share’s property, but that even she was empowered to receive “income only.” With regard to the principal assets of the family share, however, the situation was different: to the extent that the Trust’s income was not sufficient to meet the surviving spouse’s ongoing “support and maintenance” needs, as viewed through the lens of “her accustomed manner of living,” the trustee was authorized, in his “discretion,” to use the family share’s principal to meet those needs. In making the determination about whether to dip into family share principal to meet the spouse’s needs, the trustee was to consider any “income or other resources” that the spouse had at her disposal, and was to “be mindful of the fact that [Dean’s] primary concern in establishing the [T]rust is [Dean’s] spouse’s welfare and that the interests of others in the [T]rust are to be subordinate to [Dean’s] spouse.”
¶9 The Trust also allowed for “the primary residence owned by” Dean at the time of his death to be “allocated to” the marital share. In that event, Dean’s surviving spouse would be allowed to “reside personally upon the said premises” during her lifetime but would be responsible for paying property taxes, maintaining “adequate insurance,” and “perform[ing] such repairs and maintenance as may be required to maintain the property in the condition it was maintained prior to [Dean’s] death.”
¶10 Dean’s will—created contemporaneously with the Trust— contained a “spendthrift clause” that all parties now agree was incorporated into the Trust. This provision mandated, in relevant part, that no “interest of any beneficiary” in the Trust “be liable . . . for the debts, contracts, liabilities, engagements, obligations or torts of such beneficiary.”
¶11 Dean passed away in January 2004. When he created the Trust, Dean had named himself as trustee, and had named an accountant (Accountant) as successor trustee. Upon Dean’s death, Accountant became the trustee of the Trust, and he estimated that the Trust contained a total of about $5.8 million in assets. Accountant further allocated some $1.5 million to the family share and about $4.3 million to the marital share. Accountant also allowed Margene to continue to reside in Dean’s residence.
¶12 When Dean died, he was the owner of individual retirement accounts (IRAs) that were valued at approximately $1.5 million. These IRAs were among the assets that Accountant allocated to the marital share of the Trust. Shortly after Dean’s death, Accountant signed certain forms clarifying that the Trust was the primary beneficiary of the IRAs. No such forms executed before Dean’s death are part of the record in this case. But even before Dean’s death, the account statements from the IRAs clearly referenced the Trust as the primary beneficiary.
The Settlement Agreement and the Note
¶13 Soon after Dean’s death, various disputes arose involving the Trust’s beneficiaries, and in June 2004, due to “growing contention,” Accountant resigned as trustee. Margene then appointed her son—Taylor—as the new trustee of the Trust. Later, Margene also gave Taylor power of attorney over her own personal finances, which power Taylor utilized to, among other things, write checks (or otherwise authorize withdrawals) from her personal bank accounts.
¶14 Robert, Jill, and Jeana questioned Taylor’s status as successor trustee, and Taylor took issue with an undocumented $1 million loan (the Loan) that two companies controlled by Robert and Jill had taken from the Trust prior to Dean’s death. Both sides filed competing petitions in court raising these and other disputes, and eventually agreed to resolve their differences in a settlement agreement (the Settlement Agreement). Among other things, the Settlement Agreement provided that Taylor would be allowed to continue as trustee of the Trust, but he would be required to “provide a full accounting . . . of the Trust assets and affairs at least annually,” provide “quarterly trust brokerage statements,” and “communicate with” Robert, Jill, and Jeana through their designated liaison—Jeana—“at least twice per month.” Ultimately, in the ensuing years, Jeana met with Taylor about four times per year to obtain information about the Trust, and neither Jeana nor her siblings, prior to 2015, ever asked for additional information from Taylor.
¶15 With regard to the Loan, Robert—both personally and on behalf of the companies—and Jill agreed to “execute a promissory note memorializing the undocumented Loan,” and agreed to pay “[a]ccrued interest” at a “variable” rate equivalent to “the margin loan rate assessed by S[a]lomon Smith Barney on Brokerage Account No. 298-02528-13 303 . . . as may fluctuate from time to time until paid in full.” The promissory note they later signed (the Note) also stated that interest payments were to be made quarterly, and that if the Note were to be in “default” that “interest shall accrue at one percent (1%) above” the variable rate specified. Interest paid on the Note was to be considered income from the marital share of the Trust and—under the terms of the Trust—paid to Margene or, if undistributed at her death, to the Estate. Robert and Jill signed the Note as personal guarantors, but each did so “only for one-half (1/2) of the remaining balance plus interest, and only to the extent of [their] inheritance.”
¶16 The Settlement Agreement also had an attorney fees clause, which provided that if any party to the agreement were “required to retain counsel to enforce any of the provisions of this Agreement,” the party “determined to be in substantial default in any subsequent action shall pay the prevailing [party] its costs and reasonable attorney fees.” The Note had such a clause too, pursuant to which Robert and Jill “promise[d] to pay all reasonable costs and expenses of collection of any amount due under this Note including reasonable attorney’s fees.”
A Decade of Taylor’s Trust Administration
¶17 Following execution of the Settlement Agreement, Taylor served as trustee of the Trust for the next thirteen years (until he was removed by court order in January 2018). During that time, he took numerous actions that were later questioned by one or more of Dean’s children.
¶18 Upon assuming the role of trustee, Taylor made little effort to familiarize himself with much of what his duties entailed.[2] An attorney hired by the Trust provided Taylor with a document setting forth some of his duties as trustee, but he read only the pages the attorney said were important, and he was later unable to recollect any of the content of the document. Taylor also later stated that he was unaware of what fiduciary duties are. At one point, when asked whether he had read the Trust documents before beginning to authorize distributions of Trust assets, Taylor stated that he “left that . . . to the attorneys and the accountants.”
¶19 Throughout his tenure as trustee, Taylor was largely unaware whether the distributions he authorized came from the marital or family share of the Trust. He later testified that he was unaware of any written guidelines indicating when it was appropriate to distribute money from the family share. As noted above, the Trust allowed Taylor to distribute family share principal only when the trust income and Margene’s other assets were insufficient to meet Margene’s accustomed needs, but Taylor never analyzed Margene’s needs to determine whether principal distributions were appropriate. Throughout the thirteen years he served as trustee, Taylor never tracked the distributions of principal. In addition, with regard to some of the distributions Taylor made from the Trust—including several five-figure payments—Taylor was later unable to explain the destination or purpose of the payments.
¶20 Taylor was also unaware of whether the required minimum distributions (RMDs) he made from the IRAs were considered income and therefore payable to Margene, or were considered principal and therefore subject to the Trust’s restrictions on distributions of principal. During his time as trustee, Taylor simply paid 100% of the RMDs from the IRAs to Margene, as if they were entirely composed of income. He later learned, however, that pursuant to the provisions of Utah’s Uniform Principal and Income Act (UPIA), only a small portion of the RMDs could properly be classified as income. See Utah Code § 22-3-409.[3]
¶21 During his years as trustee, Taylor used his power of attorney over Margene’s personal finances to make transfers of money from Margene’s accounts (which were largely funded by Trust assets) to accounts controlled by Taylor, and Taylor was unable to explain the reason for many of these transfers. Examples of these transactions include payment for third-row Utah Jazz season tickets in the amount of $74,945; a $123,470.59 payment to a business Taylor owned; purchase of an Arabian horse; a $93,600 payment to Taylor’s sister; and $62,700 in “[f]unds directed to Taylor personally.” Some of these transfers he characterized as “gifts” from Margene to him or his siblings.
¶22 Taylor also failed to properly maintain vehicles owned by the Trust. A motorhome owned by the Trust was used by Taylor’s siblings until, while being used by Taylor’s nephew, it was stolen. A truck and “another car,” also owned by the Trust, were gifted by Margene to Taylor’s sister. And another Trust vehicle was totaled by Taylor’s son.
¶23 While Taylor was acting as trustee, Robert’s ex-wife served a writ of garnishment on the Trust regarding money Robert allegedly owed her in their divorce case. Robert claims to have first become aware of his ex-wife’s actions when a Trust attorney informed him that his ex-wife had served the writ on the Trust. After receiving notice, Robert claims that he hired an expert “to analyze the propriety of the amount of [her] claim” and that he obtained legal counsel to potentially dispute or negotiate the money owed. However, under the threat of the writ of garnishment, Taylor authorized payment from the Trust of some $250,000 to Robert’s ex-wife. Moreover, Robert’s ex-wife had previously obtained approximately $35,000 from the proceeds of a short sale of Robert’s home. Robert took issue with Taylor’s authorization of the payment out of the Trust to his ex-wife, believing that the payment resulted in his ex-wife receiving at least $35,000 more than she was entitled to and that it “undercut any negotiation he had with [her] regarding the [total] amount owed.” However, Robert’s ex-wife did not make any further claims against Robert for the money owed, and Robert later testified that the Trust’s “distributions of funds to [his ex-wife] did extinguish his debt to her.”
¶24 In the years after the Loan was memorialized in the Note as part of the Settlement Agreement, Robert and Jill (and their companies) made only two payments on the $1 million Note. Those payments totaled about $58,000 and appeared to include interest calculated at a 2% rate. But no other payments were made, and the two companies involved eventually went out of business. No party gave the Trust any notice of the companies’ dissolution, so the Trust, perhaps understandably, never made a claim on any of the companies’ assets. A Trust attorney did send a notice of default in 2006. But the Trust never took any other steps to collect on the Note from the companies (prior to dissolution) or from Robert and Jill (as guarantors), and the Note (both principal and interest) remained unpaid until after Margene’s death.
Margene’s Death and the Ensuing Distributions
¶25 Margene passed away in February 2015, and Taylor was appointed personal representative of her estate. The terms of the Settlement Agreement required Taylor to make final distributions of Trust assets within sixty days of Margene’s death, but he did not do so within that time period. About six months after Margene’s death, Taylor made a partial distribution of $775,000 (before deductions) to each of the three beneficiaries. Robert didn’t actually receive any money, though, because Taylor deducted $524,279.25 from both Robert’s and Jill’s distributions to account for the unpaid principal (but not the unpaid interest) on the Loan, and deducted an additional $250,720.75 from Robert’s tally because of the payment made by the Trust, on Robert’s behalf, to Robert’s ex-wife. Jill received a payment of $250,720.75, and Jeana received the full $775,000. Later, in 2016, Taylor was ordered to transfer nearly all the remaining Trust assets to Dean’s three children, and he did so by making a distribution to each of them in the approximate amount of $608,000.
The Lawsuit and the Two Competing Petitions
¶26 In September 2015, Robert filed a petition seeking “full distribution” from the Trust, a “full accounting” of Trust expenditures, and “damages resulting from breach of trust.” The petition named the Trust, Taylor, the Estate, Jill, Jeana, and Robert’s ex-wife as respondents. As to Taylor, Robert alleged that Taylor had unlawfully distributed principal from the Trust, and that at least some of these unlawful distributions had been made “on Margene’s behalf.” As to his ex-wife, Robert alleged that the payment made to her from the Trust violated the spendthrift provision and “interfered with and frustrated [his] settlement negotiations with” her.[4] And as to the Estate, Robert’s only allegation concerned the marital home; he alleged that “Margene failed to repair and maintain the [home] in the condition it was maintained prior to Dean’s death.” He made no other substantive allegations against the Estate, and did not assert that Margene or the Estate was or should be liable for Taylor’s actions.
¶27 In his prayer for relief at the end of his petition, Robert requested a full accounting, and asked that the court order Taylor to make distributions to him and his two siblings as required by that accounting. He also asked the court to order Taylor to “take immediate action to recover the funds distributed to” Robert’s ex-wife. He requested damages against “the Trust and/or Trustee” resulting from any unlawful distributions Taylor had made from the Trust. Against the Estate, he sought only damages “for the loss in value of” the marital home, as well as “a return of principal wrongfully distributed from the Trust.” Although Jill and Jeana were listed as respondents, the petition did not set forth any claims against or requests for relief from them; indeed, as noted, the petition asked the court to order distributions to all three of Dean’s children.
¶28 The Estate filed a counter-petition against the Trust, Robert, and Jill. The petition sought an order compelling Robert and Jill to pay the interest owed on the Loan to the Estate, pointing out that interest is classified as income from the marital share of the Trust and is, under the terms of the Trust, payable to the Estate (whose heirs include Taylor) upon Margene’s death. The Estate’s petition suggested that the total amount of interest owed, at the time the petition was filed, was more than $630,000. With regard to the Trust, the Estate simply asked that “any amounts still owing” to the Estate from the Trust be paid. And in this filing, the Estate included an “objection to” Robert’s petition, arguing that Robert’s prayer for relief addressing the Estate should be stricken “when no such allegations are made in the petition itself.”
¶29 Taylor filed an “objection and response” to Robert’s petition, in which he admitted certain of Robert’s allegations and denied the rest. He set forth no affirmative defenses of his own, although he did “join[]” in the defenses set forth in the response filed by Robert’s ex-wife. In her response, Robert’s ex-wife set forth nine separate affirmative defenses, including the allegation that Robert’s “claims are barred by the statute of limitations for objecting to and/or opposing the” writ of garnishment, “and by the doctrine of laches.”
Pretrial Motions
¶30 Following the filing of the two competing petitions and the responses, the litigation entered the discovery phase. The trial court issued scheduling orders setting certain deadlines, and the parties exchanged written discovery, took several depositions, and attempted mediation.
¶31 About nine weeks prior to the end of the fact discovery period, Taylor filed a motion asking for leave to amend his response to add several specific affirmative defenses, including a claim that he “had a good faith basis for his actions” and a claim that Robert’s petition was “barred by applicable statutes of limitation, including, but not limited to” Utah Code sections 78B2-305 and -307. In the memoranda supporting his motion, Taylor never asserted that probate petitions aren’t pleadings subject to the usual rules of amendment. Robert opposed Taylor’s motion, arguing that Taylor provided no justification for the delay, that waiting to amend was a “dilatory move” made at least in part to “evade [Robert’s] discovery requests,” and that Robert would be prejudiced because of the little time left in the fact discovery period. After full briefing, the court held a hearing to consider Taylor’s motion, and at the conclusion of the arguments denied the motion from the bench. The court’s minute entry recites that the motion was denied “[f]or reasons as stated” on the record. But the record submitted to us does not include a transcript of this hearing. After the hearing, the court signed an order memorializing the ruling, therein briefly stating that it had denied Taylor’s motion because “adequate justification has not been provided” and because it considered Taylor’s delay “unreasonable.” Taylor had attempted to justify the amendment, at least in part, by asserting that he had intended his incorporation of Robert’s ex-wife’s affirmative defenses to include “all applicable statutes of limitations and laches defenses.” The court rejected this justification as “faulty,” determining that Robert’s ex-wife’s defense was “limited in scope to one specific issue,”
namely, the writ of garnishment, and that Taylor’s incorporation of that defense did not serve to indicate to Robert that Taylor was asserting any different time-based defense.
¶32 Later, Robert moved for partial summary judgment on the narrow question of whether Taylor had violated the “terms of the Trust . . . by invading the principal of the” Trust’s marital share, and had thereby breached his fiduciary duties. In particular, Robert asserted that Taylor had made more than $2.2 million worth of “improper distributions” of principal out of the Trust’s marital share—some $1 million of which involved distributions from the IRAs, and some $1.2 million of which involved distributions from other sources—all of which were contrary to the Trust documents’ command that no such distributions were authorized, and that these actions constituted breach of fiduciary duty. Robert included specific details of the alleged distributions and supported his allegations with bank statements.
¶33 In response, Taylor did not deny making distributions of principal from the marital share, and he in fact admitted to making “over distributions” of principal that “may have been improper,” but argued that the distributions were nevertheless “valid” for various reasons. For instance, he argued that the distributions were valid, at least to some extent, because he was authorized to distribute principal from the family share at his discretion. And with regard to the IRA distributions, Taylor asserted that he relied on the advice of legal and accounting professionals, and that his actions were therefore reasonable, and he asserted that it was unclear whether the Trust was even the proper owner of the IRAs. Taylor also disputed the amount of the distributions he had made from principal. In reply, Robert pointed out, among other things, that Taylor had not included an “advice-of-counsel” affirmative defense in his responsive pleading, and that the court had already rejected his attempt to add additional affirmative defenses, including specifically a defense that he “had a good faith basis for his actions.” Robert thus asserted that Taylor had waived his opportunity to plead an advice-of-counsel defense.
¶34 After full briefing on the motion, the court held oral argument, and in an oral ruling at the conclusion of the hearing granted Robert’s motion, at least in part. The record submitted to us does not include a transcript of this hearing, so the details and scope of the oral ruling are unknown to us. In an order entered about a month later that was intended to memorialize the oral ruling, the court first noted that the Trust authorized Margene to receive “income only” from the marital share, and then concluded that, “[b]ased on . . . Taylor’s admissions and the evidence before the court, . . . Taylor made unlawful distributions of principal from the [marital share] to Margene.” But that was as far as the court went; it recognized that genuine issues of material fact remained regarding, among other things, the amount and calculation of the unlawful distributions, as well as whether Robert and Jill owed money to the Trust or to the Estate related to the Note. The court reserved all of those issues for trial. And at least in its written ruling, the court made no mention of Taylor’s claimed advice-of-counsel defense.
¶35 The court’s order also implicitly rejected Taylor’s argument that the Trust was not the owner of the IRAs, stating that the marital share of the Trust “included several [IRAs]” and that “[t]he required minimum distributions of the IRAs were paid to” the marital share and transferred to Margene. The court shed additional light on this matter in another order issued the same day resolving a separate motion that Robert had filed; in that other order, the court determined that the Estate “is not the owner or beneficiary of the IRAs.” This decision was driven by the court’s determination that the Estate had “fail[ed] to provide any admissible evidence to create a genuine issue of fact” with regard to Robert’s assertion—amply supported by the record—“that the IRAs were properly transferred to and owned by the . . . Trust after Dean’s death.”
¶36 Around the same time, Robert also moved for summary judgment regarding the payment Taylor had authorized to Robert’s ex-wife. After briefing and argument, the court held that the payment violated the spendthrift provision as a matter of law, but that “[t]here are disputed facts regarding,” among other things, “the amount of damages, if any,” and concluded that those issues were reserved for trial. The court, however, noted that “equity prevents” giving Robert a “windfall of $250,000,” and that factual questions remained regarding whether Robert “suffered any interest losses that he . . . may have been entitled to if . . . the money had been kept longer or there had been a [lower amount that his ex-wife] would’ve accepted.”
¶37 There were also pretrial skirmishes regarding expert witnesses. When the time came for Taylor to designate experts, he designated three: a legal expert and two accounting experts. Robert elected to receive written reports from the accounting experts, but opted to take the deposition of Taylor’s proffered legal expert. Taylor did not ever submit expert reports from his two proffered accounting experts. On Robert’s motion, and because Taylor failed to submit reports as required, the court later excluded Taylor’s accounting experts from testifying in Taylor’s case-in-chief, although the court did allow one of them to testify at trial as a rebuttal witness.
¶38 Robert also asked the court to exclude the proffered testimony of Taylor’s legal expert, arguing that the court “should not allow a local attorney to tell [it] how to interpret” the Trust documents. The court granted this motion in an oral ruling made at a hearing; it later memorialized that ruling in a brief written order stating simply that, “[a]fter argument by counsel and review of the briefings filed by the parties, the Court grants [Robert’s] Motion in Limine excluding all legal expert testimony at trial.” The record submitted to us does not contain a transcript of the hearing at which the court rendered its oral ruling, nor does it contain any additional elucidation of the court’s reasoning in granting Robert’s motion to exclude Taylor’s legal expert.
¶39 While Jill and Jeana each hired counsel and participated in the litigation, neither Jill nor Jeana filed their own petitions or made any claims of their own against Taylor; indeed, as noted, they were included as respondents in Robert’s initial petition. But as the litigation went on, Jill and Jeana began to align themselves more and more with Robert; in its post-trial findings, the court observed that, by the time of trial, Jill’s and Jeana’s “interests were eventually aligned with Robert’s.” About two years into the litigation, and recognizing some uncertainty about whether Jill and Jeana were stating claims, Taylor filed a motion attempting to clarify matters and limit Robert’s damages “to his one-third beneficial interest or share of the Trust.” Robert, Jill, and Jeana all separately opposed this motion. In his opposition, Robert stated that, even though he was the only one of Dean’s children who had filed a petition, he was seeking damages “for the benefit of all beneficiaries—[Robert], Jill and Jeana.” After full briefing, the court held argument to consider Taylor’s motion, and denied it in an oral ruling at the conclusion of the hearing. The record submitted to us does not include a transcript of this hearing. A few weeks later, the court memorialized its oral ruling in a written order, concluding that Robert “has standing to assert claims on behalf of all of the Trust beneficiaries” and that “[a]ny damages that are ultimately found against Taylor are not limited to [Robert’s] one-third beneficial interest.”
¶40 As the time for trial grew near, Robert filed a motion to bifurcate, asking the court to separate the trial of the Estate’s claims—chiefly, for interest on the Loan—from the trial of Robert’s claims for damages relating to improper distributions of Trust principal. In this motion, Robert suggested that the claims stated in his petition against the Estate—regarding the marital home—were “likely resolved” in light of a recent ruling the court had apparently made regarding the costs to repair the home.[5] Thus, Robert argued, “the only issue remaining” with regard to his petition “is the amount of damages to be awarded against Taylor as the Trustee of the Trust,” and therefore in Robert’s view the Estate “should not be involved in” the trial of the claims set forth in his petition. The court denied the motion, noting that the case was scheduled to be tried to the bench and stating that “the court is capable of keeping separate the testimony of the various witnesses” regarding the Estate’s petition and Robert’s petition.
¶41 Also prior to trial, on Robert’s motion, the court issued an order removing Taylor as trustee of the Trust. In that same order, the court replaced Taylor with two co-trustees: Robert and Jill.
The Trial
¶42 The issues remaining in the case were tried to the bench in March and April 2019. During the course of the trial, the court heard fact testimony from Robert, Jill, Jeana, and Robert’s current wife, as well as from Taylor. The court also heard testimony from financial experts, one retained by Robert and one by the Estate, as well as rebuttal testimony from one retained by Taylor. In addition, the court heard testimony from an accountant and an attorney who had provided advice to the Trust during Taylor’s tenure as trustee. After the completion of the parties’ four-day evidentiary presentation, the court scheduled time for the parties to present extensive closing arguments, which took place over another two days the following week. At one point during closing arguments, Jeana’s attorney made an oral motion “to conform the pleadings to the evidence that [Jeana] is a one-third beneficiary of the [T]rust, who essentially has been acting as a Petitioner in this case.” Over the Estate’s objection, the court ruled that Jeana “is a Petitioner,” even though the court was not allowing her to “assert any affirmative claims,” and that Jeana had “a third interest, as a beneficiary,” in the case. After closing arguments, the court then took the matter under advisement, and asked the parties to submit proposed findings of fact and conclusions of law that were stipulated “on as many points as possible.”
Post-Trial Developments
¶43 Perhaps predictably, the parties were unable to reach agreement on any matter in the findings and conclusions, and by mid-May they had each submitted individual proposed findings instead. In Robert’s set of suggested findings, he did not propose any finding or conclusion that the Estate was (or should be) vicariously liable for Taylor’s actions, although Robert did propose that the court “impose[] a constructive trust on the assets of the Estate” and order that “all remaining [Estate] assets payable or distributable to Taylor be used to pay the outstanding judgments in this case.” The court reviewed the parties’ respective findings and began work on its own written ruling.
¶44 For the next six months, the court held periodic status hearings approximately every sixty days—in July, September, and November—sometimes asking for “clarification” or additional information on issues, and on one occasion stating simply that it had called the hearing to let the parties know that it “need[ed] a little additional time to finish” the ruling and offering its view that “this hearing will technically give [the court] another 60 days.” In the November 2019 status hearing, the court indicated that it was nearly finished with its written ruling, and actually announced portions of that ruling during the hearing. In the course of making those announcements, the court declared— sua sponte—that it would be “finding that the [E]state is liable,” along with Taylor, for Taylor’s actions; the court explained that Taylor “controlled the expenditures of Margene” and “had power of attorney” and “represented both” the Estate and the Trust, and that the Estate “benefited from [Taylor’s] misuse of” Trust funds.
The court indicated that it was “struggling a little bit on what the proper law is to divide up the liability between” the Estate and Taylor, and it asked the parties for supplemental briefing on that question and certain other issues.
The Court’s Initial Written Ruling
¶45 A couple of weeks later, while the supplemental briefing was still in process, the court issued a lengthy written ruling containing both findings of fact and conclusions of law. In that ruling, the court found, among other things, that Taylor did not trouble himself to “read the Trust document prior to making distributions,” that he “was ignorant and at times willfully blind of the duties he assumed as a fiduciary under Utah law,” “that he did not make reasonable efforts to inform himself of those duties,” and that he had, in various ways, breached those duties as trustee of the Trust. In particular, the court determined that Taylor had breached several different fiduciary duties, including his duty to administer the Trust in good faith and as a prudent person would, his duty of loyalty, and his duty to enforce and defend claims against the Trust. The court also found that Taylor had breached a duty to maintain the marital home, explaining that, even though the Trust documents placed that duty on Margene and not on the trustee, “Taylor as trustee can be imputed a duty to maintain the marital home for the welfare of Margene.” And the court offered its view that, at least in some respects, Taylor’s “testimony lacked any indicia of credibility.”
¶46 With regard to Taylor’s trust administration, the court found that Taylor’s conduct not only “fell short of the required standard” but “crossed over into ‘reckless indifference’ towards Trust assets, or to acts of bad faith.” In the court’s view, Taylor “acted as trustee in a dilatory, haphazard, uncaring and slipshod fashion,” at times “making use of the Trust as if it were his own personal piggy-bank.” The court found that Taylor “showed a blatant lack of care about tracking monies coming out of the Trust,” and that “Taylor frequently invaded Trust corpus principal . . . with no consideration of the limiting terms of the [T]rust agreement.” The court found “that Taylor did not make an analysis of his mother’s needs when expending trust funds,” specifically noting that “Margene had significant assets of her own . . . that [Taylor] should have . . . considered as sources to provide for her care and maintenance prior to expenditure of Trust corpus principal,” including two other properties and some $2 million in “Zions stock.”
¶47 With regard to Taylor’s duty of loyalty, the court found that Taylor had engaged in frequent acts of self-dealing, for himself, his wife, and his siblings, and that he “used his position as trustee to engage in acts of extensive, repeated, and prolonged self-dealing” by “repeatedly authoriz[ing] transactions that directly benefited himself.” The court specifically listed the Jazz tickets, the Arabian horse, and direct payments to Taylor’s family members as examples of Taylor’s self-dealing. The court also mentioned Taylor’s “fail[ure] to control [the] vehicles titled in the name of the Trust,” stating that it appeared to the court as though Taylor was unaware that the Trust even owned any vehicles. The court found that “Taylor’s treatment of the vehicles . . . is typical of his reckless treatment of other Trust assets and his ignorance of his fiduciary duties as Trustee.”
¶48 On the question of damages caused by Taylor’s mismanagement of the Trust, the court adopted the calculations offered by Robert’s damages expert, explaining that her “methods provide a reasonably certain calculation of damages” that “accounts for both excess distributions and losses incurred due to present value of money.” Based on the methods used by Robert’s expert, the court calculated that the Trust had sustained damages, as the result of Taylor’s actions, in the amount of $5,229,095.
¶49 The court also made findings about the marital home, determining that it “was in excellent repair and condition” at the time of Dean’s death, but that Margene did not continue to properly maintain the property afterwards. As noted, however, the court held Taylor responsible for this conduct, imputing Margene’s duty onto Taylor. The court determined that the total damages regarding the home were $33,500, and that this amount was “owed to Jeana,” because Jeana had purchased the home for full value and then made the repairs to the home herself.[6] The court took the $33,500 amount from estimates provided by Jeana, even though, during a separate legal proceeding, Jeana had claimed she was owed only $29,439 for the repairs.
¶50 The court also determined that Taylor “violated his duty to enforce and defend claims against the Trust” when he authorized the $250,000 payment to Robert’s ex-wife. The court found that Taylor “failed to adequately communicate with Robert . . . regarding any merits or defenses to [Robert’s ex-wife]’s writ of garnishment . . . , or even to ascertain whether the amounts claimed were proper.” The court ruled that Taylor was “liable for the consequences of” this breach, but in its initial post-trial ruling the court made no effort to quantify that amount or identify who the damaged party was. During closing argument and his post-trial proposed findings, Robert had asked the court to award $35,000 plus interest on this issue. Nevertheless, the court later determined, after additional post-trial briefing, that Taylor was liable for the entire payment of $250,720.25.
¶51 In its initial written ruling, the court also made findings regarding the Estate’s petition. As noted, the Estate’s main issue concerned the unpaid interest on the Loan the Trust had made to Robert and Jill and their companies and, specifically, what the appropriate interest rate was. While the Note memorializing the Loan called for an interest rate tied to a particular brokerage account at Salomon Smith Barney, there were several lengthy “gap period[s],” ranging from several months to several years, during which “an interest rate was not published on the account.” The Estate’s expert used the published rate for the months it was available, but for the gap periods he employed two different methods (more fully explained below, in Part II.B) to estimate what the brokerage account interest rate would have been. Using these methods, the expert calculated the unpaid interest on the Note as $922,219.77.
¶52 The court, despite finding that the Estate’s expert’s averaging “method to cover short gap periods [was] reasonable,” declined to apply the expert’s interest rates for any of the gap periods. Instead, the court chose to apply a statutory default interest rate—one that turned out to be much lower than the rates suggested by the expert—to all the gap periods. See Utah Code § 70A-3-112 (“If an instrument provides for interest, but the amount of interest payable cannot be ascertained from the description, interest is payable at the judgment rate in effect at the place of payment of the instrument and at the time interest first accrues.”). In its initial post-trial ruling, the court asked the parties to provide supplemental calculations of the amount of interest owing, using the methods laid out in the ruling. After supplemental briefing, the court later determined that the total amount of unpaid interest owing on the Note was $565,314.97.
¶53 Finally, the court briefly considered the question of attorney fees, which had been requested by the Estate, Robert, and Taylor. The court determined that Taylor was “not entitled to any attorneys’ fees he incurred,” but that Robert was entitled to both (a) reimbursement of $187,595.71 from the Trust for fees incurred in defending the administration of the Trust, and (b) additional attorney fees from Taylor, pursuant to Utah’s bad faith statute, as the “prevailing party” in the litigation. See id. § 78B-5-825. The court specifically found that “Taylor’s defenses against the claims raised” in Robert’s petition “were brought in bad faith,” and asked Robert to submit an affidavit of fees and costs.
Joint and Several Liability of the Estate
¶54 After receiving the court’s lengthy written ruling, the parties continued working on their supplemental briefing, not only about the interest calculation but also about the joint-and-several-liability issue raised by the court, sua sponte, in the November 2019 hearing. After full briefing, the court heard argument on that issue, and at the conclusion of the hearing took the matter under advisement. A few weeks later, the court issued a written ruling, making two significant determinations. First, the court determined that the issue of Margene’s (and therefore, by extension, the Estate’s) vicarious liability for Taylor’s actions— despite not having been raised in the pleadings—had been tried by the consent of the parties. Second, the court officially found the Estate jointly and severally liable for Taylor’s actions. It specifically did not employ a constructive trust theory to render the Estate’s assets available for collection; instead, it noted that “Taylor had power of attorney over his mother’s financial affairs while exercising authority and powers as the trustee of” the Trust, and concluded that Taylor had the “intent to unlawfully pilfer the . . . Trust and preserve his mother’s estate for his own benefit and the benefit of his siblings.” The court offered its view that it “need not retreat to any equitable theory”—such as constructive trust— where there was “an express contract covering the subject matter of the litigation,” which contract was, in the court’s view, the Trust document. The court later clarified that it had not rejected Robert’s constructive trust theory, stating that the fact that it “didn’t rule on that theory . . . doesn’t mean that [the court] didn’t accept it,” and explaining that it had simply made a ruling “on an alternative ground.” Indeed, the court went so far as to say that, if a constructive trust theory was “what the parties believe is a more proper finding,” the court may be willing to “find that I’m ordering a constructive trust.”
Attorney Fees
¶55 After the trial, the court also made additional rulings regarding attorney fees. The court had already determined, in its lengthy written ruling, that Robert was entitled to recover reasonable attorney fees from Taylor. Later, Robert submitted an affidavit claiming $441,546.50 of attorney fees and $137,148.38 in costs, which the court determined were reasonable.
¶56 The Estate also requested attorney fees from Robert on the Loan/Note issue, invoking the Note’s attorney fees provision and asserting that it had been the prevailing party on the question of unpaid interest on the Loan. The Estate submitted detailed declarations—from two different attorneys—setting forth the fees incurred in that endeavor. In the motion accompanying the declarations, the Estate was careful to point out that “the fee declarations allocate between time spent on issues pertaining to the claim for interest on the Note and time spent on other matters,” directing the court’s attention to line items in the declarations that had been excluded from the request. The Estate asserted that the items remaining in its request were either directly related to its claim for unpaid interest or, alternatively, were inextricably intertwined with that claim such that they could not meaningfully be separated.
¶57 However, the court denied the Estate’s fee request in its entirety, concluding that the Estate had “fail[ed] to properly allocate claimed fees for claims upon which it prevailed.” The court acknowledged that the Estate had “made some effort to adhere to the Court’s admonition” to properly allocate attorney fees, but ultimately concluded that the Estate’s attempts in that regard were inadequate because, in the court’s view, the Estate’s fee request included fees for “legal work that sought to advance theories and arguments which the Court did not adopt and upon which the [E]state did not prevail.”[7]
The Form of the Judgment
¶58 During this same post-trial time period, the court also addressed questions regarding the form of the judgment, including who should be ordered to pay whom and how much. Robert submitted a proposed form of judgment, listing himself as the only judgment creditor, and indicating that Taylor owed him some $5.8 million and that the Estate, through joint and several liability and after an offset for unpaid interest, owed him some $5.2 million. This proposed judgment drew initial objections from the Estate and Taylor. In response to these initial objections, the court clarified that Taylor was solely liable for the payment to Robert’s ex-wife, but that the Estate was jointly and severally liable for the marital home damages and fee payments. And it ruled that Robert and Jill were each liable for “one half of the unpaid interest,” but it did not add Jill as a judgment debtor, reasoning that “[t]he amount of interest is to mitigate damages owed by the Estate” and should be accounted for as “an offset against amounts owed.”
¶59 Just days after the court’s ruling on the initial objections to the form of the judgment, the Estate lodged another objection, pointing out that—even though the court had previously held that Robert was not limited to pursuing damages only for his one-third share, had noted that Robert has standing to bring a claim on behalf of his siblings, and had even stated in its written ruling that the damages to the marital home were “owed to Jeana”—the only judgment creditor listed in the judgment was “Robert G. Harding,” apparently in his personal capacity. The Estate argued that the proper judgment creditors should be Robert and Jill “as trustees” of the Trust, because the claims presented at trial were largely “related to claims by the Trust, not claims by Robert G. Harding personally.” Robert opposed this objection, asserting that the language of the proposed judgment “is consistent with the procedural history” of the case and with the court’s written rulings. The court made no express ruling on this final objection and instead went ahead and signed its judgment without further comment, thus implicitly overruling the objection.
¶60 The signed judgment lists “Robert G. Harding” as the only judgment creditor, and Taylor and the Estate as the only judgment debtors. The document recites that Robert is “awarded Judgment against” Taylor in the amount of $5,815,599.71, and that Robert is “awarded Judgment against” the Estate in the amount of $4,999,564.49.[8] The difference between the two figures—the amount owed by Taylor as compared to the amount owed by the Estate—is $816,035.22, which is the sum of the offset for the unpaid interest on the Note ($565,314.97) and the amount paid to Robert’s ex-wife ($250,720.25).
¶61 Following entry of the judgment, the Estate filed a motion to amend the court’s rulings, findings, and judgment. In this motion, the Estate argued, among other things,[9] that the court had erred by accounting for the Estate’s recovery against Robert and Jill for unpaid interest through a setoff mechanism, instead of entering a separate judgment in favor of the Estate and against Robert and Jill. The Estate pointed out that this was especially problematic with regard to Jill, who was not a judgment creditor and therefore had no positive judgment against which her interest obligation could be set off. After full briefing and argument, the court denied the Estate’s motion.
ISSUES AND STANDARDS OF REVIEW
¶62 Taylor and the Estate each separately appeal. In his appeal, Taylor raises four issues for our review. First, he contends that the court erred in denying his motion to amend to add additional affirmative defenses. When reviewing a trial court’s decision on a motion to amend, “we give considerable deference to the [trial] court, as it is best positioned to evaluate the motion to amend in the context of the scope and duration of the lawsuit” and we “defer to the trial court’s determination.” Daniels v. Gamma West Brachytherapy, LLC, 2009 UT 66, ¶ 60, 221 P.3d 256 (quotation simplified). Thus, “[w]e overturn a trial court’s denial of a motion to amend . . . only when we find an abuse of discretion.” Kelly v. Hard Money Funding, Inc., 2004 UT App 44, ¶ 14, 87 P.3d 734.
¶63 Second, Taylor argues that the court erred in determining, on summary judgment, that he had breached his fiduciary duties by making distributions from marital share principal. Summary judgment is appropriate “if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Utah R. Civ. P. 56(a). “We review the summary judgment decision de novo.” Salo v. Tyler, 2018 UT 7, ¶ 19, 417 P.3d 581 (quotation simplified).
¶64 Third, Taylor takes issue with the court’s exclusion of his three disclosed expert witnesses. There are “[t]wo different standards of review [that] apply to claims regarding the admissibility of evidence.” Smith v. Volkswagen SouthTowne, Inc., 2022 UT 29, ¶ 41, 513 P.3d 729. “The first standard of review, correctness, applies to the legal questions underlying the admissibility of evidence.” Id. (quotation simplified). “The second standard of review, abuse of discretion, applies to the [trial] court’s decision to admit or exclude evidence and to determinations regarding the admissibility of expert testimony.” Id. (quotation simplified).
¶65 Fourth, Taylor challenges the court’s ultimate determination of damages. “A trial court’s findings of fact will not be set aside unless clearly erroneous.” Traco Steel Erectors, Inc. v. Comtrol, Inc., 2009 UT 81, ¶ 17, 222 P.3d 1164 (quotation simplified). “The award of damages is a factual determination that we review for clear error.” Saleh v. Farmers Ins. Exch., 2006 UT 20, ¶ 29, 133 P.3d 428.
¶66 In connection with its appeal, the Estate raises four issues for our consideration. First, the Estate challenges the court’s determination to hold it jointly and severally liable for Taylor’s actions, and its challenge takes two forms. As an initial matter, the Estate takes issue with the court’s conclusion that the vicarious liability issues—which were not present in Robert’s pleadings— were tried by the consent of the parties, and that Robert’s pleadings could therefore be amended post-trial pursuant to rule 15(b) of the Utah Rules of Civil Procedure. “We review the [trial] court’s application of rule 15(b) for correctness. However, because the trial court’s determination of whether the issues were tried with all parties’ implied consent is highly fact intensive, we grant the trial court a fairly broad measure of discretion in making that determination under a given set of facts.” Hill v. Estate of Allred, 2009 UT 28, ¶ 44, 216 P.3d 929 (quotation simplified). And more substantively, the Estate challenges the merits of the court’s conclusion that it is vicariously liable for Taylor’s actions. In some contexts, a vicarious liability ruling involves issues of fact. See, e.g., Newman v. White Water Whirlpool, 2008 UT 79, ¶ 10, 197 P.3d 654 (stating that “[w]hether an employee is in the course and scope of his employment” for purposes of vicarious liability “presents a question of fact for the fact-finder”). In other contexts, though, such a ruling is inherently legal. See, e.g., Wardley Better Homes & Gardens v. Cannon, 2002 UT 99, ¶ 19, 61 P.3d 1009 (stating that “[w]hether a principal is vicariously liable for an agent’s acts” presents a “legal question[]”). While—as discussed below—the precise legal basis for the trial court’s ruling is somewhat unclear, Robert defends the ruling by pointing to principles of agency law. We agree that, under the circumstances, the trial court’s vicarious liability ruling was a legal one, not a factual one, and we therefore review it for correctness.
¶67 Second, the Estate argues that the court erred in determining the rate for the unpaid interest due on the Note. Both sides agree that, at least under the circumstances of this case, we should review this issue for correctness. See USA Power, LLC v. PacifiCorp, 2016 UT 20, ¶ 32, 372 P.3d 629 (stating that ascertaining “the appropriate interest rate” is “a question of law that we review for correctness”).
¶68 Third, the Estate raises several issues with the form of the court’s judgment. In particular, it wonders who the proper judgment creditors are, and contends that the court erred in setting off the Estate’s award of interest against the amounts the court determined it owed to Robert and Jill for vicarious liability. Challenges to offset determinations often involve mixed questions of fact and law and are “reviewed under a clearly erroneous standard for questions of fact and a correctness standard for questions of law.” Hale v. Big H Constr., Inc., 2012 UT App 283, ¶ 11, 288 P.3d 1046 (quotation simplified), cert. denied, 298 P.3d 69 (Utah 2013). The issue we address here regarding offset—namely, whether offset was appropriate when one of the parties did not receive a judgment—presents a legal question reviewed for correctness. See Fisher v. Fisher, 2009 UT App 305, ¶ 7, 221 P.3d 845 (noting that whether “an offset is allowed under [a] cause of action” is a question “of law, which we review for correctness”), cert. denied, 230 P.3d 127 (Utah 2010). And in addition, the Estate challenges the court’s award of damages for repairs to the marital home. “The award of damages is a factual determination that we review for clear error.” Saleh, 2006 UT 20, ¶ 29. However, “[w]e review the court’s legal conclusions for correction of error.” Hale, 2012 UT App 283, ¶ 13.
¶69 Finally, the Estate takes issue with the court’s rejection of its claim for attorney fees incurred in furtherance of its successful claim for unpaid interest on the Note. “The award of attorney fees is a matter of law, which we review for correctness. However, a trial court has broad discretion in determining what constitutes a reasonable fee, and we will consider that determination against an abuse-of-discretion standard.” Jensen v. Sawyers, 2005 UT 81, ¶ 127, 130 P.3d 325 (quotation simplified).
ANALYSIS
I. Taylor’s Appeal
¶70 As noted, Taylor asks us to consider four issues in connection with his appeal. First, he challenges the court’s denial of his motion to amend to add additional affirmative defenses. Second, he takes issue with the trial court’s ruling, made on summary judgment, that Taylor had breached his fiduciary duties by making unlawful distributions from the Trust’s marital share principal. Third, he challenges the trial court’s decision to exclude his expert witnesses. Finally, he raises certain challenges to the court’s damages determinations. We address each of Taylor’s arguments in turn.
A. Taylor’s Motion to Amend
¶71 First, Taylor asks us to examine the court’s ruling denying his motion to amend his responsive pleading to add several additional affirmative defenses, including a more specific statute of limitations defense and a defense that he “had a good faith basis for his actions.” The court denied Taylor’s request on the basis that Taylor had engaged in “unreasonable delay” and had “failed to provide adequate justification [as to] why he did not [seek to] amend his pleading earlier.” We discern no abuse of discretion in the trial court’s decision.
¶72 In deciding a motion to amend, courts are instructed to consider several factors, including whether the movant “was aware of the facts underlying the proposed amendment long before its filing, the timeliness of the motion, the justification for the delay, and any resulting prejudice to the responding party.” Jones v. Salt Lake City Corp., 2003 UT App 355, ¶ 16, 78 P.3d 988 (quotation simplified) (affirming the denial of a motion to amend where it was filed about a year after the deadline for amending pleadings and where the movant provided no justification for the delay), cert. denied, 90 P.3d 1041 (Utah 2004). In this case, the court denied Taylor’s motion in an oral ruling from the bench, and the record submitted to us does not include a transcript of that oral ruling. But in a subsequent written order memorializing its ruling, the court focused on two of these factors: timeliness and justification. The court was of the view that Taylor had waited too long to seek amendment of his responsive pleading, despite apparent awareness of the relevant issues, and that his delay was not justified by any good reason. The court rejected as “faulty” Taylor’s excuse that he had been under the impression that his original answer—which incorporated by reference the statute of limitations defense pleaded by Robert’s ex-wife—included “all statute of limitations” defenses. The court’s written ruling made no specific mention of Taylor’s desired “good faith” defense.
¶73 In his appellate brief, Taylor does not engage with the trial court’s reasoning, and provides no specific response to the court’s conclusion that his motion was untimely and his delay was unjustified. Instead, he makes two arguments in support of his appellate challenge. First, he asserts that his unpleaded statute of limitations defense was meritorious. But this is beside the point here; if the trial court was within its discretion to deny Taylor’s motion to amend on delay and justification grounds, then the merits of Taylor’s unpleaded defenses are not directly relevant.
¶74 Second, Taylor suggests that, because this case was a probate action initiated by a “petition” rather than a “complaint,” the rules of civil procedure regarding timeliness of pleadings do not apply. But this argument is unpreserved; Taylor did not make it at the trial court level—at least not in his written filings; as noted, the record includes no transcript of the hearing—and thus did not give the trial court an opportunity to rule on it. See Gowe v. Intermountain Healthcare, Inc., 2015 UT App 105, ¶ 7, 356 P.3d 683 (stating that, “to preserve an argument for appellate review, the appellant must first present the argument to the [trial] court in such a way that the court has an opportunity to rule on it,” and observing that “we generally do not address unpreserved arguments raised for the first time on appeal” (quotation simplified)), cert. denied, 364 P.3d 48 (Utah 2015). Therefore, we decline to consider this argument for the first time on appeal.
¶75 Under these circumstances—where Taylor does not provide us with a transcript of the trial court’s oral ruling, does not directly engage with the court’s reasoning, and offers an argument that is apparently unpreserved—Taylor has not carried his burden, on appeal, of demonstrating that the court abused its discretion by denying his motion to amend his responsive pleading to add additional affirmative defenses. We therefore affirm the court’s denial of that motion.
B. The Summary Judgment Ruling
¶76 Next, Taylor challenges the trial court’s determination, made on summary judgment, that he made unlawful distributions from the Trust’s marital share principal and thereby breached his fiduciary duties. In particular, he asserts that this ruling was inappropriate because genuine issues of material fact remained to be decided in connection with these issues. But Taylor has not borne his burden, here on appeal, of demonstrating error in the court’s summary judgment ruling.
¶77 As a threshold matter, it is important to recognize that the ruling in question was brief and quite narrow. In that ruling, the court noted that, under the terms of the Trust, Taylor was not allowed to distribute principal from the marital share, and it noted that Taylor had admitted to making distributions of principal from the marital share. The court therefore determined, as a matter of law and under the plain terms of the Trust documents, that these distributions were “unlawful.” It reserved all other issues for trial, including “the amount of damages that resulted from” any such unlawful distributions.
¶78 Taylor does not challenge the court’s determination that, under the terms of the Trust documents, he was forbidden from distributing principal out of the marital share. And he does not take issue with the court’s observation that, in discovery, Taylor admitted that he had indeed made distributions of principal out of, among other sources, the IRAs that Accountant had placed in the marital share. Thus, his challenge to the court’s summary judgment ruling is limited: he takes issue only with the court’s conclusion that those admitted distributions were unlawful as a matter of law. In this regard, Taylor makes three arguments, which we consider in turn.
1
¶79 First, Taylor asserts that his actions were not unlawful—at least not as a matter of law—because he had merely been following advice given to him by professionals (namely accountants and attorneys) retained to advise him in his role as trustee, and that questions of fact therefore remained regarding the reasonableness of his conduct. But on the record before us, this argument cannot carry the day for Taylor.
¶80 Under Utah law, a trustee who violates a duty owed to a beneficiary has breached fiduciary duties. See Utah Code § 75-71001 (“A violation by a trustee of a duty the trustee owes to a beneficiary is a breach of trust.”); see also id. § 75-7-801 (stating that trustees must “administer the trust expeditiously and in good faith, in accordance with its terms and purposes”). And it does not matter that the trustee’s actions were merely negligent (rather than knowing or intentional). See Restatement (Third) of Trusts § 93 cmt. b (Am. L. Inst. 2012) (“A breach of trust occurs if the trustee, intentionally or negligently, fails to do what the fiduciary duties of the particular trusteeship require or does what those duties forbid . . . . [A] trustee may commit a breach of trust by conduct (action or inaction) that results from a mistake . . . , typically [one] regarding the nature or extent of a trustee’s duties or powers.”).
¶81 In this case, the plain language of the Trust documents clearly forbade Taylor from making any distributions from the principal assets of the Trust’s marital share. He therefore had a clear obligation not to authorize distributions of principal from the marital share. He violated that obligation by repeatedly authorizing such distributions, and this is true even if one assumes, for purposes of the argument, that Taylor made the distributions negligently rather than intentionally or knowingly. Unless otherwise excused, that action constitutes a breach of the fiduciary duties that Taylor, in his capacity as trustee, owed the beneficiaries of the Trust.
¶82 However, under the Restatement’s approach, in certain circumstances, a court has the authority, where equity demands it, to excuse a trustee from having to pay a liability resulting from a breach of duty. See id. § 95 cmt. d (stating that, where a court concludes that “it would be unfair or unduly harsh to require the trustee to pay . . . the liability that would normally result from a breach of trust, the court has equitable authority to excuse the trustee . . . from having to pay that liability”); see also Restatement (Second) of Trusts § 205 cmt. g (Am. L. Inst. 1959) (“In the absence of a statute it would seem that a court of equity may have power to excuse the trustee in whole or in part from liability where he has acted honestly and reasonably and ought fairly to be excused.”). For instance, where case law upon which a trustee relied is later overruled, courts might conclude that a trustee should be equitably relieved from the consequences of a breach of duty. See Restatement (Third) of Trusts § 95 cmt. d (Am. L. Inst. 2012). And as relevant here, courts may reach a similar conclusion where “a trustee has selected an adviser prudently and in good faith, has provided the adviser with relevant information, and has relied on plausible advice on a matter within the adviser’s competence.” See id. § 93 cmt. c.
¶83 In the trial court, Taylor opposed Robert’s summary judgment motion by arguing, among other things, that his actions were reasonable because he relied on professional advice; in so doing, however, Taylor did not cite the Restatement or ask the trial court to apply its approach. Robert replied by asserting that “advice of counsel” was an affirmative defense that Taylor had waived by not pleading it and by failing to obtain leave to add that defense in an amended pleading. We do not know if Taylor’s advice-of-counsel defense (or Robert’s waiver argument made in response to it) was discussed during the oral argument on Robert’s summary judgment motion, because the record submitted to us does not include a transcript of that hearing. And the court’s rather brief written order memorializing its summary judgment ruling makes no mention of the issue.
¶84 There are several plausible ways the trial court could have handled Taylor’s advice-of-counsel defense at the summary judgment stage. First, the court could have determined that Utah law does not allow an advice-of-counsel defense under the circumstances presented here. We are unaware of any Utah authority adopting the Restatement’s approach, so it is unclear whether that approach is consonant with Utah law; certainly, Taylor makes no effort to so persuade us in his appellate brief.[10] Second, the court may have adopted Robert’s argument that Taylor waived this defense by failing to plead it in his answer and by failing to persuade the court to allow amendment of that answer. As already noted, several months before the summary judgment hearing the trial court did deny Taylor leave to amend his responsive pleading to add a “good faith” defense, ruling that any such amendment was too late and unjustified. On appeal, Taylor does not refute Robert’s assertion that he waived the defense, and he makes no effort to show that advice of counsel is not the sort of affirmative defense that must, upon penalty of waiver, be pleaded in an answer.[11] Third, the court may have determined that resolution of Taylor’s advice-of-counsel defense was not necessary at the summary judgment stage. In fact, the written summary judgment ruling is not necessarily at odds with that defense: even if the distributions from the marital share are considered unlawful, the court could, during the damages phase of the proceedings, potentially equitably relieve Taylor from the consequences of those unlawful distributions. And here on appeal, Taylor makes no argument that he was prevented, at trial, from presenting evidence relating to his advice-of-counsel defense. Fourth, the court could have determined, at the summary judgment hearing, that the undisputed evidence regarding Taylor’s advice-of-counsel defense was insufficient to present a genuine dispute of material fact that would prevent summary judgment. Or fifth, the court could have completely ignored the issue, and simply made no ruling on it at all.
¶85 We do not know what the court did with Taylor’s advice-of-counsel argument at the summary judgment phase, because its written ruling is silent on the matter and its oral ruling is not included in the appellate record. It is certainly not obvious, from the record before us, that the trial court erred in the way it handled Taylor’s asserted advice-of-counsel defense in connection with Robert’s summary judgment motion. It is an appellant’s responsibility “to include in the record a transcript of all evidence relevant to a finding or conclusion that is being challenged on appeal.” Gines v. Edwards, 2017 UT App 47, ¶ 21, 397 P.3d 612 (quotation simplified), cert. denied, 398 P.3d 52 (Utah 2017). “When an appellant fails to provide an adequate record on appeal, we presume the regularity of the proceedings below,” and “when crucial matters are not included in the record, the missing portions are presumed to support the action of the trial court.” State v. Pritchett, 2003 UT 24, ¶ 13, 69 P.3d 1278 (quotation simplified); see also Bank of Am. v. Adamson, 2017 UT 2, ¶ 11, 391 P.3d 196 (stating that an appellant’s brief must “contain the contentions and reasons of the appellant with respect to the issues presented . . . with citations to the authorities, statutes, and parts of the record relied on” (quotation simplified)).
¶86 In situations like this one, where “crucial matters are not included in the record, the missing portions are presumed to support the action of the trial court.” Pritchett, 2003 UT 24, ¶ 13 (quotation simplified). While it is perhaps not always necessary for an appellant challenging an adverse summary judgment ruling to include in the appellate record a transcript of the oral argument on the summary judgment motion, cf. Gines, 2017 UT App 47, ¶ 21 (noting that “an appellant is not required to provide the transcript from every proceeding that occurred in the case”), in our view this is necessary in cases where the court issued an oral ruling at the conclusion of the hearing and where the court’s eventual written order is silent with regard to the matter being challenged. In such cases, a transcript of the hearing is necessary for us to effectively review the challenged issue. Without the transcript, we do not know what evidence or argument the court relied on in rendering any decision. Indeed, in this case we do not know if the court even made a decision on the point Taylor challenges. Under these circumstances, Taylor “has not provided this court with the tools necessary to determine whether the [trial] court” erred, and therefore his “claim of error,” in this regard, “is merely an unsupported, unilateral allegation which we cannot resolve.” R4 Constructors LLC v. InBalance Yoga Corp., 2020 UT App 169, ¶ 12, 480 P.3d 1075 (holding that the appellant did not show an abuse of discretion where he failed to include a necessary transcript in the appellate record). Accordingly, Taylor has not carried his burden of persuasion on appeal, and the trial court’s summary judgment ruling is not now assailable on the basis that questions of fact remained to be decided regarding whether Taylor reasonably followed professional advice.
2
¶87 Second, Taylor asserts that the IRAs from which many of the allegedly unlawful distributions of principal were made were not part of the Trust at all, and therefore the distributions could not have been unlawful. But the trial court did not err in determining that no genuine issue of material fact existed on this point. As noted above, the court issued a separate ruling, signed on the same day and arising out of the same summary judgment hearing, determining that Robert had conclusively demonstrated that “the IRAs were properly transferred to and owned by the [Trust] after Dean’s death.” And in the summary judgment ruling at issue here, signed by the court just minutes later, the court simply noted that the marital share of the Trust “included” the IRAs. Taylor asserts that there existed questions of fact about the ownership of the IRAs, because the parties were never able to locate a “signed beneficiary designation” executed prior to Dean’s death. But Robert submitted quite a bit of evidence, including account statements from the IRAs dated prior to Dean’s death, indicating that the IRAs were in fact part of the Trust.[12] And Accountant—the first successor trustee of the Trust—certainly saw it that way. Taylor did not meaningfully rebut this evidence; the mere absence of a signed beneficiary designation is not, under these circumstances, enough to create a genuine issue of material fact regarding ownership of the IRAs.
3
¶88 Finally, Taylor asserts that his distributions of principal from the marital share, including distributions from the IRAs, can be considered lawful if they are offset against distributions of principal he could have hypothetically lawfully made from the family share. As noted above, Taylor had conceptual authority to make distributions of principal from the family share for Margene’s “support and maintenance” if the Trust income and Margene’s other assets were not sufficient to address her needs. In other words, Taylor asserts that the beneficiaries would not be entitled to any damages resulting from his otherwise unlawful distributions of marital share principal if Taylor can show that those distributions could, in his discretion, have been made from the family share instead. But even if this is true, this argument serves only to reduce the damages sustained by the beneficiaries as the result of Taylor’s breaches of duty; this argument does not somehow transform Taylor’s unlawful distributions into lawful ones. As noted, the court reserved for trial, among other things, all questions regarding “[t]he total amount of damages that resulted from Taylor’s unlawful distributions of principal from the” marital share. And in addition, there is no evidence that Taylor actually engaged in the analysis required prior to making lawful distributions from the family share principal—assessing whether Margene’s reasonable needs could be met from her own assets and the income from the Trust.
¶89 In the end, we perceive no error, on this record, in the trial
court’s narrow ruling, made on summary judgment, that Taylor had made unlawful distributions of principal from the Trust’s marital share, and that he had thereby breached the fiduciary duties he owed to the beneficiaries.
C. Taylor’s Expert Witnesses
¶90 Taylor next challenges the court’s orders prohibiting his disclosed expert witnesses from testifying in his case-in-chief at trial. The court excluded two of these experts—Taylor’s financial experts—because Taylor failed to serve the required report from the experts.[13] And the court excluded the third expert—Taylor’s legal expert—for reasons we cannot, on this record, ascertain. Under the circumstances presented here, Taylor has not persuaded us that the court’s orders regarding his expert witnesses are subject to reversal.
¶91 The court had good reason to exclude Taylor’s two financial experts. Following Taylor’s disclosure of these two experts, Robert opted to require the experts to produce a written report. See Utah R. Civ. P. 26(a)(4)(C)(i), (ii) (stating that “the party opposing the expert may serve notice electing either a deposition of the expert . . . or a written report” from the expert). Taylor failed to timely provide those reports. The court’s order excluding those experts on that basis is therefore sound. See id. R. 26(d)(4) (“If a party fails to disclose or to supplement timely a disclosure or response to discovery, that party may not use the undisclosed witness, document, or material at any hearing or trial unless the failure is harmless or the party shows good cause for the failure.”); see also Clifford P.D. Redekop Family LLC v. Utah County Real Estate LLC, 2016 UT App 121, ¶¶ 15–16, 378 P.3d 109 (upholding a trial court’s exclusion of an expert witness when the party did not timely provide a written report by the deadline or provide “good cause” for failing to do so). And on appeal, Taylor does not attempt to argue that his failure to provide reports was harmless or spurred by good cause. Instead, Taylor merely informs us of what the witnesses would have testified about and asserts that the witnesses’ testimony “would have been of great benefit to the court.” This is insufficient to establish that the court abused its discretion. See R.O.A. Gen., Inc. v. Chung Ji Dai, 2014 UT App 124, ¶ 11, 327 P.3d 1233 (“We have held that the sanction of exclusion is automatic and mandatory unless the sanctioned party can show that the violation of rule 26 . . . was either justified or harmless.” (quotation simplified)), cert. denied, 337 P.3d 295 (Utah 2014).
¶92 Taylor’s third witness, the legal expert, was dismissed after a hearing. In his motion asking the court to exclude Taylor’s legal expert, Robert argued that the court “should not allow a local attorney to tell [it] how to interpret” the Trust documents. The court granted this motion in an oral ruling made at the conclusion of the hearing; the court’s minute entry contains very little information about the basis for the ruling. A few weeks after the hearing, the court signed a written order, prepared by counsel, that was intended to memorialize the oral ruling; that order stated simply that, “[a]fter argument by counsel and review of the briefings filed by the parties, the Court grants [Robert’s] Motion in Limine excluding all legal expert testimony at trial.” And as noted, the record submitted to us does not contain a transcript of the hearing at which the court rendered its oral ruling, nor does it contain any additional elucidation of the court’s reasoning in granting Robert’s motion to exclude Taylor’s legal expert.
¶93 Under circumstances like these, an appellant fails to carry its burden of persuasion on appeal. As already noted, it is an appellant’s responsibility “to include in the record a transcript of all evidence relevant to a finding or conclusion that is being challenged on appeal.” Gines, 2017 UT App 47, ¶ 21 (quotation simplified) (affirming a trial court’s decision on a motion in limine because the appellant did not provide a transcript of the hearing); see also Pritchett, 2003 UT 24, ¶ 13 (stating that, in the absence of an adequate record, “we presume the regularity of the proceedings below,” and that “when crucial matters are not included in the record, the missing portions are presumed to support the action of the trial court” (quotation simplified)).
¶94 In this non-legal-malpractice case, we can easily envision good reason for the court to have excluded Taylor’s proffered legal expert. See Steffensen v. Smith’s Mgmt. Corp., 862 P.2d 1342, 1347 (Utah 1993) (“Even though experts can testify as to ultimate issues, their testimony must still assist the trier of fact under rule 702. Opinion testimony is not helpful to the fact finder when it is couched as a legal conclusion.” (quotation simplified)). And where, as here, material gaps in the appellate record exist, we must presume the regularity of the proceedings, and presume that the court had good reason to take the action it took. Under these circumstances, Taylor has simply not persuaded us that the court abused its discretion in excluding his legal expert witness.
¶95 Accordingly, we reject Taylor’s assertions that the trial court abused its discretion in ordering the exclusion of all three of Taylor’s disclosed expert witnesses.
D. The Court’s Damages Award
¶96 Finally, Taylor raises two challenges to the court’s damages determinations. He first makes a general challenge to the court’s damages award, asserting that the court should not have used the damages calculation offered by Robert’s damages expert because that expert “made too many mistakes and relied on assumptions that are too speculative.” He next asserts that Robert did not suffer $250,000 in damages from the distribution to Robert’s ex-wife because Robert “received full credit against the judgment for the money distributed.” We reject Taylor’s first challenge, but find merit, at least to some extent, in the second.
¶97 Taylor’s general attack on Robert’s damages expert—and, by extension, on the court’s damages computation—is not well-taken. As examples of the “faulty assumptions” Robert’s expert made, Taylor points to the expert’s assumptions—held at least prior to trial, if not afterward—that three specific transactions (or sets of transactions) constituted “distributions” of Trust assets: (1) a $200,000 transfer between Trust accounts, (2) several five-figure checks of unknown purpose, and (3) a separate sale of an investment in the Trust portfolio. But as Robert points out, the expert herself—after receiving additional information at trial— backed away from the first assumption, and ended up not including the $200,000 transfer in her ultimate recommendation to the court. And most importantly, it does not appear that the trial court actually included any of the identified transactions in its damages award—at least, Robert asserts that it didn’t, and Taylor does not take issue with that assertion. So, to the extent that these identified transactions constitute “mistakes” on the part of Robert’s expert, the court appears to have accounted for those mistakes in its damages award.
¶98 As noted above, we review the court’s damages calculations for clear error. See Saleh v. Farmers Ins. Exch., 2006 UT 20, ¶ 29, 133 P.3d 428 (“The award of damages is a factual determination that we review for clear error.”). And we perceive no clear error in the court’s general adoption—with apparent adjustments—of Robert’s expert’s damages calculation. In its post-trial ruling, the court described Robert’s expert as “an experienced professional in the field of accounting and a licensed financial analyst,” and found that her methodologies “provide[d] a reasonably certain calculation of damages” that “account[ed] for both excess distributions and losses incurred due to [the] present value of money.” And as noted, the court in making its award apparently made adjustments, based on the evidence presented, to the expert’s computations. Under these circumstances, Taylor simply hasn’t carried his burden of demonstrating any clear error in the court’s general adoption of Robert’s expert’s damages methodologies, as adjusted.[14] See id.
¶99 However, we do see clear error in the court’s award of $250,000 in damages to Robert for Taylor’s payment of Trust assets to Robert’s ex-wife. The court found that this payment was made in violation of the Trust’s spendthrift provision and was therefore unlawful. But the court also found that the payment “did extinguish [Robert]’s debt to [his ex-wife],” which debt was a non-zero amount. The court, in a previous order, correctly noted that Robert’s damages on this point should be limited to “any interest losses that he . . . may have been entitled to” and money he would have saved if he could prove that his ex-wife would have accepted a lower amount. And of course, his damages calculation would need to account for any excess amounts paid to his ex-wife from other sources, such as his allegation that she received an extra $35,000 from the sale of one of his properties; it is notable that Robert, in his proposed post-trial findings, asked the court to award him only $35,000 plus interest on this point. But the court did not engage in a comprehensive analysis here, nor did it make specific findings on these recoverable damages; instead, it simply awarded Robert the entire $250,000 amount.
¶100 The court erred by awarding Robert damages for the full $250,000, at least without making specific findings as to why that amount was appropriate. As the court itself was aware, the $250,000 distribution to Robert’s ex-wife had at least some value to Robert—the extinguishing of his debt to his ex-wife—that should have been valued and offset against the $250,000 amount. And the court should have explained why it chose to award Robert the full $250,000 instead of the $35,000 (plus interest) that he asked for in his proposed findings.
¶101 Therefore, while we reject Taylor’s general complaint about the court’s adoption of Robert’s expert’s methodologies, we find merit in Taylor’s specific complaint about the court’s calculation of Robert’s damages related to the payment to Robert’s ex-wife. We therefore vacate—and remand for reassessment—that specific portion of the damages award.[15]
¶102 In sum, then, we reject all of Taylor’s claims on appeal, except for the second of his two damages-related assertions.[16]
II. The Estate’s Appeal
¶103 We now turn to the Estate’s appeal. As noted, the Estate asks us to consider four issues. First, the Estate asks us to reverse the court’s determination to hold it vicariously liable for the actions Taylor took as trustee. Second, the Estate challenges the court’s conclusion regarding the appropriate rate to be applied in calculating the interest that Robert and Jill owe on the Note. Third, the Estate raises various issues with the form of the judgment. And finally, the Estate asks us to review the court’s rejection of its claim for attorney fees incurred in furtherance of its successful claim for interest on the Note. We address each of these arguments in turn.
A. Vicarious Liability
¶104 The Estate’s main challenge on appeal—the one on which it spends the bulk of its energies—concerns the court’s ruling that the Estate should be held vicariously liable for the unlawful actions Taylor took as trustee. The Estate criticizes this ruling on two specific grounds, one procedural and one substantive. The procedural challenge has to do with whether the issue was properly before the court for decision in the first place. And the substantive challenge has to do with whether the court’s decision was correct. We find merit in both of the Estate’s challenges to the court’s vicarious liability ruling.
1
¶105 The Estate begins its argument by pointing out, correctly, that Robert did not plead or seek vicarious liability in his petition or in any other place in his voluminous pretrial filings in this case. In his petition, Robert sought specific relief against the Estate for damages related to the marital home. Aside from that particular request, the petition sought only one other thing from the Estate: “a return of principal wrongfully distributed from the Trust.” In the petition, Robert never asked the court to hold Margene or the Estate vicariously liable for Taylor’s conduct.
¶106 Not only did Robert fail to plead a claim for vicarious liability, but as the litigation proceeded, he implicitly disavowed making any such claim. Prior to trial, Robert filed a motion to bifurcate, asking the court to separate the trial of the Estate’s claims—most notably, for interest on the Loan—from the trial of Robert’s claims relating to Taylor’s alleged breaches of fiduciary duty. In this motion, Robert suggested that the claims stated in his petition against the Estate—chiefly, regarding the marital home— had already been “likely resolved” in a recent ruling. In particular, Robert asserted that “the only issue remaining” with regard to his petition “is the amount of damages to be awarded against Taylor,” and he argued that the Estate “should not be involved in” the trial of his claims against Taylor. Had Robert been seeking a vicarious liability ruling against the Estate, he would never have taken that position.
¶107 To its credit, the trial court recognized these realities and, in announcing its ruling that the Estate should be held vicariously liable, did not attempt to assert that the issue had ever been raised prior to trial. Instead, the court held that the issue of the Estate’s vicarious liability had been tried by consent during the multi-day bench trial. See Utah R. Civ. P. 15(b)(1) (“When an issue not raised in the pleadings is tried by the parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings.”). Here on appeal, the Estate asserts that the trial court incorrectly concluded that this issue was tried by consent. We agree.
¶108 Under rule 15(b) of the Utah Rules of Civil Procedure, “implied consent to try an [unpleaded] issue may be found where one party raises an issue material to the other party’s case or where evidence is introduced without objection, where it appears that the parties understood the evidence is to be aimed at the unpleaded issue.” Hill v. Estate of Allred, 2009 UT 28, ¶ 48, 216 P.3d 929 (quotation simplified). In such instances, the pleadings are deemed amended after the fact, in order “to conform them to the evidence” presented at trial. See Utah R. Civ. P. 15(b)(1). “The test for determining whether pleadings should be deemed amended under Utah R. Civ. P. 15(b) is whether the opposing party had a fair opportunity to defend and whether it could offer additional evidence if the case were retried on a different theory.” Hill, 2009 UT 28, ¶ 48 (quotation simplified). “When evidence is introduced that is relevant to a pleaded issue and the party against whom the amendment is urged has no reason to believe a new issue is being injected into the case, that party cannot be said to have impliedly consented to trial of that issue.” Id. (quotation simplified); see also Archuleta v. Hughes, 969 P.2d 409, 412 (Utah 1998) (“Implied consent of the parties must be evident from the record.” (quotation simplified)).
¶109 Robert asserts that “the Estate showed awareness of its potential liability” several times during the lawsuit. For instance, it lodged an objection to the portion of the prayer for relief in Robert’s petition that requested the return of wrongfully distributed principal from the Estate, and it informed the court, at trial and in certain post-trial hearings, that one of the Estate’s goals in the litigation “was to assure that liability for Taylor’s wrongful acts did not ‘slop over’ to the Estate.” But awareness of an unpleaded issue does not necessarily constitute consent that the issue be tried, especially here where the Estate demonstrated its awareness of the issue by objecting (rather than consenting) to the issue’s presence in the case. More is required. There must be some indication that the Estate expressly or impliedly consented to the litigation of the merits of the unpleaded issue at trial. See Archuleta, 969 P.2d at 412 (“There must, of course, be either express or implied consent of the parties for the trial of issues not raised in the pleadings.”). And here, the record does not support the proposition that the Estate expressly or impliedly consented to try the issue of its vicarious liability for Taylor’s conduct.
¶110 Certainly, there is no indication that the Estate ever expressly consented to amendment of Robert’s pleadings to add the issue of its vicarious liability. Neither Robert nor the trial court directs our attention to any such evidence.
¶111 And in our view, the record cannot support the conclusion that the Estate ever impliedly consented to trial of that specific unpleaded issue. As noted, awareness of the issue is not enough. Neither Robert nor the trial court points us to evidence “introduced without objection, where it appears that the parties understood the evidence is to be aimed at the unpleaded issue.” Hill, 2009 UT 28, ¶ 48 (quotation simplified). In the court’s ruling on this point, it recited evidence that Taylor had conflicts of interest, was acting in several different capacities, and used his authority in those capacities to benefit his mother; the court concluded therefrom that “[t]hese circumstances are sufficient grounds to find that the issue of liability as to the Estate was tried by consent.” This is incorrect. All of this evidence—regarding Taylor’s conflicts of interest, breaches of duty, and actions taken to benefit Margene—is relevant to Robert’s overarching claims against Taylor. Its presence in the case would not have signaled to the Estate that the unpleaded issue of its vicarious liability for all those actions was somehow being litigated.[17] See id. (“When evidence is introduced that is relevant to a pleaded issue and the party against whom the amendment is urged has no reason to believe a new issue is being injected into the case, that party cannot be said to have impliedly consented to trial of that issue.” (quotation simplified)). We are aware of no evidence presented at trial that clearly and exclusively went to the issue of whether the Estate should be held vicariously liable for Taylor’s actions.
¶112 But perhaps the most telling sign that the vicarious liability issue was not tried by implied consent of the parties is that even Robert didn’t appear to believe, after the trial, that the issue had been tried. In the set of proposed findings and conclusions he submitted about a month after the trial ended, Robert included no findings or conclusions regarding the Estate’s vicarious liability, and he did not ask the court to so rule. The closest he came to the issue was asking for a finding that imposed “a constructive trust on the assets of the Estate” and an order that “all remaining [Estate] assets payable or distributable to Taylor be used to pay the outstanding judgments in this case.”
¶113 Thus, the issue of the Estate’s vicarious liability was never pleaded or sought by Robert and was never tried by consent of the parties. The trial court came up with the theory all on its own, many months after the trial had concluded. This was procedurally inappropriate. We therefore reverse the court’s ruling that this unpleaded issue was tried by the consent of the parties.
2
¶114 Because the issue of the Estate’s vicarious liability was neither pleaded nor tried by the consent of the parties, the trial court’s ruling holding the Estate vicariously liable for Taylor’s actions is infirm and subject to reversal for that reason alone. But the court’s vicarious liability ruling was also wrong on its merits, and we opt to explain why, in order to provide certain guidance that may be useful on remand.
¶115 There appear to be three different theories, floated by the parties (or the court) at various times in the case, as to how Robert and his siblings might access the assets of the Estate to compensate them for the unlawful acts Taylor took as trustee of the Trust.[18] First, there is the court’s own vicarious liability theory, which we refer to as the “conflict of interest” theory. As the court explained it, Taylor wore several somewhat-conflicting hats at various times throughout the case: he was trustee of the Trust, he had power of attorney over Margene’s personal finances, he was (after Margene’s death) personal representative of the Estate, and he (along with Margene’s other children) is one of the beneficiaries of the Estate. In the court’s view, Taylor was motivated to benefit himself and the Estate where he could, and he used his authority in these various roles—most notably as trustee of the Trust—to do just that. Essentially, the court ruled that, because many of the unlawful actions Taylor took as trustee of the Trust benefited Margene and the Estate, the Estate should be vicariously liable for Taylor’s actions, and should therefore answer to Robert (and his siblings) for Taylor’s conduct.
¶116 Second, there is the agency law theory upon which Robert largely relies here on appeal: that Taylor was an “agent” of Margene (and, by extension, the Estate) in carrying out his unlawful acts, and that the Estate—as principal—should be vicariously liable for its agent’s activities.
¶117 Finally, there is a constructive trust theory—expressly sought in Robert’s proposed post-trial findings—under which the Estate is not necessarily vicariously liable for Taylor’s actions as a general matter but, instead, the assets of the Estate may be used to satisfy Robert’s judgment against Taylor, at least to the extent that those assets stem from the Estate’s receipt of unlawful distributions from the Trust. Specifically, Robert’s proposed post-trial findings asked for the imposition of “a constructive trust on the assets of the Estate” and an order that “all remaining [Estate] assets payable or distributable to Taylor be used to pay the outstanding judgments in this case.”
¶118 The first two of these theories do not work. Even accepting the court’s central proposition—that Taylor had conflicting responsibilities—we cannot see how that fact leads to a legal conclusion that the Estate is generally liable for unlawful actions Taylor took in his capacity as trustee of the Trust. Under the Trust documents, only Taylor (as trustee) had any authority to make distributions. Margene (as “surviving spouse”) had no such authority, with the Trust documents stating that “[t]he surviving spouse shall have no power to appoint” Trust property to any other person. Taylor’s unlawful distributions were undertaken in his capacity as trustee of the Trust, and Margene had no authority to make any distributions of Trust assets; because she had no such authority, she couldn’t have delegated any of it to Taylor, via the power of attorney or otherwise. In other words, Taylor’s authority to take actions as trustee didn’t come from Margene, it came directly from the Trust documents themselves. We acknowledge that it certainly appears that the Estate may have benefited from Taylor’s unlawful actions. But we are aware of no authority— neither Robert nor the trial court cited any—indicating that an entity that benefits from someone else’s bad acts is thereby vicariously liable for those bad acts.
¶119 And the second theory—that Taylor was acting as Margene’s (or the Estate’s) agent when he committed the unlawful acts—fails for similar reasons. As an initial matter, there is no evidence that Taylor was acting as Margene’s agent at all when, acting as trustee of the Trust, he made distributions from the Trust to Margene. That is, there is no evidence that Margene instructed him to make any distributions, or that he was acting on Margene’s behalf when he did so. The mere fact that Margene benefited from Taylor’s actions does not mean that Taylor was acting as Margene’s agent; this is especially true where, as here, the alleged principal (Margene) possessed no authority to make the distributions in question.
¶120 But more substantively, even if we assume that Taylor was acting as Margene’s agent, a principal is liable for an agent’s actions only under certain circumstances. See Stein Eriksen Lodge Owners Ass’n Inc. v. MX Techs. Inc., 2022 UT App 30, ¶ 25, 508 P.3d 138 (“Under agency law, an agent cannot make its principal responsible for the agent’s actions unless the agent is acting pursuant to either actual or apparent authority.” (quotation simplified)). “Actual authority may either be express or implied.” Hussein v. UBS Bank USA, 2019 UT App 100, ¶ 32, 446 P.3d 96, cert. denied, 455 P.3d 1062 (Utah 2019). “Express [actual] authority exists whenever the principal directly states that its agent has the authority to perform a particular act on the principal’s behalf.” Drew v. Pacific Life Ins. Co., 2021 UT 55, ¶ 54, 496 P.3d 201 (quotation simplified). “Implied [actual] authority includes acts which are incidental to, or are necessary, usual, and proper to accomplish or perform, the main authority expressly delegated to the agent.” Id. (quotation simplified). And apparent authority exists “when a third party reasonably believes the actor has authority to act on behalf of the principal and that belief is traceable to the principal’s manifestations.” Id. ¶ 55 (quotation simplified). Robert makes no effort to persuade us that Taylor was acting pursuant to either actual or apparent authority from Margene when he committed the unlawful acts.
¶121 Robert does observe—correctly—that Margene gave Taylor power of attorney over her personal finances. But he does not explain how this narrow grant of authority led to the unlawful acts Taylor committed as trustee, or constituted the type of authority by which the Estate can be held vicariously liable for Taylor’s malfeasance. The scope of this grant of authority extended only to Margene’s own personal finances; Margene had no authority to disburse Trust funds, and therefore could not have granted, by her power of attorney, any such authority to Taylor, either expressly or impliedly. And as a practical matter, nothing Taylor did with Margene’s personal finances could have, by itself, impacted the Trust; after all, by the time Taylor took actions pursuant to his power of attorney—e.g., moving money from Margene’s personal accounts to, say, his own—he would by definition have already committed the unlawful acts in question— distributing Trust principal into Margene’s accounts in the first place. That is, the specific bad acts at issue here weren’t undertaken pursuant to any authority Margene gave Taylor; they were committed pursuant to authority Taylor already possessed, as trustee, under the Trust documents. Under these circumstances, Robert has not borne his burden of persuading us that vicarious liability exists here under principles of agency law.
¶122 Moreover, as noted, the trial court did not rely on this theory; if we were to rely on it here, we would be affirming on a different ground, something we may do only if that ground is “apparent on the record.” See Croft v. Morgan County, 2021 UT 46, ¶ 43, 496 P.3d 83 (quotation simplified). It is certainly not apparent from this record that Taylor had authority from Margene to act on her behalf in making unlawful distributions of Trust principal.
¶123 Thus, on the record before us, we see no basis in law for the Estate to be held vicariously liable, as a general matter, for acts Taylor committed as trustee of the Trust. We therefore reverse the trial court’s ruling to that effect.
¶124 Before concluding our analysis, however, we discuss the third theory by which assets of the Estate might conceivably be used to satisfy a judgment entered against Taylor in connection with his malfeasance as trustee: Robert’s apparent request that the court impose a constructive trust on the assets of the Estate, at least to the extent that those assets are derived from unlawfully distributed Trust assets. As noted, this theory is more limited than a vicarious liability theory—imposition of a constructive trust would not connote that Margene or the Estate did anything wrong and would not result in the Estate being generally liable for Taylor’s unlawful actions. But imposition of a constructive trust would enable Robert (and his siblings) to reach at least certain assets of the Estate to compensate them for Taylor’s malfeasance. See Lodges at Bear Hollow Condo. Homeowners Ass’n, Inc. v. Bear Hollow Restoration, LLC, 2015 UT App 6, ¶ 31, 344 P.3d 145 (“Constructive trusts are usually imposed where injustice would result if a party were able to keep money or property that rightfully belonged to another.” (quotation simplified)).
¶125 It is unclear to us whether Robert properly pleaded and pursued this theory or, if not, whether it was tried by consent of the parties. Robert certainly asked for this relief in his proposed post-trial findings, at least regarding Taylor’s share of the Estate’s assets. But the trial court specifically eschewed this theory during post-trial proceedings, offering its view that it “need not retreat to any equitable theory”—for instance, constructive trust—to support its determination regarding vicarious liability. However, the court expressly stopped short of rejecting a constructive trust theory, stating in a later ruling that it had not ruled on the theory, but instead had merely “ruled on an alternative ground,” and further clarifying that the fact that it “didn’t rule on that theory . . . doesn’t mean that [the court] didn’t accept it.” Indeed, the court went so far as to say that, if a constructive trust theory was “what the parties believe is a more proper finding,” the court may be willing to impose such a trust.
¶126 On remand, the court should consider whether Robert properly pleaded a claim for constructive trust and, if not, whether that claim was tried by consent of the parties. If the court determines that the claim is properly before the court, it should then consider the merits of the claim, and evaluate whether and to what extent a constructive trust should be imposed on the assets of the Estate in favor of Robert and his siblings. The merits of these questions have not been briefed in connection with this appeal, and we express no opinion on them, nor do we express any opinion regarding whether, on remand, these questions can or should be decided on the existing evidentiary record or whether additional proceedings would be appropriate.
B. Interest Rate
¶127 Second, the Estate asks us to examine the trial court’s ruling regarding the rate to be applied in calculating the amount of interest that Robert and Jill owe on the Note associated with the Loan. Despite the fact that the only expert—the Estate’s expert— to offer an interest calculation at trial calculated that interest to be $922,219.77, the court concluded that the total amount of unpaid interest owing on the Note was $565,314.97.
¶128 Under the terms of the Note, Robert and Jill agreed to pay “variable interest . . . at the margin loan rate assessed by S[a]lomon Smith Barney on Brokerage Account No. 298-02528-13 303 . . . as may fluctuate from time to time until paid in full.” But the calculation is not as straightforward as it may sound, because Robert and Jill failed to repay the Note for eleven years, and there were “some months” during that time span “where an interest rate was not published on the account” referenced in the Note.
¶129 For the months in which an interest rate on the specific account was published, the Estate’s expert used the published rate, which varied by month and ranged from 4.125% to 11%. For most of the “gap periods”—those months for which no interest rate was published on the account—the expert looked at the rate published for the month before the gap and the rate published for the month after the gap, averaged the two rates, and applied that average rate for each month during the gap period. Some of these gap periods were short, involving a gap of just a month or two, but other gap periods were quite long, involving periods up to three years without a published interest rate. But for the last gap period—a long one stretching from September 2011 through February 2015—the expert did not use an “average rate” methodology, because he could find no rate for the end month. Instead, he “made some calls and talked to a Smith Barney representative” who gave him “a range of rates”—from 4.75% to 5.5%—used “during that period of time” on various brokerage accounts. The expert then attempted to “corroborate that” range by comparing those rates to “rates published in the Wall Street Journal” and by discussing the issue “with [his] colleagues,” and eventually determined that a “reasonable rate” to use for the last gap period was 4.75%, a rate the expert considered to be “a very conservative rate . . . on the low end of the range.” The expert noted that this choice was only “an increase of 1.5% over the prime rate,” which he considered to be another sign that his chosen rate was “conservative and reasonable.” Applying this methodology, the expert calculated the total amount of interest owing, over the entire eleven-year period, as $922,219.77.
¶130 The trial court found the expert’s methodology to be “reasonable,” at least for “short gap periods,” but nevertheless did not accept the Estate’s expert’s methodology. It determined that the “Note’s repayment of interest term was ambiguous” with regard to the gap periods because the Note did not specify “what should occur if” no monthly interest rate was published for the account in question. It also found that “the intent of the parties” with regard to this ambiguity was “ascertainable sufficient to enforce it.” But even though it professed to be considering “extrinsic evidence to clarify the intent of the parties,” the court did not actually utilize any such evidence. Instead, it observed that the Note was a “negotiable instrument,” and it turned to a statute, located in Utah’s Uniform Commercial Code (UCC), for guidance. See Utah Code § 70A-3-112. That statute states, in relevant part, that if a negotiable “instrument provides for interest, but the amount of interest payable cannot be ascertained from the description, interest is payable at the judgment rate in effect at the place of payment of the instrument and at the time interest first accrues.” Id. § 70A-3-112(2). The court concluded that this statute “provides an adequate remedy at law to execute the intent of the parties as represented in the Note.” And it decided to apply this statutory default rate—which turned out to be 3.28%—to all gap periods, regardless of their length, noting that the statutory rate “provides a reliable method at law that relieves the Court from adopting” the expert’s methodologies for the gap periods. Notably, the court did not ever find that the Estate’s expert’s methodology was unreasonable; as noted, it found the methodology reasonable as to short gap periods and, even with regard to the longer gap periods, the court stated that it “appreciate[d]” the expert’s “efforts to determine reasonableness of his proposed rates by comparing them with the contemporaneous prime rate.” Later, using the published rate for the months in which one existed and the UCC rate for all other months, the court calculated the unpaid interest as $565,314.97.
¶131 The Estate ascribes error to the court’s approach, asserting that, after making its ambiguity determination, the court should not have jumped directly to the UCC rate but, instead, should have “determine[d] the parties’ intent from extrinsic evidence,” including the expert’s testimony. The Estate points out that the Note is far from silent on the interest-rate question, and indicates the parties’ intent to apply a rate equivalent to the brokerage rate for a particular account. And they assert that the UCC rate “applies only where the instrument is silent on how to calculate interest,” and not where the parties’ instructions in that regard are simply ambiguous. We find merit in the Estate’s argument.
¶132 As an initial matter, we note that the Estate’s argument is in line with general principles of contractual interpretation, including the bedrock proposition that, when “a contract term is ambiguous, [trial] courts should consider extrinsic evidence to resolve the ambiguity.” See Brady v. Park, 2019 UT 16, ¶ 29, 445 P.3d 395. Neither side takes issue with the court’s determination that, at least for the gap periods, the Note was ambiguous with regard to interest rate.[19] But the Estate persuasively argues that, even for gap periods, the Note does give some indication of the parties’ intent: they wanted to apply a rate equivalent to the Salomon Smith Barney brokerage rate. And the Estate points out that its expert came up with a methodology, in keeping with the parties’ expressed desire to use brokerage rates rather than presumably lower statutory rates, for estimating the brokerage rates for the gap periods, and points out that the trial court even found that methodology to be “reasonable,” at least as applied to the shorter gap periods.
¶133 Moreover, courts that have construed the UCC interest rate statute have concluded that it should not be applied in situations where “an ascertainable interest rate is provided but the sum certain requirement fails for lack of evidence concerning a reasonable rate of interest.” See Commercial Services of Perry, Inc. v.Wooldridge, 968 S.W.2d 560, 565 (Tex. App. 1998). In particular, at least where competent extrinsic evidence exists that can be utilized to estimate a reasonable rate commensurate with the parties’ intentions, courts have declined to apply statutory default rates where the parties agreed, in their instrument, to an interest rate tied to a specific bank’s prime rate and where that bank goes out of business. See, e.g., Ginsberg 1985 Real Estate P’ship v. Cadle Co., 39 F.3d 528, 533 (5th Cir. 1994) (applying “an analogous prime rate,” rather than a default statutory rate, to calculate interest after a bank failure, where the contract called for interest at that bank’s prime rate plus 1%); FDIC v. Blanton, 918 F.2d 524, 532–33 (5th Cir. 1990) (determining that a default statutory rate was “inapplicable” where the parties had agreed upon an interest rate equivalent to a specific bank’s rate plus 1% and where the bank had failed, holding that “[t]he trial judge could have applied an analogous prime rate as consistent with the intent of the parties”). We consider the failed-bank situation helpfully analogous to this one, and find the analysis applied by the courts in those cases persuasive and useful in this situation.
¶134 In those cases, courts examine extrinsic evidence to make a finding regarding a rate that would be reasonable and most in line with the parties’ intent. See Central Bank v. Colonial Romanelli Assocs., 662 A.2d 157, 158 (Conn. App. Ct. 1995) (“When a variable interest rate is based on the rate of a failed institution, the trial court must determine whether the substitute rate is reasonable by examining the documents and testimony offered by the plaintiff.”); FDIC v. Cage, 810 F. Supp. 745, 747 (S.D. Miss. 1993) (“Because the rate of interest is a term which is essential to a determination of the rights and duties of the parties and because the parties to this action understandably failed to specify the interest rate to be applied upon the failure of [an institution], it is left to the Court to determine a reasonable rate of interest.”). Importantly, “in determining reasonableness” in situations involving a failed bank, “the court need not determine the exact methodology used by the failed bank in calculating its internal interest rate; such a determination would be impossible in many circumstances. Rather, the court must determine whether the substitute rate was reasonable based on all the circumstances of the particular case.” Ninth RMA Partners, L.P. v. Krass, 746 A.2d 826, 831 (Conn. App. Ct. 2000) (quotation simplified).
¶135 In this case, the trial court did not undertake this type of analysis. Instead, without fully evaluating the reasonableness of the Estate’s proffered extrinsic evidence (chiefly, the expert’s methodology), the court jumped straight to the UCC default rate, stating that “the UCC provides an adequate remedy at law to execute the intent of the parties” and “relieves the Court from adopting” the expert’s methodology. And the court did so without making any finding that the expert’s unrebutted testimony was unreasonable or unreliable; to the contrary, the court expressly found the expert’s methodology “reasonable,” at least for use over shorter gap periods. And it made little effort to explain why it found the expert’s methodology reasonable for shorter gap periods but not necessarily for longer ones; it stated only that the expert’s gap period rates were “hypothetical and speculative,” a criticism that would seem to apply to all gap periods regardless of their length, and that will apply, at least to some extent, any time an effort is made to estimate an interest rate for a bank that, for instance, has gone out of business. Instead of explaining why it rejected the expert’s conclusions, the court simply stated that it “does not adopt” the expert’s “method as a proper means to ascertain interest,” and instead elected to apply the UCC rate. Contrary to the court’s statement, the statute did not “relieve” the court of its obligation to apply an interest rate commensurate with the intentions of the parties, nor of its obligation to grapple with, and make specific findings regarding, the credibility and reasonableness of the extrinsic evidence offered by the Estate and its expert.
¶136 Certainly, if the court had made specific and supported findings that the expert’s methodology was unconvincing and unreasonable across the board, and that therefore the Estate’s extrinsic evidence was not credible, it may have been possible for the court to default to the UCC rate. In that scenario—where the other side (Robert and Jill) did not offer any extrinsic evidence of their own and where the Estate’s evidence was deemed not credible—there would exist no competent extrinsic evidence to assist the court in ascertaining a rate reasonably equivalent to the one the parties intended, and therefore defaulting to a statutory rate may be appropriate. But absent such findings, the court should make a determination, based on the extrinsic evidence offered, as to the interest rate most reasonably equivalent to the intent of the parties as expressed in the Note.
¶137 We therefore vacate the court’s interest-rate determination, and remand the case to the trial court for reassessment of a reasonable rate of interest that best approximates the intentions of the parties. In so doing, the court should specifically assess the reasonableness of the Estate’s expert’s methodology. To the extent the court finds the expert’s methodology reasonable—as it already has with respect to short gap periods—it should apply that methodology, given the absence of other extrinsic evidence. The court should resort to the UCC statutory rate only to the extent it finds the expert’s methodology unreasonable, and not merely because the expert’s effort to estimate a rate that, by definition, does not exist is somewhat hypothetical. We imagine that this reassessment might be done by resort to the existing evidentiary record, but it will certainly be within the court’s discretion to hold additional proceedings if necessary.
C. The Form of the Judgment
¶138 Next, the Estate raises several issues with the form of the judgment the court entered in this case. First, the Estate challenges the court’s award of damages against it related to repairs to the marital home. Second, the Estate wonders who the proper judgment creditors are. Finally, and relatedly, the Estate raises setoff-related issues arising from the fact that it obtained an award against both Robert and Jill; it asks us to instruct the trial court to enter a separate judgment in favor of Robert and Jill, or to otherwise resolve the issues related to the court’s decision to set off the money owed to the Estate against the money the Estate owes to Robert. We find merit, at least to some extent, in all of the Estate’s complaints related to the form of the judgment, and we therefore vacate the court’s judgment and remand these issues to the trial court for clarification.
1
¶139 First, the Estate complains about the court’s award of damages to Robert, and against the Estate, for damages to the marital home. Its main complaint in this regard is that Robert did not point to any evidence that he—as opposed to Jeana—had actually been damaged.[20] This challenge is well-taken.
¶140 The trial court found, in determinations not challenged on appeal, that the marital home “was in excellent repair and condition” at the time of Dean’s death, but that Margene did not continue to properly maintain the property afterward. After Margene’s death, Jeana purchased the home, and made significant repairs that were necessitated by Margene’s failure to properly maintain the home. The court found that Jeana purchased the home for full value—without the benefit of any discount for the condition of the home—and then made the repairs to the home out of her own pocket. In view of these apparently undisputed facts, the court determined, in its main post-trial ruling, that the damages related to the home repairs were “owed to Jeana.”
¶141 Despite determining that any damages in this regard were owed to Jeana, the court’s judgment—entered some months after its main post-trial ruling—reflected that these damages were to be paid to Robert. Robert offers no good explanation for this, asserting simply that he and Jeana, “as beneficiaries” of the Trust, “have standing and are entitled to damages” related to the repairs to the marital home. But standing is one thing; evidence of damages is another. We agree with the Estate that Robert— personally, as distinct from Jeana—offered no evidence that he sustained damages related to the repairs to the home, and that the judgment in this case should be modified to remove any obligation by the Estate to pay Robert for those damages.
2
¶142 The Robert-or-Jeana issue related to repairs to the marital home is just one confusing result of the court’s decision to list Robert—and only Robert—as judgment creditor. By this point in the opinion, it should be apparent that—for the most part, and with certain exceptions such as perhaps the payment to Robert’s ex-wife—the damages Taylor caused were visited upon the Trust, and all its beneficiaries, and not just upon Robert. Yet the trial court—over objection—determined to list Robert as the sole judgment creditor, even though it awarded the full amount of the Trust’s damages. This was error and requires us to vacate the judgment and remand the issue for clarification.
¶143 The court can remedy this overarching error in one of two ways. First, it could elect to enter judgment in favor of not just Robert but, instead, either (a) the Trust (or, alternatively, the trustees of the Trust in their official capacity) or (b) all three beneficiaries, each to the extent of their damage. Second, it could elect to have Robert remain as the sole judgment creditor but, in this event, it would need to reduce the damages award to reflect the fact that Robert is entitled to receive only one-third of any damages sustained by the Trust.
¶144 We offer no opinion as to which option the court should choose on remand. Each has potential procedural pitfalls; from our review of the record, the party status of Jill and Jeana is somewhat unclear. But one thing the court may not do is enter judgment in favor of Robert, personally, in the full amount of the Trust’s damages.
3
¶145 Next, the Estate raises the related issue of how to memorialize the judgment in its favor, and against Robert and Jill, for unpaid interest on the Note. The court’s judgment resolved this issue by way of setoff, awarding damages to Robert and against the Estate associated with the Estate’s determined vicarious liability for Taylor’s actions as trustee, and then setting off against that amount the interest Robert owed to the Estate. The Estate complains about the way the court handled this, pointing out that—even if the court correctly applied setoff principles with regard to Robert—the court awarded no money in Jill’s favor and therefore could not have applied setoff principles with regard to Jill’s obligation to pay interest to the Estate. In other words, the Estate complains that the court held that it was entitled to recover several hundred thousand dollars from Jill but gave the Estate no way to actually go about collecting on this award. Again, the Estate’s complaint is well-taken; the court erred in the way it applied setoff principles under these circumstances.
¶146 This issue may, however, be rendered moot by this court’s determination that the Estate is not vicariously liable for Taylor’s actions as trustee, see supra Part II.A, and by its determination that the Estate is not liable to Robert (as opposed to, potentially, Jeana) for the repairs to the marital home, see supra Part II.C.1. Unless the court, after reconsidering Robert’s potential claim for constructive trust, actually imposes such a trust, no judgment will be entered against the Estate in favor of Robert or Jill. In any event, and even if the court ends up entering a judgment for constructive trust against the Estate and in favor of the Trust’s beneficiaries, the court in clarifying judgment-related issues should make sure that the judgments properly account for the Estate’s award against both Robert and Jill for unpaid interest.
D. Attorney Fees
¶147 Finally, the Estate appeals the denial of its request for attorney fees incurred in support of its claim for unpaid interest on the Note. Its claim is rooted in the language of the Settlement Agreement and related Note, which both have attorney fee provisions; the one contained in the Note requires Robert and Jill “to pay all reasonable costs and expenses of collection of any amount due under this Note including reasonable attorney’s fees.” Neither Robert nor Jill contests the Estate’s claim that, at least conceptually, the Estate would be entitled to recover attorney fees incurred in obtaining its judgment for unpaid interest on the Note. After all, the Estate prevailed on that specific claim. Indeed, in its attorney fees ruling, the trial court acknowledged that Robert and Jill “as guarantors of the [N]ote would owe fees [to the Estate] pursuant to a strictly construed reading of” the Note’s attorney fees provision.
¶148 But the trial court nevertheless denied the Estate’s claim for attorney fees, for several reasons. First, and chiefly, the court denied the Estate’s claim because, in the court’s view, the Estate had failed to sufficiently allocate its incurred fees between its successful and unsuccessful claims. Under our law, a party requesting attorney fees has an obligation to allocate its fees between claims on which it is entitled to fees and claims “for which there is no entitlement to attorney fees,” and should limit its fee request to only those specific fees incurred in aid of claims on which it is entitled to fees. See Zion Village Resort LLC v. Pro Curb USA LLC, 2020 UT App 167, ¶ 62, 480 P.3d 1055 (quotation simplified). A requesting party who fails to do so “makes it difficult, if not impossible, for the trial court to award . . . fees because there is insufficient evidence to support the award.” See Jensen v. Sawyers, 2005 UT 81, ¶ 132, 130 P.3d 325. Indeed, if a requesting party makes no effort to allocate its fees, a court “may, in its discretion,” elect to “not award wholesale all attorney fees” or may “deny fees altogether for failure to allocate.” Burdick v. Horner Townsend & Kent, Inc., 2015 UT 8, ¶ 59, 345 P.3d 531 (quotation simplified). But a court’s discretion in this regard is not unlimited, and “is not an invitation to forego a reasoned analysis.” Id. ¶ 60. Indeed, in Burdick, our supreme court determined that a trial court had abused its discretion by denying a request for attorney fees, in its entirety, for failure to allocate, noting that the movant’s “affidavit clearly identifie[d] 282 hours attributable only to” the successful claim. Id. The court remanded the matter to the trial court to “conduct a reasonableness analysis and attempt to discern what fees may be divided between the” successful claims and the unsuccessful claims. Id. ¶ 61.
¶149 In this case, some of our rulings described herein (see supra Parts II.A, II.B, and II.C) have changed the landscape with regard to allocation enough to require a remand, so that the Estate can resubmit its fee request in light of our rulings and so that the trial court can, in light of those rulings, reassess the quality of the Estate’s effort to allocate its requested fees. Most notably here, the fees the Estate incurred in advocating for its expert’s methodology for calculating the rate of interest may—depending on how proceedings on remand turn out—need to be included in the award. But in any event, we have some concerns with the trial court’s original analysis, and we express those concerns here in an effort to provide guidance on remand.
¶150 First, we are not convinced that the Estate’s allocation efforts—even the first time around—were so poor as to necessitate a complete denial of its attorney fees claim. In its ruling, the trial court acknowledged that “the [E]state made some effort to” allocate fees, “as it removed or modified fees claimed for work advancing arguments or upon which it did not prevail.” The record bears this out. The Estate eliminated (wholly or partially) from its fee request some forty-eight line items totaling nearly $30,000 of fees. To be sure, the Estate requested over $174,000 in fees, even after the allocation, and one could conceivably argue, depending on the circumstances, that reducing only $30,000 from fees totaling more than $200,000 does not constitute sufficiently deep cuts. But the Estate’s allocation effort does, to our eye, appear to be detailed, targeted, and undertaken in good faith. The Estate’s main claim—and the primary reason for its presence in the litigation—was the one for unpaid interest on the Note; it does not seem to us implausible that the majority of its fees would have been incurred in aid of litigating that claim. In situations like this, where a party has taken a good-faith and detailed run at allocation, the better approach—if a trial court remains of the view that the cuts are not quite deep enough—is to make a reduced award rather than to deny the request in its entirety. Wholesale denial of a fee request on allocation grounds should be reserved for situations where a party either makes no effort to allocate at all, see Burdick, 2015 UT 8, ¶ 59 (stating that a court may “deny fees altogether for failure to allocate” (emphasis added)), or where a party makes only token or wholly inadequate attempts to allocate.
¶151 Next, the court mentioned several other factors that influenced its decision to deny the Estate’s fee request that were, in our view, not a proper basis for denial. For instance, the court noted that, for many years, “no significant steps were taken to timely collect on the [N]ote,” and appeared to hold this against the Estate in assessing its claim for fees. But it was the Trust’s responsibility for pursuing repayment of the Note, at least until Margene’s death (at which point unpaid interest became payable to the Estate); any delays in pursuing collection from 2004 through 2015 cannot be laid at the feet of the Estate and are, in any event, beside the point. After Margene’s death, and after the principal amount of the Note was effectively paid off in connection with the first distribution to the Trust beneficiaries, the Estate soon pursued this action to recover the unpaid interest. There is no basis to hold delays in enforcement against the Estate in connection with assessing its claim for fees.
¶152 Next, the court speculated that the provision of the Settlement Agreement directing that unpaid interest on the Note was to be paid to the Estate, rather than to the Trust and its three beneficiaries, “was contrary to the intent and past practice of” Dean, and the court stated that it was “troubled” by that provision. The court noted that this sentiment was “not central to its decision,” but it should go without saying that the court should not have taken this into account at all in connection with assessing the Estate’s fee request.[21]
¶153 In short, we vacate the court’s order denying, in its entirety, the Estate’s claim for attorney fees; we do so largely because, in our view, the rulings set forth elsewhere in this opinion have changed the landscape enough to necessitate a reassessment of that claim. And we remand the matter to the trial court for reassessment of that claim consistent with this opinion.
CONCLUSION
¶154 We reject all but one of Taylor’s arguments on appeal. The trial court did not abuse its discretion in denying Taylor’s motion to amend. Taylor has not carried his burden, on appeal, of showing error in the court’s partial summary judgment ruling, or of demonstrating abuse of discretion in its decision to exclude Taylor’s experts. We also affirm much of the court’s damages award against Taylor, but vacate the court’s award of damages against Taylor related to the payment to Robert’s ex-wife.
¶155 We find merit in most of the Estate’s arguments on appeal. The court erred in holding the Estate vicariously liable for the actions Taylor took as trustee. The court also erred in its approach to calculating the interest owed to the Estate on the Note, as well as in various aspects of its judgment. In addition, we remand the question of the Estate’s entitlement to attorney fees.
¶156 Accordingly, we vacate the judgment entered by the trial court, and remand this case for further proceedings consistent with this opinion; those proceedings should, among other things, involve evaluation of Robert’s potential claim for constructive trust against the Estate, reassessment of the amount of interest the Estate is owed, clarification of the judgment, and reassessment of the Estate’s claim for attorney fees incurred in connection with its successful claim for unpaid interest.
[1] Because several of the individuals involved in this case are members of the same family, we often refer to them by their first names, with no disrespect intended by the apparent informality.
[2] This fact, along with the others in this factual recitation, is presented “in a light most favorable to the trial court’s findings,” as is required of us in an “appeal from a bench trial.” See Huck v. Ken’s House LLC, 2022 UT App 64, n.1, 511 P.3d 1220 (quotation simplified), cert. denied, 525 P.3d 1260 (Utah 2022).
[3] In 2020, our legislature amended and renamed this statute, titling it the “Uniform Fiduciary Income and Principal Act.” Utah Code § 22-3-101. No party suggests that the recent amendments are relevant to this case. In this opinion, we refer to this statute as the UPIA, the title it had during the events giving rise to this case.
[4] Robert’s ex-wife was eventually dismissed from the lawsuit prior to trial, and is not a party to this appeal.
[5] This ruling was later amended to remove all reference to any such costs.
[6] The record is somewhat unclear as to the identity of the person(s) or entity from whom Jeana purchased the home—that is, whether she purchased the home from the Trust or bought out her siblings’ interest in the home directly after it had been conveyed to them as tenants in common. Ultimately, this issue is immaterial to our analysis.
[7] Jill and Jeana also requested an award of attorney fees, but the court denied those claims for various reasons. The propriety of those rulings is not at issue in this appeal.
[8] The judgment also recites that the court “will award attorneys’ fees to” Robert, but it makes no effort to quantify those fees. As noted, the court did later quantify those fees in a ruling issued about four months after it signed the judgment, awarding Robert $441,546.50 in fees and $137,148.38 in costs. But the record submitted to us does not include any amended or supplemental judgment including those fees.
[9] In addition to the issue it raised regarding the form of the judgment, the Estate also raised objections relating to the court’s ruling that it was jointly and severally liable for Taylor’s actions.
[10] At one point in his appellate brief, Taylor mentions in passing that the trial court “made no finding under Utah Code § 75-7814(2) regarding whether or not a lay trustee may rely on professional counsel and accounting advice, and whether such reliance demonstrates reasonable care.” That statute provides that trustees may delegate “investment and management functions” to a professional as long as the trustee engages in certain oversight, and if trustees do so, they are “not liable to the beneficiaries or to the trust for the decisions or actions of the agent to whom the function was delegated.” Utah Code § 75-7-814(2). But Taylor did not invoke this statute in opposing Robert’s summary judgment motion, and any argument that the trial court erred by not considering the statute is therefore unpreserved. And in any event, Taylor does not argue that he delegated any specific task or function to any professional pursuant to this statute.
[11] Whether advice of counsel is the sort of affirmative defense that is considered waived if not pleaded in a responsive pleading is an interesting question. We are aware of Utah law stating that, at least in certain contexts, “reasonable reliance on the advice of counsel is an affirmative defense.” See Hodges v. Gibson Products Co., 811 P.2d 151, 159–60 (Utah 1991). But other courts have held that, at least in some circumstances, advice of counsel does not need to be pleaded in an answer. See, e.g., LG Philips LCD Co. v. Tatung Co., 243 F.R.D. 133, 139 (D. Del. 2007). Because the parties have not briefed this issue, and because it is only tangentially related to the question at hand, we offer no opinion on whether advice of counsel is the sort of affirmative defense that is waived if not included in a responsive pleading.
[12] Taylor argues that the court should not have considered much of this evidence because it was attached to Robert’s reply brief submitted in support of his summary judgment motion. He argues that Robert’s “obligation was to present all claimed relevant facts with his initial motion” and that “[n]ew materials cannot be raised in a reply memorandum.” But Robert did not raise any new issue in his reply; he merely responded to Taylor’s claims—included in his memorandum opposing Robert’s motion—regarding IRA ownership. The court did not err in considering the materials Robert submitted in connection with his reply brief in support of his motion.
[13] The court did, however, allow one of Taylor’s financial experts to offer rebuttal testimony at trial.
[14] In this same vein, Taylor makes a cursory and unsupported allegation in his brief that Robert cannot recover for “hypothetical growth in value” of Trust assets because his expert “[r]elied on [s]peculative [a]ssumptions.” But he does not suggest what these speculative assumptions were. Thus, this allegation, like some of his other damages assertions, is inadequately briefed.
[15] Taylor does not appeal the question of whether he—as opposed to Margene or the Estate—should be liable for the repairs to the marital home. Per the Trust, it was Margene—and not the trustee—who was responsible for “perform[ing] such repairs and maintenance as may be required to maintain the property in the condition it was maintained prior to [Dean’s] death.” Because this issue was not appealed, we do not address its merits.
[16] We are also aware of Taylor’s motion, filed with this court on June 30, 2023, asking us, “pending [our] imminent ruling,” to stay enforcement of the judgment. However, now that we have decided the case, the motion to stay has been rendered moot. See M.N.V. Holdings LC v. 200 South LLC, 2021 UT App 76, ¶ 17 n.10, 494 P.3d 402 (determining that a motion to stay had been mooted by the issuance of the opinion); Koyle v. Davis, 2011 UT App 196, ¶ 7, 261 P.3d 100 (per curiam) (recognizing that our resolution of a case on appeal “renders the motion to stay moot”), cert. denied, 263 P.3d 390 (Utah 2011).
[17] Similarly, the Estate’s failure to object to evidence that could conceivably have supported a constructive trust claim does not constitute implied consent to trial of an unpleaded vicarious liability claim. See Hill v. Estate of Allred, 2009 UT 28, ¶ 48, 216 P.3d 929. As discussed below, Robert may or may not have properly pleaded a claim that a constructive trust be imposed on Estate assets, at least to the extent that those assets consist of wrongfully distributed Trust principal; we offer no opinion on that question. But even assuming, for purposes of this discussion, that he did properly plead a claim for constructive trust, such a claim is a far cry from a claim for complete vicarious liability for all actions, and the Estate’s perceived acquiescence in admission of evidence supporting a constructive trust claim does not necessarily signal consent to trial of a vicarious liability claim.
[18] At oral argument before this court, Robert’s attorney hinted at a fourth theory, and suggested that the court, in ruling that the Estate was vicariously liable for Taylor’s actions as trustee, might have been applying a contract-based construct. But the court’s written rulings on this topic do not appear to rely on any such theory. In addition, we are aware of no specific contractual obligation that might be utilized for this purpose. The only obligation Margene had under the Trust documents was the duty to keep the home in good condition. She was never the trustee, never had any authority to distribute Trust assets, never signed the Trust, and did not receive Trust assets upon any condition, and therefore never had any contractual obligation regarding those assets. See, e.g., Bloom Master Inc. v. Bloom Master LLC, 2019 UT App 63, ¶ 13, 442 P.3d 1178 (“To form an enforceable contract, the parties must have a meeting of the minds on the essential terms of the contract.” (quotation simplified)). We therefore reject any contract-based argument for vicarious liability.
[19] And neither Robert nor Jill makes any argument that the UCC rate should apply whenever contractual ambiguity exists with regard to the interest rate. In general, “a court’s legal determination that ambiguity exists within a text leads to the conclusion that” a factfinder will need to consider extrinsic evidence. See Jessup v. Five Star Franchising LLC, 2022 UT App 86, ¶ 42, 515 P.3d 466. This general principle appears to apply here. At least, neither Robert nor Jill makes any assertion that, given the language of the UCC, this constitutes one of those “other specific areas of the law . . . where clarity between parties is itself at issue” and in which “the presence of ambiguity . . . suggests that a party may be entitled to a judgment as a matter of law.” Id. (describing some of those exceptional situations). That is, Robert and Jill do not assert that the UCC rate should apply whenever ambiguity in the words used in the instrument prevents a court from easily ascertaining the agreed-upon interest rate. See Utah Code § 70A3-112(2). Because Robert and Jill do not make this argument, we offer no opinion as to its merits.
[20] The Estate also complains about the amount of this damages award, asserting that it should be for $29,439 instead of $33,500. There was evidence supporting both damages figures, and the trial court was within its discretion to select the slightly higher one. We therefore reject the Estate’s challenge to the amount of this portion of the damages award.
[21] The Estate also asserts that the trial court more heavily scrutinized its fee request than it did Robert’s, asserting that—like the Estate—Robert also failed to prevail on all of his claims and motions, and therefore should also have been required to allocate his requested fees between successful and unsuccessful endeavors. The propriety of the court’s fee award to Robert is not at issue in this appeal, and we therefore decline to comment on the court’s handling of Robert’s fee request, other than to state that courts should, of course, evaluate fee requests from the various parties in the case by the same standards.
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Jillyn Smith appeals the district court’s order regarding custody and child support for her minor son (Child). Because we determine the court abused its discretion by awarding Smith sole physical and legal custody while requiring joint decision-making between Smith and Child’s father, DeJuan Blake, we vacate that part of the court’s custody award. Furthermore, because we conclude the court made a mathematical error in calculating the amount of child support, and that a further examination of the evidence of Blake’s income is warranted, we reverse the court’s child support award and remand for recalculation as appropriate.
BACKGROUND
¶2 Smith met Blake in 2007 in Las Vegas, Nevada, and the two entered into a relationship. As a result of the relationship, Smith became pregnant with Child in 2009. At the time Smith learned about the pregnancy, she was no longer living in Las Vegas—she had moved to Utah to escape her relationship with Blake.
¶3 After a tumultuous pregnancy, during which Blake continuously asked Smith to have an abortion, Child was born in Utah in October 2009. Blake traveled to Utah to visit Child twice during the first year of Child’s life, with each visit lasting “maybe an hour or two.” The sporadic visits continued over the next few years, with Child and Smith traveling with Blake on short trips together. Although Smith asked Blake for financial support during this time, Blake did not provide support and instead always offered an “excuse.” Eventually, the communications between the couple became too toxic and Smith elected to “take a break from communication” with Blake.
¶4 Thereafter, Smith decided to “give [Blake] a second chance.” Blake and Child had “maybe a few” “infrequent[]” telephone conversations a year, but the conversations were short due to Child’s speech impediment. Blake was not involved in Child’s schooling or scheduling, he never attended Child’s doctor’s appointments, and he “wouldn’t follow through” or offer any explanation as to why he could not help Smith with financial support for Child’s medical care or educational needs.
¶5 Blake traveled to Utah in 2015 to attend Child’s birthday party. Toward the end of the party, Blake and Smith had a verbal altercation regarding Blake’s failure to honor their agreement for Blake to pay Smith child support. Following this visit, Blake returned to Utah once in 2016 to attend Child’s baseball game. That visit also ended in a verbal altercation.
¶6 In January 2018, Blake petitioned the district court for paternity and custody of Child. At the time, Child was eight years old and living with Smith.
¶7 After initiating custody proceedings, Blake filed a series of three financial declarations with the district court. Blake is self-employed and owns a company managing professional and aspiring boxers. Blake’s stated gross income, monthly expenses, and debt listed on each of the three financial declarations differed significantly. In the first declaration, Blake claimed $0 in gross monthly income, $1,875 in monthly expenses, and a debt of $7,240. In the second, Blake claimed $2,000 in gross monthly income, $17,797 in monthly expenses, and no debt. And in the third, Blake claimed $1,686 in gross monthly income, $3,947 in monthly expenses, and no debt. The bank statements filed with each disclosure were incomplete; however, the bank statements that were submitted showed that between August 2017 and January 2019, Blake made deposits into his personal account totaling $456,669.98, and that during that same time, he made withdrawals totaling nearly $50,000 for investments in cryptocurrency, payments to his mother, payments to the mother of one of his other children, and luxury clothing.
¶8 The case proceeded to a bench trial in October 2020. At trial, Smith detailed the relationship between Child and Blake. She explained that Blake had never been actively involved in Child’s life and that Blake had not seen Child at all since May 2016. Smith testified that she and Blake had reached an “original agreement” for child support where Blake would pay her $1,000 per month. She further testified that this agreement did not start until 2015—when Child was already six years old—and that the payments had lasted for only one month. In total, Smith estimated that Blake had contributed $1,600 in support payments “over the entirety of [Child’s] life.”
¶9 Following trial, the district court adjudicated Blake as Child’s father, awarded Smith sole physical and legal custody of Child, and awarded Blake standard relocation parent-time pursuant to Utah Code section 30-3-37, which is approximately 17% of the year. In reaching its legal custody determination, the court analyzed the statutory factors outlined in Utah Code sections 30-3-10 and 30-3-10.2 and concluded that the presumption favoring joint legal custody had been rebutted and that joint legal custody was not in Child’s best interest. However, the court ordered a joint decision-making arrangement between the parties, requiring that the parties “discuss with each other decisions that should be made regarding [Child].” The arrangement further provides, “If there is a dispute, the parties should attend mediation and each pay half of the mediation fees. If the dispute remains, then [Smith] will have final say. [Blake] can . . . bring the matter to court if he is unsatisfied with the decision.”
¶10 Regarding child support, the district court primarily calculated Blake’s past child support payments based on his 2018 tax record, where he claimed $45,050 in gross receipts and $34,483 in deductions. After reviewing the evidence, the court concluded that several of the deductions—totaling $27,530—were unsupported and accordingly struck those deductions. Based on this, the court found that Blake’s “annual income should be $23,790” through March 2020. However, given the outbreak of the COVID-19 pandemic, the court concluded that “Blake’s income has come to a halt,” and it accordingly found it “appropriate . . . to impute minimum wage income of $1,257/month from March 2020 forward.”
ISSUES AND STANDARDS OF REVIEW
¶11 Smith now appeals the district court’s order regarding custody and child support, raising two issues for our review. First, Smith argues the court abused its discretion when it “issued an internally inconsistent [custody] award” giving Smith “sole legal and physical custody but also order[ing] joint decision-making” between her and Blake. “We review custody determinations under an abuse of discretion standard, giving the district court broad discretion to make custody awards.” K.P.S. v. E.J.P., 2018 UT App 5, ¶ 24, 414 P.3d 933 (quotation simplified). “But this broad discretion must be guided by the governing law adopted by the Utah Legislature. And on matters of statutory interpretation, we review for correctness.” Dahl v. Dahl, 2015 UT 79, ¶ 155, 459 P.3d 276 (quotation simplified). And “[w]here the court’s findings are internally inconsistent on a material point, reversal and remand are appropriate.” Vandermeide v. Young, 2013 UT App 31, ¶ 21, 296 P.3d 787, cert. denied, 308 P.3d 536 (Utah 2013).[1]
¶12 Second, Smith argues the district court abused its discretion when it calculated Blake’s income for purposes of child support. “We review the district court’s decisions regarding child support . . . under the abuse of discretion standard.” Pankhurst v. Pankhurst, 2022 UT App 36, ¶ 13, 508 P.3d 612 (quotation simplified). Where the court’s findings contain mathematical error or conflict with the record, we will remand for recalculation. See Miner v. Miner, 2021 UT App 77, ¶¶ 57–60, 496 P.3d 242.
ANALYSIS
I. Custody
¶13 Smith first challenges the district court’s custody award, contending the court abused its discretion in crafting the award because it is “internally inconsistent.” According to Smith, the joint decision-making arrangement “undermines” her award of sole physical and legal custody because it “allows [Blake] to force mediation and litigation whenever he disagrees with a decision made by [Smith], even though she has sole legal and physical custody.” We agree.
¶14 As an initial matter, the Utah Code does not define “sole physical custody” or “sole legal custody.” But in Hansen v. Hansen, 2012 UT 9, 270 P.3d 531, our supreme court provided guidance as to the meaning of those terms. In Hansen, the father and the mother were awarded joint custody of their daughter following their divorce. Id. ¶ 2. The mother was awarded sole physical custody and the father was ordered to pay child support to the mother. Id. Sometime later, the daughter entered a private youth homeless shelter, where she lived through her eighteenth birthday. Id. While the daughter was living at the shelter, the father filed a petition with the district court seeking to redirect his child support payments from the mother to the homeless shelter. Id. ¶¶ 2–3. The court denied the motion, which denial was ultimately upheld by the Utah Supreme Court. Id. ¶¶ 4–5, 30.
¶15 The supreme court’s decision centered on the meaning of custody. Although the daughter had been residing at the shelter, the court determined that the daughter’s physical custody had not changed; rather, the mother still retained physical custody. Id. ¶¶ 15–19, 28. The court explained,
Family law treatises consistently define custody as a bundle of constituent rights and obligations to a child’s possession, care, and control, and explain that the essence of custody is control over all aspects of the child’s life coupled with responsibility for the child’s welfare. Standard dictionary definitions of custody are to the same effect.
Custody is often divided into two subsets: legal and physical custody. Both encompass a duty of control and supervision. While legal custody carries the power and duty to make the most significant decisions about a child’s life and welfare, physical custody involves the right, obligation, and authority to make necessary day-to-day decisions concerning the child’s welfare. Although the latter is limited to the right to control the child’s daily activities, it still involves a right of control. This grant of authority is necessary so that the custodian can control and discipline the child or make emergency medical or surgical decisions for the child.
Id. ¶¶ 16–17 (quotation simplified). Put differently, “the legal duty of control or supervision [is] the essential hallmark of custody.” Id. ¶ 18 (quotation simplified). Legal custody encompasses the ability to make major decisions in a child’s life, while physicalcustody encompasses the ability to make day-to-day decisions in a child’s life.
¶16 Although the Utah Code does not define sole physical or legal custody, it does define “joint legal custody” and “joint physical custody.”[2] Under the current statutory scheme, a parent may be awarded “joint legal custody,” which is defined as “the sharing of the rights, privileges, duties, and powers of a parent by both parents.” Utah Code § 30-3-10.1(2)(a) (emphasis added). As this court has long recognized, the purpose of joint legal custody is to allow “both parents [to] share the authority and responsibility to make basic decisions regarding their child’s welfare.” See Thronson v. Thronson, 810 P.2d 428, 429–30 (Utah Ct. App. 1991), cert. denied, 826 P.2d 651 (Utah 1991).
¶17 Taken together, it follows that an award of “sole” legal custody does not involve sharing the “rights, privileges, duties, and powers of a parent.” See Utah Code § 30-3-10.1(2)(a). Accordingly, when the district court awarded sole legal and physical custody to Smith, it also awarded her alone the “rights and obligations to [Child’s] possession, care, and control,” see Hansen, 2012 UT 9, ¶ 16 (quotation simplified), including the sole authority to “make the most significant decisions about [Child’s] life and welfare,” see id. ¶ 17 (quotation simplified), and the “authority to make necessary day-to-day decisions concerning [Child’s] welfare,” see id. (quotation simplified). It therefore was inconsistent to simultaneously order a joint decision-making arrangement.
¶18 Moreover, the joint decision-making arrangement is at odds with the district court’s own findings regarding Child’s best interest. “In making a custody determination, a [district] court’s primary focus is what custody arrangement would be in the best interest[] of the child.” Grindstaff v. Grindstaff, 2010 UT App 261, ¶ 4, 241 P.3d 365. Utah law presumes that joint legal custody is in a child’s best interest, but that presumption may be rebutted by showing “by a preponderance of the evidence that it is not in the best interest of the child.” Utah Code § 30-3-10(3)–(4). And under Utah law, there is “neither a preference nor a presumption for or against joint physical custody or sole physical custody.” Id. § 303-10(8).
¶19 “In determining whether the best interest of a child will be served by ordering joint legal custody or joint physical custody or both, the court shall consider” a number of statutory factors. See id. § 30-3-10.2(2). Here, the court analyzed the statutory factors and determined that awarding Smith sole legal and physical custody of Child was in Child’s best interest. In particular, the court found that there was “very little evidence provided that either parent could function appropriately with co-parenting skills,” that it was “unclear” whether the parties could work together to reach shared decisions in Child’s best interest, and that there was “very little evidence” the parties “actually discussed and made decisions together.” In light of these findings, it is unclear how the joint decision-making arrangement—which is not limited to major decisions but instead encompasses all decisions—could be properly viewed as advancing Child’s best interest. It does not follow from the evidence of the parties’ ongoing issues making decisions relating to Child that such an arrangement would lead to success in the future. Rather, precisely because of the court’s findings, it seems likely that such an arrangement would cause ongoing issues, result in costly mediation and additional court involvement, and be detrimental to Child’s best interest, which is exactly what Utah law seeks to avoid.
¶20 In sum, the district court abused its discretion when it awarded Smith sole physical and legal custody while also ordering a joint decision-making arrangement between Smith and Blake. Although Utah law does not prohibit a joint decision-making arrangement in cases involving an award of joint physical and legal custody, an examination of the underlying statutory scheme reveals that such an arrangement is not compatible with an award of sole physical and legal custody. Furthermore, these competing provisions belie the court’s own findings regarding Child’s best interest as relates to custody. As such, we vacate the portion of the court’s custody award ordering the joint decision-making arrangement.
II. Child Support
¶21 Smith next argues the district court erred in calculating child support. Specifically, Smith takes issue with the court’s calculation of Blake’s income for purposes of child support, contending the court’s calculation (1) contains a mathematical error and (2) is inconsistent with the evidence in the record. We agree.
¶22 The Utah Child Support Act outlines the process by which a district court must evaluate the income of a parent when calculating child support. See generally Utah Code § 78B-12-202. To begin, the court must consider the “gross income” of a parent, which the Utah Code defines broadly as including
prospective income from any source, including earned and nonearned income sources which may include salaries, wages, commissions, royalties, bonuses, rents, gifts from anyone, prizes, dividends, severance pay, pensions, interest, trust income, alimony from previous marriages, annuities, capital gains, Social Security benefits, workers’ compensation benefits, unemployment compensation, income replacement disability insurance benefits, and payments from “nonmeans-tested” government programs.
Id. § 78B-12-203(1). And when a parent is self-employed—as is the case with Blake—the statute directs how gross income should be handled. It provides that “[g]ross income from self-employment or operation of a business shall be calculated by subtracting necessary expenses required for self-employment or business operation from gross receipts. . . . Gross income . . . may differ from the amount of business income determined for tax purposes.” Id. § 78B-12-203(4).
¶23 The district court determined that Blake’s income had been impacted as a result of the COVID-19 pandemic and accordingly evaluated his income for purposes of child support based on what he had earned pre-pandemic and what he was earning during the pandemic. On the record before us, we see two errors in the court’s calculations. First, the court made a discrete mathematical error in calculating Blake’s pre-pandemic income. Second, and more broadly, the court did not consider all the evidence of Blake’s finances when calculating Blake’s income, both pre-pandemic and at the time of trial.
¶24 First, the district court calculated Blake’s past child support payments using his 2018 tax record. On that record, Blake claimed $45,050 in gross receipts. From that, Blake deducted $34,483 as follows: $5,270 for “materials and supplies,” $3,605 for “advertising,” $360 for “legal and professional services,” $500 for “office expense,” $21,760 for “other business property,” and $2,988 for “utilities.” After viewing the evidence, the court found that Blake had failed to adequately explain why he should be entitled to deductions for “materials and supplies” ($5,270), “other business property” ($21,760), or “office expense” ($500), and it accordingly struck those deductions, totaling $27,530. As a result, the court should have concluded that Blake’s income was $38,097, or $3,175 per month rounded. But it did not. Instead, it concluded that Blake’s income was $23,790, or $1,983 per month. This value is mathematically incorrect.
¶25 Second, notwithstanding the mathematical error in the court’s calculation of Blake’s income, the value imputed by the court is inconsistent with the evidence in the record. Utah law is clear that “in contested cases,” a judge is entitled to impute income to a parent so long as the judge “enters findings of fact as to the evidentiary basis for the imputation.” See id. § 78B-12203(8)(a). “The purpose of such imputation is to prevent parents from reducing their child support or alimony by purposeful unemployment or underemployment.” Connell v. Connell, 2010 UT App 139, ¶ 16, 233 P.3d 836 (quotation simplified). Accordingly, when imputing income, “the income shall be based upon employment potential and probable earnings considering,” among other things, “employment opportunities,” “work history,” and “occupation qualifications.” Utah Code § 78B-12203(8)(b).
¶26 As explained above, the court calculated Blake’s income at $1,983 per month up until the time that the COVID-19 pandemic began in March 2020. And at trial, which was held in October 2020, the court concluded that due to the pandemic, “Blake’s income has come to a halt” and therefore determined it was “appropriate . . . to impute minimum wage income of $1,257/month from March 2020 forward.” But the financial documents submitted by Blake do not support the low amount of income the court chose to impute.
¶27 Blake’s bank records—which were all filed with the court—show that Blake made deposits into his personal account totaling $456,669.98 between August 2017 and January 2019. These deposits included a check for $200,000, which Blake testified “was for my services that was rendered” in connection with a high-publicity boxing match. And in addition to the deposits, Blake’s bank records show significant withdrawals. For example, the records indicate that Blake had regularly invested in cryptocurrency, had transferred over $15,000 to his mother, had transferred over $9,000 to the mother of one of his other children,[3] and had spent over $10,000 on luxury clothing.
¶28 Despite the evidence of Blake’s spending, Blake did not demonstrate how he was funding his lifestyle, and he claimed only one debt of $7,240 in the first of his three financial disclosures. In light of the foregoing, the district court’s determination that Blake was making no money and therefore should be imputed minimum wage is not supported by the evidence. Rather, the evidence suggests that Blake was less than forthcoming with the court as to the actual amount of his income. As such, on remand the court should reevaluate evidence of Blake’s finances, his earning capacity, and whether he is voluntarily underemployed and should make a further determination as to whether greater income should be imputed to him.[4] In so doing, the court should take special care to ensure that the final award is void of mathematical error.
CONCLUSION
¶29 The district court abused its discretion when it awarded Smith sole physical and legal custody of Child while also ordering a joint decision-making arrangement with Blake. We therefore vacate the court’s custody ruling as it relates to the joint decision-making arrangement. The court also abused its discretion when calculating child support. The current award contains a mathematical error and is not supported by record evidence. Accordingly, we reverse the court’s award of child support and remand with instructions that the court reexamine the evidence to determine whether greater income should be imputed to Blake.
[1] Blake did not file a brief or otherwise appear in this appeal. Although “an appellee’s failure to file a brief does not amount to an automatic default and consequent reversal of the lower court,” our supreme court has recently recognized that such failure does impact the “typical burden of persuasion on appeal.” See AL-IN Partners, LLC v. LifeVantage Corp., 2021 UT 42, ¶ 19, 496 P.3d 76 (quotation simplified). Because an appellee’s failure to raise any argument leaves the appellant’s claims “unrebutted,” see Broderick v. Apartment Mgmt. Consultants, LLC, 2012 UT 17, ¶¶ 18–21, 279 P.3d 391, “when an appellee fails to present us with any argument, an appellant need only establish a prima facie showing of a plausible basis for reversal,” AL-IN Partners, 2021 UT 42, ¶ 19 (quotation simplified). We question whether the standard articulated in AL-IN Partners should apply the same way in cases such as this where the standard of review on appeal is deferential to the discretionary decisions of the district court. But because this issue was not briefed and our decision on both arguments presented ultimately involves the conclusion that the district court did abuse its discretion and committed other errors, we need not decide the issue today. However, we note the question does warrant additional consideration in a case where it is squarely before the court.
[2] In relevant part, the statute defines “joint physical custody” as when “the child stays with each parent overnight for more than 30% of the year.” Utah Code § 30-3-10.1(3)(a). This particular provision is not applicable here because Blake was awarded standard relocation parent-time which falls below the 30% threshold. See id. § 30-3-37. Nevertheless, Utah law is clear that “[e]ach parent may make decisions regarding the day-to-day care and control of the child while the child is residing with that parent.” Id. § 30-3-10.9(6). Thus, by statute Smith has sole decision-making authority over day-to-day decisions when Child is in her care. Likewise, Blake has decision-making authority over day-to-day decisions when Child is in his care.
[3] This amount does not include child support payments awarded to the mother, which were $1,000 per month. Those support payments were made directly to Nevada’s State Collection and Disbursement Unit.
[4] Smith filed a post-trial motion pursuant to rule 59(e) of the Utah Rules of Civil Procedure seeking to amend, among other things, the court’s child support award. The district court issued a Memorandum Decision and Order denying the motion. In analyzing the child support issue, the court stated that “[g]ifts are not generally considered income.” This is legally incorrect. As explained above, the Utah Code explicitly defines “gross income” as including “gifts from anyone.” See Utah Code § 78B-12-203(1). To the extent Blake was gifted items, the court must include the value of those gifts when calculating his income.
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.
MORTENSEN, Judge:
¶1 Houston Raefat Hararah was charged with assault for throwing a potted plant at his then-girlfriend. He waived his right to a preliminary hearing and proceeded to trial, following which he was convicted. He now contends that he was coerced into waiving his right to a preliminary hearing because the district court[1] stated, at various points in the proceedings, that it would not permit Hararah to accept any plea deal if he chose to have a preliminary hearing. But the record indicates that Hararah rejected the State’s “best offer” and independently decided to waive the preliminary hearing and proceed to trial, so we cannot agree that the court forced his waiver. Hararah also asserts that his defense counsel (Counsel[2]) provided ineffective assistance for not objecting to the court’s allegedly problematic statements, as well as for telling the jury, during opening statements at trial, that they would not hear that Hararah had punched the victim, when the victim went on to testify that he did so. We do not agree that his counsel performed deficiently in either respect, so we affirm.
BACKGROUND
¶2 After police responded to an argument between Hararah and his then-girlfriend, Hararah was charged with assault, with a domestic violence enhancement. The Information alleged that Hararah “threw a potted plant at his girlfriend[,] striking her in the face and causing a cut above her eye.” As a result, the district court issued a no-contact order against Hararah. At a hearing to review the no-contact order, held in July 2020, the following exchange took place between Hararah, the district court, and Counsel:
Counsel: Judge, do you want to keep [the next hearing] on the 28th? I think that at this point, I’ve discussed a plea with Mr. Hararah and it looks like we’re probably going to be setting it for a preliminary hearing.
District Court: Well, let’s go ahead and . . . take it on the 28th and see—Mr. Hararah, do you understand if you go to preliminary hearing, you’re going to trial on the original charges? I won’t allow a plea negotiation after that.
Hararah: Yes, Your Honor.
District Court: Okay. Well, you think long and hard on that and I’ll talk to you on the 28th. Thank you.
¶3 The minutes for the next hearing, held in August 2020, indicate that “[t]he defendant request[ed] a Preliminary Hearing” and that “the [c]ourt set[] this matter for Preliminary Hearing.”
¶4 In court on the date set for the preliminary hearing, in September 2020, Counsel said, “I’ve had a chance to speak with Mr. Hararah, [and] he’s willing to waive his right to a preliminary hearing and we can set the case for trial—for the next step.” Then the following exchange took place:
District Court: So you talked to [Counsel] about what a preliminary hearing is[,] right?
Hararah: Yes.
District Court: Okay. And you are, in fact, willing to waive your rights to a preliminary hearing and allow the matter to be bound over; is that correct?
Hararah: Yes.
District Court: Very good. I will go ahead and allow the waiver[;] I’ll bind the matter over. How long do you think you need to have discussions, [Counsel]?
Counsel: Your Honor, I think that the best offer has been made and Mr. Hararah has had a chance to discuss it, and I think we’re just going to need to figure out when we can get it on for a trial as soon as possible in front of a jury.
Later in the hearing, the district court added,
District Court:
[W]e will have a trial as soon as possible. And seeing as we did not go to prelim, we could still have discussions regarding, you know, some other outcome to the . . . litigation.
¶5 The case eventually went to trial, and during opening statements, Counsel said to the jury, “You will not hear any testimony about [Hararah] punching [the alleged victim] . . . . [Y]ou’ll hear . . . that the only item that he had to protect himself from [a] taser [the alleged victim held] was the plant that was on the floor. And he picked it up and he threw it so that he could get out . . . .”
¶6 But when the victim testified, she stated that Hararah had hit her through a pillow. She testified that the pair had been drinking and started arguing when “[a] verbal argument turned into a physical [one].” She said, “I had tried knocking over his drink. I knew the conversation wasn’t ending anywhere. He ended up on top of me hitting me.” She described how she tried to leave the room but “was hit in the face” with “a pillow and his fist.” She clarified that “he was punching [her] and hitting [her] through the pillow.”
¶7 Later in the trial and outside the presence of the jury, Counsel objected to “the uncharged misconduct that we’ve now heard about for the first time today, which is this witness . . . now saying that she was punched in the face by Mr. Hararah prior to the throwing of the plant.” Counsel asserted, “That is nowhere in the State’s discovery. It is not in the officer’s report, it isn’t anywhere in the body cam. And so what we are now entertaining is the fact that these jurors can . . . believe that the bruising on her face comes from those punches rather than from the plant.” Counsel explained why this was problematic: “We don’t have the ability to bring in a rebuttal expert to say, ‘Hey, do you think these bruis[es] came from punching or . . . from a plant?’ So, I maintain that [this] is prejudicial.” The trial court responded, “I’ve previously ruled during the course of the trial that I would allow the testimony as long as it was consecutive to the day . . . in question [and] I would allow testimony from . . . the witness about the arguing and the conduct that happened during that date in question.”
¶8 The State went on to call the deputy who had arrested Hararah. On cross-examination, he testified that “[t]he only assault [he] was aware of was the plant being thrown,” and he agreed that if the victim had “mentioned being punched in the face, [he] would have put that in [his] report.” In closing arguments, Counsel portrayed the victim as an unreliable witness based on the inconsistencies between her previous accounts of what happened and her trial testimony.
¶9 Ultimately, the jury found Hararah guilty of domestic violence-related assault. Hararah now appeals.
ISSUES AND STANDARDS OF REVIEW
¶10 Hararah presents two issues on appeal. First, he asserts that the district court erred “when it coerced [him] into waiving his right to a preliminary hearing by threatening to not allow him to accept a plea bargain from the State if he exercised his fundamental right to a preliminary hearing.” He argues that this error “violated Article I, Section 13 and Article V, Section 1 of the Utah Constitution; Utah Rules of Criminal Procedure 7(e) and 11(i); and our adversarial system of justice.” Hararah admits that this “issue was not preserved,” but he claims that “either the exceptional circumstances exception or the plain error exception applies here.”
¶11 Second, Hararah asserts that Counsel provided ineffective assistance in two respects: (1) by “fail[ing] to object to the district court coercing [Hararah] into waiving his fundamental right to a preliminary hearing” and (2) by telling the jury “during opening statements that the jury would not hear any testimony about the alleged victim being punched.” “When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and [the appellate court] must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” State v. Reid, 2018 UT App 146, ¶ 17, 427 P.3d 1261 (cleaned up), cert. denied, 432 P.3d 1225 (Utah 2018).
ANALYSIS
Preliminary Hearing Waiver
¶12 Hararah argues that the district court “violated [his] rights . . . when it—by threatening to prevent him from accepting a plea deal from the State—forced him to waive his right to a preliminary hearing.” Hararah acknowledges that he did not object or otherwise preserve this argument. He argues that either the plain error exception or the exceptional circumstances exception applies. But Hararah cannot prevail under either theory.
Plain Error
¶13 To show plain error, “a defendant must establish that (i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined.” State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346 (cleaned up).
¶14 We first address Hararah’s argument that the district court erred by “coercing” or “forcing” him to waive his right to the preliminary hearing. Hararah takes issue with the district court’s statement made at the July 2020 hearing: “Mr. Hararah, do you understand if you go to preliminary hearing, you’re going to trial on the original charges? I won’t allow a plea negotiation after that.” The advisability of this comment[3] is immaterial here because the record indicates that Hararah chose to waive his right to a preliminary hearing for reasons unrelated to the district court’s statement. In other words, the record is clear that the court did not, in fact, force or coerce Hararah to waive the preliminary hearing because he made an independent choice to waive it.
¶15 At the outset of the September 2020 hearing, Counsel said, “I’ve had a chance to speak with Mr. Hararah, [and] he’s willing to waive his right to a preliminary hearing and we can set the case for trial—for the next step.” Critically, Counsel also said during that hearing that “the best offer has been made and Mr. Hararah has had a chance to discuss it, and I think we’re just going to need to figure out when we can get [the case set] for a trial as soon as possible in front of a jury.”
¶16 We make much of the fact that Hararah waived his preliminary hearing in the same hearing in which he expressed his rejection of the State’s “best” plea offer. This shows that Hararah’s waiver was not based on the possibility of future bargaining or a fear that he would not be able to accept a plea deal if he had a preliminary hearing. Counsel did not indicate that Hararah anticipated any plea bargain better than the one the State had offered—as the plea bargain offered was already the “best offer” possible; instead, Counsel represented that Hararah had considered the offer and had decided to proceed to trial rather than accept the offered bargain. And Counsel did not mention the idea that the preliminary hearing was being waived to keep open the prospect of a future plea deal.
¶17 Hararah fails to provide us with any evidence supporting a belief that his independent desire to proceed to trial—after rejecting the State’s “best offer”—was not what drove his decision to waive his right to a preliminary hearing. If Hararah had represented in any way that he was forgoing the preliminary hearing because he was planning to accept a plea deal or wanted to keep his options open, the case before us would be quite different. But instead, the record demonstrates that Hararah was forgoing the preliminary hearing after having fully considered and rejected the State’s best offer and with the goal of going to trial as soon as possible. Accordingly, Hararah has not shown that any error took place, because there is no indication that the district court’s comment had any effect on Hararah’s actions.
¶18 Similarly, the district court’s post-waiver statement that “seeing as we did not go to prelim, we could still have discussions regarding, you know, some other outcome to the . . . litigation” had no bearing on Hararah’s decision to waive his right to a preliminary hearing. At that point, Hararah had already made his decision to forgo the preliminary hearing, and he had also already rejected the State’s best plea offer.
¶19 Furthermore, even if we assume that the district court’s comments alone—rather than Hararah’s counterfactual claimed reliance on them—constituted error, Hararah has not met his burden on plain error review to show prejudice. The record shows that Hararah would have taken the same course of action whether or not the district court made the comments at issue. The same facts discussed above indicate that even if the statements had never been uttered, Hararah would have been presented with and rejected the State’s “best offer” and would have wanted to move as quickly as possible toward trial, including waiving his preliminary hearing. Accordingly, Hararah’s claim on this point fails.[4]
¶20 Moreover, even if “an error exist[ed]” that “should have been obvious to the [district] court,” Holgate, 2000 UT 74, ¶ 13 (cleaned up), any such error was cured by Hararah’s conviction by a jury, see State v. Aleh, 2015 UT App 195, ¶¶ 13–18, 357 P.3d 12, cert. denied, 366 P.3d 1213 (Utah 2016). In Aleh, a defendant “contend[ed] that the trial court erred in denying his motion to withdraw the waiver of his right to a preliminary hearing.” Id. ¶ 13. This court determined that because the “sole purpose” of a preliminary hearing is “determining whether probable cause exists,” “an error at the preliminary stage is cured if the defendant is later convicted beyond a reasonable doubt.” Id. ¶¶ 14–15 (cleaned up). And “[t]his is so even when the error consists of a complete deprivation of a preliminary hearing.” Id. ¶ 16.[5] “Because conviction beyond a reasonable doubt cures any flaw in a preliminary hearing—including the complete deprivation of a preliminary hearing—it necessarily cures any error the [district] court may have made in accepting a defendant’s waiver of the right to a preliminary hearing.” Id. ¶ 18.[6] “Accordingly, [Hararah’s] conviction of all charges beyond a reasonable doubt cured any possible error attending his waiver of a preliminary hearing.” See id.
¶21 Ultimately, Hararah’s argument of plain error fails.
Exceptional Circumstances Doctrine
¶22 We apply the exceptional circumstances doctrine “to reach an unpreserved issue where a rare procedural anomaly has either prevented an appellant from preserving an issue or excuses a failure to do so.” State v. Johnson, 2017 UT 76, ¶ 29, 416 P.3d 443 (cleaned up). Hararah argues that “[b]ecause it is procedurally uncommon in Utah to have a district court force a criminal defendant to waive his constitutional right to a preliminary hearing, a rare procedural anomaly occurred.”
¶23 But the claimed procedural anomaly did not actually occur. Hararah’s argument points to the presumed effect of the district court’s statements (namely, “forc[ing]” Hararah “to waive his constitutional right to a preliminary hearing”) rather than the mere occurrence of the statements as the “rare procedural anomaly.” But as we have explained, Hararah was not forced into waiving his right to a preliminary hearing, because he chose to waive that right for reasons independent from the district court’s comments. The absence of an actual “rare procedural anomaly” alone defeats Hararah’s argument as to the applicability of the exceptional circumstances doctrine, but this is not all.
¶24 Even if we assume that the district court’s statements constituted a “rare procedural anomaly,” Hararah would need to show that they “either prevented [him] from preserving an issue or excuse[d] a failure to do so.” See id. Hararah does not attempt to explain what prevented him from objecting to the district court’s statements and thereby preserving the issue. In reality, there was nothing preventing him from doing so. Hararah could have objected when the district court made the first statement at the July 2020 hearing. But this is not a case where a defendant had only one opportunity to object to an alleged error. Hararah could have taken time to review the issue and objected during the August 2020 hearing. Or he could have objected after the district court’s follow-up comment at the September 2020 hearing. Furthermore, before trial, Hararah could have filed a motion to withdraw his waiver. On this record, Hararah had time and multiple opportunities to object or preserve this issue, and he did not do so.
¶25 Moreover, we are not convinced that Hararah’s failure to preserve the issue is excusable. While we recognize the fundamental nature of the preliminary hearing and we protect defendants’ constitutional rights to preliminary hearings, we also recognize that a defendant has the constitutionally guaranteed right to waive the preliminary hearing. See Utah Const. art. I, § 13 (protecting the right to a preliminary hearing “unless the examination be waived by the accused with the consent of the State”); see also, e.g., Hafen v. State, 2011 UT App 85, ¶¶ 3–4, 249 P.3d 1006 (per curiam) (“[The defendant] filed his petition asserting that he was deprived of his preliminary hearing. . . . The petition was inconsistent with and [superseded] by [the defendant’s] waiver. [The defendant] was not deprived of any right to a preliminary hearing.” (cleaned up)). Waiving a preliminary hearing may have negative implications, but this reality does not invalidate a qualifying waiver. See State v. Bragg, 2013 UT App 282, ¶ 40, 317 P.3d 452 (“[The defendant] waived his right to a preliminary hearing, [forgoing] one opportunity to explore the exact nature of the charges against him and resolve any confusion about what those charges entailed.”). While Hararah may, in retrospect, have benefitted from taking the opportunity to develop the victim’s testimony at the preliminary hearing, this does not invalidate his waiver. And his regrets do not excuse his failure to preserve this issue. Therefore, the exceptional circumstances doctrine does not apply.
Ineffective Assistance
¶26 Hararah also asserts that Counsel provided ineffective assistance by failing to object to the district court’s comments discussed above and by informing the jury in opening statements that it would not hear that Hararah had punched the victim.
¶27 “To prevail on a claim of ineffective assistance of counsel, [a defendant] must demonstrate that (1) [the defendant’s] counsel’s performance was deficient in that it fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the defense.” State v. Streeper, 2022 UT App 147, ¶ 34, 523 P.3d 710 (cleaned up), cert. denied, 527 P.3d 1106 (Utah 2023); see also Strickland v. Washington, 466 U.S. 668, 687 (1984). The first prong of this test “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. “[T]he defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688.
¶28 The second prong “requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. “When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695. “Because failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim, we are free to address [a defendant’s] claims under either prong.” Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d 182.
¶29 We can easily dismiss Hararah’s first assertion of ineffective assistance. As discussed above, Hararah did not provide any evidence that he intended to accept a plea deal and that he based his waiver of the right to a preliminary hearing on such a plan.[7] Counsel was aware of Hararah’s feelings toward the choice between pleading or going to trial and stated repeatedly that Hararah was not interested in pleading guilty or accepting a plea bargain. Accordingly, Hararah has not persuaded us that any comments from the district court related to plea negotiations would have affected his plans at all, so Counsel acted reasonably in choosing not to object to such comments. In other words, the district court’s comments bore no impact on Hararah’s actions, so there was no tactical reason for Counsel to act as Hararah retroactively desires. “In evaluating trial counsel’s performance, we give trial counsel wide latitude in making tactical decisions and will not question such decisions unless there is no reasonable basis supporting them.” State v. Liti, 2015 UT App 186, ¶ 18, 355 P.3d 1078 (cleaned up). Here Counsel acted in line with Hararah’s clear desire to proceed toward trial.
¶30 Additionally, for the same reasons described above, we are convinced that Hararah was not prejudiced by this alleged deficiency in performance. Hararah asserts that “[t]here is a reasonable likelihood that if [he] had been allowed to exercise his right to a preliminary hearing,” his case would have ended differently. But Hararah was able to exercise his right to a preliminary hearing. We have already explained why the district court’s alleged carrot—permitting Hararah the possibility of accepting a plea deal—was no carrot at all based on his express refusal of the State’s “best offer” and his desire to proceed to trial. Hararah’s claim might have some foundation if he had proceeded with a preliminary hearing and the court had, in fact, restricted his ability to negotiate a plea deal or even if he had accepted a plea bargain after waiving the preliminary hearing. But given that he clearly and consistently conveyed his desire to go to trial, that he was offered the “best” plea deal and refused it, and that his conviction by a jury at trial was in no way influenced by the district court’s earlier comments on waiving the preliminary hearing, we are not persuaded that the outcome would have been any different if Counsel had objected. See Strickland, 466 U.S. at 695. Therefore, Hararah cannot show ineffective assistance on this point.
¶31 Hararah’s second allegation of ineffective assistance is also unavailing. Hararah asserts that Counsel performed deficiently by saying in opening statements that the jury would “not hear any testimony about [Hararah] punching [the alleged victim],” when the victim went on to testify that Hararah had, in fact, hit her through a pillow. Hararah argues that Counsel should not have made such a promise without first “lock[ing] in” the victim’s testimony during a preliminary hearing. But, as discussed above, Hararah waived the preliminary hearing of his own free will. And it is clear that neither side was aware the victim would testify that Hararah hit her, because the deputy testified that he did not know of any assault other than Hararah throwing the plant. Accordingly, we do not fault Counsel for making a statement in line with all the known facts, and we conclude that Counsel’s actions are not nearly “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687.
¶32 Furthermore, Hararah was not prejudiced by this allegedly deficient performance. Counsel was able to paint the victim as an unreliable witness based on the inconsistencies between her previous accounts of what happened and her trial testimony. And Counsel elicited testimony from the State’s own witness that there were no allegations of punching prior to trial. Accordingly, Hararah was in a strong position to counter the State’s case, and the jury still found him guilty of assault. From this, we see no support for “a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695.
CONCLUSION
¶33 Hararah’s claim that the district court coerced him into waiving his preliminary hearing is not supported by the record, so the exceptional circumstances doctrine does not apply and the court also did not plainly err. Additionally, Hararah’s assertion of ineffective assistance of counsel fails. Therefore, we affirm Hararah’s conviction.
Emily Adams, Freyja Johnson, and Cherise Bacalski,
Attorneys for Appellant
Sean D. Reyes and William M. Hains,
Attorneys for Appellee
JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
FORSTER concurred.
TENNEY, Judge:
¶1 After Cody Murray pleaded guilty to violating a protective order, the district court ordered him to pay the victim’s moving expenses and 12 weeks of lost wages as restitution. Murray now appeals that restitution order, arguing that his criminal conduct did not proximately cause either of those losses. On the moving expenses, we agree with Murray and reverse that portion of the order. On the lost wages, however, we conclude that there was sufficient evidence to link Murray’s criminal conduct to the claimed loss. We accordingly affirm that portion of the order.
BACKGROUND
¶2 Murray married C.M. in March 2018, and they lived together throughout their short marriage. On January 2 or 3, 2019, C.M. filed a report with law enforcement alleging that Murray had engaged in sexual intercourse with her without her consent while she was medicated and sleeping. On the same day that she filed this report, C.M. obtained a temporary protective order against Murray based on this same allegation.
¶3 On January 3, 2019, law enforcement served Murray with the protective order at the residence he shared with C.M., and Murray complied with the order by packing his belongings and leaving the residence. Within an hour of leaving, however, Murray asked a friend to contact C.M. on his behalf. As subsequently alleged in a probable cause affidavit, C.M. soon received “phone calls and text messages” from the friend’s phone in which the friend relayed messages that Murray “loved her” and “missed her.” As also alleged, while the friend was on the phone speaking to C.M., Murray “passed a paper note” to the friend asking him “to let C.M. know that [Murray] was scared.” C.M. reported these communications to law enforcement as a violation of the protective order.
¶4 The State later filed two cases against Murray. The two cases were filed separately and were not consolidated. In the first case, the State charged Murray with one count of rape. That charge was based on C.M.’s allegation that Murray had sexual intercourse with her without her consent while she was sleeping. That case was later dismissed.
¶5 In the second case, which is the case at issue in this appeal, the State charged Murray with one count of violating a protective order. See Utah Code § 76-5-108 (2018). This charge was based on Murray’s indirect communications with C.M. on January 3, 2019. In March 2020, Murray pleaded guilty to the charged offense. As a result of a plea deal, the charge was reduced from a class A misdemeanor to a class B misdemeanor. In his affidavit in support of the plea, Murray admitted that “[o]n or about January 3, 2019,” he “knowingly and intentionally communicate[d] with C.M. through a mutual friend . . . through phone calls and text messages.” Murray also agreed that he “may be ordered to make restitution to any victims of [his] crimes.”
¶6 Murray agreed to be sentenced at that same hearing. During the sentencing portion of the hearing, C.M.’s attorney asked the court to leave open C.M.’s restitution claim for the “one year statutory time limit,” informing the court that she would “submit any restitution” after receiving further documentation. The court left C.M.’s restitution claim open as requested.
¶7 In July 2020, the Utah Office of Victims of Crime (UOVC) filed a motion for restitution, asserting that it had paid C.M. a total of $6,264.47.[1] Of that amount, $5,520.28 was designated as reimbursement for “[l]oss of wages” and $744.19 was designated as reimbursement for “[r]elocation.”
¶8 Murray objected to UOVC’s motion for restitution and requested a hearing. At that hearing, UOVC’s attorney called two witnesses: (1) a representative from UOVC (Representative) and (2) C.M.
¶9 Representative testified that UOVC received C.M.’s application for restitution in November 2019. Representative testified that C.M. listed both the protective order violation and the alleged rape as the bases for her restitution claim. Representative further noted that in reviewing C.M.’s restitution claim, “the reparations officer indicated that the claim was approved based on both incidents”—the alleged rape and the protective order violation—because “they were so close together” that “the reparations officer couldn’t separate them into two separate claims.”
¶10 Representative testified that UOVC ultimately approved and paid C.M.’s expenses for “loss of wages” in the amount of $5,520.28, as well as “relocation” or moving expenses in the amount of $744.19, thus totaling $6,264.47. With respect to the lost wages claim, Representative testified that UOVC received a document from C.M.’s employer that explained “how much [C.M.] made at the time and how long she was out of work.” Representative said that UOVC also received a “health provider statement” that corroborated that C.M. missed work. Representative further said that from these documents and other verification efforts with C.M.’s employer, UOVC determined that C.M. missed “over 68 days” of work, and that it had then paid “12 weeks of lost wages” for the work C.M. missed from “January 3rd of 2019 through March 15th of 2020” at “[s]ixty-six percent of the full-time salary,” which in C.M.’s case amounted to $5,520.28.
¶11 With respect to the moving expenses, Representative testified that UOVC paid C.M. $744.19 to cover “reimbursement for movers.” Representative said that C.M. told UOVC that she had moved because “she didn’t feel comfortable in having [Murray] know where she lived.”
¶12 UOVC’s attorney then called C.M., who testified that she obtained the protective order against Murray because of the “actions he was making to [her] in [her] sleep.” C.M. also provided and referred to a note from a doctor indicating that C.M. had been seen because “[f]or the duration of her marriage her husband was sexually assaulting her in her sleep,” “[s]he was experiencing UTIs on many occasions from the sexual abuse,” and she had “[m]ajor depressive disorder” and “post-traumatic stress disorder.”
¶13 During C.M.’s testimony, UOVC’s attorney asked, “[A]s a result of the violation of the protective order, can you tell us what effect the violation of the protective order, the conduct that the defendant caused—what happened to you as a result?” C.M. responded that she suffered “severe panic attacks” and flashbacks, “live[d] in fear nearly every day,” felt a “[l]oss of trust of people in general,” and had “a hard time concentrating or focusing.” She said she had “severe depression” and was simply not “able to function like [she had] always been able to.”
¶14 UOVC’s attorney then asked if Murray’s conduct “in December or January of 2018, ’19 . . . interfere[d] with [her] ability to interact with people,” to which C.M. responded, “Definitely.” C.M. testified that because these issues “interfere[d] with [her] ability to work,” there were times where she had to take leave from work. She testified that the “very first time” she “took leave was for a doctor’s appointment . . . back in December of 2018” and that she was out of work periodically after that, thus agreeing with the suggestion from the attorney that she missed work “every few days, a couple hours here, a few hours there, a full day here, a few days there” until March 2020, when she was “out of work altogether and couldn’t work at all.” UOVC’s attorney asked if C.M.’s requests to take leave from work starting in “December of 2018” were “related to [Murray’s] conduct . . . that was occurring at that time,” and C.M. responded, “It was.”
¶15 With respect to the moving expenses, C.M. testified that she moved from the home she’d shared with Murray because the divorce decree ordered her to sell it. C.M. said that she moved in May 2020—17 months after Murray violated the protective order—and that her restitution request was based on the movers she had hired to assist with that move.
¶16 Murray didn’t call any witnesses at the restitution hearing. Instead, after UOVC’s attorney rested, each side presented closing arguments. UOVC’s attorney asked the court to order restitution for lost wages because C.M. had to take leave from work “[a]s a result of [Murray’s] conduct . . . because she wasn’t able to fully perform the job.” UOVC’s attorney asked for restitution for moving expenses because “it was [Murray’s] conduct which caused” C.M. to move and she “had reason to hide her whereabouts from” Murray out of fear.
¶17 Murray, however, argued that under the restitution statute, “restitution has to be tied directly” to the offense for which he’d been convicted—which, here, was a class B misdemeanor violation of a protective order. In Murray’s view, restitution for the lost wages was not appropriate because C.M. “missing all of [that] work . . . [could not] be tied” to his violation of the protective order (as opposed to the underlying rape allegation that the protective order was based on). Murray also argued that the moving expenses could not be tied to this conviction because C.M.’s decision to move was based on an order from the divorce decree requiring C.M. and Murray to sell the house.
¶18 At the close of arguments, the court ordered restitution in the amount of $6,264.47 to cover lost wages and moving expenses. In its oral ruling, the court noted that Murray was “alleged to have committed sexual offenses against [C.M.] in her sleep” in the latter part of 2018. The court said that it would “take the testimony of the witness at face value with regard to what she felt was a violation that caused the fear,” and the court then found that Murray’s “past history” of “sexual[ly] assaulting” C.M. “in her sleep” caused her “fear” and “anxiety.” With respect to C.M.’s missed work, the court found that “whatever happened, certainly enhanced or contributed to [C.M.’s] anxiety, depression, [and] fear,” and that “after the circumstances giving rise to whatever happened in December, there was a definite downturn with regard to [C.M.’s] ability . . . to work.” And with respect to the moving expenses, the court found that the “moving expenses [were] also reasonable and arising out of the crime that occurred.”
¶19 Murray objected to the court’s ruling. Murray argued that the court could “only tie restitution to what [Murray] was convicted of or pled guilty to, which would be the violation of the protective order,” and he further argued that the court should not “consider any of the alleged sexual misconduct” in its determination of restitution. In response, the court referred to the document submitted by C.M. in her restitution application, noting that “for the duration of the marriage, [Murray] was sexually assaulting [C.M.] in her sleep” and that she “was experiencing UTIs on many occasions from the sexual abuse.” The court observed that C.M. suffered from depression and post-traumatic stress as a result. Of note, the court then wondered whether these conditions were “exacerbated . . . or caused by a violation of a protective order,” “especially the loss of work after his commission of the violation of the protective order.” (Emphasis added.)
¶20 In a subsequent written restitution order, the court ordered Murray to pay UOVC a total of $6,264.47 for lost wages and moving expenses. In its Findings of Fact, the court found that C.M. “suffered emotional trauma as a result of [Murray’s] conduct in this case” and that her “fear, anxiety, and depression . . . rendered [her] unable to perform her duties and required her to miss work.” The court found that the trauma C.M. suffered “also caused her to relocate because she feared [Murray] and didn’t want him to know where she lived.” Murray filed a timely notice of appeal from that judgment.[2]
ISSUE AND STANDARDS OF REVIEW
¶21 Murray argues that the district court improperly ordered restitution for C.M.’s lost wages and moving expenses. “We will not disturb a district court’s restitution determination unless the court exceeds the authority prescribed by law or abuses its discretion.” State v. Calata, 2022 UT App 127, ¶ 12, 521 P.3d 920 (quotation simplified), cert. denied, 525 P.3d 1268 (Utah 2023). “To the extent that the district court made legal determinations in connection with its restitution analysis, we review those legal determinations for correctness.” State v. Oliver, 2018 UT App 101, ¶ 15, 427 P.3d 495 (quotation simplified). But when “a defendant argues that the evidence was insufficient to support a restitution order, the defendant must demonstrate that the clear weight of the evidence contradicts the court’s ruling.” State v. Chadwick, 2021 UT App 40, ¶ 6, 486 P.3d 90 (quotation simplified).
ANALYSIS
¶22 The Crime Victims Restitution Act (the CVRA) requires the district court “to determine restitution for any pecuniary damages proximately caused by the defendant’s criminal conduct.” State v. Blake, 2022 UT App 104, ¶ 9, 517 P.3d 414. Here, Murray challenges the court’s decision ordering him to pay C.M.’s moving expenses and her lost wages. In Murray’s view, his criminal conduct did not proximately cause either loss.
¶23 We first quickly dispense with the moving expenses issue. Murray argues that “[n]o evidence tied C.M.’s move from the marital home” to his criminal conduct, but that “the evidence on the record was that C.M. had to move because of the divorce decree.” Based on this, Murray argues that there was no basis for requiring him to pay these expenses as part of restitution. In its responsive brief, the State concedes this point. Having reviewed the record, we conclude that Murray’s argument and the State’s concession are well taken. We accordingly reverse that portion of the restitution order.
¶24 The remaining and principal issue on appeal, then, is whether the court also erred in ordering Murray to pay C.M.’s lost wages. On this, Murray argues that the court erred in two key respects: (I) by taking into account the alleged rape and (II) by then determining that Murray’s criminal conduct proximately caused C.M. to miss work. We address each argument in turn.
I. Alleged Rape
¶25 Murray argues that the district court improperly based the restitution order for lost wages on C.M.’s rape allegation, rather than limiting itself to considering the sole offense to which he had pleaded guilty: violating a protective order. We see no legal error in the court’s decision.
¶26 As a general rule, we “apply the law in effect at the time of the occurrence regulated by that law.” State v. Wilkerson, 2020 UT App 160, ¶ 24, 478 P.3d 1048 (quotation simplified). The version of the restitution statute in effect at the time of Murray’s sentencing provided that
[w]hen a defendant enters into a plea disposition or is convicted of criminal activity that has resulted in pecuniary damages, . . . the court shall order that the defendant make restitution to victims of crime as provided in this chapter, or for conduct for which the defendant has agreed to make restitution as part of a plea disposition.
Utah Code § 77-38a-302(1) (2019); see also id. § 77-38a-302(5)(a) (2019) (“For the purpose of determining restitution for an offense, the offense shall include any criminal conduct admitted by the defendant to the sentencing court or for which the defendant agrees to pay restitution.”).[3] Under these statutes, Murray therefore could not “be ordered to pay restitution for criminal activities for which he did not admit responsibility, was not convicted, or did not agree to pay restitution.” State v. Randall, 2019 UT App 120, ¶ 13, 447 P.3d 1232 (quotation simplified)
¶27 It’s true that Murray was not convicted of raping C.M. As noted, the separate criminal case that was based on the rape allegation was dismissed. It’s also true that Murray did not admit to raping C.M. in this case either. But contrary to Murray’s arguments, this doesn’t mean that his alleged sexual misconduct against C.M. could play no role in the court’s restitution analysis.
¶28 Again, Murray pleaded guilty to violating a protective order, and the elements of that offense were that Murray was “subject to a protective order” and “intentionally or knowingly violate[d] that order after having been properly served or having been present . . . when the order was issued.” Utah Code § 76-5108(1) (2018). In his plea agreement, Murray acknowledged these elements and agreed that he had “committed the crime.” In the factual basis portion of the plea agreement, Murray further agreed that he had “knowingly and intentionally communicate[d] with C.M. through a mutual friend . . . through phone calls and text messages.” Pulling this together, the criminal activity for which Murray was convicted (by way of plea) included these key pieces:
· Murray was subject to a protective order;
· Murray intentionally or knowingly violated the protective order; and
· Murray did so by knowingly and intentionally communicating with C.M. through a mutual friend through phone calls and text messages.
¶29 Once Murray was convicted of this offense, the district court could then order restitution for any damages that were “proximately caused” by that offense. State v. Ogden, 2018 UT 8, ¶¶ 31–48, 416 P.3d 1132.[4] Our supreme court has explained that restitution is intended “to compensate the victim for pecuniary damages,” as well as “to rehabilitate and deter the defendant, and others, from future illegal behavior.” State v. Laycock, 2009 UT 53, ¶ 18, 214 P.3d 104. Because the question before a restitution court is what damages were proximately caused by the offense, the court isn’t confined to just the narrow elements of the offense of conviction. Rather, while the “restitution statute requires that responsibility for the criminal conduct be firmly established, much like a guilty plea, before the court can order restitution,” “it is only the initial crime for which liability must be legally certain.” State v. Hight, 2008 UT App 118, ¶¶ 3, 5, 182 P.3d 922 (quotation simplified). Once guilt for the offense has been firmly established, the court then has “broad discretion, after reviewing the evidence presented at the restitution hearing,” to “order restitution for any pecuniary damages clearly resulting from” that offense. Id. ¶ 5 (quotation simplified). In other words, once the defendant is convicted of “criminal conduct,” the defendant can “be held responsible for all damages proximately caused by that conduct.” State v. Huffman, 2021 UT App 125, ¶ 9, 501 P.3d 564 (emphasis in original), cert. denied, 509 P.3d 198 (Utah 2022).
¶30 Our decision in Huffman is illustrative. There, the defendant pleaded guilty to possessing drugs. Id. ¶ 7. Although the offense of drug possession doesn’t include, as an element, the destruction of property, we held that it was appropriate for the court to order restitution for damage that was done to the victim’s motorhome. This was so because evidence before the court established that the defendant’s possession of drugs inside the motorhome proximately caused those damages. Id. ¶¶ 12–14.
¶31 A similar dynamic is in play here. Again, Murray pleaded guilty to violating a protective order. In doing so, he acknowledged both the existence of the protective order and that he had violated its terms. Once these things were firmly established through the guilty plea, the court then had broad discretion to order restitution for any damage that was proximately caused by Murray’s criminal conduct.
¶32 When making that proximate cause determination, the court had at least some latitude to consider the conduct that had led to the protective order, and this is largely so because of the nature of the offense. After all, Murray wasn’t convicted of a crime because he contacted a stranger with whom he had no prior history. Rather, Murray was convicted of intentionally or knowingly contacting a person who had obtained a protective order against him. In this key sense, it was the protective order that made Murray’s communications criminal.
¶33 A protective order acts as a “mechanism” for giving victims a measure of “protection against their abusers.” State v. Hardy, 2002 UT App 244, ¶ 17, 54 P.3d 645; see also State v. Baize, 2019 UT App 202, ¶ 20 n.5, 456 P.3d 770. One of the principal ways that a protective order does this is by creating a legal barrier between the victim and the abuser. If a person who is subject to a protective order subsequently breaches that barrier, a court couldn’t realistically be expected to decide whether the victim was traumatized by the violative act by considering that act as if it had occurred in a vacuum. Given that the victim had previously obtained judicial protection from the person, the nature of the alleged prior conduct would very likely have some bearing on the interconnected questions of whether and why the illegal contact had proximately caused any trauma or harm to the victim (not to mention how much damage the victim had actually suffered).
¶34 In short, because Murray pleaded guilty to violating a protective order, the district court could consider the fact that C.M. had obtained a protective order against him as part of its restitution analysis. And from there, it then had discretion to consider the conduct that led to the issuance of the protective order, at least to the extent that such conduct could inform its decision about whether Murray’s actions proximately caused any harm to C.M.
II. Proximate Cause
¶35 Murray next argues that the evidence before the district court was insufficient to show that his criminal conduct proximately caused C.M. to miss 12 weeks of work. We disagree.
¶36 The “proximate cause standard requires a showing that the crime, in a natural and continuous sequence, unbroken by any new cause, produced the injury and that the injury would not have occurred absent the crime.” Blake, 2022 UT App 104, ¶ 9 (quotation simplified). The “burden is on the State to prove proximate cause,” State v. Morrison, 2019 UT App 51, ¶ 13, 440 P.3d 942, and this “requires proof of two elements: (1) but-for causation and (2) foreseeable harm,” State v. Watson, 2021 UT App 37, ¶ 15, 485 P.3d 946.
¶37 Proximate cause is generally a “fact question[] to be resolved by the fact finder.” State v. Barzee, 2007 UT 95, ¶ 81, 177 P.3d 48; see also Mackay v. 7-Eleven Sales Corp., 2000 UT 15, ¶ 7, 995 P.2d 1233 (noting that proximate cause is a fact question). Because of this, we review a district court’s finding of proximate cause for clear error. State v. Grant, 2021 UT App 104, ¶¶ 24, 35, 499 P.3d 176, cert. denied, 505 P.3d 56 (Utah 2022). Thus, when “a defendant argues that the evidence was insufficient to support a restitution order, the defendant must demonstrate that the clear weight of the evidence contradicts the court’s ruling.” State v. Chadwick, 2021 UT App 40, ¶ 6, 486 P.3d 90 (quotation simplified).
¶38 Here, we see no clear error in the court’s finding that Murray’s violation of the protective order proximately caused C.M. to miss 12 weeks of work.
¶39 At the restitution hearing, C.M. testified that she obtained the protective order because of “actions [Murray] was making to [her] in [her] sleep” that began “at the end of December of 2018.” She further agreed that this “conduct” was “the reason for the ongoing protective order.” Of note, C.M. then testified that, “as a result of the violation of the protective order,” she has “severe panic attacks,” “severe depression,” and flashbacks; that she “live[s] in fear nearly every day”; that she has a “[l]oss of trust in people” generally; that she has a “hard time concentrating or focusing”; and that she was unable “to function like [she has] always been able to.” (Emphasis added.) When C.M. was then asked whether “the problems” that she was having “interfere[d] with [her] ability to work,” she responded, “Definitely.” While she said that the “very first time” she “took leave was for a doctor’s appointment . . . back in December of 2018” (which would have predated Murray’s violation of the protective order), C.M. also agreed that she missed work “every few days, a couple hours here, a few hours there, a full day here, a few days there” until March 2020, when she was “out of work altogether and couldn’t work at all.” The district court determined that C.M.’s testimony was credible, and on appeal, we give deference to that credibility determination. See State v. Miles, 2020 UT App 120, ¶ 34, 472 P.3d 978 (noting that “because of the district court’s advantaged position in observing the witnesses firsthand, we defer to its credibility findings” (quotation simplified)); State v. Taylor, 2017 UT App 89, ¶ 10, 402 P.3d 790 (noting that “we accord deference to the trial court’s ability and opportunity to evaluate credibility and demeanor” (quotation simplified)).
¶40 As also noted, UOVC introduced evidence showing that C.M. missed “over 68 days” of work, and UOVC’s Representative testified that UOVC paid for 12 weeks of work that she missed “span[ning] from January 3rd of 2019 through March 15th of 2020” because that missed work was “related to the incident in this particular case, which is the violation of a protective order.” When coupled with C.M.’s testimony about the effects of the protective order violation itself on her psyche and her ability to function, this provided an evidentiary basis for the court to find that Murray’s criminal conduct proximately caused C.M. to miss this work.
¶41 Murray nevertheless pushes back on several fronts, none of which are availing.
¶42 First, Murray points to testimony showing that C.M. was traumatized by the alleged rape (as opposed to the protective order violation), as well as testimony establishing that C.M. began missing work even before the unlawful communication. Both things are, on this record, unquestionably true. But even if the alleged rape caused psychological trauma to C.M. on its own, and even if that trauma caused her to miss work (either before or even after January 3, 2019), this doesn’t mean that Murray’s violation of the protective order couldn’t proximately cause her to miss work too.
¶43 Again, if there was sufficient evidence to establish that C.M.’s losses were proximately caused by the communication, then those losses were compensable. The fact that the losses may have been linked to some other causal source does not change this. In civil cases, it has long been recognized that there can be multiple causes for an injury or a trauma. See, e.g., McCorvey v. Utah State Dep’t of Transp., 868 P.2d 41, 45 (Utah 1993) (confirming “there can be more than one proximate cause” of “an injury”); Steffensen v. Smith’s Mgmt. Corp., 820 P.2d 482, 486 (Utah Ct. App. 1991) (“There can be more than one proximate cause of an injury so long as each is a concurrent contributing factor in causing the injury.” (quotation simplified)). And this is true in a criminal case too. See, e.g., State v. Gonzales, 2002 UT App 256, ¶ 21, 56 P.3d 969 (“A defendant’s acts may be found to be the proximate cause of the victim’s death even if the victim actually died as a result of the combination of the defendant’s acts plus some other contributing factor.” (quotation simplified)).[5]
¶44 Here, we agree with Murray that C.M.’s trauma and associated anxiety from the violation of the protective order was likely linked in some measure to the alleged rape. As discussed above, however, the alleged rape was the very reason that C.M. had previously obtained a protective order against Murray. And as also discussed, C.M.’s testimony at the restitution hearing supported the conclusion that when Murray contacted her in violation of that order, this both exacerbated her prior trauma and caused additional trauma too, thereby further interfering with her ability to work. Given this sworn and court-credited testimony, we cannot conclude that it was against the clear weight of the evidence for the court to conclude that, even accounting for the trauma associated with the alleged rape, the violation of the protective order itself proximately caused C.M. to miss work.
¶45 Second, Murray argues that it could not have been “reasonably foreseeable that C.M. would miss 12 weeks of work” because he sent her “a single indirect text message.” As an initial matter, it’s unclear from the record if this case really does involve just a single text message. For “the purpose of determining restitution for an offense, the offense shall include any criminal conduct admitted by the defendant to the sentencing court or for which the defendant agrees to pay restitution.” Utah Code § 77-38a-302(5)(a) (2019). Here, the probable cause affidavit alleged that C.M. had “received phone calls and text messages” from Murray through their mutual friend. And in his plea affidavit, Murray agreed under oath that he “knowingly and intentionally communicate[d] with C.M. through a mutual friend . . . through phone calls and text messages.” On this record, the court could therefore assess the restitution question in light of Murray’s admission that there had been multiple communications.
¶46 In any event, whether viewed as multiple communications or even just a single communication, this argument still fails because the effect of the communication(s) can’t meaningfully be divorced from the surrounding context. Again, Murray wasn’t convicted of sending a message to a stranger with whom he had no prior history. Rather, Murray was convicted because he knowingly or intentionally communicated with C.M. in violation of a protective order. By communicating with C.M. despite the existence of an order from a judge that prohibited him from contacting her, Murray undermined the sense of distance and security that the protective order was intended to give her. Because of this context and history, we disagree with Murray’s assertion that it could not have been reasonably foreseeable that C.M. would be traumatized and miss work as a result.
¶47 Finally, Murray argues that the restitution order was at odds with our decision in State v. Bickley, 2002 UT App 342, 60 P.3d 582. We disagree. In Bickley, the defendant was charged with criminal nonsupport, and the “Amended Information listed the nonpayment period from February 1, 1997 to January 10, 2000.” Id. ¶ 3. After the defendant pleaded guilty to this offense, however, the district court awarded restitution for arrears that occurred prior to 1997. Id. ¶¶ 3–4. We reversed that decision on appeal, concluding that the court could not impose restitution for pre-1997 arrears “without making inferences.” Id. ¶ 12 (quotation simplified). Because of this, we held that it was not “firmly established” that the defendant was in fact responsible for the pre-1997 arrears. Id.
¶48 Bickley is readily distinguishable. The arrears at issue in Bickley plainly fell outside the conviction (which, again, was specifically limited to arrears that occurred from February 1997 on). As discussed above, however, the offense at issue here was the violation of a protective order, and that protective order was by definition linked to some prior conduct. Thus, unlike Bickley, it’s not at all clear that this restitution order was based on damages that fell outside of the offense at issue. In addition, there’s no suggestion that the district court in Bickley based its restitution award for the pre-1997 arrears on any evidence or testimony. Id. ¶¶ 2–4, 12. This is why we faulted the court for “making inferences” and imposing restitution for arrears that were not “firmly established.” Id. ¶ 12 (quotation simplified). But again, this was not the case here, where the restitution order was based on sworn testimony from the hearing itself.
¶49 In short, we can overturn the court’s proximate cause determination only if Murray has established “that the clear weight of the evidence contradicts the court’s ruling.” Chadwick, 2021 UT App 40, ¶ 6 (quotation simplified). Having reviewed the record, we conclude that C.M.’s testimony about the effects of the protective order violation on her psyche and her ability to function, coupled with the evidence presented by UOVC about the days that she missed at work, was sufficient to support the court’s finding that Murray’s criminal conduct proximately caused C.M. to miss this work, thereby causing these damages. Because the court’s ruling was not against the clear weight of the evidence before it, we affirm that determination.
CONCLUSION
¶50 The district court erred when it required Murray to pay $744.19 in restitution for moving expenses. We accordingly vacate that portion of the court’s order. But the court did not err when it ordered restitution in the amount of $5,520.28 for lost wages. We accordingly affirm the restitution award of $5,520.28 for lost wages.
[1] UOVC was represented by an attorney from the Utah Attorney General’s office who serves as “agency counsel” for UOVC.
[2] In between the court’s oral and written rulings, Murray filed a motion to reconsider. But after the written ruling was entered, Murray filed a timely notice of appeal. Despite the fact that this notice of appeal had been filed, and over an objection from UOVC, the district court subsequently held oral argument on Murray’s motion to reconsider, after which it denied the motion.
On appeal, both parties now agree that Murray’s notice of appeal divested the district court of jurisdiction to rule on the motion to reconsider. We agree with the parties. Because the motion to reconsider was filed before the written ruling, it was a prejudgment motion to reconsider the oral ruling. While the court was “free to consider” what was essentially a request for “reargument” at “any time before entering the final judgment,” Gillett v. Price, 2006 UT 24, ¶ 7 n.2, 135 P.3d 861, the court did not do so. Instead, it issued the written final judgment. When Murray then filed his notice of appeal after that final judgment had been entered, his notice of appeal “divest[ed] the district court of jurisdiction.” Garver v. Rosenberg, 2014 UT 42, ¶ 11, 347 P.3d 380. Of note, our supreme court has held that a prejudgment motion to reconsider does “not toll the time for appeal once a final judgment [is] entered.” Gillett, 2006 UT 24, ¶ 7 n.2. We likewise see no basis for holding that a prejudgment motion to reconsider would somehow undermine the finality of a written final judgment or allow the court to retain jurisdiction after a notice of appeal has been filed. As a result, we agree with the parties that the only ruling properly before us is the original restitution order.
[3] The legislature recently amended the CVRA. The most recent version of the statute provides that the “court shall order a defendant, as part of the sentence imposed,” to “pay restitution to all victims: (i) in accordance with the terms of any plea agreement in the case; or (ii) for the entire amount of pecuniary damages that are proximately caused to each victim by the criminal conduct of the defendant.” Utah Code § 77-38b-205(1)(a) (2023).
[4] The version of the statute that governed at the time of Murray’s sentencing did not expressly state that restitution could be awarded for damages “proximately caused” by the offense, see Utah Code § 77-38a-302(1) (2019), but our supreme court had interpreted that statute as containing such an allowance, seeState v. Ogden, 2018 UT 8, ¶¶ 31–48, 416 P.3d 1132. The statute has since been amended to expressly incorporate the proximate cause standard. See Utah Code § 77-38b-205(1)(a)(ii) (2023).
[5] Something somewhat similar can be true outside the proximate cause context too. In State v. O’Bannon, 2012 UT App 71, ¶ 38, 274 P.3d 992, for example, we recognized “a basis under Utah law for holding a defendant culpable for causing death even when other factors contributed to the victim’s death.”
Third District Juvenile Court, Salt Lake Department
The Honorable Monica Diaz
No. 1207437
Kelton Reed and Lisa Lokken
Attorneys for Appellant
Sean D. Reyes, John M. Peterson, and Carol L.C.
Verdoia, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
Before JUDGES MICHELE M. CHRISTIANSEN FORSTER, DAVID N.
MORTENSEN, and AMY J. OLIVER.
PER CURIAM:
¶1 R.S. (Mother) appeals the juvenile court’s order terminating her parental rights with respect to K.R. (Brother) and R.B. (Sister) (collectively, the children). Mother alleges the juvenile court exceeded its discretion in determining that it was strictly necessary to terminate her rights rather than awarding permanent custody and guardianship to the children’s maternal grandmother (Grandmother). We affirm.
¶2 In January 2022, the Department of Child and Family Services (DCFS) received a report that Mother was using drugs and neglecting Sister, who was an infant at the time. Four-year-old Brother was already living with Grandmother, and DCFS soon placed Sister with Grandmother as well.
¶3 Following a disposition hearing, the Court set a primary goal of reunification and set up a child and family plan. Mother received an initial substance abuse and mental health assessment but made no progress toward receiving treatment. She took only five of ninety-six required drug tests and tested positive on all five.
¶4 Nevertheless, Mother continued to demonstrate an attachment to the children. She participated in visits with the children on a bi-weekly basis, although she did miss some visits and had not seen the children for several weeks prior to the termination trial. The visits were supervised by a DCFS caseworker (Caseworker), and the children had to travel six-and-a-half hours round trip to attend. On some occasions, Mother cancelled visits without notifying Grandmother, leading the children to make the trip unnecessarily. Brother became upset when Mother missed visits with him.
¶5 Early on, Caseworker observed Mother having “inappropriate conversations” with Brother regarding Grandmother, such as telling him that Grandmother was not properly caring for him. Caseworker would redirect Mother to more appropriate topics, and “with reminders, this behavior . . . stopped.” Mother engaged with the children during visits and planned activities for them to do together.
¶6 Grandmother and Mother used to have a good relationship, but it had deteriorated due to Mother’s drug use and the DCFS case. According to Grandmother, Brother’s behavior would “deregulate[] for a couple days” after visits with Mother and he would become belligerent toward Grandmother. Mother would send Grandmother insulting text messages, and she had trouble respecting boundaries Grandmother set. Both women indicated they would not be comfortable “co-parenting” with one another.
¶7 Following the termination trial, the juvenile court found several grounds for termination, which Mother does not challenge on appeal. The court then turned to the best interest analysis, including the question of whether termination of parental rights was strictly necessary.
¶8 The court considered whether awarding permanent guardianship to Grandmother was an alternative to termination that could “equally protect and benefit the children.” However, the court ultimately determined that termination was strictly necessary for the following reasons:
· Mother and Grandmother “do not have a relationship” and are “unable to communicate regarding the children’s needs and wellbeing.” And while Grandmother attempts to set reasonable boundaries, Mother does not respect them. Mother herself acknowledged that “having her and [Grandmother] co-parent would not be healthy for the children.”
· Mother had a history of making inappropriate comments regarding Grandmother to Brother during parent time. These comments led Brother to become belligerent toward Grandmother following visits. Although Mother had stopped making such comments at the direction of Caseworker, the court was concerned that she would “revert to making these comments, without the oversight of the Division.” The court found that pitting the children against their caregiver in this way was “unhealthy” for their “emotional development and wellbeing.”
· Visits with Mother “are emotionally hard on the children.” Brother experiences behavioral problems after visits with Mother.
· The children have to travel six-and-a-half hours round trip to visit Mother. Because Mother does not communicate with Grandmother, she does not let her know when she is unable to attend visits. This has led the children to “endure the travel time needlessly.” Additionally, it is emotionally hard on Brother when Mother misses visits. The long travel time, emotional harm due to missed visits, and Mother’s inability to communicate with Grandmother combine to undermine the children’s stability. “They need to know that their relationships are stable and that they can count on the adults in their lives. . . . [Mother] missing visits undermines and disregards the children’s psychological and emotional security.”
· The children are happy and thriving in Grandmother’s care. She addresses their physical, mental, developmental, and emotional needs. The children are bonded to their extended family, which consists of Grandmother’s husband and other children living in Grandmother’s home. The children “need a permanent home,” and “[f]rom the children’s point of view, that home is [Grandmother’s] home.”
Based on these factors, the court found that termination of Mother’s parental rights was “strictly necessary from the children’s point of view.”
¶9 Mother challenges the juvenile court’s determination that termination of her rights was strictly necessary. “Whether a parent’s rights should be terminated presents a mixed question of law and fact.” In re B.W., 2022 UT App 131, ¶ 45, 521 P.3d 896 (quotation simplified), cert. denied, 525 P.3d 1269 (Utah 2023). “We will overturn a termination decision only if the juvenile court either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” Id. (quotation simplified).
¶10 Mother asserts (1) that the court did not appropriately weigh certain evidence and (2) that the court inappropriately focused on the needs of the adults rather than the children by basing its decision on Mother and Grandmother’s inability to “coparent” the children.
¶11 Before terminating a parent’s rights, the court must find that termination is “strictly necessary to promote the child’s best interest.” In re B.T.B., 2020 UT 60, ¶ 60, 472 P.3d 827. And this analysis must be undertaken from the child’s point of view. See Utah Code § 80-4-301(1); In re B.T.B., 2020 UT 60, ¶ 64. “Termination is strictly necessary only when, after exploring possible placements for the child, the juvenile court concludes that no other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights.” In re J.P., 2021 UT App 134, ¶ 15, 502 P.3d 1247 (quotation simplified). “If the child can be equally protected and benefited by an option other than termination, termination is not strictly necessary.” Id. (quotation simplified).
¶12 The strictly necessary analysis “is designed to ensure that the court pause long enough to thoughtfully consider the range of available options that could promote the child’s welfare and best interest.” In re B.T.B., 2020 UT 60, ¶ 69. “[I]f a court has complied with its statutory obligations, its resultant best interest determination is entitled to deference.” In re B.W., 2022 UT App 131, ¶ 69. Thus, a parent’s mere dissatisfaction “with the manner in which the juvenile court weighed the evidence . . . has no traction on appeal.” In re J.P., 2021 UT App 134, ¶ 23.
¶13 Mother argues that the court’s finding that Brother was upset when she missed visits should weigh against a finding that termination was strictly necessary. She also asserts that the court should have given more weight to her recent history of stopping her inappropriate comments to Brother rather than inferring that she was likely to resume such comments in the future. These arguments ultimately take issue with “the manner in which the juvenile court weighed the evidence” rather than its compliance with its statutory mandate. See id. The court’s findings are entitled to deference, and we will not disturb them on appeal. See In re B.W., 2022 UT App 131, ¶ 69.
¶14 Mother next asserts that the court’s focus on her and Grandmother’s inability to “co-parent” the children was inappropriate and led it to consider the strictly necessary analysis from the adults’ perspective rather than the children’s perspective. See Utah Code § 80-4-301(1) (dictating that the strictly necessary analysis must be undertaken from the child’s point of view). Mother argues that a permanent custody and guardianship order does not result in “co-parenting” but rather involves “the Guardian call[ing] the shots” while “the parent has a handful of residual rights.” We take Mother’s point that co-parenting may not have been quite the right term to use in describing the relationship between a parent and a permanent guardian.[1] However, we are more concerned with the substance of the court’s analysis than the term it used. And that analysis indicates that the court’s true concern was whether it was in the children’s best interests to be pitted between a parent and guardian who could neither cooperate nor communicate with one another.
¶15 “[L]ong-term guardianship arrangements are typically only in a child’s best interest where the guardians and the parent have a working, relatively healthy relationship in which they are both willing to work together to preserve the parent-child relationship and where the child has a healthy relationship with both the guardian and the parent.” In re J.P., 2021 UT App 134, ¶ 22 (quotation simplified). Thus, when a parent and guardian have “little to no relationship,” the particular circumstances of the case may indicate that permanent custody and guardianship will not meet the children’s needs as well as termination of parental rights. See id. That is what the juvenile court found here, and such a finding was not an abuse of its discretion under the circumstances.
¶16 Furthermore, we are not convinced that the juvenile court inappropriately conducted the strictly necessary analysis from the adults’ point of view rather than that of the children. The court explicitly discussed the effect Mother and Grandmother’s inability to cooperate had on the children, finding that being put in the middle of the conflict was “unhealthy” for the children’s “emotional development and wellbeing” and undermined their stability, that the children suffered when Mother did not communicate with Grandmother about missing visits, and that Mother herself acknowledged that the conflict was “unhealthy” for the children. These findings indicate that the court considered the conflict between Mother and Grandmother from the children’s point of view in determining that the conflict made termination of Mother’s rights strictly necessary.
¶17 The juvenile court here carefully considered whether the children could be equally benefited and protected by a permanent custody and guardianship arrangement as opposed to termination of Mother’s parental rights. It also made detailed findings in support of its determination that termination was strictly necessary from the children’s point of view. Accordingly, the juvenile court’s decision to terminate Mother’s parental rights is affirmed.
[1] Nevertheless, as the guardian ad litem observes, it is not apparent from the record that Mother was “up to the tasks involved with residual parental rights,” given that she has not paid child support, has not respected the boundaries Grandmother has put in place, has not progressed past supervised visitation, and has disappointed the children by failing to communicate about missed visits.
Sean D. Reyes, Christopher D. Ballard, and William
M. Hains, Attorneys for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.
MORTENSEN, Judge:
¶1 William John Arnold’s ex-wife, Tabitha,[2] reported to police that one evening Arnold broke into her home and spent the night with her while threatening her with a gun. The undisputed details of the night include Arnold choking Tabitha and punching her in the face, firing the gun into a mirror behind her, driving her around to various locations, trying to convince her to shoot him or else threatening to do “suicide by cop,” and leaving the next morning with the gun. The two also had sexual intercourse, which Tabitha testified was not consensual. After a trial, a jury convicted Arnold on nine charges related to these events. Arnold now claims his defense attorney (Counsel) provided ineffective assistance and appeals his convictions on seven of the nine charges: aggravated burglary, aggravated robbery, aggravated kidnapping, aggravated sexual assault, theft, criminal mischief, and felony discharge of a firearm with injury. He asserts that Counsel performed deficiently for failing to (1) object to erroneous jury instructions for the charges of aggravated sexual assault, aggravated kidnapping, and theft; (2) move for a directed verdict on or object to the jury instructions concerning the criminal mischief charge; (3) move for a directed verdict on the charge of discharge of a firearm with injury; and (4) object to Tabitha’s testimony that she believed Arnold to be a felon. Arnold argues that he was prejudiced by each of these alleged deficiencies. We ultimately conclude that—for each claimed instance of ineffective assistance—either Counsel did not perform deficiently or Arnold was not prejudiced. As a result, we affirm all of Arnold’s convictions.
¶2 Arnold and Tabitha shared a “tumultuous, on-again-off-again relationship” for about a decade. The two were divorced just over a year after their marriage, yet they continued their romantic relationship after the divorce despite their recurring fighting. However, by December 2019, Tabitha had evicted Arnold from her home. When he returned later that month, Tabitha called the police, and officers came and informed Arnold that he was no longer allowed to come to the house. Arnold was supposed to return all the keys he had to Tabitha’s home, but he failed to do so.
Arnold Arrives and Assaults Tabitha
¶3 One night in February 2020 at approximately 9:30 p.m., Tabitha was sitting in her home office at her computer and was “startled . . . and scared” to look up and see Arnold standing in the doorway. He had been watching her home from a distance through binoculars for a couple of hours and later admitted that he knew he was not allowed to be there. But he came into the home and told Tabitha he was there to retrieve the title to a pickup truck the two had discussed in the past. Tabitha told Arnold that he had already taken the title and it wasn’t there, but he began ransacking her office and then her bedroom looking for it. Arnold was “very, very agitated.” Tabitha testified that when she said the truck was technically hers, Arnold grabbed her by the neck and lifted her off the ground. She said she couldn’t breathe and feared passing out or dying, so she scratched Arnold’s face to try to get loose. Arnold admitted to choking her but claimed her feet remained on the ground and that she scratched him after he let her go. Arnold responded by punching her in the eye with a closed fist. He said he “know[s] she’s frail” and “[s]he bruises and breaks easy because all the medication she’s on” but that he “barely hit her.” Tabitha, on the other hand, said the hit was so hard that she “saw stars” or “a bright light.” A later CT scan revealed multiple broken bones around Tabitha’s left eye. After Arnold’s punch, Tabitha felt dizzy and like she “had a black eye” that was “starting to swell” and “was going to swell so bad it would swell shut.” Shortly thereafter she could no longer see out of that eye.
Arnold Obtains and Shoots a Gun
¶4 As Arnold continued ransacking Tabitha’s bedroom in search of the title, he found a loaded .22-caliber pistol she had hidden under her bed. When Counsel later cross-examined Tabitha about the gun, he asked, “He didn’t bring his own .22-caliber pistol to your house to kill you, as far as you know, did he?” Tabitha responded, “I believe he is a felon. He’s not allowed to own a weapon.” On appeal, Arnold claims that Counsel should have objected to this statement. Instead, Counsel said, “Well, that’s not my question. He didn’t bring a gun to your house, did he?” Tabitha responded, “No, he didn’t.”
¶5 Arnold admitted that he removed the gun from under Tabitha’s bed and that she didn’t give it to him, but he said, “I don’t think I took it either, but—I mean, 17 years in the oil field giving her my paycheck, I seem to think half of everything is mine.” He agreed, though, that no property distribution between the parties had been adjudicated. He relayed that the gun had belonged to Tabitha’s ex-husband and had been in pawn when the two “got together” and that Arnold had paid to release it from pawn because she had no money at the time. When the prosecutor asked on cross-examination, “And you didn’t have permission to take that gun, did you?” Arnold responded, “Other than the fact that I paid for it.” But he agreed that the gun had been in Tabitha’s possession when the evening began and that he took it with him when he eventually left Tabitha’s home the next morning.
¶6 Tabitha testified that when Arnold picked up the gun he commented, “Somebody’s going to die tonight, and I’m going to do suicide by cop.” At the time, Tabitha was standing across the bed from Arnold. He chambered a round and, according to Tabitha’s testimony, threatened to kill her while he pointed the gun at her head, with her “looking right down the barrel.” Arnold fired the gun, and Tabitha testified that the bullet went “[r]ight past [her] head into [her] mirror on [her] dresser” and “through the mirror, into the wall.” Arnold testified that he actually pointed the gun at his own head. He claimed, “I wanted to kill myself, and I told her she’s going to watch. And I couldn’t do it. And then I shot my reflection [in the mirror] . . . .”
¶7 After Arnold shot the gun, Tabitha’s ears were ringing from the sound of the shot, and for some time she couldn’t hear. Arnold said something to her, but she was unable to hear what he was saying. “[E]ventually,” she regained her ability to hear.
¶8 Tabitha told Arnold she wanted a cigarette. Arnold testified, “She said if she’s going to die, [she] wants it to be her last one. I told her, ‘You’re not going to die.’ I go, ‘I want to die.’ And she was just under the impression—she was scared, I guess, after I choked her.” Tabitha testified that she had only one cigarette left and Arnold also wanted one, so she suggested that they go to town to get more. She also testified that she was afraid Arnold would kill her and she thought she could get some help in town.
¶9 Arnold eventually agreed to go to town, but before leaving he asked where Tabitha’s cell phone was. Tabitha told him it was in her office, and he told her to bring it to him. She did so, and he “beat it violently against [her] bedpost to the point he cracked [her] bedpost [and] completely destroyed [the] cell phone.” At trial, the prosecutor asked about damage to the bedpost, to which Tabitha responded that it was cracked and had a “chunk that [was] ready to fall out of it.” The prosecutor also asked about the value of the bedpost or the cost of the damage, and Tabitha answered, “That bedpost actually will screw off, and to really fix it you’d have to have another one made. The cost of it, I have no idea.” The prosecutor inquired about the value of the cell phone that was destroyed, and Tabitha said, “I think I paid $600 for it. It’s got no value now.”
Arnold Drives Tabitha to Various Locations
¶10 At approximately 2 or 3 a.m., Arnold and Tabitha left the house to go to town, with Arnold driving Tabitha’s car. Tabitha testified that Arnold did not have a driver license because it was revoked after a DUI. Still, Arnold drove and brought the gun, which Tabitha testified was in his lap but Arnold testified was under the seat. Arnold said he didn’t kidnap Tabitha but that, instead, he told her she could leave at any time and she could have done so.
¶11 They drove first to one gas station, but it was closed, so they drove around and eventually went to another. Tabitha said Arnold went into the store and took the keys with him. But Arnold said that he asked her if she wanted him to leave the car running and she said she didn’t care, so he turned it off like they usually did and left the keys in the ignition. When asked what Arnold did with the gun when he went into the gas station, Tabitha testified, “I don’t remember. I think he took it with him.” When the prosecutor asked, “Do you remember seeing it in the vehicle when he left?” she responded, “No.” Arnold stated that he left the gun under the seat while he went in the store, but he admitted he didn’t “know if she knew where it was at or not.”
¶12 Tabitha did not get out of the car. She testified that she stayed in the car because Arnold told her “if [she] ran [she’d] be hunted down and killed.” She also said, “I’m old.[4] There is no run left in me. And looking around, it was cold out there and there was nowhere to go for help.” Arnold testified that he never said he would hunt Tabitha down nor threatened to kill her. Tabitha testified that while Arnold was in the store, another vehicle pulled up, but she didn’t attempt to ask the driver for help because “[i]t was a young man in that truck, and he wasn’t a big man.” She said, “I thought, I don’t want to be responsible for someone else getting hurt over this.” She also felt unsure as to whether the man would help her.
¶13 Arnold returned to the car and drove toward the residence of an acquaintance, saying he hated the man and wanted to kill him. But then Arnold stopped the car and handed the gun to Tabitha, instructing her to kill Arnold. Tabitha responded that she couldn’t do that. She set the gun on the floor and “was kind of scooting it back under the seat,” but Arnold soon asked for the gun back, and Tabitha gave it back to him. She testified that she did so because she “didn’t want to fight” and she “didn’t want to be hurt anymore.” Arnold testified that he gave Tabitha the gun four times—twice at the house and twice in the car—to get her to kill him but that “[s]he told [him] she couldn’t.” He said, “I wanted to get her mad so she would.” While they drove, Arnold talked about “all the horrible things that [Tabitha had] done to make his life miserable.” Tabitha said she lost track of time and felt like the whole thing was a nightmare. She also testified that she never tried to leave because she “didn’t know” and “didn’t want to find out” exactly what would happen to her if she tried it; but she said, “I knew he’d come after me.”
¶14 Eventually, the pair returned to Tabitha’s house, but only to retrieve the binoculars Arnold had earlier been using to watch Tabitha’s house. Arnold then drove Tabitha to his residence. Tabitha testified that she still did not feel like she could leave while they drove around because Arnold “would come after” her. She said she still stayed with him because she didn’t want to be hurt or have her stuff destroyed, and she “just want[ed] to get through [the] night.” They arrived at Arnold’s place, and when a police car drove by, Arnold made Tabitha duck down so she couldn’t be seen.
¶15 Arnold next took Tabitha to a site where the disputed truck was parked, told Tabitha to get out and drive the truck, and started driving away in Tabitha’s car. The truck windows were covered in ice, so Tabitha rolled down the window and stuck her head out to drive, but she hit something as she exited the site, taking the passenger side mirror off. At trial, Arnold postulated that the fractures around Tabitha’s eye came from hitting her eye on the truck door during this incident, rather than from his punch. Tabitha testified that she thought about driving to get help but didn’t do so because it was very cold, she couldn’t see where she was driving, she had already learned from driving around town that there was no one out to provide help, and she didn’t know if Arnold would come after her. So instead of driving for help, she used Arnold’s taillights as a guide and followed him back to her house.
The Pair Return and Have a Sexual Encounter
¶16 After returning home, Tabitha sat in front of the fireplace because she was “freezing cold.” Arnold sat in her living room recliner with the gun in his lap. Tabitha testified that she didn’t attempt to call anyone because Arnold would hear her and she “would be hurt or killed” and “wouldn’t get any help until it was too late.” But Tabitha sent two messages for help while Arnold was in her home—one early in the night (around 9:45 p.m.) to her sister telling her to call 911, and the other through the computer at approximately 4 a.m. to an acquaintance who is a police officer. Tabitha recounted that the later message said “something along the lines of, ‘911. [Arnold’s] here.’” Tabitha did not receive replies at the time.
¶17 At some point, Arnold told Tabitha, “I would like to . . . lay down and hold you in my arms one last time.” Tabitha reported that she said, “‘Okay,’ hoping that maybe he’d fall asleep.” Tabitha testified that she was agreeing “[t]o laying down and having [a] snuggle together and hopefully he’d go to sleep” and that she was not wanting or agreeing to anything more than that. Tabitha removed her shoes and pants and lay down with Arnold in the bed. She testified that she took her pants off “[b]ecause they were dirty and [she] didn’t want [her] sheets to be all nasty dirty.” Tabitha then lay with her back to Arnold’s front. She testified that Arnold kept the gun with him and told her, “If I fall asleep, don’t you touch that gun.”
¶18 Tabitha testified that she felt Arnold getting an erection, and he began pulling on her underwear. She testified, “I can just remember thinking, I have this huge black, swollen eye and everything we’ve gone through this night, and you want to have sex? . . . Are you nuts?” She testified she was “bawling and saying, ‘No. Please, no. No. I don’t want to. No.’” She said she “couldn’t believe . . . [that] anyone [could] do that to someone and then want to have sex.” But Arnold persisted and performed oral sex on Tabitha and then penetrated her vaginally. Throughout this encounter, Tabitha did not physically resist because “she didn’t want to be hurt anymore” and she “just wanted to get through that night.” Tabitha testified that Arnold kept the gun on his side of the bed during the sexual encounter. She also said he stated, “Boy, I’m a sick fuck,” which Tabitha thought referred “to beat[ing] someone and treat[ing] someone that way and then want[ing] to have sex with them.” After intercourse, the pair got cleaned up, and Arnold went to sleep. But Tabitha took pain medication and stayed awake.
¶19 Arnold’s testimony regarding the sexual encounter was different. He testified that after Tabitha removed her pants, she got in bed and “crawled . . . literally right up to [him] and start[ed] rubbing on [him] real tight.” He admitted that he was warm and Tabitha may have been trying to warm up. He also admitted that Tabitha would sometimes get into bed without pants on and they wouldn’t always have sex on such occasions. But he testified that this time, while they had sex, Tabitha didn’t resist or pull away. He said, “Actually, when I was going down on her, she was rubbing her fingers through my hair just like she always does. And when I got done and lifted my head up, she—I didn’t push her legs up; she pushed her legs up herself, lifted them.” He also said, “[W]e’ve had fights before where we’ve made up like that.” He further claimed, “There’s been times where I didn’t have sex with her and she told me, you know, ‘I got a very high sex drive. If you would have just pushed me a little further, I would have.’ And she tells everyone she has a high sex drive.” He again stated later, “She said no before and then changed her mind and told me the next day, ‘Well, I really wanted to. Why [weren’t] you just a little more persistent? You know I got a high sex drive.’”
¶20 Arnold also indicated that, in the past, the two had had sex after Tabitha had been violent toward him. He recounted a time when the pair had gotten into an argument and were throwing each other’s clothes out the front door and she got a gun. He stated,
I went out on the porch and I told her, “If you’re going to shoot me, shoot me, then, bitch.” And I started grabbing my clothes and bringing them back in, and she goes, “You ain’t bringing your clothes back in and you ain’t stepping back in.” And she cocked it back and pointed it at my head, and I grabbed it and pushed it down.
I should have pushed it up, but I wasn’tthinking; and I pushed it down and it shot through my leg.
Arnold testified that the pair had sex a week later, and he said he was fully recovered by then. He said that they would “always fight and have sex afterwards,” including after occasions when she scratched and hit him. He declared that he believed her feelings on the night in question were like those other, previous times when she said no but the next day “got mad at [him] because [he] wasn’t persistent.” However, Arnold acknowledged that he did, in fact, hear Tabitha say no two times during the sexual encounter. As to the location of the gun during the encounter, Arnold testified that Tabitha was the one to set the gun on the bed after the last time he told her to shoot him and that it was down by their feet while they had sex.
Arnold Leaves and Tabitha Prompts an Investigation
¶21 Tabitha said that when Arnold woke up, he asked Tabitha for money while holding the gun, and she gave him the money she had in her coat pocket—between ten and fifteen dollars—to get him to leave. Arnold agreed that he asked for money and Tabitha gave it to him before he left. Counsel asked Arnold, after Tabitha initially told him she wanted him to leave the evening before, “Was it your impression or was it not your impression that you were okay to stay there?” Arnold responded, “I knew I probably wasn’t okay to stay there.”
¶22 After he left, Tabitha said she waited for about fifteen minutes in case he was watching, then crawled from the living room to the landline telephone in her office and called the police. She said she did this because she thought, “He’s gone but he could be watching me. If he sees me get that phone, he’s going to come back and get me and I’m going to have to live through more of this.”
¶23 Tabitha met with officers that morning and described the events of the night, but she did not initially tell officers that she had been raped. She later explained that she was ashamed and was reluctant to disclose the rape to the officers because “there [were] a bunch of men hanging around” and because of the “huge stigma” associated with rape. But after meeting with the officers, she went to the hospital for an examination, and there she informed medical personnel, who were women, that she had been raped.
¶24 The sexual assault nurse examiner (Nurse) who examined Tabitha at the hospital testified at trial that she remembered Tabitha’s exam “far more” than she remembered most exams “[b]ecause of the number of injuries that [Tabitha] had.” She testified that she identified various injuries on Tabitha: a black eye that was “quite bruised, quite swollen,” bruising on her neck consistent with strangulation, “swelling on the right side of her head,” bruising on both elbows, and bruising above both biceps “consistent with having been grabbed.” Regarding injuries in Tabitha’s vaginal area, Nurse reported “extensive bruising at the posterior of the vaginal wall,” bruising of the perihymenal tissue, bruising on the cervix, bruising on the tissue below the vaginal wall, and a laceration on “the outermost part of the inferior vaginal wall.” Nurse opined that these injuries were “more consistent” with Tabitha having been sexually assaulted than having had consensual sex. She also testified that, during the exam, Tabitha “expressed fear that she would be killed” and “frequently was tearful and asked, ‘Why did this happen[?]’” On cross-examination, Counsel asked Nurse to read a line from her written summary of the account Tabitha gave during the examination, which stated that while driving, Tabitha had “hit something and hit her eye on the door.”
¶25 Based on its investigation, the State charged Arnold with (1) attempted aggravated murder; (2) aggravated burglary; (3) aggravated robbery; (4) aggravated kidnapping; (5) aggravated sexual assault; (6) theft; (7) aggravated assault; (8) purchase, transfer, possession or use of a firearm by a restricted person; (9) violation of a protective order; (10) retaliation against a witness, victim, or informant;(11) criminal mischief; and (12) felony discharge of a firearm with injury.
Additional Relevant Testimony Is Given at Trial
¶26 At trial, in addition to the testimonies detailed above, the emergency room doctor testified that a possible side effect of Tabitha’s medications was easy bruising, though Nurse indicated that none of Tabitha’s listed medications were blood thinners.
¶27 Three deputies (Deputy 1, Deputy 2, and Deputy 3) who responded to Tabitha’s 911 call also testified. Deputy 1 testified that when he arrived, he found that Tabitha “had a large . . . swelling to her left eye that was rather significant that caused pretty great alarm,” so he requested a medical response to the scene. Deputy 2 testified that Tabitha appeared “[h]ighly emotional” and that “[h]er voice was trembling [and] she was shaking.” He also testified, “One of the first things she said to me was that, ‘You have to find him, you have to find him. He’s going to kill somebody.’” Deputy 3 likewise indicated that Tabitha’s eye “was completely swollen shut and blood-filled and couldn’t have any visual,” that Tabitha was “[v]ery distraught, very emotional,” and that “[i]t was very hard for her to complete and construct her sentences and her thoughts.” Additionally, Deputy 1 and Deputy 3 testified that Tabitha said she was taking blood thinners.
¶28 Deputy 3 testified about an outstanding protective order against Arnold that Tabitha had obtained in 2012 (before the parties had been married). Deputy 3 testified that the protective order was still active and it prohibited Arnold from going to Tabitha’s home and from contacting her via phone, email, or other methods. On this point, Arnold testified that Tabitha had told him that protective orders go away after two years. And Tabitha testified that she thought the protective order worked both ways and prevented both parties from interacting with each other.
¶29 Deputy 1 and Deputy 3 testified about the bullet hole through the mirror, and Deputy 3 also testified that there were multiple holes in the wall, likely from “fragments of the dresser and . . . the lead [from the bullet] going through that wall.” Deputy 3 also testified that he believed the location of a bullet casing he found to be consistent with Tabitha’s description of the shooting.
¶30 Deputy 2 testified that he and other officers arrested Arnold at his residence that morning, where they also found the gun. Deputy 3 testified that Arnold had a scratch on his face consistent with Tabitha’s account of the events. And he testified that Arnold, upon arrest, had twelve dollars in his pants, also consistent with Tabitha’s account.
¶31 Deputy 3 testified that four days later he interviewed Tabitha again and found her “a lot more rational, calm, collected” and able to provide “more detail” into the events, which change, he testified, was normal and expected for victims of these types of crimes. He also testified that a vaginal swab, which had been collected as part of Tabitha’s rape examination and subsequently sent to the state lab for testing, matched a sample of Arnold’s DNA, which had also been sent to the state lab. On cross-examination, Deputy 3 confirmed that Tabitha had told him that while driving Arnold handed her the gun twice but took it back when she wouldn’t shoot him.
The Jury Convicts on Nine Charges
¶32 After all the witnesses testified, the State withdrew the attempted murder charge before submitting the case to the jury. On the charge of possession or use of a firearm by a restricted person, the jury instructions indicated that the parties stipulated that Arnold “was a Category II restricted person at the time of the alleged offense.” The jury deliberated and acquitted Arnold of the charges of violating a protective order and retaliating against a witness, victim, or informant but convicted him of all nine remaining charges. Of these, Arnold now appeals his convictions on seven charges: aggravated burglary, aggravated robbery, aggravated kidnapping, aggravated sexual assault, theft, criminal mischief, and felony discharge of a firearm with injury.
ISSUES AND STANDARD OF REVIEW
¶33 Arnold claims that Counsel provided ineffective assistance and that, accordingly, seven of his convictions should be reversed. Arnold presents several issues, asserting that Counsel was ineffective for (1) not objecting to erroneous jury instructions for the aggravated sexual assault, aggravated kidnapping, and theft charges; (2) not moving for a directed verdict on or objecting to the jury instructions for the criminal mischief charge; (3) not moving for a directed verdict on the discharge of a firearm charge; and (4) not objecting to Tabitha’s testimony that she believed Arnold to be a felon.
¶34 “When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and [the appellate court] must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” State v. Reid, 2018 UT App 146, ¶ 17, 427 P.3d 1261 (cleaned up), cert. denied, 432 P.3d 1225 (Utah 2018).
ANALYSIS
¶35 “To prevail on a claim of ineffective assistance of counsel, [a defendant] must demonstrate that (1) [defense] counsel’s performance was deficient in that it fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the defense.” State v. Streeper, 2022 UT App 147, ¶ 34, 523 P.3d 710 (cleaned up), cert. denied, 527 P.3d 1106 (Utah 2023); see also Strickland v. Washington, 466 U.S. 668, 687 (1984).
¶36 The first prong “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. “[T]he proper standard for attorney performance is that of reasonably effective assistance.” Id. In other words, “the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688. “In evaluating trial counsel’s performance, we give trial counsel wide latitude in making tactical decisions and will not question such decisions unless there is no reasonable basis supporting them.” State v. Liti, 2015 UT App 186, ¶ 18, 355 P.3d 1078 (cleaned up).
¶37 The second prong “requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. “When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695. “Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” Id. at 687. “Because failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim, we are free to address [a defendant’s] claims under either prong.” Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d 182. We address each of Arnold’s assertions of ineffective assistance in turn.
I. Counsel’s Failure to Object to Jury Instructions
¶38 Arnold claims, “The jury was not properly instructed on three offenses . . . . Specifically, the jury was not instructed on two elements of aggravated sexual assault (the mens rea for consent and the requirement that a dangerous weapon be used ‘in the course’ of the crime), key statutory language for aggravated kidnapping, and affirmative defenses to theft.” He asserts that “[C]ounsel’s failure to object to the erroneous instructions or propose correct instructions constituted ineffective assistance . . . .” “Absent some tactical explanation, defense counsel’s failure to object to a jury instruction that does not alert the jury to every element of the crime with which [the defendant] was charged constitutes deficient performance.” State v. Liti, 2015 UT App 186, ¶ 18, 355 P.3d 1078 (cleaned up).
¶39 Even if we assume without deciding that Counsel’s performance was deficient in this respect, Utah and United States caselaw indicate:
A proper analysis also needs to focus on the evidence before the jury and whether the jury could reasonably have found that . . . a failure to instruct the jury properly undermines confidence in the verdict. . . . A court must consider the totality of the evidence before the judge or jury and then ask if the defendant has met the burden of showing that . . . there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Ultimately, a reasonable probability is a probability sufficient to undermine confidence in the outcome.
State v. Garcia, 2017 UT 53, ¶ 42, 424 P.3d 171 (cleaned up) (discussing Strickland v. Washington, 466 U.S. 668, 694–96 (1984)). After considering the totality of the evidence presented to the jury, we conclude that Arnold was not prejudiced by any of the erroneous jury instructions. We address each of the relevant jury instructions in turn.
A. Aggravated Sexual Assault
¶40 Arnold first alleges ineffective assistance because Counsel did not object to the jury instruction on sexual assault based on two errors. The instruction in question read,
You cannot convict him of this offense unless you find beyond a reasonable doubt based on the evidence each of the following . . . elements: that [Arnold] did knowingly, intentionally, or recklessly have sexual intercourse with [Tabitha] without her consent and used or threatened her with the use of a dangerous weapon.
Arnold asserts that this instruction failed to properly instruct the jury on the mens rea requirement for this charge and failed to provide the statutory language that the use or threat of use of the dangerous weapon must have occurred “in the course of” the sexual assault. See Utah Code § 76-5-405(2)(a).
1. The Mens Rea Requirement
¶41 Our supreme court has explained that “the crime of rape requires proof not only that a defendant ‘knowingly, intentionally, or recklessly had sexual intercourse,’ but also that [the defendant] had the requisite mens rea as to the victim’s nonconsent.” State v. Barela, 2015 UT 22, ¶ 26, 349 P.3d 676. This means a jury should be instructed that a defendant accused of rape must have acted knowingly, intentionally, or recklessly as to the victim’s nonconsent.[5]
¶42 “A person engages in conduct . . . [r]ecklessly with respect
to circumstances surrounding [the actor’s] conduct or the result of [the actor’s] conduct when [the actor] is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.” Utah Code § 76-2-103(3).
¶43 In State v. Barela, 2015 UT 22, 349 P.3d 676, a massage therapist and client presented different accounts of a sexual encounter, with the therapist testifying that the client initiated and engaged in sex and the client testifying that the therapist— without encouragement or consent—inappropriately rubbed her inner thigh during the massage and then penetrated her vaginally, id. ¶¶ 5–7. In evaluating a jury instruction very similar to the one at issue here, id. ¶ 25, our supreme court concluded that “reasonable trial counsel should have objected to it,” id. ¶ 27. And the court ultimately determined that the faulty jury instruction was prejudicial to the defendant. Id. ¶ 32. Later, discussing Barela in another case, the court explained,
This court found that the evidence was such that a jury could have “thought that the truth fell somewhere in between the two accounts.” While the victim in that case said the defendant had suddenly instigated and perpetrated the intercourse without her consent, she testified that she “froze,” “neither actively participating in sex nor speaking any words,” and otherwise expressed no reaction. This court concluded that a jury could have believed that although the victim did not consent, the defendant may have mistakenly thought she did. Accordingly, we held that it was “reasonably likely” that a proper jury instruction regarding the requisite mental state as to the victim’s nonconsent could have affected the outcome of the trial.
State v. Norton, 2021 UT 2, ¶¶ 48–49, 481 P.3d 445 (cleaned up).
¶44 On the other hand, in State v. Newton, 2020 UT 24, 466 P.3d 135, our supreme court found that a defendant was not prejudiced as a result of similarly deficient jury instructions, id. ¶¶ 19, 30. The defendant faced rape charges based on the victim’s account that, after a party, the defendant attacked her in his car and violently forced her to have sex despite her screaming, crying, and fighting back and that he also choked her and pointed a gun at her. Id. ¶ 4. The defendant told a different story, claiming that the victim initiated and participated willingly in sex. Id. ¶ 6. The court determined that the defendant was not prejudiced because neither version presented the possibility that the victim didn’t consent but the defendant reasonably believed she did. Id. ¶ 34. The court explained that because “the evidence shows only that she either fought back or initiated the sex[,] . . . the jury could not easily have thought that the truth fell somewhere in between the two accounts.” Id. (cleaned up). “So in convicting [the defendant], the jury must have found that [the victim] did not consent and, by extension, must have concluded that [the defendant] intentionally, knowingly, or recklessly had nonconsensual sexual intercourse with [the victim].” Id. (cleaned up). The court noted that the victim’s version of the events was also corroborated by extensive injuries identified during her medical examination, including genital injuries that would have been painful enough for her to stop consensual intercourse, evidence of strangulation, and bruising on her arms and legs. Id. ¶ 35. Accordingly, the court concluded that the evidence supported a jury determination that the defendant was at least reckless as to the victim’s consent. See id. ¶¶ 35–36. Because its confidence in the outcome was not undermined, the court found no prejudice. See id.
¶45 Likewise, in State v. Norton, 2021 UT 2, 481 P.3d 445, our supreme court held that similar instructions were not prejudicial, id. ¶¶ 38–39, 49–51. There, a woman accused her estranged husband—against whom she had a protective order—of breaking into her parents’ home, assaulting her and tying her up with duct tape, abducting her, and forcibly penetrating her vaginally while holding her down. Id. ¶¶ 1, 5–9. She testified that she said “no” repeatedly and also physically resisted. Id. ¶¶ 8–9. The estranged husband, on the other hand, described how the wife willingly left with him and initiated physical affection that resulted in consensual sex. Id. ¶¶ 14–16. He testified that the pair later argued and “rastled,” including him backhanding her and grabbing her hands. Id. ¶ 17. The jury convicted the husband of aggravated sexual assault and other charges, and he argued on appeal that the jury instructions were prejudicial because they did not identify the mens rea regarding consent. Id. ¶¶ 20, 33. Our supreme court disagreed, concluding that “a reasonable jury could not have found that [the husband] mistook [the wife’s] conduct for consent based on the totality of the evidence.” Id. ¶ 42. This was because the husband’s “testimony did not describe ambiguous behavior that he could have believed was consent,” the wife’s “testimony similarly left no room for a finding that [the husband] mistook her conduct for consent,” and “[o]ther evidence corroborated her version of events”—including the use of duct tape and injuries on the wife’s back, face, inner thighs, and labia. Id. ¶¶ 43–45.
¶46 The State argues that “[t]he facts here contain none of the subtlety that drove the result in Barela. Rather, as in Newton and Norton, the only issue was whose version of consent to believe.” We disagree. Unlike in Newton and Norton, Arnold’s and Tabitha’s accounts are not so very different that the jury must have chosen to believe one at the complete exclusion of the other. Both testified that Tabitha took off her pants, climbed in the bed, and lay with Arnold and that sex subsequently ensued. To be sure, the parties’ descriptions contained other contradictory facts. But we first acknowledge that this case is unlike Newton and Norton, where neither party testified to behavior that could have been construed to be ambiguous. See Norton, 2021 UT 2, ¶ 43; Newton, 2020 UT 24, ¶ 34. Indeed, Tabitha admitted that she did not physically resist Arnold because she “didn’t want to be hurt more,” and Arnold testified that Tabitha ran her hands through his hair as she normally would during oral sex and lifted her legs up on her own. In this respect, the present case is more like Barela, where there was behavior that was potentially ambiguous. See 2015 UT 22, ¶ 29.
¶47 However, unlike in Barela, both Arnold and Tabitha testified that Tabitha said “no,” with Tabitha stating that she did so repeatedly while sobbing and Arnold admitting that he heard her say “no” twice. We consider it critical to accept that “[n]o means no.” State v. Cady, 2018 UT App 8, ¶ 1, 414 P.3d 974, cert. denied, 421 P.3d 439 (Utah 2018). By admitting that Tabitha said no twice, Arnold would have to convince us that some exceptional circumstances applied to make it reasonable for him to believe that no—stated twice—actually meant yes. As explained below, he fails to accomplish this feat. While we agree with Arnold that this case is less straightforward than Newton and Norton and disagree with the State’s contention that “as in Newton and Norton, the only issue was whose version of consent to believe,” on the record before us, our agreement with Arnold on this point does not carry the day for him. Ultimately, we are not convinced that, on these facts, a reasonable jury could have looked “at the totality of the trial evidence here and [found] that, under either version of events, [Arnold] may have mistaken [Tabitha’s] conduct for consent.” See Norton, 2021 UT 2, ¶ 49.
¶48 Arnold asserts that the parties’ history made it reasonable for him to believe that Tabitha was consenting when she said “no.” He testified: “There’s been times where I didn’t have sex with her and she told me, you know, ‘I got a very high sex drive. If you would have just pushed me a little further, I would have.’” He also claimed that “[s]he said no before and then changed her mind and told me the next day, ‘Well, I really wanted to. Why [weren’t] you just a little more persistent? You know I got a high sex drive.’” But Arnold’s own testimony does not support a conclusion that he could have reasonably supposed that this was a time when Tabitha just wanted him to be more persistent.
¶49 First, we note that nothing in Arnold’s description of the parties’ past sexual history indicates that Arnold ever successfully changed Tabitha’s mind during the course of a sexual encounter. Her alleged statements on days after the couple did not have sex do not establish a history where Tabitha first said “no” but changed her mind during the course of sex—and her feelings on consent the day after not having sex do not reliably establish her feelings on consent at the time. But the more important question is whether Arnold could have reasonably believed Tabitha’s noes to be yeses here.
¶50 Arnold testified that the couple “had fights before where [they] made up like that,” meaning having sex, including after she “scratched and hit” him, as well as a week after she shot him in the leg, when he had fully recovered. Even if true, this testimony does not provide evidence of a single instance when Tabitha consented to having sex contemporaneously with Arnold physically assaulting her (rather than after she injured him), and it does not raise a reasonable inference or basis to conclude that she would have consented so soon after Arnold punched her in the face, breaking her facial bones, when her eye was still so swollen that she couldn’t open it.
¶51 But Arnold’s own testimony is even more damning. When speaking of Tabitha’s feelings that she was going to die that night, Arnold said, “And she was just under the impression—she was scared, I guess, after I choked her.” This shows his awareness that Tabitha was afraid for her life, which is not consistent with him reasonably believing that—despite saying no—she was willing to have sex with him. Certainly, some hours had passed between Arnold’s punch and the sexual encounter, but we are not convinced that Arnold could have reasonably believed that Tabitha’s fear turned into consent for sexual activity.
¶52 Furthermore, Arnold’s testimony was clear that he knew he was not welcome at Tabitha’s home both before he arrived and throughout the time he stayed. Arnold agreed when the prosecutor asked if he knew he wasn’t “supposed to be at her house” but “still went over anyways.” And the prosecutor confirmed, “So you came in the house uninvited, knew you weren’t supposed to be there; is that correct?” Arnold responded, “Yes.” The prosecutor then asked, “She told you to leave, but you didn’t leave?” and again Arnold replied, “Yes.” Separately, when Counsel was questioning Arnold about the circumstances around him leaving Tabitha’s home in the morning, he asked Arnold, “Was it your impression or was it not your impression that you were okay to stay there?” Arnold responded, “I knew I probably wasn’t okay to stay there.” It is beyond the limits of reasonability to believe that Arnold knew throughout the whole night that Tabitha was not okay with him staying in her home but that he thought she wanted to have sex with him in that very home. Therefore, Arnold’s testimony does not support a conclusion that he reasonably believed Tabitha was consenting to sex despite twice telling him no, and a correction to the jury instruction would not likely have made any difference on this point.
¶53 Beyond Arnold’s testimony, other evidence supports a conclusion that “a reasonable jury could not have found that [Arnold] mistook [Tabitha’s] conduct for consent based on the totality of the evidence.” Norton, 2021 UT 2, ¶ 42. First, it is clear that the jury believed more of Tabitha’s version of the events than Arnold’s. Because the chief dispute on this point at trial was whether the sexual encounter was consensual, the jury’s guilty verdict for aggravated sexual assault indicates that the jury accepted Tabitha’s facts, or at least more of Tabitha’s facts than Arnold’s.[6] Tabitha testified that she “just kept bawling and saying, ‘No. Please, no. No. I don’t want to. No.’” She stated that Arnold said, “Boy, I’m a sick fuck,” presumably referring—in Tabitha’s estimation—“to beat[ing] someone and treat[ing] someone that way and then want[ing] to have sex with them.” Tabitha’s sobbing would certainly have informed Arnold that she was not consenting to sex. And Arnold’s statement indicates that he understood (1) that his desire to have sex with Tabitha was extremely perverse—even given their history—after his previous actions and (2) that she would view his desire as just as shocking as she, in reality, did.
¶54 Additionally, Nurse testified that Tabitha had extensive injuries that were “more consistent” with Tabitha having been sexually assaulted than having had consensual sex. Even if the jury accepted Arnold’s theory that blood thinners could have caused the extensive bruising during consensual sex, they would not have caused a laceration on the “outermost part of the inferior vaginal wall.” This is similar to the injuries the court highlighted in both Newton and Norton as weighing against a finding of prejudice. See id. ¶ 45; Newton, 2020 UT 24, ¶ 35. And this is particularly similar to the injuries in Newton that the court reasoned would likely have caused the victim to stop the intercourse if it had been consensual. See Newton, 2020 UT 24, ¶ 35. Arnold provides no explanation that would support Tabitha’s desire to engage in such a painful encounter, including no testimony that the couple’s history involved sex that was painful for Tabitha. Nurse also testified that Tabitha “expressed fear that she would be killed” and “frequently was tearful and asked, ‘Why did this happen[?]’” These facts are consistent with Tabitha’s account of her feelings about the experience and do not support a finding that Arnold was anything but reckless—or worse—as to Tabitha’s nonconsent.
¶55 Finally, we find it worth noting that the jury’s attention was drawn to Arnold’s state of mind before it convicted him on this count. In its closing argument, the State said, describing the sexual encounter, that Arnold claimed to be thinking, “Well, this is how we’ve had sex in the past . . . so that’s what we should do. That’s what’s going on.” But the State drew the jury’s attention to facts that would make Arnold’s alleged perception unreasonable, saying he claimed to have thought that “[e]ven though she was telling him no, was crying because he had punched her in the face, had choked her and shot at her, driven her all over town, that— well, she still wanted to have sex.” Then the State asked, “That doesn’t make sense, does it? When you look at this evidence you should look at things. Is it reasonable? Does that make sense?” Given this, it is very likely that the jury did consider Arnold’s state of mind as to Tabitha’s consent when it convicted him on this charge. The State specifically drew the jury’s attention to the unreasonable nature of Arnold’s purported beliefs about Tabitha’s consent, and the jury returned a verdict that Arnold was guilty on this count.
¶56 It is clear that Arnold acted recklessly—at the very least— as to Tabitha’s consent when he was “aware of but consciously disregard[ed] a substantial and unjustifiable risk” that she was not consenting to have sex. See Utah Code § 76-2-103(3). Disregarding this risk in light of Tabitha verbally stating she was not willing to have sex and in light of the very painful injuries she had sustained was “a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from [Arnold’s] standpoint.” See id. In light of the totality of the circumstances, including Arnold’s own testimony, it is unlikely that the outcome would have been different if the jury had heard an instruction on Arnold’s mens rea related to Tabitha’s consent. Therefore, the erroneous jury instructions on this point did not prejudice Arnold.
2. The “in the course of” Language
¶57 Arnold next argues that Counsel was ineffective for not objecting to the jury instruction for aggravated sexual assault when it failed to indicate that the use or threat of use of the dangerous weapon must have occurred “in the course of” the sexual assault. See id. § 76-5-405(2)(a)(i). Even if we assume without deciding that this omission constituted deficient performance, we conclude that Arnold was not prejudiced by it. The totality of the evidence presented to the jury indicates that Arnold’s use of the gun presented a continuous threat and that this threat extended through the course of the sexual assault.
¶58 As discussed above, the supreme court in Norton found no prejudice deriving from a faulty jury instruction on aggravated sexual assault. 2021 UT 2, ¶ 51. Though the “in the course of” language was not omitted in the jury instruction at issue there, the circumstances of the use of the gun are relevant to this case. After the victim’s estranged husband broke into her house, punched her in the face, and drove her to another location with a gun in his lap, id. ¶¶ 5–6—circumstances very similar to what happened here—
[the husband] led [the victim] into an office and told her to take off her pants. She . . . said “no,” and he again pointed the gun at her, forcing her to comply. While she did so, [he] undressed, removed the magazine from the gun, and put the magazine and gun in a filing cabinet. Then, he told [her] that they were going to have sex. She said “no,” but [he] responded that “yes” they were. “So you’re going to rape me?” she asked. [He] replied, “You can’t rape somebody that you’re married to.”
Id. ¶ 8. Notably, the gun was stored in a filing cabinet during the rape—less accessible than was the gun here, as it stayed within arm’s reach on the bed. Although Norton made his victim undress at gunpoint, while here Tabitha removed her pants voluntarily, the removal of clothing was not the act constituting sexual assault. Norton’s conviction on the charge of sexual assault based on rape supports an understanding that the “in the course of” language can be satisfied through an ongoing threat present during the rape.
¶59 This understanding comports with the plain meaning of the statute and with Utah caselaw—both as to threat of use of a weapon and as to use of a weapon. See generally Bevan v. State, 2021 UT App 107, ¶ 11, 499 P.3d 191 (“For all questions of statutory interpretation, we begin by looking at the plain language. In doing so, we assume that the legislature used each term advisedly according to its ordinary and usually accepted meaning. . . . Should we conclude the language is unambiguous and provides a workable result, our analysis is complete.” (cleaned up)). First, while the plain meaning of “threatens” includes “utter[ing] threats against” someone, see Threaten, Merriam-Webster, https://www.merriam-webster.com/dictionary/threaten [https:// perma.cc/QDE8-JD58], it also includes “caus[ing] to feel insecure or anxious,” see id. Where the actor has already issued verbal threats related to the dangerous weapon or has taken physical action threatening use of the gun—such as pointing it at the victim or firing it, see State v. Hodson, 907 P.2d 1155, 1157 (Utah 1995) (“We conclude . . . that the only possible inference to be made when someone holds a loaded gun to the head of another and issues an order is that failure to comply will result in use of the gun. Implicit threats are as real as express verbal threats . . . .”)— a threat may continue while the weapon continues to be accessible to the actor. The language of the statute does not state differently, and we have no reason to read into “threatens” a temporal restriction it does not contain. See Utah Code § 76-5-405(2)(a)(i). So to satisfy this element, Arnold need not have pointed a loaded gun toward Tabitha during the actual sexual encounter and threatened to shoot her if she did not comply. Rather, it was sufficient for him to have earlier established the threat of use of the gun through words or actions and for that threat to continue during the course of the sexual assault.[7]
¶60 Furthermore, Utah law is clear that the phrase “use of,” see id., does not require an actor to take affirmative action besides presenting the weapon, see In re R.G.B., 597 P.2d 1333, 1335 (Utah 1979) (“Defendant . . . argues that there was no evidence of . . . the use of a deadly weapon . . . since the robber did not handle the gun or point it at the victim . . . . [I]t is not necessary that the State prove that the robber actually pointed a gun at the victim . . . . If merely exhibiting the gun creates fear in the victim, it constitutes ‘use of a firearm’ for that purpose.”); State v. Weisberg, 2002 UT App 434, ¶¶ 15–17, 62 P.3d 457 (“[The defendant] objected to the portion of the instruction that equated ‘use’ to ‘exhibiting a weapon in such a manner that it creates fear in a reasonable person.’ [The defendant] argues that this portion of the instruction incorrectly stated the law, because it did not require an active employment of the weapon . . . . We are unpersuaded . . . . A weapon is used even if it is never actually pointed at a victim, so long as exhibiting the weapon creates fear in the victim.” (cleaned up)).
¶61 Like in Norton, the evidence of what occurred before the sexual assault established a backdrop of physical violence and an ongoing threat of harm with the gun. Both Tabitha and Arnold testified that Arnold choked Tabitha and hit her, so the jury would have no questions about whether Tabitha knew that Arnold was willing to hurt her. Both parties also testified that Arnold shot the gun very close to Tabitha, so the jury would have no doubts as to Tabitha’s understanding that Arnold was willing to do this—or worse—with the gun later. Tabitha testified that Arnold shot at her and threatened to kill her with the gun, and while Arnold testified that he shot at his own reflection and never threatened to kill Tabitha, he did admit that Tabitha spoke as if he was going to kill her and that “she was just under the impression—she was scared, I guess, after I choked her.” Accordingly, he was aware that she feared him killing her and believed it was a real possibility.
¶62 Additionally, both parties agreed that Arnold was in control of the gun when the pair began driving. And while Tabitha and Arnold disagreed about how many times Arnold handed the gun to Tabitha throughout the night, both testified that he did so, that he instructed her to kill him, and that he got the gun back after she refused to do so. Arnold suggests that his actions of repeatedly handing the gun to Tabitha indicate that he was not threatening her with the weapon. The State argues, instead, that “acts of giving Tabitha the gun and asking her to shoot him could be reasonably viewed as acts of manipulation and intimidation, not opportunities for her to escape.” We are persuaded that the jury accepted this interpretation because it found Arnold guilty of kidnapping even though he testified that Tabitha was free to leave anytime and because Arnold testified that, despite Tabitha telling Arnold she couldn’t kill him, he said he “wanted to get her mad so she would.” Other than during these incidents—after which Arnold admittedly took back the gun—and the time that Arnold was in the store (when he testified that he left the gun under the seat but didn’t “know if she knew where it was at or not” and she testified that she didn’t know where it was), Arnold controlled the gun until the time of the sexual assault. In other words, we do not view the testimony about the events prior to the sexual assault—including testimony that Arnold handed the gun to Tabitha multiple times—as evidence supporting any conclusion other than that there existed a continuous threat of harm by Arnold against Tabitha.
¶63 Moreover, the evidence related to the sexual assault itself does not support a conclusion that had the jury instruction included the “in the course of” language, the jury would likely have acquitted Arnold on this count. Both Arnold and Tabitha testified that the gun remained on the bed—easily accessible to Arnold—during the sexual assault. While Arnold testified that Tabitha was the one to place it there, the testimony from both individuals described above does not support an inference that Tabitha felt like she was free to do what she wanted with the gun or that she stopped feeling threatened by the gun during the sexual assault. Tabitha testified that Arnold kept the gun on his side of the bed during the sexual encounter. This testimony was consistent with Arnold’s own narrative about regaining control of the gun each time he gave it to Tabitha. Additionally, the jury heard both Arnold and Tabitha testify that Tabitha repeatedly said no during the sexual encounter, yet Arnold proceeded to engage in sexual intercourse. It also heard Tabitha testify that she did not physically resist because she “didn’t want to be hurt anymore” and she “just wanted to get through that night.” It is likely that the jury interpreted these statements as meaning that during the sexual encounter, Tabitha felt threatened by Arnold’s continued control over the gun, so she did not resist for the sake of her life and her safety. Based on the totality of the circumstances, it is unlikely that the jury would have acquitted Arnold on this charge even if it had been instructed as Arnold now claims it should have been. Accordingly, we are satisfied that Arnold was not prejudiced by the omission of the “in the course of” language in the jury instruction.
B. Aggravated Kidnapping
¶64 Arnold next argues that Counsel was ineffective for not objecting when the same language—“in the course of”—was left out of the jury instruction for the aggravated kidnapping charge. Under the relevant statute, a defendant must commit an enumerated act—as relevant here, using or threatening to use a dangerous weapon, acting with the intent to inflict bodily injury or terrorize, or acting with the intent to commit a sexual assault— “in the course of” a kidnapping or unlawful detention. See Utah Code § 76-5-302(2). The jury did not specify which enumerated act it based its determination of guilt on for this charge, but—even if we assume without deciding that Counsel performed deficiently—we have no difficulty concluding that the “in the course of” language was satisfied and that the jury would not have reached a different outcome had the instruction been different.
¶65 Many of Arnold’s actions satisfied the elements of this charge, including the “in the course of” language. Importantly, the jury instruction clearly indicated to jurors that kidnapping occurred if Arnold “detain[ed] or restrain[ed] [Tabitha] for any substantial period of time” or “under circumstances exposing her to risk of bodily injury.” Accordingly, the jury would have understood that the kidnapping could have taken place before, after, or during the driving. While we do not know which moment or stretch of time the jury found Tabitha to have been detained or restrained (including potentially the whole night), we are comfortable in concluding that the jury believed Arnold to have simultaneously committed one of the enumerated acts. If the jury believed that Tabitha was detained or restrained while Arnold ransacked her house and choked and punched her, Arnold was acting at that time with the intent to inflict bodily injury or terrorize Tabitha. If the jury found that Tabitha was detained while Arnold took her loaded gun and shot it very close to her, he acted simultaneously to—at least—use a dangerous weapon. If the kidnapping occurred during the drive, Arnold’s testimony establishes that he only gave the gun to Tabitha briefly several times then took it back, and we have already explained why we are not persuaded that such actions removed the threat of the gun. And if the jury found that Arnold detained Tabitha during what it classified as a sexual assault, then he also used the gun and detained her intentionally to commit that sexual assault. Simply put, we are convinced that, at any time the jury may have identified for the time of the kidnapping, it would have determined that Arnold simultaneously committed one or more enumerated acts. Thus, Arnold was not prejudiced by this alleged error.
C. Theft
1. Affirmative Defenses
¶66 Arnold next argues that Counsel was ineffective for not ensuring that the jury instruction on theft included reference to affirmative defenses that may have applied to Arnold. The theft count was based on Arnold’s alleged theft of the gun, and there are two affirmative defenses that Arnold argues should have been presented to the jury: that Arnold “acted under an honest claim of right” to the gun or that he “acted in the honest belief that [he] had the right to obtain or exercise control over” the gun. See Utah Code § 76-6-402(3)(a)–(b). Arnold points to where he testified, “I don’t think I took it either, but—I mean, 17 years in the oil field giving her my paycheck, I seem to think half of everything is mine.” And when the prosecutor asked, “[Y]ou didn’t have permission to take that gun, did you?” Arnold responded, “Other than the fact that I paid for it.” He did not testify that he purchased the gun but that he had paid to release the gun, which had belonged to Tabitha’s ex-husband, from pawn.
¶67 The State responds that Counsel did not perform deficiently by not requesting these instructions because they were foreclosed by the facts. The State points to the statutory language that “[i]t is not a defense . . . that the actor . . . has an interest in the property or service stolen if another person also has an interest that the actor is not entitled to infringe.” See id. § 76-6-402(2). We agree with the State. Arnold admitted that the gun was previously at Tabitha’s house and in her possession, that his ownership rights to it were never adjudicated, that Tabitha did not give him the gun, and that he took the gun to his home when he eventually left Tabitha’s house. So even if Arnold thought he had some sort of property interest in the gun, he acknowledged that Tabitha did as well. And he did not provide any convincing argument as to why he was entitled to infringe on Tabitha’s property interest. See State v. Murphy, 617 P.2d 399, 406 n.9 (Utah 1980) (Hall, J., dissenting) (“Note that even a person with an interest in the property can ‘steal’ it from another with an interest.”); State v. Larsen, 834 P.2d 586, 590–91 (Utah Ct. App. 1992) (“One may be prosecuted for theft if he takes the property of another, although the actor had an interest in it. . . . [This] comprehensive definition of property is intended to abrogate whatever still survives of the artificial common-law restrictions on the scope of larceny and the other theft offenses.” (cleaned up)), cert denied, 843 P.2d 1042 (Utah 1992). Therefore, the affirmative defenses were not available to Arnold, and it was neither deficient performance nor prejudicial for Counsel not to request instructions on them.[8]
2. Implications for Aggravated Burglary
¶68 In line with his argument on the theft instruction, Arnold asserts that instructing the jury about the affirmative defenses would also raise a reasonable doubt as to Arnold’s intent to steal the gun, thereby impacting the aggravated burglary charge.[9] Because we are not convinced by Arnold’s argument on the theft instruction, we conclude that there would have been no likely impact on the aggravated burglary conviction if Counsel had sought instructions on the affirmative defenses to theft.
II. The Criminal Mischief Charge
¶69 Arnold next argues that Counsel performed deficiently in several ways related to the criminal mischief charge. Arnold asserts that Counsel’s errors prejudiced him because he was charged with class A misdemeanor criminal mischief rather than class B misdemeanor criminal mischief. Class A misdemeanor criminal mischief applies when “the actor’s conduct cause[d] or [was] intended to cause pecuniary loss equal to or in excess of $500 but . . . less than $1,500 in value.” Utah Code § 76-6-106(3)(d)(iii). But a loss with a value of less than $500 is a class B misdemeanor. Id. § 76-6-106(3)(d)(iv). Arnold asserts that the jury was not instructed on the statutory criteria for valuing property for this chapter of the code, which defines value as “(i) the market value of the property, if totally destroyed, at the time and place of the offense, or where cost of replacement exceeds the market value; or (ii) where the market value cannot be ascertained, the cost of repairing or replacing the property within a reasonable time following the offense.” Id. § 76-6-101(1)(f). The statute further specifies that “[i]f the property damaged has a value that cannot be ascertained by [this] criteria . . . , the property shall be considered to have a value less than $500.” Id. § 76-6-101(3).
¶70 However, the State argues that a different definition applies to value here. The criminal mischief statute indicates that “[i]n determining the value of damages under this section, . . . the value of any item . . . includes the measurable value of the loss of use of the items and the measurable cost to replace or restore the items.” Id. § 76-6-106(4). Because we, as a rule, apply the more specific definition where there is conflict, see, e.g., Grynberg v. Questar Pipeline Co., 2003 UT 8, ¶ 31, 70 P.3d 1 (“When two statutory provisions appear to conflict, the more specific provision will govern over the more general provision.” (cleaned up)), and because this latter definition explicitly applies to this section while the other applies to the chapter, compare Utah Code § 76-6-104(4), with id. § 76-6-101(1)(f), (3), it applies insofar as the definitions conflict.
¶71 Arnold does not dispute that he destroyed Tabitha’s cell phone, but he argues that Counsel should have taken action after the State provided insufficient evidence of its value. On the question of the cell phone’s value, the only testimony was Tabitha’s when she, in response to being asked, “And what’s the value of your cell phone? What does it cost?” stated, “I think I paid $600 for it. It’s got no value now.” Based on this, Arnold argues that “the State failed to produce competent evidence that Tabitha’s phone had a market value of at least $500 at the time it broke; nor did it put on evidence of a repair or replacement cost.” Accordingly, Arnold argues that Counsel performed deficiently by failing to move for a directed verdict on this point or ask that the charge be reduced to a class B misdemeanor, as well as for failing to request a jury instruction on calculating value.
¶72 We agree with the State, however, that Counsel did not perform deficiently by not taking any of these steps. In reviewing Counsel’s actions, we apply “a strong presumption that Counsel’s representation was within the wide range of reasonable professional assistance,” see Harrington v. Richter, 562 U.S. 86, 104 (2011) (cleaned up), and that Counsel’s decisions were “sound trial strategy,” Strickland v. Washington, 466 U.S. 668, 689 (1984) (cleaned up). Here, we conclude that Counsel’s decisions were sound because, “[u]nlike a later reviewing court, [Counsel] observed the relevant proceedings, knew of materials outside the record, and interacted with the client [and] with opposing counsel.” See Harrington, 562 U.S. at 105.
¶73 The State argues that Counsel could have reasonably expected that either of the indicated actions would have been futile.[10] We agree that Counsel could reasonably have believed that, had he done as Arnold now desires, the court would have allowed the State to present evidence on the value of the cell phone and any other damaged property.[11]See Utah R. Crim. P. 17(f)(5) (indicating that after the parties present their cases-in-chief, “the parties may offer only rebutting evidence unless the court, for good cause, otherwise permits”); see also Utah R. Evid. 611(a)(1) (“The court should exercise reasonable control over the mode and order of . . . presenting evidence so as to make those procedures effective for determining the truth . . . .”). Because there is no record evidence that the cell phone’s value was actually less than $500 and that Counsel knew of its lower value, we cannot conclude that Counsel acted deficiently in this respect. Arnold bears the burden of proof, so “it should go without saying that the absence of evidence cannot overcome the strong presumption that Counsel’s conduct fell within the wide range of reasonable professional assistance.” See Burt v. Titlow, 571 U.S. 12, 17 (2013) (cleaned up). Given our strong presumption that Counsel acted reasonably and strategically according to his knowledge of facts outside the record—which here may have included the make, model, age, condition, and replacement cost of the phone—we conclude that Counsel acted objectively reasonably and that his performance was not deficient on this point.[12]
III. Counsel’s Failure to Request a Directed Verdict on the
Discharge of Firearm with Injury Count
¶74 Arnold next argues that Counsel was ineffective for failing to move for a directed verdict on the second-degree felony discharge of a firearm with injury count. This charge requires proof that a defendant’s discharge of a firearm “cause[d] bodily injury to any individual.” Utah Code § 76-10-508.1(2). The statute defines “bodily injury” as “physical pain, illness, or any impairment of physical condition.” Id. § 76-1-101.5(4). Arnold argues that reasonable counsel would have realized that Tabitha’s testimony did not satisfy this element and would have moved for a directed verdict on this charge.
¶75 Tabitha testified that after Arnold shot the gun, she “couldn’t hear” and her ears “were ringing.” She knew that Arnold was saying something to her, but for a time she couldn’t hear or understand what he was saying. She was “eventually” able to hear again.
¶76 Arnold argues that this testimony does not establish “impairment.” See id. The State disagrees, emphasizing that the statute includes “any impairment,” see id. (emphasis added), and pointing out that “substantial bodily injury”—a higher tier of injury in the criminal context, see State v. Lyden, 2020 UT App 66, ¶ 24, 464 P.3d 1155—includes “temporary loss or impairment of the function of any bodily member or organ,” see Utah Code § 76-1101.5(18) (emphasis added). We agree with the State. The plain meaning of “impairment” is “diminishment or loss of function or ability.” See Impairment, Merriam-Webster, https://www.merriam –webster.com/dictionary/impairment [https://perma.cc/3B2E-M2 EY]. Tabitha testified that—for a time—her function of hearing was diminished or entirely lost; this satisfies the plain meaning of impairment.[13] Arnold does not argue that permanent hearing loss would fail to qualify under the statute, nor does he provide any authority supporting a position that a condition that would qualify as impairment if it were permanent fails to qualify if it is temporary. Indeed, a higher tier of bodily injury includes temporary impairment, see Utah Code § 76-1-101.5(18), so we see no reason to read the broad language of this definition as excluding temporary conditions, see State v. Robinson, 2018 UT App 227, ¶ 33, 438 P.3d 35 (describing the definition as “broad”), cert. denied, 440 P.3d 694 (Utah 2019). Accordingly, we conclude that Arnold was not prejudiced when Counsel chose not to move for a directed verdict on this charge.
IV. Counsel’s Failure to Object to Tabitha’s Testimony that She Believed Arnold Was a Felon
¶77 Finally, Arnold argues that Counsel was ineffective for not objecting or requesting a corrective instruction when Tabitha testified that she believed Arnold was a felon. Counsel asked Tabitha, “He didn’t bring his own .22-caliber pistol to your house to kill you, as far as you know, did he?” Tabitha responded, “I believe he is a felon. He’s not allowed to own a weapon.” Arnold argues that this statement was inadmissible and that Counsel performed deficiently by not taking corrective action when he knew that the testimony was harmful. Presumably, Arnold stipulated to his status as a Category II restricted person to avoid drawing unnecessary attention to his criminal history. Arnold cites State v. Larrabee, 2013 UT 70, 321 P.3d 1136, for the proposition that “although a defense attorney can reasonably choose to not object so to not highlight harmful testimony, that failure to object is unreasonable when the inadmissible evidence is inflammatory,” id. ¶¶ 26–28, 32. Arnold asserts that “evidence of [his] felon status was inflammatory, and it was harmful to [him], especially in a case that depended heavily on [his] credibility.”
¶78 The State counters, “[T]he testimony did not tell the jury that [Arnold] was, in fact, a felon. Rather, Tabitha said only that she ‘believe[d]’ [Arnold] was.” Further, it states that “even if Tabitha had testified that [Arnold] was a convicted felon, competent counsel could . . . reasonably conclude that objecting risked further emphasizing the testimony, especially where [C]ounsel would have to ask the court to instruct the jury to disregard what it had already heard.”
¶79 We agree with the State. “Utah courts have long recognized that [defense] counsel’s decision not to request an available curative instruction may be construed as sound trial strategy.” State v. Popp, 2019 UT App 173, ¶ 50, 453 P.3d 657 (cleaned up), cert. denied, 485 P.3d 943 (Utah 2021). “Indeed, a curative instruction may actually serve to draw the jury’s attention toward the subject matter of the instruction and further emphasize the issue the instruction is attempting to cure.” Id. Counsel could have reasonably determined that he would be “ill-advised to call undue attention to the testimony,” “particularly when [it was] unanticipated and brief,” see State v. Squires, 2019 UT App 113, ¶ 43, 446 P.3d 581 (cleaned up), and particularly when the jury was already aware that Arnold was a Category II restricted person and was, accordingly, not permitted to use or possess a firearm.[14] Tabitha’s comment was made in passing and was made as to her belief rather than as to any certainty of Arnold’s felony status. Accordingly, we conclude that Counsel did not perform deficiently by deciding not to draw further attention to the issue of Arnold’s criminal history.
CONCLUSION
¶80 Arnold ultimately does not demonstrate that he received ineffective assistance of counsel. We conclude that—on each of Arnold’s claims—he fails to show deficient performance, prejudice, or both. Therefore, we affirm his various convictions.
[1] See Utah R. Jud. Admin. 14-807 (governing law student practice in the courts of Utah)
[2] A pseudonym.
[3] “On appeal, we review the record facts in a light most favorable to the jury’s verdict and recite the facts accordingly. We present conflicting evidence only as necessary to understand issues raised on appeal.” State v. Thomas, 2019 UT App 177, n.1, 474 P.3d 470 (cleaned up), cert. denied, 462 P.3d 804 (Utah 2020).
[4] Tabitha was fifty-eight years old at the time.
[5] We echo our supreme court’s declaration that “going forward, . . . district courts should ensure that jury instructions for rape clearly require a finding that a defendant had the requisite mens rea as to the victim’s nonconsent.” State v. Newton, 2020 UT 24, ¶ 29, 466 P.3d 135 (cleaned up). Recent decisions clearly indicate that the district court ought to ensure the correctness of these instructions. See State v. Barela, 2015 UT 22, ¶¶ 25–27, 30, 349 P.3d 676; State v. Norton, 2021 UT 2, ¶ 51, 481 P.3d 445. Our supreme court endorsed the use of Model Utah Jury Instruction 1605:
(DEFENDANT’S NAME) is charged [in Count__] with committing Rape [on or about DATE]. You cannot convict [him][her] of this offense unless, based on the evidence, you find beyond a reasonable doubt each of the following elements:
(DEFENDANT’S NAME);
Intentionally, knowingly, or recklessly had sexual intercourse with (VICTIM’S NAME);
Without (VICTIM’S NAME)’s consent; and
(DEFENDANT’S NAME) acted with intent, knowledge or recklessness that (VICTIM’S NAME) did not consent.
[6] While the jury did acquit Arnold on two charges, neither charge was related to the sexual encounter, and we have no other indication that the jury disbelieved Tabitha’s testimony on this point.
[7] In several cases, we have determined that the “in the course of” language is satisfied if the defendant threatens to use a gun but the victim never sees it, even if the gun is fictitious. See State v. Bryant, 965 P.2d 539, 541, 545–46 (Utah Ct. App. 1998) (concluding that a threat of use of an unseen—and possibly fictitious—gun occurred “in the course of” a sexual assault where the defendant threatened to kill the victim if she failed to give him her money (cleaned up)); see also State v. Meza, 2011 UT App 260, ¶¶ 2, 11, 263 P.3d 424 (determining that the State provided sufficient evidence that the defendant threatened use of a gun “in the course of” an aggravated robbery where he gestured as if he had a gun in his pocket and stated, “This is a stickup.” (cleaned up)). It makes little sense to recognize this as a qualifying threat but to take the narrow view that a real and present gun’s use does not occur “in the course of” a sexual assault if a defendant threatens use of the weapon or uses it before the sexual assault but does not again verbally state the threat or wield the gun while actually engaging in sexual activity.
[8] We are also unconvinced that the jury would have believed that Arnold had an “honest claim of right to” or an “honest belief that [he] had the right to obtain or exercise control over” the gun, see Utah Code § 76-6-402(3)(a)–(b), given that Arnold stipulated to the fact that he was a Category II restricted person. While the jury did not know the details of why Arnold fell into this category, it is common knowledge that restricted persons are not legally able to possess, use, or control firearms in this state. See id. § 76-10503(2)(a), (3)(a). We think it practically certain that at least one juror would have raised this point with respect to the affirmative defenses. Counsel’s decision not to draw attention to this point and to avoid inviting additional focus on Arnold’s status—as well as speculation as to its cause—was not unreasonable.
[9] This charge could also rely on Arnold’s intent to assault Tabitha. See id. §§ 76-6-202(2)(c), -203(2). Arnold argues that, under the applicable statute, the State was required to prove that he formed the necessary intent when he entered her house. He is wrong. “[T]he plain language of the statute requires that the actor’s intent be formed at the time of entry or at any time while the actor remains unlawfully in the building or dwelling.” State v. Garcia, 2010 UT App 196, ¶ 13, 236 P.3d 853 (emphasis added), cert. denied, 247 P.3d 774 (Utah 2011). “Moreover, in interpreting this statute, the Utah Supreme Court has concluded that ‘a person is guilty of burglary under Utah Code section 76-6-202(1) if [that person] forms the intent to commit a felony, theft, or assault at the time [the person] unlawfully enters a building or at any time thereafter while [the person] continues to remain there unlawfully.’” Id. (cleaned up) (quoting State v. Rudolph, 970 P.2d 1221, 1229 (Utah 1998)).
[10] Under Utah law, owners are “presumed to be familiar with the value of [their] possessions” and are “competent to testify on the present market value of [their] property.” State v. Purcell, 711 P.2d 243, 245 (Utah 1985). On an assertion of insufficient evidence, a “trial court is not obligated to select a value figure specifically tied to any particular testimony. Rather, evidence will be deemed to support the value set by the fact finder if it is within the range testified to.” State v. Anderson, 2004 UT App 131U, para. 7. While we are not evaluating the sufficiency of the evidence here, given this backdrop it was objectively reasonable for Counsel to believe that the court would have denied a motion for directed verdict based on Tabitha’s testimony.
[11] The cell phone was not the only property of Tabitha’s that Arnold damaged. He also ruined her bedpost by violently smashing the cell phone against it, and Tabitha testified that repair would require a new post. Additionally, he shot through Tabitha’s mirror, leaving a hole and “a shatter mark.” This action also made holes in the wall behind the mirror. Given all this, it was further reasonable for Counsel to believe that he would ultimately be unsuccessful in taking the actions Arnold desires.
[12] We are also convinced that Counsel was objectively reasonable in determining that requesting a jury instruction on valuation risked alienating the jury. Arnold was facing many charges, nine of which were felonies and involved actions much more egregious than damaging property. Counsel could have wisely decided that bickering over the value of the phone and the other property— which Arnold did not dispute destroying and which highlights his violence on the evening in question—would not be helpful. Doing so would challenge Tabitha’s testimony as to value without impacting her credibility (Arnold does not assert that her testimony on this point was erroneous), and it was objectively reasonable for Counsel to focus his efforts combatting Tabitha’s testimony on weightier issues, like whether Arnold detained her and raped her.
[13] While the legislature may not have intended this language to have such broad effect as to include a temporary reduction in hearing ability or an impairment that is so temporary as to last for mere minutes, we are bound to apply the plain language of the statute. See, e.g., Bevan v. State, 2021 UT App 107, ¶ 11, 499 P.3d 191. Moreover, the statute does not place any temporal qualification on “physical pain,” see Utah Code § 76-1-101.5(4), which may often be quite temporary. But if the legislature intended the language to be narrower than we suggest on this or any other point, it has the power to modify this language.
[14] This point also makes it unlikely that Tabitha’s testimony prejudiced Arnold. Tabitha’s testimony did not include details of any alleged crimes that would likely impact the jury’s determination of Arnold’s credibility beyond what its knowledge of his status as a restricted person would.
STATE OF UTAH, IN THE INTEREST OF M.S., A PERSON UNDER EIGHTEEN YEARS OF AGE.
R.S. AND J.S.,
Appellants,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20210657-CA
Filed July 6, 2023
Fourth District Juvenile Court, Spanish Fork Department
The Honorable F. Richards Smith
No. 1186449
Emily Adams, Sara Pfrommer, Freyja Johnson, and
Hannah Leavitt-Howell, Attorneys for Appellants
Sean D. Reyes, Carol L.C. Verdoia, and
John M. Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY concurred.
ORME, Judge:
¶1 R.S. (Mother) and J.S. (Father) (collectively, Parents) appeal the juvenile court’s award of temporary custody of their infant son, M.S. (Child), to the Department of Child and Family Services (DCFS) following a shelter hearing and the court’s later finding that Child was neglected. We hold that Parents’ first argument is moot but conclude that their second argument satisfies the collateral consequences exception to mootness. And because the juvenile court did not make the necessary findings of fact and conduct the required analysis of whether Parents’ medical decisions for Child were “reasonable and informed,” we reverse the court’s neglect adjudication.
BACKGROUND[1]
¶2 Child was born on March 6, 2020, weighing 9.63 pounds. During her pregnancy, Mother had gestational diabetes—a condition which has been linked to increased birth weights. Therefore, while not off the charts, Child’s somewhat larger birth weight was likely caused by Mother’s gestational diabetes. Child was also born with elevated bilirubin levels and was prescribed photo light therapy for jaundice, which Parents administered for the next ten days. Hospital staff informed Mother that Child needed to be seen by a pediatrician three days following discharge from the hospital. Mother complied with the instruction and made an appointment to see a pediatrician (First Pediatrician) at a nearby clinic on March 9.
¶3 By the time of the appointment, Child had lost 12.5% of his birth weight, weighing in at 8.42 pounds. First Pediatrician found Child “to be in good health” overall, but he was concerned about Child’s elevated bilirubin levels and weight loss. Although weight loss is typically expected immediately after birth for infants whose mothers had gestational diabetes, First Pediatrician noted Child’s weight “to be more down than we usually would expect at that time.” First Pediatrician recommended a follow-up appointment “in the next day or two” to check on Child’s bilirubin levels and weight. No such follow-up appointment took place.
¶4 First Pediatrician saw Child again about two-and-a-half weeks later, on March 26. Father took Child to this appointment because Mother did not appreciate First Pediatrician’s “bedside manner” and she did not feel that he had been “very willing to listen to [her] concerns.” At this appointment, Child weighed in at 7.96 pounds, which according to First Pediatrician was a total weight loss of approximately 18% of Child’s original birth weight. First Pediatrician told Father that because Child had lost even more weight, he was concerned that Child was not getting sufficient nutrients from Mother’s breast milk—which was Child’s sole source of nourishment. First Pediatrician became even more concerned when he learned that Child had not had a bowel movement in three days. First Pediatrician explained that while exclusively breast-fed babies can sometimes “go a few days” without producing stool, this information combined with the weight loss caused him to further worry that Child’s nutritional needs were not being met.
¶5 First Pediatrician recommended that Mother pump so that they could quantify the amount of milk she was producing and that Child be given formula every few hours and be weighed each day so it could be determined whether “there was appropriate weight gain with a known specified amount of volume he was taking in.” Father expressed doubt whether this was something Mother would “go for” because they preferred to exclusively breast-feed Child, but he said he would discuss the recommendations with her. First Pediatrician wrote down his recommendations on a note for Father to give to Mother and said for her to contact him if she had any questions. He also tried to contact Mother both during and after the appointment but was unsuccessful.
¶6 First Pediatrician also emphasized the importance of a follow-up appointment the next day to check Child’s electrolyte levels and weight, which instruction he also included in his written note to Mother. At this point, First Pediatrician was “[v]ery concerned” about Child’s health and safety and noted in Child’s file, “If labs are not obtained and no visits happen, I will report to DCFS.”
¶7 Neither parent brought Child in for the labs and weight-check the following day. When First Pediatrician learned this, he called Mother to express his concerns. Mother stated that she was not aware of the missed appointment, that she was out of town, and that she would not be able to come in with Child that day. Mother informed First Pediatrician that she was feeding Child more often, but she was not giving him formula. She repeatedly thanked First Pediatrician for his recommendations and told him she would “take them under consideration.” At the end of the conversation, they both agreed that Mother should find another pediatrician for Child. Mother subsequently scheduled an appointment with another pediatrician for April 2 but did not relay this information to First Pediatrician. She also increased the frequency of Child’s breast-feedings to every two hours, and she immediately filled and began administering a medication for diaper rash First Pediatrician had prescribed during the March 26 appointment.
¶8 Following the phone conversation, First Pediatrician contacted DCFS and reported Parents’ apparent medical neglect and physical neglect of Child and Child’s failure to thrive. First Pediatrician later testified that even if he had known that Child had an appointment with another pediatrician set for April 2, his concerns would not have been eased. He explained that he had ordered labs on Child’s electrolyte levels because his “biggest concern” was that if Child became dehydrated, he would develop “elevated sodium levels in the blood . . . that could potentially cause a lot of health problems” such as lethargy, seizures, and neurological damage. First Pediatrician stated that “the problem with the elevated sodium is more of an urgent or emergent problem that could have been developing, and so it couldn’t have waited” until the April 2 appointment.
¶9 On March 30, a DCFS caseworker (Caseworker) followed up with First Pediatrician, who expressed his concern that Child was at risk of dehydration, which could lead to further health complications. Following the conversation, Caseworker had a difficult time locating and communicating with Parents. When Caseworker called one of the phone numbers provided to her, a man Caseworker believed to be Father answered. He was skeptical that Caseworker worked for DCFS, and the conversation proved unfruitful. After visiting multiple addresses on file for the family to no avail, Caseworker contacted law enforcement officers, who were able to locate Mother, Father, and Child in a motel by “pinging” their cellphone.
¶10 Caseworker arrived at the motel around 1:00 a.m. on April 1. Law enforcement was already at the motel and officers informed Caseworker that paramedics had already examined Child and had determined that Child was alert, breathing normally, had a strong heartbeat, and exhibited no obvious signs of dehydration. Because the examination revealed no concerns, the paramedics did not consider Child in need of further medical attention and returned him to Mother. The paramedics had left by the time Caseworker arrived, so she did not have an opportunity to speak with them.
¶11 The officers warned Caseworker that Father was very upset about her being there and that Father even instructed an officer to stand between him and Caseworker. During the hour-long conversation that ensued, Father refused to allow Caseworker to see Child and instead insisted that Child was “fine.” At one point, Father told Caseworker that he would allow her to see Child if she returned at 8:00 a.m. Caseworker was reluctant to do so because she was aware of a prior case in which Father had fled across state lines with two of his other children, and she worried that Child “would be gone” by 8:00 a.m. if she left. She also found it odd that she had located the family at a motel that was approximately 20 miles from their home.
¶12 Caseworker then requested a warrant for removal of Child. A judge approved the warrant, and Child was taken into DCFS custody in the wee hours of the morning. Caseworker then took Child to an emergency room. There, Child appeared to have gained a little weight, weighing in at 8.05 pounds, although Caseworker suggested the slight weight gain could have also been attributed to a wet diaper. According to the pediatrician (Second Pediatrician) who examined Child later that afternoon when he was brought in by the foster parents with whom Child had been placed, Child “was within the 11th percentile for weight, but his weight to length ratio was in the 3rd percentile,” which was troubling, especially given Child’s higher birth weight. Second Pediatrician stated that although Child was “generally well appearing,” he nonetheless “did appear dehydrated” and underweight. Child’s lab results revealed “abnormalities that were consistent with dehydration and possibly poor feeding,” including abnormal bilirubin levels and elevated liver enzymes (transaminases). Child’s initial lab results also “show[ed] evidence of hemolysis,” which is when the body destroys red blood cells quicker than it can produce them, so the hospital had the labs redone. The second round of labs revealed “normal potassium, but the transaminases still remained mildly elevated.” The lab report also included the following note: “I spoke with [the] pediatric hospitalist, and confirmed that these current findings are not worrisome in this current setting, and they recommended that the patient follow-up with [a] pediatrician in about a week for recheck.”
¶13 Second Pediatrician noted that Child needed to be closely monitored for kernicterus, which he explained “is when bilirubin levels get to a high enough point in the blood that they deposit into the brain, and can cause some brain damage, to use layman’s terms.” Second Pediatrician instructed Child’s foster parents to feed Child formula every “three to four hours” and to return in a couple of days.
¶14 At the follow-up appointment two days later, on April 3, Child had gained approximately 13 ounces,[2] weighing in at 8.88 pounds. At a second follow-up appointment three days later, on April 6, Child weighed 9.44 pounds, meaning he had gained approximately 9 more ounces. A week later, on April 13, Child weighed 10.08 pounds. Child continued to show weight gain in other subsequent exams. Based on this, Second Pediatrician testified that it was his “clinical impression” that Child had not been “receiving appropriate nutrition, and upon receiving appropriate nutrition [Child] returned to an expected weight.” He further explained that “inadequate nutrition can have devastating effects on someone so young” because “dehydration can lead to renal failure, and poor growth can affect development in all areas, physical and mental development.”
¶15 On April 1, the State petitioned for legal custody and guardianship of Child, alleging, in relevant part, neglect by Parents “in that [Child] lacks proper parental care by reason of the fault or habits of the parents.” See Utah Code Ann. § 80-1-102(58)(a)(ii) (LexisNexis Supp. 2022).[3] The petition alleged, among other things, the following:
Child “had lost 18% body weight since birth and was at significant risk for seizures and brain damage,” but Parents refused to follow medical advice and supplement Mother’s breast milk with formula.
Parents had provided First Pediatrician’s office with an incorrect address, but with assistance from law enforcement, DCFS eventually located them and Child in a motel approximately 20 miles from their home.
Paramedics examined Child and determined that he “was not in distress,” but because the paramedics left prior to Caseworker’s arrival at the motel, DCFS “was not able to get additional information regarding the failure to thrive medical concerns, particularly a weight measurement.”
Father refused to allow Caseworker to see Child, and he was “hostile” toward her, even going so far as instructing a police officer to stand between them “so that [he] did not harm” her.
Father had several aliases and had “a history of parental kidnapping.”[4]
At the emergency room, it was noted that Child had gained a little weight but also that he had a significant diaper rash.
¶16 The juvenile court held a shelter hearing on April 3, which at Parents’ request was then continued until April 8. Following the continued hearing, the court “found that, based upon the medical records relating to [Child], removal was appropriate.” Specifically, the court found that “[t]he medical records indicate that [Child] was underweight,” that Child’s “lab values continued to show that transaminases still remained mildly elevated, and that the bilirubin is also mildly elevated.” The court was also “concerned about the medical evidence of malnutrition presented by the State.”
¶17 A few weeks later, on April 30, Parents filed an Emergency Motion to Return Custody and Dismiss Petition, in which they argued, among other things, that it was common for infants born from mothers with gestational diabetes to lose more than 10% of their birth weight in their first week. They also emphasized the benefits of breast-feeding and asserted that Child had repeatedly been examined following removal and had been found to be healthy. They also submitted a letter from their latest pediatrician (Third Pediatrician), who had originally been scheduled to see Child on April 2. Although Third Pediatrician had not examined Child, he reviewed Child’s medical records and concluded that “while the concerns of [First Pediatrician] were valid, he failed to convey this concern properly to the parents and their wishes were not taken into consideration” and that the April 1 lab results did not reveal “signs of nutritional deficiency or compromise.”
¶18 Some three weeks later, Parents filed an Order to Show Cause and Motion for Order seeking sanctions against DCFS for violating their right to seek a second medical opinion prior to removal. At a subsequent hearing, the State explained that it never opposed a second medical opinion but that Parents had never properly requested one under the Utah Rules of Juvenile Procedure or the Utah Rules of Civil Procedure. Parents withdrew their motion for sanctions and Order to Show Cause and moved for Third Pediatrician to examine Child. At a subsequent hearing, Mother reported that Third Pediatrician had examined Child and concluded “there are no safety concerns in this case.” And in September 2020, the juvenile court placed Child in a trial home placement with Parents.
¶19 Following a multi-day trial in January 2021, the juvenile court found the State had proved the allegations in its petition by clear and convincing evidence and adjudicated Child neglected on the ground that Child lacked “proper parental care by reason of the fault or habits of” Parents. The court did not find that Parents abused Child. The court found First Pediatrician’s and Second Pediatrician’s testimonies to be persuasive and stated “that the cursory physical examination by paramedics could not have identified” the “very real and very serious” medical issues that were later identified at the hospital.
¶20 The court next determined that Child’s removal from Parents’ home following the shelter hearing “was appropriate and necessary and in [Child’s] best interest.” But the court also found that the circumstances giving rise to Child’s removal, i.e., Child’s failure to thrive, were “largely resolved” and that Child’s trial home placement with Parents that had begun some six months earlier had “not revealed any child safety concerns.” Accordingly, the court terminated its jurisdiction in the case and returned custody of Child to Parents.
¶21 Parents appeal. Obviously, they do not appeal the decision that Child be returned to them. But they challenge prior rulings of the court.
ISSUES AND STANDARDS OF REVIEW
¶22 Parents raise two issues on appeal. First, they argue that “the juvenile court erred as a matter of law by awarding custody of Child to the State at the shelter hearing without giving [them] a reasonable time to obtain a second medical opinion.” But because this issue is moot, as explained in Part I.A. below, we lack judicial power to address it. See Transportation All. Bank v.International Confections Co., 2017 UT 55, ¶ 14, 423 P.3d 1171 (“The mootness doctrine is not a simple matter of judicial convenience or an ascetic act of discretion. It is a constitutional principle limiting our exercise of judicial power under article VIII of the Utah Constitution.”) (quotation simplified); Utah Transit Auth. v. Local 382 of Amalgamated Transit Union, 2012 UT 75, ¶ 12, 289 P.3d 582 (“[B]ecause it is moot, we lack the power to address the underlying merits or issue what would amount to an advisory opinion.”).
¶23 Second, Parents argue that the “court improperly adjudicated Child as neglected.” Specifically, they assert that (a) the court “did not consider the full statutory definition of neglect,” (b) the court’s findings “did not support its ultimate decision that Child was neglected,” and (c) “the neglect adjudication was against the clear weight of the evidence.” “We apply differing standards of review to findings of fact, conclusions of law, and determinations of mixed questions of law and fact.” In re E.R., 2021 UT 36, ¶ 14, 496 P.3d 58. “We afford the [juvenile court] no deference on questions of law, reviewing issues de novo, and the most deference on questions of fact, reviewing only for clear error.” In re A.B., 2022 UT 39, ¶ 23, 523 P.3d 168. The level of deference afforded to mixed questions of law and fact, however, depends on whether they are more “law-like” or “fact-like,” with the former being subject to de novo review while the latter are subject to deferential review. See In re E.R., 2021 UT 36, ¶ 18. A juvenile court’s neglect adjudication falls within the former category because, “[o]nce the facts have been established, the juvenile court is limited to determining whether the statutory criteria for neglect have been met,” which “is primarily a law-like endeavor.” In re A.B., 2022 UT 39, ¶ 28. Accordingly, we review the court’s ultimate adjudication of neglect for correctness.
ANALYSIS
Mootness
¶24 Before we proceed to address the merits of Parents’ arguments, we must first address the contention of the guardian ad litem (the GAL) that this appeal is moot. See Ramos v. Cobblestone Centre, 2020 UT 55, ¶ 22, 472 P.3d 910 (stating that “mootness is a threshold determination” that appellate courts must make before reaching the merits of an appeal). “The defining feature of a moot controversy is the lack of capacity for the court to order a remedy that will have a meaningful impact on the practical positions of the parties.” Utah Transit Auth. v. Local 382 of Amalgamated Transit Union, 2012 UT 75, ¶ 24, 289 P.3d 582. “When a case is moot in this sense, the parties’ interest in its resolution is purely academic.” Id. See Transportation All. Bank v. International Confections Co., 2017 UT 55, ¶ 15, 423 P.3d 1171 (“A case may be mooted on appeal if the relief requested is rendered impossible or of no legal effect.”) (quotation simplified).
¶25 The GAL argues that both issues Parents raise on appeal are moot. We agree that Parents’ argument related to Child’s removal following the shelter hearing is moot and does not satisfy a mootness exception, and we therefore do not reach the merits of that argument. But because we conclude Parents’ arguments related to the juvenile court’s adjudication that Child was neglected satisfies the collateral consequences exception to mootness, we address the merits of those arguments in Part II.
Child’s Removal
¶26 The GAL argues that Parents’ challenge to Child’s removal from their care following the shelter hearing is moot because “they now enjoy full custody of Child.” Although Parents concede that “appellate review would not affect the rights of the parties because the shelter hearing ruling was an interim ruling that is no longer operative,” thereby rendering the issue technically moot, they nonetheless assert that “the issue qualifies under the exception to the mootness doctrine.”
¶27 Under the mootness exception, “we will decide a moot issue when a litigant can demonstrate that the issue will (1) affect the public interest, (2) be likely to recur, and (3) because of the brief time that any one litigant is affected, be likely to evade review.” Widdison v. State, 2021 UT 12, ¶ 14, 489 P.3d 158 (quotation simplified). Even assuming, without deciding, that the first and third elements are met, Parents have not carried their burden of persuasion on the second element. Accordingly, this issue does not satisfy the mootness exception.
¶28 Under the second element, “[a] party must convince us that the issue will arise again.” Id. ¶ 17. “Under settled case law, a mere physical or theoretical possibility of recurrence is insufficient” to satisfy this element. Id. (quotation simplified). Rather, “there must be a reasonable expectation or a demonstrated probability that the same controversy will recur.” Utah Transit Auth., 2012 UT 75, ¶ 36 (quotation simplified).
¶29 Parents’ argument on this element is limited to the assertion that at shelter hearings, “whenever the basis for removal is an allegation of medical neglect, the issue will again arise as to whether the juvenile court can remove the child without permitting the parents reasonable time to seek a second medical opinion.” But Parents’ argument is more intricate than the mere question of whether they were entitled to seek a second medical opinion prior to Child’s removal from their care. Indeed, Utah law is clear that parents facing removal of their child for medical neglect are generally entitled to a reasonable time to obtain such an opinion. See Utah Code Ann. § 80-3-304(1) (LexisNexis Supp. 2022) (“In cases of alleged medical neglect where [DCFS] seeks protective custody, temporary custody, or custody of the child based on the report or testimony of a physician, a parent or guardian shall have a reasonable amount of time, as determined by the juvenile court, to obtain a second medical opinion from another physician of the parent’s or guardian’s choosing who has expertise in the applicable field.”). See also id. § 80-3-304(3) (“If the second medical opinion results in a different diagnosis or treatment recommendation from that of the opinion of the physician [DCFS] used, the juvenile court shall give deference to the second medical opinion as long as that opinion is reasonable and informed and is consistent with treatment that is regularly prescribed by medical experts in the applicable field.”). What Parents’ argument on this issue boils down to, however, is whether, under the facts of this case, Child was facing “an imminent risk of death or a deteriorating condition of [his] health,” see id. § 80-3-304(2),[5] or “an immediate threat of death or serious and irreparable harm,” see id. § 80-3-304(4),[6] thereby depriving Parents of what would otherwise be their statutory right to seek a second medical opinion prior to Child’s removal, see id. § 80-3-304(1)–(2).
¶30 Because Parents’ argument on the “likely to recur” element of the mootness exception does not directly address the intricacies of the issue they raise on appeal, they have not carried their burden of persuasion on this element. See Allen v. Friel, 2008 UT 56, ¶ 9, 194 P.3d 903. Accordingly, this issue is not exempted from the mootness doctrine, and we lack judicial power to address it further.
Neglect Adjudication
¶31 The GAL next asserts that because the juvenile court terminated its jurisdiction and returned Child to Parents’ custody, Child no longer has the status of “neglected” and Parents’ challenge to the juvenile court’s neglect adjudication is therefore moot. Parents and the State oppose this suggestion of mootness. Specifically, although the State agrees that “this appeal may be technically moot because the child has been returned to the Parents and court jurisdiction terminated,” it concedes that the issue satisfies the collateral consequences exception to mootness. This argument is likewise adopted by Parents in their reply brief.[7]
¶32 “Generally, once mootness has been demonstrated, the party seeking to survive dismissal bears the burden of demonstrating that collateral legal consequences will flow from the challenged issue.” In re J.S., 2017 UT App 5, ¶ 11, 391 P.3d 358 (quotation simplified). Our approach to applying the collateral consequences exception differs depending on whether the collateral consequences are presumed or not. “When collateral legal consequences are presumed, the case isn’t moot unless it can be shown that no adverse collateral consequences will result.” State v. Legg, 2018 UT 12, ¶ 14, 417 P.3d 592 (quotation simplified). Conversely, “[w]hen collateral legal consequences aren’t presumed, a case is moot unless the party opposing mootness can establish actual collateral legal consequences.” Id. We conclude that Parents’ argument satisfies the former of these two approaches.
¶33 While “we presume collateral legal consequences follow criminal convictions,” id. ¶ 17, the presumption may arise in other contexts when the collateral consequences are “sufficient to mandate the same undeniable conclusion as criminal convictions, i.e., the existence of a collateral legal consequence is virtuallyinescapable,”[8] id. ¶ 18. See id. (“We will only presume collateral legal consequences when the challenged action carries extensive collateral consequences imposed by law.”); id. ¶ 24 (“Presumed collateral legal consequences aren’t inherently limited to the realm of criminal convictions.”). This presumption “does not come lightly.” Id. ¶ 18. Indeed, the presumption in the criminal conviction context exists only because “the law mandates numerous legal consequences follow a criminal conviction to such an extent that the existence of at least one collateral legal consequence for an individual defendant is effectively inevitable.”[9] Id. ¶ 17. Thus, in the non-conviction context, the presumption likewise requires a demonstration of “numerous consequences imposed by law that would command the conclusion that some collateral legal consequence is inevitable for every” similarly situated party. Id. ¶ 32. Such consequences must be “statutorily mandated and cannot be avoided by conforming with the law.” Id. ¶ 31. See id. ¶¶ 29–30.
¶34 Parents and the State both argue that the juvenile court’s“finding of neglect remains significant and important notwithstanding the fact that the juvenile court has nowterminated jurisdiction over this family.” Specifically, they assert that “a finding of neglect does provide a statutory basis for termination of parental rights were Parents to again find themselves before the juvenile court.” See Utah Code Ann. § 80-4-301(1)(b) (LexisNexis Supp. 2022) (listing “that the parent has neglected or abused the child” as a legal ground for which a parent’s rights may be terminated); In re J.M., 2020 UT App 52, ¶¶ 28–30 & n.3, 463 P.3d 66 (stating that a prior adjudication of abuse or neglect, regardless of whether the “parent has improved herself since,” satisfies the statutory ground for parental termination, leaving the juvenile court to decide only whether termination is in the best interest of the child). The State additionally asserts that the neglect adjudication “precludes Parents from challenging their substantiated finding of neglect on the DCFS Management Information System child abuse database,” see Utah Code Ann. § 80-2-707(7)(a) (LexisNexis Supp. 2022) (“[A]n alleged perpetrator may not make a request . . . to challenge a supported finding if a court of competent jurisdiction entered a finding, in a proceeding in which the alleged perpetrator was a party, that the alleged perpetrator is substantially responsible for the abuse, neglect, or dependency that is the subject of the supported finding.”), which will have “implications for any future investigations of child abuse/neglect regarding the Parents, as well as affect[] things such as the Parents’ ability to serve as foster parents in the future.” We agree and conclude that this satisfies the presumed collateral consequences approach.
¶35 In State v. Legg, 2018 UT 12, 417 P.3d 592, our Supreme Court held that revocation of probation did not warrant presumed collateral consequences (or amount to actual collateral consequences, for that matter). See id. ¶¶ 25, 32, 38. The appellant in that case argued that probation revocation could be used as a “prior history in future contact with the legal system,” could be used “as an aggravating factor in the sentencing recommendation matrix,” could be a basis for the State to refuse “plea offers or offers of probation,” and would render him ineligible “for a reduction of the degree of his or her first offense under Utah Code section 76-3-402.” Id. ¶ 28 (quotation simplified). The Court rejected these arguments, holding that the first three arguments simply amounted to the allegation that “certain non-statutory consequences may occur,” and that “these types of discretionary decisions are not governed by the mere presence or absence of a recorded violation of probation.” Id. ¶ 29 (quotation simplified). Additionally, the Court stated that “the first three potential collateral legal consequences are contingent upon [the appellant] again violating state law,” and that he is “able—and indeed required by law—to prevent such a possibility from occurring.” Id. ¶ 30 (quotation simplified). And concerning the fourth argument regarding “the potential of a 402 reduction,” the Court stated that because it was discretionary, the reduction was “at most, highly speculative and nothing more than a mere possibility.” Id. ¶ 31.
¶36 Our Supreme Court also distinguished its prior opinion in In re Giles, 657 P.2d 285 (Utah 1982), in which it “concluded that an appeal of a civil commitment was not moot because there were ‘collateral consequences that may be imposed upon appellant that might arise were he to face future confrontations with the legal system,’” Legg, 2018 UT 12, ¶ 29 n.4 (quoting In re Giles, 657 P.2d at 287) (quotation otherwise simplified). The Court stated that individuals subject to civil commitments “face similar deprivations of liberty as criminals” and that “unlike the use of previous commitment in future commitment hearings, a defendant is able to completely avoid the use of a probation revocation in a future sentencing decision by not committing a future violation of law.”[10] Id. (quotation simplified). Adjudications of neglect by a juvenile court are on much the same footing.
¶37 As an initial matter, “[a] parent’s right to raise his or her child is one of the most precious rights any person enjoys, and is among the fundamental rights clearly protected by our federal and state constitutions.” In re B.T.B., 2018 UT App 157, ¶ 9, 436 P.3d 206, aff’d, 2020 UT 60, 472 P.3d 827. See Utah Code Ann. § 80-4-104(1) (LexisNexis Supp. 2022) (“Under both the United States Constitution and the constitution of this state, a parent possesses a fundamental liberty interest in the care, custody, and management of the parent’s child. For this reason, the termination of family ties by the state may only be done for compelling reasons.”). Accordingly, although taking a different form than that in the criminal-conviction context, parents nonetheless face “deprivations of liberty” as a result of neglect adjudications, which include collateral consequences in possible “future confrontations with the legal system.” See Legg, 2018 UT 12, ¶ 29 n.4 (quotation simplified).
¶38 Unlike the arguments made by the appellant in Legg, the consequences that Parents would be subject to as a result of the neglect adjudication are imposed by law and are not discretionary. Under Utah law, the prior adjudication of neglect is a sufficient ground for termination of parental rights. See Utah Code Ann. § 80-4-301(1)(b); In re J.M., 2020 UT App 52, ¶¶ 28–30. Although it would satisfy only one of the two elements required for termination of parental rights,[11] see Utah Code Ann. § 80-4-301, that first element plays a critical role in the protection of parental rights, see In re B.T.B., 2018 UT App 157, ¶ 14 (“Termination of parental rights solely on the basis of the child’s best interest and without any finding of parental unfitness, abandonment, or substantial neglect, violates the parent’s constitutional liberty rights.”) (quotation simplified). Additionally, a finding of neglect carries various consequences because the adjudication remains on the DCFS Management Information System child abuse database. See Utah Code Ann. § 80-2-707(7)(a). As the State explains, this will at the very least preclude Parents from acting as foster parents and will affect any possible future investigations conducted by DCFS.
¶39 Finally, unlike in Legg where the appellant’s arguments were contingent on the appellant again violating the law, see 2018 UT 12, ¶ 30, such is not the case here. Under the parental rights termination test, based on the prior adjudication of neglect, a parent’s rights could conceivably be terminated without the parent subsequently satisfying a statutory ground for termination, so long as termination is in the child’s best interest. See In re J.M., 2020 UT App 52, ¶¶ 28–30 & n.3.
¶40 For these reasons, we hold that Parents’ challenge to the juvenile court’s neglect adjudication satisfies the collateral consequences exception to the mootness doctrine. We accordingly proceed to address the merits of their argument, even though the issue is technically moot.
Merits of the Neglect Adjudication
¶41 In challenging the juvenile court’s adjudication of Child as neglected, Parents argue that the court committed a threshold legal error when it “failed to conduct the requisite legal analysis into whether Parents’ conduct involved a reasonable and informed health care decision.” We agree with Parents in this regard.
¶42 The juvenile court adjudicated Child neglected on the ground that Child lacked “proper parental care by reason of the fault or habits of” Parents. See Utah Code Ann. § 80-1-102(58)(a)(ii) (LexisNexis Supp. 2022). But the Utah Code specifically exempts from its definition of neglect “a health care decision made for a child by the child’s parent or guardian, unless the state or other party to a proceeding shows, by clear and convincing evidence, that the health care decision is not reasonable and informed.” Id. § 80-1-102(58)(b)(ii).[12]
¶43 In determining whether a parent acted reasonably regarding a child’s healthcare, “the pivotal question is what action by the parent was proper under the circumstances.” In re N.K.C., 1999 UT App 345, ¶ 15, 995 P.2d 1.[13] This standard “is flexible and depends on the actual circumstances involved,” id. ¶ 17, “includes a full range of conduct on the part of parents and guardians,” and “does not require extraordinary caution or exceptional skill,” id. ¶ 19 (quotation simplified). See id. ¶ 18 (“[P]erfection is not required[.]”). Rather, “similar to a reasonableness standard in torts,” “reasonable care is what an ordinary, prudent parent uses in similar situations.” Id. ¶ 19 (quotation simplified). Additionally, although this “standard may accommodate the cautious and the hesitant, . . . it cannot accommodate inaction in the face of an obvious cause for immediate concern.” Id. ¶ 21. See id. ¶ 16 (“[W]aiting even an hour when a child is suffering from an obvious and serious injury is ordinarily not reasonable and could support a determination of medical neglect.”).
¶44 In addition to being reasonable, the parent’s health care decisions must be “informed.” Utah Code Ann. § 80-1-102(58)(b) (ii). “Informed” is defined as “having information” or “based on possession of information.” Informed, Merriam-Webster Dictionary, https://www.merriam-webster.com /dictionary/infor med [https://perma.cc/S8NV-S8X7]. See Informed, Dictionary.com, https://www.dictionary.com/browse/informed [https://perma.cc/ TN64-KHLB] (defining “informed” as “having or [being] prepared with information or knowledge; apprised”). Thus, parents must take the time to apprise themselves of the necessary information to allow them to make a considered health care decision for their child. Indeed, in cases of alleged medical neglect, absent “an immediate threat of death or serious and irreparable harm” to the child, if a parent obtains a second medical opinion that “results in a different diagnosis or treatment recommendation from that of the opinion of the physician [that DCFS] used,” that opinion is entitled to deference “as long as that opinion is reasonable and informed and is consistent with treatment that is regularly prescribed by medical experts in the applicable field.” Utah Code Ann. § 80-3-304(3)–(4) (LexisNexis Supp. 2022).
¶45 Here, at the adjudication hearing, the State argued that Parents’ actions “were not reasonable and informed under the circumstance” because they failed to appear for follow-up appointments to check Child’s weight and conduct additional lab tests. Parents countered, asserting that they “have a strong conviction against formula” and that based on the American Academy of Pediatrics’ recommendation, they believed that exclusively breast-feeding “is the healthiest way to provide for your child.” Indeed, the materials First Pediatrician gave Parents following the March 26, 2020 appointment state, “Breast milk is the best food for your baby.” Parents further asserted that they did follow medical advice by “treating the bilirubin levels with the light therapy,” treating Child’s diaper rash by administering prescribed medication, and treating Child’s weight loss by increasing the frequency of feedings and by making an appointment to see Third Pediatrician on April 2. Parents pointed to the fact that increased feedings (albeit with formula) were what Second Pediatrician instructed Child’s foster parents to do following his examination of Child. Accordingly, they asserted that although they “disagreed with” First Pediatrician concerning the use of formula, they “did not disregard” his medical recommendation to increase the frequency of Child’s feedings.
¶46 In finding Child was neglected by Parents, the juvenile court did not discuss whether the State had proven, by clear and convincing evidence, that Parents’ medical decisions for Child were not “reasonable and informed.” Instead, the court found that the State had proven the following facts by clear and convincing evidence:
By March 30, 2020, Child “had lost 18% body weight since birth and was at significant risk for seizures and brain damage.”
Paramedics who examined Child at the motel concluded that Child “was not in distress,” but this “cursory physical examination . . . could not have identified” the “very real and very serious” medical issues that were later identified at the hospital.
First Pediatrician “was very concerned about dehydration of” Child.
Parents “were advised by [First Pediatrician] of the very serious medical danger to [Child] and advised [Parents] to supplement the baby’s intake with formula.”
Parents “refused to follow the medical advice and bring the baby in for weight checks, lab draws, and treatment recommendations regarding [Mother’s] breastmilk supply, or follow the other medical advice given to” them.
When taken to the emergency room by DCFS, Child’s “weight had increased from the last time he was seen by” First Pediatrician.
The court also made findings regarding the difficulty Caseworker experienced in locating Child, Father’s aggressive and belligerent attitude toward Caseworker, Father’s use of aliases and “history of parental interference,” and Father’s “very strong, passionate feelings about Government interference or involvement in the lives of private citizens.”[14]
¶47 But despite the GAL’s assertions to the contrary, these facts, without more, are insufficient to establish that Parents’ medical decisions for Child were unreasonable, i.e., that Parents did not “exhibit appropriate concern for the infant’s needs given the observable evidence,” In re N.K.C., 1999 UT App 345, ¶ 20 (quotation simplified), and whether their decisions were informed. Specifically, the court’s findings do not go to the reasonableness of Parents’ decision to increase feeding frequency without supplementing with formula in response to Child’s more-than-expected weight loss, whether Parents’ decision to forgo feeding Child formula under the circumstances was informed, or the reasonableness of Parents’ decision to wait until April 2 to have Child re-examined following the March 26 appointment with First Pediatrician in lieu of the follow-up appointment scheduled for the following day.
¶48 More importantly, even if the juvenile court did make the relevant findings, it did not undertake the necessary analysis of whether Parents’ medical decisions were reasonable, which is an ultimate determination that is left to the juvenile court—not an appellate court. Reasonableness determinations involve the application of law to facts, some of which, depending on the context, are entitled to deferential review and others of which are subject to de novo review. See Sawyer v. Department of Workforce Services, 2015 UT 33, ¶ 20, 345 P.3d 1253 (“[S]ome determinations of reasonableness should be reviewed de novo and others should not.”). The reasonable parent standard is “similar to a reasonableness standard in torts,” In re N.K.C., 1999 UT App 345, ¶ 19, which “is determined by the fact-finder and subject only to deferential review,” Sawyer, 2015 UT 33, ¶ 21. This is because “the particular facts and circumstances of the [parent’s] conduct are likely to be so complex and varying that no rule adequately addressing the relevance of all these facts can be spelled out.” In re adoption of Baby B., 2012 UT 35, ¶ 43, 308 P.3d 382 (quotation simplified). Additionally, a juvenile court’s determination under the reasonable parent standard “would often be affected by [the court’s] observation of a competing witness’s appearance and demeanor on matters that cannot be adequately reflected in the record available to the appellate courts.” Id. (quotation simplified). Accordingly, absent the court’s analysis of whether Parents’ medical decisions satisfied the reasonable parent standard, the juvenile court’s adjudication of neglect in this case is unsustainable, and this court cannot undertake the analysis in the juvenile court’s stead even if it had made the requisite factual findings.
¶49 The State argues that Parents’ conduct was objectively unreasonable and the fact that Child did not suffer permanent harm is not determinative. We certainly agree with the latter portion of this argument, that is, “[a] parent should not benefit from the happenstance that her child’s condition did not worsen” as a result of her unreasonable medical decision. In re N.K.C., 1999 UT App 345, ¶ 14. But for a healthcare decision to be objectively unreasonable, as was the case in In re N.K.C.,[15] the court needed to find that Child’s condition presented “an obvious cause for immediate concern.” Id. ¶ 21 (emphasis added). Although the juvenile court did find that Child’s examination at the hospital revealed “very real and very serious” medical issues, the court did not make a finding regarding whether they were issues that should have been obvious to Parents. To the contrary, the court acknowledged that the examination completed by responding paramedics earlier that night at the motel revealed that Child “was not in distress.” See id. ¶ 20 (stating that a parent is not expected “to make a diagnosis, only to exhibit appropriate concern for the infant’s needs given the observable evidence”) (emphasis added) (quotation otherwise simplified). Thus, Parents’ conduct at the time could not have been objectively unreasonable.
¶50 In sum, because the underlying conduct that should have been the focus of the juvenile court’s neglect adjudication was Parents’ medical decisions regarding Child, the court could not find neglect unless the State had met its burden of proving that those decisions were not “reasonable and informed.” See Utah Code Ann. § 80-1-102(58)(b)(ii) (LexisNexis Supp. 2022). Because the court did not conduct the requisite analysis, its ruling contained legal errors, and we therefore reverse.
CONCLUSION
¶51 Because Parents’ argument regarding Child’s removal from their care following the shelter hearing is moot and not subject to a recognized exception to the mootness doctrine, we lack judicial power to address it. But we have power to address Parents’ challenge to the juvenile court’s neglect adjudication because that argument, while technically moot, satisfies the collateral consequences exception to mootness. And because the juvenile court did not make findings or conduct an analysis related to whether Parents’ medical decisions for Child were “reasonable and informed,” the court’s ruling contained critical legal errors, and we therefore reverse the court’s neglect adjudication.
[1] “We recite the facts in the light most favorable to the juvenile court findings.” In re J.M., 2020 UT App 52, n.1, 463 P.3d 66 (quotation simplified).
[2] Second Pediatrician testified that Child had gained around 6 ounces by the April 3 appointment, but medical records show that Child’s weight increased from 3.65 kg to 4.03 kg in the two-day interval, for a total weight gain of 0.38 kg, which is 13.40 ounces.
[3] At the time, the relevant provision appeared in section 78A-6-105 of the Utah Code. The provision has since, without any substantial change, been moved to section 80-1-102. Compare Utah Code Ann. § 78A-6-105(36)(a)(ii) (LexisNexis Supp. 2018), with id. § 80-1-102(58)(a)(ii) (Supp. 2022). We cite the current version of the annotated code for convenience.
[4] Specifically, the petition alleged that he took his then two- and four-year-old children out of state during his weekend parent-time and disappeared for eight months. Father and the children were finally located in Pennsylvania where they were observed outside in the winter cold, without coats. The petition further alleged that Father first refused to give responding police officers his name and eventually gave an alias. Once his true identity was discovered, Father was arrested, and the children were returned to their mother in Utah.
[5] The subsection, in its entirety, states,
Unless there is an imminent risk of death or a deteriorating condition of the child’s health, the child shall remain in the custody of the parent or guardian while the parent or guardian obtains a second medical opinion.
Utah Code Ann. § 80-3-304(2) (LexisNexis Supp. 2022).
[6] The subsection, in its entirety, states,
Subsections (1) through (3) do not apply to emergency treatment or care when the child faces an immediate threat of death or serious and irreparable harm and when there is insufficient time to safely allow the parent or guardian to provide alternative necessary care and treatment of the parent’s or guardian’s choosing.
Id. § 80-3-304(4).
[7] But unlike the State, Parents do not concede that the current appeal is technically moot. Rather, they argue that the appeal is not moot because the juvenile court’s neglect adjudication affects their parental rights. They support their assertion by adopting the State’s collateral consequences argument. That is, Parents do not assert that our resolution of this issue in their favor would have any current or practicable effect on their parental rights. Instead, they base their argument on a potential future event, asserting that their rights are affected because, as discussed in greater detail later in this opinion, “a neglect adjudication remains a statutory basis for terminating Parents’ rights going forward.” See In re J.M., 2020 UT App 52, ¶¶ 28–30, 463 P.3d 66 (“Once neglect has occurred, a juvenile court is entirely justified in making a finding that a parent ‘has neglected’ a child, even if that parent has improved herself since.”). But we are unpersuaded that even if Parents’ argument proves meritorious, any remedy we could order would “have a meaningful impact on the practical positions of the parties.” Utah Transit Auth. v. Local 382 of Amalgamated Transit Union, 2012 UT 75, ¶ 24, 289 P.3d 582. See State v. Legg, 2018 UT 12, ¶ 26, 417 P.3d 592 (“The question of mootness doesn’t turn on which collateral legal consequences the defendant will suffer, but on whether the requested judicial relief can affect the rights of the litigants.”) (quotation simplified).
[8] An example of a non-criminal context in which the collateral consequences presumption applies is that of civil commitments because “patients of mental hospitals face similar deprivations of liberty as criminals.” State v. Legg, 2018 UT 12, ¶ 29 n.4, 417 P.3d 592 (quotation simplified). See In re Giles, 657 P.2d 285, 286–87 (Utah 1982).
[9]Our Supreme Court has “recognized several collateral legal consequences that may result from a criminal conviction, such as the use of the conviction to impeach the petitioner’s character or as a factor in determining a sentence in a future trial, as well as the petitioner’s inability to vote, engage in certain businesses, or serve on a jury.” State v. Legg, 2018 UT 12, ¶ 22, 417 P.3d 592 (quotation simplified).
[10] Our Supreme Court also noted that, at the time, “being labeled ‘mentally incompetent’ carried collateral legal consequences comparable to criminal convictions,” such as restrictions on voting rights and the ability to serve on a jury, obtain a driver license, or obtain a firearm license. See Legg, 2018 UT 12, ¶ 29 n.4.
[11] Parental rights may be terminated only if the following two elements are met: (1) “a trial court must find that one or more of the statutory grounds for termination are present” and (2) “a trial court must find that termination of the parent’s rights is in the best interests of the child.” In re B.T.B., 2018 UT App 157, ¶ 13, 436 P.3d 206 (quotation simplified), aff’d, 2020 UT 60, 472 P.3d 827.
[12] The Utah Code further exempts from its definition of neglect a parent’s exercise of his or her right to seek a second medical opinion when DCFS seeks to remove the child from the parent’s custody on allegations of medical neglect. See Utah Code Ann. § 80-1-102(58)(b)(iii) (LexisNexis Supp. 2022). See also id. § 80-3-304 (stating that, with certain limitations, parents have a right to seek a second medical opinion in cases of alleged medical neglect). Parents also argue that the juvenile court erred in failing to consider this provision as part of its adjudication ruling. Because we reverse on the ground that the court did not consider whether Parents’ medical decisions were “reasonable and informed,” we do not reach this question.
[13] In re N.K.C., 1999 UT App 345, 995 P.2d 1, addressed the reasonable parent standard under the medical neglect statute then in effect, which required this court to determine whether a parent provided a child with “proper or necessary” medical care. See id. ¶ 8. The statute has since been rephrased and renumbered, without any substantive change that is relevant to the current appeal. Compare Utah Code Ann. § 80-1-102(58)(a)(iii) (LexisNexis Supp. 2022) (defining “neglect” as “failure or refusal of a parent, guardian, or custodian to provide proper or necessary subsistence or medical care, or any other care necessary for the child’s health, safety, morals, or well-being”), with id. § 78-3a-103(1)(r)(i)(C) (Supp. 1999) (defining “neglected child” as “a minor . . . whose parent, guardian, or custodian fails or refuses to provide proper or necessary subsistence, education, or medical care, including surgery or psychiatric services when required, or any other care necessary for health, safety, morals, or well-being”). Although the juvenile court in the case before us did not adjudicate Child neglected under the medical neglect statute, it nevertheless was barred from finding neglect if the underlying conduct constituted a “reasonable and informed” healthcare decision. See id. § 80-1-102(58)(b)(ii) (Supp. 2022) (“‘Neglect’ does not include . . . a health care decision made for a child by the child’s parent or guardian, unless the state or other party to a proceeding shows, by clear and convincing evidence, that the health care decision is not reasonable and informed[.]”). Additionally, we see no reason why the reasonable parent standard that is applied to a determination of whether a parent provided “proper or necessary” medical care under the medical neglect statute should differ from the standard applied in determining whether a parent made a “reasonable” healthcare decision under the statute at issue in this case.
[14] The GAL makes much of Father’s contentious behavior, his history of parental interference, and the difficulty Caseworker experienced in locating Parents and Child. There is no question that these behaviors were not constructive and were not helpful to Parents’ cause. But these findings of fact do not go to the reasonableness of Parents’ medical decisions and are therefore largely irrelevant to the determination of whether their medical decisions were reasonable and informed.
[15] In In re N.K.C., 1999 UT App 345, 995 P.2d 1, the father “vigorously shook” his one-month-old child. Id. ¶ 2. The child’s mother, who had been absent during the abuse, later “observed that the child was limp and lethargic” and that his “pupils were fixed.” Id. Instead of seeking immediate medical attention, the mother put the child to bed. Id. Later that night, after the child’s condition had not improved, the mother contacted the child’s pediatrician, who directed her to immediately take the child to the emergency room. Id. ¶ 3. The mother arrived with the child at the emergency room almost five hours after she initially discovered the child’s serious condition. Id. The juvenile court determined that the mother “neglected the child by failing to obtain timely medical care.” Id. ¶ 6 (quotation simplified). We affirmed, stating that under the reasonable-parent standard, the mother’s conduct, in light of the severe symptoms the child was exhibiting, was “well outside that which can reasonably be expected of a parent in that situation,” and therefore “the mother’s failure to summon immediate medical attention amounted to a failure to exercise the minimum degree of care expected of a reasonably prudent parent.” Id. ¶ 21.
JUDGE AMY J. OLIVER authored this Opinion, in which
JUDGES RYAN M. HARRIS and RYAN D. TENNEY concurred.
OLIVER, Judge:
¶1 C.B. (Mother) and H.B. (Stepfather) filed a petition seeking termination of J.B.’s (Father) parental rights to L.L.B. (Child) and adoption by Stepfather. After a one-day bench trial, the district court found four statutory grounds for termination. The court also concluded it was in Child’s best interest to terminate Father’s parental rights and that doing so was strictly necessary so Child could be adopted by Stepfather. Father appeals the district court’s conclusion that termination of his parental rights was in Child’s best interest, arguing it was not supported by clear and convincing evidence. We agree with Father that the evidence was insufficient and, therefore, reverse the district court’s ruling terminating Father’s parental rights.
BACKGROUND
¶2 Child was born in September 2009. Less than a week after her birth, Father relapsed on controlled substances and left Child and Mother. Shortly thereafter, Child and Mother moved from the Salt Lake City area to Vernal, Utah. In the months after Mother and Child moved to Vernal, Father saw Child twice—in December 2009 and in April 2010.
¶3 In April 2010, Mother and Father entered into a stipulated agreement of paternity. The decree awarded primary physical custody and sole legal custody to Mother with Father awarded parent-time. It also permitted Mother to request that Father submit to random urinalysis drug testing up to eighteen times a year.
¶4 For several years Father consistently exercised his rights to parent-time. Because Mother lived in Vernal with Stepfather, whom she married in 2013, and Father lived in Salt Lake City, the parties met in Fruitland, Utah to exchange Child. In July 2015, however, Mother and Father got into an argument during an exchange and Child immediately returned to Vernal with Mother and Stepfather. Mother testified that the same month as the confrontation in Fruitland, Child and Father were involved in a four-wheeler accident. For the next several weeks, Mother refused to permit Child to spend parent-time with Father because she was concerned Father had been drinking at the time of the accident. Parent-time resumed after Father sought an order to show cause in the paternity matter.[1] Beginning in April 2016, the parent-time was supervised by Father’s mother because Mother was concerned that Father was using drugs and alcohol around Child.
¶5 In August 2016, Mother and Father discussed the possibility of Father voluntarily relinquishing his parental rights. Mother testified Father was “on the fence” about the idea, and Father admitted he considered it for approximately two months. However, the parties were unable to reach a voluntary agreement. In 2018, Mother and Stepfather filed a Petition for Adoption/Termination of Parental Rights in district court. The petition listed the following grounds supporting the termination of Father’s parental rights: (1) Father abandoned Child, (2) Father neglected Child, (3) Father was an unfit parent, and (4) Father made only token efforts to be a fit parent. Father filed a handwritten response opposing the petition and later filed a counseled answer.
¶6 The district court held a one-day bench trial on November 5, 2021. Mother, Father’s ex-girlfriend (Ex-Girlfriend), Father’s mother, Father’s brother, and Father testified. A guardian ad litem (the GAL) appointed by the district court represented Child.
¶7 Mother’s testimony centered on Father’s lengthy absences from Child’s life, his history of failing to provide financial support for Child, and his past substance abuse. She testified that in February 2017, she asked Father to take a drug test, but he refused. In the months after that refusal, Father attempted to contact Child only twice—once in May 2017 and once more in December 2017. Nearly a year passed until Mother heard from Father again. As to Father’s history of supporting Child, evidence was presented that he made court-ordered child-support payments from 2010 through 2016, but the payments were not for the full amounts ordered. From 2017 forward, Father’s child-support payments totaled seventy-two dollars, and as of September 1, 2021, he was $51,011.25 in arrears. Mother testified that Father had never followed through with his many promises to pay child support, refrain from using drugs and alcohol, and re-establish a relationship with Child. She also testified he had never been involved in Child’s education. Mother admitted, however, that since the termination petition was filed, she had not responded to Father’s requests to see Child and had not told Child about the requests.
¶8 Ex-Girlfriend testified that she and Father dated from 2009 until 2016. She described his alcohol consumption during that period as progressing from weekends to daily. Ex-Girlfriend also testified that Father told her either in 2015 or 2016 that he was using crack cocaine and she found illegal substances in their home and car in 2016. She also confirmed Father was drinking the day he and Child were involved in the four-wheeler accident in July 2015. Ex-Girlfriend testified she now communicates with Father only to discuss matters concerning their daughter, Child’s half-sister (Half-Sister). According to Ex-Girlfriend, Father spends parent-time with Half-Sister and has “a strong relationship” with her. She also testified that Child and Half-Sister have a good relationship that is facilitated and encouraged by her and Mother.
¶9 Father’s mother testified about Father’s relationship with Half-Sister, describing it as a “great relationship” and calling him “a wonderful father.” She testified that she tries to stay in contact with Child, but recently has had difficulty getting responses from Mother. According to Father’s mother, Father’s family last saw Child at a family reunion in the summer of 2020. She stated that Father had substance abuse issues “off and on” from 2009 through 2019 but she was not aware of any substance abuse since 2019.
¶10 Father’s brother testified that “since [Father] put his life back together,” Father has been an “incredible father” and an “incredible uncle.” He also testified about the family reunion, stating Child attended the reunion and he saw her interact with Father. He stated they “spent a lot of time together and had a lot of fun.”
¶11 Father testified he saw Child “a lot” during the first five years of her life and had a good relationship with her. Thereafter, he saw Child off-and-on until August 2016, after which time he did not see her again until 2020 at the family reunion. He admitted their interactions at the reunion were “a little awkward at first” but testified they “ended up having a blast.” He testified he admitted to Child during the reunion that he had not been the best parent and apologized. According to Father, Child responded well to his apology and gave him a hug. Father testified he had not seen Child since the reunion, although he had written letters to Mother, sent a gift, and emailed Child.
¶12 Father admitted he had relapsed on controlled substances three or four times between 2009 and 2019, but testified he has been clean and sober since he went to jail in January 2019. Father testified he participated in drug court after a term of incarceration, calling it “awesome” and “one of the best things” he ever did. As part of drug court, he participated in outpatient treatment, community service, and drug testing. He testified he now works with at-risk children as a boxing coach and was now paying child support.
¶13 The GAL stated Child does not have a relationship with Father because he “wasted that relationship and allowed it to shrivel by his absence and his lack of effort to nourish it.” The GAL described Stepfather as “an excellent father” to Child and stated the two have “a great bond” and “a very close relationship.”
¶14 The district court entered detailed Findings of Fact and Conclusions of Law on December 3, 2021. The court concluded four statutory grounds for termination existed and the bulk of its ruling addressed those grounds. The court found Father abandoned Child by failing to maintain contact with her, neglected Child by not paying child support, and made only token efforts to support Child or communicate with her. Although the court found that Father was “a fit and proper parent” at the time of the hearing, it nevertheless concluded Father was unfit or incompetent for purposes of the statutory grounds for termination because he was unfit and incompetent for much of Child’s life.
¶15 The district court’s best-interest analysis was considerably shorter than its analysis of the statutory grounds for termination. The court identified and examined three factors: (1) whether another person was available to step into the parental role, (2) whether there was evidence Child had been harmed by her relationship with Father, and (3) whether Father’s extended family was a positive influence in Child’s life. Based on that analysis, the court ruled as follows: “The Child desires and deserves to have [a] healthy, stable family relationship with the person that has been and acts as her father figure. The Child’s interest will best be served if the adoption is allowed to move forward. . . . Because the adoption cannot occur without the termination of Father’s parental rights, the Court finds by clear and convincing evidence that it is ‘strictly necessary’ that Father’s rights be terminated.”
ISSUE AND STANDARD OF REVIEW
¶16 Father challenges the district court’s conclusion that termination of his parental rights was in Child’s best interest. “Whether a parent’s rights should be terminated presents a mixed question of law and fact.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. A lower court’s best-interest ruling is reviewed deferentially but “we will not only consider whether any relevant facts have been left out but assess whether the . . . court’s determination that the clear and convincing standard had been met goes against the clear weight of the evidence.” In re G.D., 2021 UT 19, ¶ 73, 491 P.3d 867 (cleaned up).
ANALYSIS
¶17 A court must make two findings before terminating a parent-child relationship:
First, a trial court must find that one or more of the statutory grounds for termination are present. . . . Second, a trial court must find that termination of the parent’s rights is in the best interests of the child. . . . The trial court must make both of these findings not merely by a preponderance of the evidence, but by clear and convincing evidence and the burden of proof rests with the petitioner.
In re B.T.B. (BTB I), 2018 UT App 157, ¶ 13, 436 P.3d 206, aff’d, 2020 UT 60, 472 P.3d 827 (cleaned up). “A court may . . . terminate parental rights only when it concludes that a different option is in the child’s best interest and that termination is strictly necessary to facilitate that option.” In re B.T.B. (BTB II), 2020 UT 60, ¶ 66, 472 P.3d 827.
¶18 Mother and Stepfather argue that a district court is not required to undertake the strictly necessary part of the analysis when a petition is filed under the Adoption Act rather than the Termination of Parental Rights Act. Compare Utah Code § 78B-6-112(5)(e) (“The district court may terminate an individual’s parental rights in a child if . . . the individual’s parental rights are terminated on grounds described in Title 80, Chapter 4, Termination and Restoration of Parental Rights, and termination is in the best interests of the child.”), with Utah Code § 80-4-301(1) (“[I]f the juvenile court finds termination of parental rights, from the child’s point of view, is strictly necessary, the juvenile court may terminate all parental rights with respect to the parent . . . .”) (formerly codified at § 78A-06-507(1)). But we need not address Mother and Stepfather’s argument, because even without considering the strictly necessary part of the best-interest analysis dictated by the Termination of Parental Rights Act, we conclude, below, that there is not clear and convincing evidence supporting the district court’s conclusion that termination of Father’s parental rights was in Child’s best interest.
¶19 Father first argues the court erred in finding he was an unfit or incompetent parent as a ground for termination because, in his view, the statute requires a finding based on current ability rather than past conduct, and the court found him to be a fit parent at the time of the trial. But Father concedes that three other statutory grounds for termination exist. Because the finding of just one statutory ground for termination is sufficient, it is unnecessary to address Father’s argument as to the fitness ground. See id. § 80-4-301(1); In re S.M., 2017 UT App 108, ¶ 4, 400 P.3d 1201 (per curiam) (“[T]he finding of a single ground will support termination of parental rights.”).
¶20 Father next argues that Mother and Stepfather—the parties seeking termination of his parental rights—failed to present clear and convincing evidence that termination of his parental rights was in Child’s best interest. See BTB II, 2020 UT 60, ¶ 52. He does not challenge any of the district court’s findings as clearly erroneous, but asserts that those findings and the evidence underpinning them do not support the court’s ruling. In Father’s view, the only support for the district court’s ruling was Mother’s testimony that Stepfather and Child love and care for each other and the report of the GAL stating that Child (1) was not comfortable around Father, (2) had a close relationship with Stepfather, and (3) wanted to be adopted by Stepfather.
¶21 The best-interest inquiry “is intended as a holistic examination of all of the relevant circumstances that might affect a child’s situation.” Id. ¶ 29 (cleaned up). The lower court must consider the “physical, intellectual, social, moral, and educational training and general welfare and happiness of the child.” BTB I, 2018 UT App 157, ¶ 47 (cleaned up). The analysis is undertaken from the child’s point of view. BTB II, 2020 UT 60, ¶ 64. In making the best-interest determination in this matter, the district court analyzed whether there was (1) another person available to step into the parental role, (2) evidence Child had been harmed by the relationship with Father, and (3) a positive role that Father’s extended family played in Child’s life. After considering these three factors,[2] the district court concluded that termination of Father’s parental rights and adoption by Stepfather was in Child’s best interest because she “desires and deserves to have a healthy, stable family relationship with the person that has been and acts as her father figure.” But the record does not contain clear and convincing evidence supporting this conclusion that termination of Father’s parental rights was in Child’s best interest.
¶22 As to whether another person was available to step into the parent role, the district court detailed evidence showing Child loves Stepfather and Stepfather has been a positive presence in Child’s life for many years. It was undisputed that Child has lived with Mother and Stepfather since 2013. The GAL told the district court that Child “is consistent in her desire to be adopted” by Stepfather, has a close relationship with him, and does not view Father as a father figure. The court found Child wants to be adopted by Stepfather and the two have an excellent relationship. But there was no evidence that this relationship will not continue if Father’s rights are not terminated and the adoption does not occur.
¶23 Mother and Stepfather suggest that “failing to terminate Father’s parental rights so that Stepfather can adopt inherently leaves the Child’s relationship with Stepfather, and possibly the Child’s siblings and extended family, vulnerable to termination at any time by . . . Mother’s death.” But such a concern is present in many termination cases, and it does not necessarily lead to the conclusion that termination of a parent’s rights is in the child’s best interest. As our supreme court has explained, “categorical concerns” about the lack of permanence of an option other than adoption are not enough, otherwise “termination and adoption would be strictly necessary across the board.” In re J.A.L., 2022 UT 12, ¶ 24, 506 P.3d 606.
¶24 When considering whether Child had been harmed by the relationship with Father, the court found that Child does not have a relationship with Father and noted Child has expressed some concern for her safety when she is with him. There was no finding, however, that Father’s presence in her life has affirmatively harmed Child. The GAL told the court that Child does not have a comfortable relationship with Father and “there’s a certain level of fear.” But the GAL did not explain or expound on the root of this fear. Further, there was no finding detailing how Child’s life was negatively affected or disrupted by Father’s attempts to exercise his parental rights. There is evidence Father has emailed Child a handful of times since the termination petition was filed, but there was no testimony or other evidence that these emails had any negative effect on Child’s general welfare or happiness.[3] Father also sent communications to Mother asking for an opportunity to meet with Child, but Mother testified she did not respond and did not put Father in contact with Child because Child would not be receptive. Mother’s testimony, however, did not discuss the effects Father’s past attempts at reconciliation had on Child or provide an explanation of why she believed Child would not want to see Father. In short, there is no evidence showing Father’s presence in Child’s life has a negative effect on her happiness and well-being.
¶25 Regarding Child’s relationship with Father’s extended family, the court found that Child has had a relationship with Father’s mother for all her life and the relationship is important to Child. There was also evidence that Child has a strong bond with Half-Sister. Several witnesses testified about Child’s attendance at Father’s family reunion in the summer of 2020. Mother testified that Child called her and was “begging to stay with her cousins.” Father’s brother testified there was some initial awkwardness between Child and Father at the reunion “but they spent a lot of time together and had a lot of fun.” The district court described the weekend as a “huge success” and “enjoyable and successful.” Based on this evidence, the district court found that Child currently has positive and beneficial relationships with Father’s extended family, including Half-Sister and Father’s mother.
¶26 The district court found that Child’s relationships with Father’s extended family would be adversely affected to some extent if Father’s parental rights were terminated and Child was adopted by Stepfather, and then it purported to compare those effects to the benefits Child would glean from a relationship with Stepfather and his family. But there was no evidence presented identifying those benefits or explaining how Child’s ability to maintain relationships with Stepfather and his family would be negatively affected if she was not adopted.
¶27 Despite the district court’s statement that termination was in Child’s best interest because she deserves to have a healthy and stable family relationship, the court made no finding that Child’s current living situation was not healthy and stable. Nor did the court make any finding that her living situation will change in any way if she is not adopted. See BTB I, 2018 UT App 157, ¶ 56. (“[T]he absence of any proposed change in the child’s custody or living situation is a factor that may weigh against termination in some cases . . . .”).
¶28 In sum, the evidence on which the district court relied does not clearly and convincingly demonstrate that termination of Father’s parental rights was in Child’s best interest.
¶29 Other evidence before the district court further undermines, rather than supports, the district court’s ruling that termination of Father’s parental rights was in Child’s best interest. Most obvious and significant is the court’s finding that “Father is presently fit and capable as a parent.” This finding was based on evidence that Father was clean and sober at the time of the termination trial and had been for more than two years. See In re B.R., 2007 UT 82, ¶ 13, 171 P.3d 435 (“In termination cases, the . . . court must weigh a parent’s past conduct with her present abilities.”). Father testified he has made many attempts to communicate with Child since his release from incarceration in 2019 and many of those communications were introduced at trial.
¶30 As we have explained, “in making its best-interest determination, . . . especially in cases (like this one) initiated by private petition, it is important for courts to carefully assess a parent’s efforts to improve and, if the court remains unpersuaded that the parent’s situation has sufficiently changed for the better, to specifically set forth reasons why it remains unpersuaded.” In re J.J.W., 2022 UT App 116, ¶ 30, 520 P.3d 38 (cleaned up). But the district court wasn’t unpersuaded that Father had improved his situation for the better. To the contrary, it was persuaded that Father had successfully addressed his problems with controlled substances and found that “Father is presently fit and capable as a parent.”
¶31 The Utah legislature “has made clear that, as a matter of state policy, the default position is that it is in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents.” BTB II, 2020 UT 60, ¶ 65 (cleaned up). The district court’s order contains no analysis of why it was in the best interest of Child to terminate the parental rights of a fit and capable Father in order to be adopted by Stepfather.
¶32 The record also indicates Father currently considers Child’s needs when he makes decisions on her behalf. For example, the district court’s order contains details surrounding Child’s desire to participate in a religious ceremony with Mother, Stepfather, and their other children. The court found that Father was at first reluctant to consent to Child’s participation but relented when he learned Child strongly desired to participate.
¶33 Nearly all the evidence presented at trial was offered in support of the statutory grounds for termination—not the best-interest inquiry. Although the district court was free to consider the evidence supporting the statutory grounds for termination when conducting the best-interest analysis, almost none of that evidence focused on Child’s “physical, intellectual, social, moral, and educational training and general welfare and happiness” as required under the holistic approach. BTB I, 2018 UT App 157, ¶ 47 (cleaned up). And, as explained above, the evidence that did address Child’s best interest largely countered, rather than supported, the conclusion that termination of Father’s parental rights was in her best interest.
¶34 Thus, we are convinced the district court’s conclusion that termination of Father’s parental rights was in Child’s best interest goes against the clear weight of the evidence.
CONCLUSION
¶35 Because the district court’s ruling that termination of Father’s parental rights was in Child’s best interest goes against the clear weight of the evidence, we reverse and remand with instruction to vacate the order terminating Father’s parental rights.
[1] Mother testified she permitted Child to spend time with Father after he sought court intervention because she was afraid she “would get put in jail for not allowing the visitations.”
[2] It is unclear why the district court focused exclusively on these three particular factors. Under the required holistic approach, there is no exhaustive list of relevant factors and no one factor deemed relevant by a court is determinative on the question of a child’s best interest. See In re J.P., 2021 UT App 134, ¶ 14, 502 P.3d 1247 (“While courts have identified factors relevant to the best-interest determination, the list is non-exhaustive.”); In re G.J.C., 2016 UT App 147, ¶ 24, 379 P.3d 58 (setting out a non-exhaustive list of factors a court may consider), abrogated on other grounds by In re B.T.B., 2018 UT App 157, 436 P.3d 206, aff’d, 2020 UT 60, 472 P.3d 827.
[3] Child responded to only one of Father’s emails. On September 2, 2020, she sent an email simply stating, “Love you.”
Wendy M. Brown, Debra M. Nelson, and Benjamin Miller, Attorneys for Appellant
Blair T. Wardle, Attorney for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.
MORTENSEN, Judge:
¶1 Elizabeth Lydia Meyer’s[1] ex-husband (Father) discovered bruising on their daughter (Child) after picking her up from Meyer’s home. The State charged Meyer with child abuse and, at a bench trial, used a process-of-elimination approach to argue that Meyer was the only possible cause of the bruising. The district court convicted Meyer, and she now appeals. Meyer asserts that the court erred in admitting the preliminary hearing testimony of her now-husband. We agree that this action was erroneous and prejudiced Meyer, so we vacate her conviction.
BACKGROUND
¶2 One Wednesday in July 2018, Father picked up Child, then two years old, from Meyer’s home for a regular midweek visit. Meyer and Father had been through a “fairly contentious” divorce, and their relationship was sometimes “volatile,” so Father had made it a habit to record via cellphone his pickups of Child. His video recording from this day shows marks on the upper portions of both of Child’s arms. But Father did not notice the marks until later, when he was at a restaurant with Child. Father exchanged texts with Meyer about the marks:
Father: I noticed that [Child] has what looks like bruises on her arm. Is she okay?
Meyer: Yes, she’s fine.
Father: How did she get those marks?
Meyer: How do children get the majority of their bruises? What direction are you trying to go with this?
Father: I’m just concerned because the bruising pattern is not consistent with normal childhood injuries.
Meyer: Since when did you become an expert in that matter? I understand that you want to pretend to care about my daughter, but I do not wish to have you go on a third witch hunt and falsely accuse someone like you already have done twice, even though we both know you’re dying to. You do not make any of her medical appointments. And the last I knew you have not completed any courses in the direction. So please leave your harassing comments to yourself.
¶3 After dinner, Father drove to the police station and asked for an officer to examine Child’s arms. An officer (Officer) and a caseworker (Caseworker) from the Division of Child and Family Services (DCFS) met with Father and photographed Child’s arms approximately two hours after Father had picked up Child.
¶4 Officer and Caseworker then visited Meyer’s home. Outside, they met Michael Glenn, Meyer’s then-boyfriend whom she married before the case went to trial. Glenn was initially “defiant” and did not want them to enter the house, but when they showed him photos of Child’s bruises, he was concerned and let them in.
¶5 Officer and Caseworker entered the house and spoke with Meyer, who was very upset. Officer asked Meyer what could have caused bruising on Child’s arms, and Meyer gave multiple possible explanations, including Child falling out of the car when she arrived home from daycare, Child playing with hair ties that were like rubber bands (which she snapped on her arms), or Child playing roughly with her older brother and sometimes getting rug burns from the roughhousing. Caseworker asked Meyer how she had picked Child up when Child fell out of the car after returning from daycare, and Meyer responded along the lines that she picked Child up like any mother would and cleaned her face. Meyer also reported that she had caused a mark on Child’s upper arm when Child ran into the street and Meyer pulled her back. Caseworker showed Meyer photos of Child’s bruises, and Meyer was very surprised, saying, “They were not like that.”
¶6 Glenn gave Officer contact information for Child’s daycare provider (Daycare Provider). When Officer spoke to Daycare Provider on the phone, she confirmed that Child had been in her care that day. Daycare Provider also confirmed that she had asked Meyer about a mark on Child’s arm when Meyer picked Child up that day and that Meyer told her she had grabbed Child to prevent her from running into the street.
¶7 The next day, Father took Child for a physical exam, which was completed by a forensic nurse examiner (Nurse). In her report, Nurse identified “[p]ositive physical findings of injury to bilateral upper arms and left forearm” and described the upper arm injuries as “circumferential and linear with equal spacing between” them and stated that the bruises were “highly indicative for a squeezing mechanism and physical abuse.” Child was not returned to Meyer’s care.
¶8 The case was transferred to a detective (Detective), who called Meyer two days after the alleged incident and recorded the phone call. During the call, Meyer implied that Father was the source of Child’s bruises because, according to her, Child had no bruises until she was in Father’s care and Meyer believed that “[h]e [was] trying to get [her] daughter away from [her].” Meyer was very upset during the call and indicated that she had been previously accused of child abuse, presumably by Father. Meyer also stated that she did not see any bruises or marks on Child— other than the mark from the incident she reported of grabbing Child to stop her from running into the road—before giving Child to Father. But she explained that Child would sometimes scratch herself, leaving marks, and hit and bite things. Meyer also spoke about Glenn’s whereabouts on the day of the incident, indicating that Glenn was asleep when Child came home and remained asleep until after Father had picked Child up.
¶9 Detective wrote in his police report that Child’s older brother, then four years old, “was asked where his sister got the marks on her arm and he said that it was from someone who had power and squeezed hard.” Detective spoke to Daycare Provider, though he did not inspect her home; perform a background check on her; or speak with the parents of other children she babysat or with the three children she had living with her, who were ages fourteen, ten, and eight and may have had access to Child. Detective later testified that he didn’t really consider Daycare Provider a suspect after speaking with her. He also ruled out Glenn as a suspect based on Meyer’s statement that Glenn had been asleep between the time Child came home from daycare and the time Father picked up Child. However, in his report he wrote that he told Meyer he didn’t think the incident causing the bruising had happened on that day. But at trial he testified that, based on his investigation, the timeline he established was that there were no visible bruises—other than the one caused by Meyer stopping Child from running into the street—until the time between Meyer picking Child up from daycare and Father picking her up from Meyer within the next forty-five minutes.
¶10 In August 2018, another officer (Sergeant) interviewed Meyer in person at Detective’s request. Meyer’s statements were consistent with those she had made previously. Specifically, Meyer again stated that Glenn was asleep when Child returned from daycare and did not wake up until after Child left with Father.
¶11 In December 2018, the State charged Meyer with one count of child abuse, a class A misdemeanor.
¶12 The district court held a preliminary hearing in May 2019. Among other witnesses, the State subpoenaed Glenn to testify at the hearing. When he was called to testify, he was hostile, and the court threatened to hold him in contempt and take him into custody. But Glenn ultimately did testify. While he first declared that it was “100 percent incorrect” that he told Officer and Caseworker that the marks had not been on Child in the morning, after reviewing Officer’s bodycam footage, he admitted that he did say that. He also testified that after waking up that morning, he went straight to the car and didn’t notice any marks on Child’s arms, but he said he was busy “concentrating on driving and getting to and from.” He described how he went with Meyer to drop Child off at daycare in the morning. He testified that he was asleep when Meyer brought Child home. And he declared that he did not cause Child’s bruising.
¶13 Sometime after the preliminary hearing, Meyer married Glenn, and Meyer’s defense counsel (Defense Counsel) informed the State via email that Glenn intended to invoke his spousal privilege related to testifying at trial. The State told Defense Counsel that Glenn was “still required to show up to court to produce evidence that he [was], in fact, married . . . and take the stand to actually invoke the privilege.” The prosecutor insisted, “This is important because then he will become an unavailable witness. As an unavailable witness, I will then be able to play his preliminary hearing audio in lieu of his testimony.” Defense Counsel indicated that she “had anticipated that [the State] would be able to get Glenn’s preliminary hearing testimony in at trial.”
¶14 When Defense Counsel later informed the State that Glenn would be on bed rest following surgery on the date of trial (which had been continued multiple times), they discussed the possibilities of Glenn testifying via video during trial or of filing stipulated facts related to his testimony. But Glenn filed a motion to quash the subpoena against him. The State then sent Defense Counsel a transcript and redacted audio file of Glenn’s preliminary hearing testimony that it intended to have admitted at trial, and Defense Counsel responded, “I would absolutely object to both the transcript and the audio coming in at trial. . . . Glenn’s testimony is hearsay[,] and to introduce it would also be a violation of my client’s confrontation rights.” Defense Counsel explained, “The Utah Supreme Court has ruled that because there is a different motive for examining witnesses at a preliminary hearing than that at a trial, said testimony is inadmissible.”
¶15 The State then filed a motion to admit Glenn’s preliminary hearing testimony. After receiving briefing and hearing oral argument, the court found that Glenn’s testimony fell under the exception to hearsay in rule 804(b)(1) of the Utah Rules of Evidence for former testimony of an unavailable witness. The court acknowledged caselaw indicating that defendants are restricted in developing testimony at preliminary hearings, see State v. Goins, 2017 UT 61, ¶¶ 32–33, 423 P.3d 1236, but it distinguished that caselaw from the facts of this case and admitted the testimony.
¶16 The court held a bench trial in May 2021. In its opening statement, the State indicated that “through the process of elimination,” it would “show beyond a reasonable doubt that it was . . . Meyer who committed child abuse.”
¶17 In addition to Glenn’s testimony, Daycare Provider testified at trial that Child had been in her care from roughly 9:00 a.m. to 4:45 p.m. that day. She stated that she did not see any marks or injuries on Child when Child was dropped off and she never saw marks like those photographed, but she did notice a different mark on Child’s arm later in the day, and this was the mark she asked Meyer about. She also testified that on the day of the bruising, she did not take Child to the park, she did not know of any equipment Child could have accessed that would have caused the injuries, Child did not get injured playing with toys, Child did not receive any injuries while in her care, and Child did not cry or appear to be in pain while in her care. She admitted, though, that she was aware that Child had been “kicked out of her previous day care . . . for playing too rough” and that Child “play[ed] really rough with toys and hit[] dolls a lot.”
¶18 Nurse testified that after examining Child, she “speculated . . . that because of the spacing, and the shape, and the location of the injuries, the colors that [she] saw, they were most definitely bruises,” the spacing of which “could fit a hand.” She said, “I’m not telling you it’s fitting a hand because—you know, I can’t say it was a hand unless I watched it happen, but I can tell you that those are bruises that are in a linear form that you don’t just get from falling down.” She further testified that based on the location, direction, and shape of the bruising, she did not believe that the incidents Meyer had described as possible accidental sources of injury had caused Child’s bruises. She also testified that the marks were “fresher bruises” that, based on coloration, could have been caused within hours of when Officer and Caseworker photographed Child’s injuries. But she acknowledged that “there’s no scientific way to date a bruise” and said that while it was “likely that it occurred” that day, “literally there is no way to determine when it happened.”
¶19 The State played a clip from the recorded interview between Meyer and Sergeant, in which Meyer stated that Child had a temper tantrum after arriving home from daycare and that Child tried to get out of being held and Meyer needed to grab her arm from the side.
¶20 In its closing argument, the State asked, “[W]ho caused the abuse?” and answered that “this is where we get into the process of elimination.” The State then explained its theory that the evidence proved that no one else could have caused the bruising, including Glenn, who “slept through the whole thing.”
¶21 The court ultimately found Meyer “guilty of a lesser-included offense of [c]lass B misdemeanor, child abuse, for having inflicted this injury on [Child] in a reckless manner.” The court provided its rationale, explaining in part that it “found highly credible the testimony” of Nurse that the “bruising was consistent with the types of bruising she has seen in her child abuse conferences and trainings.” The court ruled out Glenn as a potential source of the injuries by saying, “You know, . . . Glenn is asleep by the time [Child] gets home and doesn’t really interact at all. And then we know for a fact that the injuries took place . . . definitively prior to when [Father] arrive[d] based off of the video.” The court concluded, “And so there’s just no doubt in the [c]ourt’s mind that Mom, you lost your cool, you crossed a line, you squeezed your daughter’s arms, and it left that injury. It couldn’t have been anyone else.” The court sentenced Meyer to 180 days of jail but suspended 179 days. It also ordered a fine and probation.
¶22 Meyer subsequently filed a motion for a new trial through Defense Counsel. Defense Counsel then withdrew from representing Meyer. Meyer appeared pro se and asked the court to appoint counsel, but the State objected, and the court decided that Meyer did not qualify for appointed counsel based on her income. The court ultimately denied Meyer’s motion for a new trial. Meyer now appeals.
ISSUE AND STANDARD OF REVIEW
¶23 Meyer argues on appeal that Glenn’s “preliminary hearing testimony should not have been admitted at trial” under an exception to the bar on hearsay.2 “When reviewing rulings on hearsay, [appellate courts] review legal questions regarding admissibility for correctness, questions of fact for clear error, and the final ruling on admissibility for abuse of discretion.” State v. Leech, 2020 UT App 116, ¶ 31, 473 P.3d 218 (cleaned up), cert. denied, 481 P.3d 1039 (Utah 2021). But even “if we determine that the hearsay testimony should not have been admitted, we will reverse only if a reasonable likelihood exists that absent the error,
Meyer also argues that the district court “committed plain error by failing to obtain a valid waiver of counsel before having [Meyer] represent herself on her motion for a new trial.” Because we rule in her favor on the first issue, we need not address this argument.
the result would have been more favorable to the defendant.” Id. (cleaned up).
ANALYSIS
Similar Motive and Opportunity
¶24 Meyer argues that the district court erred in admitting Glenn’s preliminary hearing testimony. She asserts that Glenn’s testimony fails to qualify for the rule 804 exception to the evidentiary bar on hearsay. This exception applies when “the declarant is unavailable” and the declarant’s testimony was “given . . . at a trial, hearing, or lawful deposition” and is now “offered against a party who had . . . an opportunity and similar motive to develop it by direct, cross-, or redirect examination.” Utah R. Evid. 804(b)(1). Meyer argues that caselaw on this point “compels the conclusion that the admission of Glenn’s preliminary hearing testimony was erroneous” because that caselaw indicates that the motive to develop an adverse witness’s testimony at a preliminary hearing differs from the motive to do so at trial.
¶25 In State v. Goins, 2017 UT 61, 423 P.3d 1236, our supreme court discussed the effect of the 1994 amendment to Article I, Section 12 of the Utah Constitution, which limited “the function of preliminary examination to determining whether probable cause exists,” id. ¶ 31 (cleaned up) (discussing Utah Const. art. I, § 12). The court stated that, “by and large,” this provision “places most credibility determinations outside the reach of a magistrate at a preliminary hearing.” Id. ¶ 33. Therefore, “[o]ur constitution specifically limits the purpose of preliminary hearings in a manner that can undercut defense counsel’s opportunity to cross-examine witnesses at a preliminary hearing and thereby modify the interest counsel has in developing testimony on cross-examination.” Id. ¶ 41. But the court “eschewed a blanket rule” of inadmissibility for preliminary hearing testimony because it could “envision scenarios where, for whatever reason, defense counsel possesses the same motive and is provided the same opportunity to cross-examine as she would have at trial.” Id. ¶¶ 36–37. However, the court indicated that “such cases might prove rare.” Id. ¶ 36.
¶26 The Goins court then analyzed the motive for cross-examining a witness at the preliminary hearing by considering the facts of the case, which included the defendant allegedly brandishing a knife and accusing the later-unavailable witness of stealing his phone, after which the witness fled and the defendant assaulted the witness’s acquaintance. Id. ¶¶ 3–6. The court held that it was “apparent on the record . . . that [the defendant’s] counsel did not possess the same motive to develop testimony at the preliminary hearing that she would have had at trial” because the witness’s “testimony referenced concerns with [the defendant] and a prior incident between” the pair, so the defendant’s “counsel had a motive to develop this testimony and question [the witness’s] credibility” at trial “that went beyond a preliminary hearing’s constitutionally limited purpose.” Id. ¶ 46.
¶27 Subsequent cases have reached similar conclusions. In State v. Ellis, 2018 UT 2, 417 P.3d 86, a defendant faced a charge of aggravated robbery for allegedly robbing a cupcake shop at gunpoint, id. ¶¶ 1, 4. The store clerk testified at trial as to the events within the store, id. ¶ 19, but another witness—a witness who saw the perpetrator leave the scene, run across the road, and get into a car whose license plate she then reported—was not able to be in court on the day of the trial, id. ¶¶ 7–8, 16. The court admitted her preliminary hearing testimony, id. ¶ 19, but our supreme court held that this was improper, id. ¶ 40. It stated that in Goins, it had “conditioned the admissibility of preliminary hearing testimony on a showing that defense counsel really did possess the same motive and was permitted a full opportunity for cross-examination at the preliminary hearing.” Id. ¶ 39 (cleaned up). And it said that “Goins foreclose[d] the admissibility of the . . . preliminary hearing testimony” because, “as in Goins, . . . [the court had] no basis to conclude that [the defendant’s] counsel’s preliminary hearing motive to cross-examine was similar to what would have existed at trial.” Id. ¶ 40 (cleaned up).
¶28 Similarly, in State v. Leech, 2020 UT App 116, 473 P.3d 218, cert. denied, 481 P.3d 1039 (Utah 2021), this court applied the holding of Goins where a defendant faced charges related to the alleged kidnapping of two men and murder of one of them, id. ¶¶ 22–24. The court considered the admissibility of preliminary hearing testimony from a man who helped tie up the victims, drove the group to the murder site, supplied the gun, and observed the murder. Id. We noted that “whether the defense had a similar motive to develop prior testimony for purposes of rule 804(b)(1) will often turn on the nature of a witness and her testimony.” Id. ¶ 40 (cleaned up). Where the witness in question “was not only a critical eyewitness, but also an accomplice to each of the crimes,” we determined that “[t]he opportunity to cross-examine this type of witness at a preliminary hearing will likely be a poor substitute for confronting the witness at trial, where the jury can observe [the witness’s] demeanor and assess . . . credibility firsthand.” Id. Accordingly, we held that “the State did not demonstrate that [the defendant] had an adequate opportunity and similar motive to cross-examine [the witness] at the preliminary hearing as he would have had at trial.” Id. ¶ 41.
¶29 The district court believed that the present case was distinguishable from Goins because that case involved an “incident that could have caused motive for [the witness] to fabricate or fashion . . . testimony in such a way that would be damaging to [the defendant].” See Goins, 2017 UT 61, ¶ 46. On the other hand, the court stated, “in the case before the [c]ourt, there’s nothing that has been pointed to specifically that would indicate that there is a similar motive for . . . Glenn to have fabricated any of his testimony.” But the court’s analysis on this point was inadequate, as a witness’s motive for fabrication is not the only circumstance that might impact a defendant’s motive for questioning a witness at a preliminary hearing. This is obvious from Ellis, where the witness had no motive to fabricate testimony and our supreme court still held that it had “no basis to conclude that [the defendant’s] counsel’s preliminary hearing motive to cross-examine was similar to what would have existed at trial.” 2018 UT 2, ¶ 40 (cleaned up).
¶30 The district court erred in concluding that the motives at the preliminary hearing and at trial were the same. The court stated that during the preliminary hearing “there was an opportunity to cross-examine [Glenn] as to whether he was the source of . . . the injuries, whether he abused [Child].” “In fact,” it pointed out, “the State specifically questioned him on that.” It continued, “[The preliminary hearing judge] would have never shut that down and said, ‘No, even though the State had questioned specifically, did you cause the injuries, [d]efense you’re prohibited from going after him to follow up on that question.’ Certainly that would have been permitted by . . . the [j]udge.” But this analysis does not align with our supreme court’s in Goins. The Goins court specifically addressed the reality that a per se rule of admissibility for preliminary hearing testimony of unavailable witnesses “places magistrates in the uncomfortable position of choosing between conducting preliminary hearings in fidelity with article I, section 12 and permitting the type of examinations” that were standard before the constitutional amendment limited the scope of preliminary hearings. 2017 UT 61, ¶ 34. The district court fails to accept that, as the supreme court suggests, Defense Counsel could have reasonably expected the court to limit questioning to that which was necessary for probable cause and prepared to cross-examine Glenn accordingly. See id. We reasoned similarly in Leech, where the defendant’s “counsel admitted that he did not pose a question during his cross-examination of [the witness] that was objected to and sustained, but he maintained that he did not have the same opportunity and motive to cross-examine [the witness] as he would have had at trial because he understood the limited scope of the hearing.” 2020 UT App 116, ¶ 28 (cleaned up). Accordingly, the district court erred in determining that Meyer had the same motive and opportunity to question Glenn in the preliminary hearing as she did at trial because the judge would— presumably—not have prevented follow-up questions to those that were asked.
¶31 Instead, the court should have recognized that the motives changed with respect to questioning witnesses at the preliminary hearing versus at trial. The State was clear that its case was based on a process of elimination. This point is hardly significant at a preliminary hearing, which seeks to determine if there was probable cause—a low standard—for a jury to conclude Meyer caused the bruising. See id. ¶ 20 (reciting the magistrate’s explanation at the defendant’s preliminary hearing that “different standards of proof apply at a probable cause hearing than apply at trial” and that “probable cause means enough evidence that the court is convinced that a reasonable jury could find, not that they necessarily would, but that they could find the offenses charged were committed and that [the defendants] were the individuals who committed them” (cleaned up)). Moreover, at a preliminary hearing, the facts are construed in the light most favorable to the State’s case. See id. (indicating that the magistrate informed the defendant that “one of the most important [differences] is that any doubts or questions about evidence at a preliminary hearing get resolved in favor of the State and against the defendants” and explained that “the benefit of the doubt goes to the State in a preliminary hearing” (cleaned up)). On the other hand, at trial the State must prove a defendant’s guilt beyond a reasonable doubt, see, e.g., id. ¶ 64, and here the State needed to eliminate all other possible suspects beyond a reasonable doubt during trial. So the motive in questioning each witness at the preliminary hearing was to show lack of probable cause that Meyer was the source of Child’s bruises, while the motive at trial was to introduce reasonable doubt as to Meyer causing the bruises by convincing the court that someone else may have done so. In other words, with respect to Glenn, the motive shifted from showing that Glenn was the more likely source of the bruising to showing that Glenn could have caused the bruising such that there was reasonable doubt that Meyer caused it. Therefore, we hold, as did the Goins court, that it was “apparent on the record . . . that [Meyer] did not possess the same motive to develop testimony at the preliminary hearing that she would have had at trial” because at trial Meyer “had a motive to . . . question [Glenn’s] credibility that went beyond a preliminary hearing’s constitutionally limited purpose.” See 2017 UT 61, ¶ 46.
Prejudice
¶32 “A determination of error in admitting [Glenn’s] preliminary hearing testimony is not alone enough to sustain a reversal. We must also find that error prejudicial. Prejudice in this setting requires a showing of a reasonable likelihood that the decision to admit [Glenn’s] preliminary hearing testimony altered the . . . verdict.” See State v. Ellis, 2018 UT 2, ¶ 41, 417 P.3d 86 (cleaned up).
¶33 The relevant caselaw indicates that errors in admitting preliminary hearing testimony are sometimes harmless. In Goins, the court held that the error was prejudicial as to one charge but harmless as to another because on the first charge, the “testimony was the primary evidence admitted in support of” that charge but on the second charge, the testimony did not address the major underlying facts and the guilty verdict was supported by other witness testimony and corroborating photographs. State v. Goins, 2017 UT 61, ¶¶ 50–51, 423 P.3d 1236.
¶34 Similarly, in Leech, this court identified prejudice with respect to one count but not as to three others. State v. Leech, 2020 UT App 116, ¶ 48, 473 P.3d 218, cert. denied, 481 P.3d 1039 (Utah 2021). For the first, we determined that the “charge could not be proven without crediting” the testimony of the kidnapping victim who wasn’t killed and “there [was] a reasonable likelihood that the jury would not have believed” this person “without the corroboration [the unavailable witness’s] testimony provided.” Id. ¶ 63. But we held that two of the convictions were independently supported by three other witnesses. Id. ¶ 52. And for the final charge, one of its elements “was not disputed at trial” and the other two elements “did not depend on the veracity of the [unavailable witness’s] account of the murder itself.” Id. ¶ 62.
¶35 In Ellis, the court found prejudice where “the preliminary hearing testimony in this case was central to the prosecution’s case on this charge.” 2018 UT 2, ¶ 2. The court so concluded because the witness “provided key pieces of evidence that the jury likely credited,” including her being “the only witness who could testify that the robber fled in a car”—making her “the crucial link for what occurred after [the clerk] lost sight of the robber.” Id. ¶¶ 43, 45.
¶36 Here, the court’s error in admitting Glenn’s testimony prejudiced Meyer because there is a “reasonable likelihood that the decision to admit [Glenn’s] preliminary hearing testimony altered the . . . verdict.” See id. ¶ 41 (cleaned up). The State’s presentation of the case against Meyer as a “process of elimination” impacts the fact-finder’s weighing of the evidence such that, for Glenn’s testimony to have been prejudicial, Meyer need show only that without the testimony, the court would have had a reasonable doubt that she was the source of the injuries. Meyer points us to this helpful insight offered by the Supreme Court of Illinois: “[I]f [the prosecution] intend[s] to obtain a conviction by the process of elimination by showing that no one else but [the] defendant could have been guilty, the burden [is] upon it to show that there was no one else in the other room.” People v. Boyd, 161 N.E.2d 311, 315 (Ill. 1959).
¶37 We agree with Meyer that removing Glenn’s erroneously admitted testimony makes a finding of reasonable doubt as to Meyer’s guilt much more likely. While Meyer’s own testimony corroborated Glenn’s account from the preliminary hearing that he was sleeping during the time Child was home from daycare until Father picked her up, that is not the only information Glenn provided. Glenn also testified that he did not cause the bruising. And he testified that, on the morning in question, he woke up and went directly to the car to drive Child to daycare, giving him no opportunity to interact with Child such that he could have caused her bruising that day.
¶38 The court, in providing the rationale for its conviction of Meyer, explained that it “found highly credible the testimony of” Nurse that the “bruising was consistent with the types of bruising she has seen in her child abuse conferences and trainings.” And it said, “You know, . . . Glenn is asleep by the time [Child] gets home and doesn’t really interact at all. And then we know for a fact that the injuries took place . . . definitively prior to when [Father] arrive[d] based off of the video.” The court clearly found that the bruises were caused before Father arrived, but it did not make a specific finding that the bruises could not have been caused earlier in the day. And Nurse, whose testimony the court found “highly credible,” testified multiple times that she could not provide a timeline for the cause of the bruising. When asked if it was “possible to at least rule out certain time frames,” Nurse responded, “What we were trained was that a fresher bruise is red or purple. . . . Red or purple means that this happened probably fairly close to the time that I saw her because of the darkness of the color, but . . . there’s no scientific way to date a bruise.” Nurse agreed that the bruises could have been caused “within hours.” But when Defense Counsel pressed, asking, “You testified a minute ago that you—it’s your opinion that with bruising, from what you observed, it’s more likely that it occurred like four hours before?” Nurse answered, “That day.” Defense Counsel stated, “That day. Two hours before, five hours before.” Nurse responded, “Purple-red is the colors you see first with bruising and there is—literally there is no way to determine when it happened.”
¶39 Given that removing Glenn’s testimony would have heightened the possibility that Glenn caused the injuries at some time outside the window between Child’s return from daycare and Father’s arrival, we conclude that Meyer was prejudiced. The State’s process-of-elimination approach makes Glenn’s preliminary hearing statements that he did not cause the bruising and did not have the opportunity to cause the bruising before Child went to daycare all the more significant. The State admitted as much when it argued for the admission of Glenn’s testimony, saying that “his testimony [was] necessary to the State to prove the case at trial.” We are hard-pressed to conclude that the testimony’s faulty admission was harmless when the State was so adamant that the testimony was essential in the first place. And the State fails to argue that Meyer was not prejudiced by the faulty admission or to point us to other evidence corroborating these key points of Glenn’s testimony. So without the preliminary hearing testimony, Glenn was not excluded—or at least not as easily excluded as he would have otherwise been. The State’s theory required it to eliminate all other possible suspects; without Glenn’s preliminary hearing testimony, it did not do so, and it is likely that the court would have concluded as much. In this respect, Glenn’s testimony is like that at issue in Ellis, because it was “central to the prosecution’s case” and “provided key pieces of evidence” under the State’s process-of-elimination approach. See 2018 UT 2, ¶¶ 2, 43. And this testimony is unlike that deemed nonprejudicial in Goins and Leech because Meyer’s conviction did “depend on the veracity of [Glenn’s] account.” See Leech, 2020 UT App 116, ¶ 62. Accordingly, the court’s error in admitting Glenn’s preliminary hearing testimony prejudiced Meyer.
CONCLUSION
¶40 The district court erred in admitting Glenn’s preliminary hearing testimony, and Meyer was prejudiced by that error. We therefore vacate Meyer’s conviction and remand this matter for further proceedings consistent with this opinion.
[1] Since the time of her charges, the defendant has remarried. She uses a different last name but still accepts the use of “Meyer.” We continue to use “Meyer” for simplicity and for consistency with the case name.
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and JOHN D. LUTHY concurred.
HARRIS, Judge:
¶1 When Daisy Martinez and Fernando Sanchez-Garcia divorced, they both lived in Cache County and, under the terms of their stipulated divorce decree, Martinez was the primary physical custodian of and caregiver for their children. Some two years later, Martinez moved with the children to Layton, about sixty miles away. At that point, Sanchez-Garcia asked for a modification of the custody arrangement, one that would give him primary physical custody of the children in Cache County. After a trial, the court ruled in favor of Sanchez-Garcia, modifying the custody order to make him the primary physical custodian, unless Martinez were to move back to Cache County. Martinez now appeals the court’s modification order, asserting that the court failed to make a finding that circumstances had materially and substantially changed, and that the court failed to take into account her status, up to that point, as primary caregiver. We find merit in Martinez’s arguments, and therefore vacate the court’s modification order and remand for further proceedings.
BACKGROUND
¶2 After five years of marriage, Martinez and Sanchez-Garcia divorced in 2017. Their stipulated divorce decree provided that the parties would share “joint legal custody and joint physical custody” of their two children, and that Martinez would have primary physical custody, with Sanchez-Garcia awarded parent-time that was something less than 50/50. The decree required the parties to “inform each other of any change of address . . . at least thirty (30) days prior to the change, if practicable,” and stated that, if “either party relocate[s] to a residence more than 150 miles away,” then “the relocating party shall provide notice pursuant to” Utah’s relocation statute. See Utah Code § 30-3-37.
¶3 Some two years later, Martinez notified Sanchez-Garcia that she planned to move to Colorado with the children that summer so that she could attend nursing school. She later incorporated her relocation request into a petition to modify the divorce decree, asking the court to give her sole physical custody of the children as necessary to facilitate her move. Sanchez-Garcia responded by filing a counter-petition to modify, asking the court to change the custody provisions of the decree to give him sole physical custody of the children in the event Martinez were to relocate to Colorado.
¶4 After a hearing, a court commissioner determined that relocation to Colorado was not in the best interest of the children, and therefore recommended that Martinez’s request for relocation with the children be denied, and that, if Martinez were to relocate to Colorado, primary physical custody should shift to Sanchez-Garcia. Martinez objected to the commissioner’s recommendation, and asked the district court to appoint a custody evaluator, which the court eventually did.
¶5 After completing his assessment, the custody evaluator announced his recommendation: if Martinez relocated to Colorado, Sanchez-Garcia should be granted sole physical custody of the children, with Martinez receiving parent-time pursuant to Utah’s relocation statute, see Utah Code § 30-3-37, but if Martinez remained in Cache County, the custody arrangement should be “50/50 parent time.”
¶6 Soon after receiving the custody evaluator’s recommendation, Martinez decided not to move to Colorado, and effectively withdrew her petition to modify regarding that potential move (although she did continue to press for an income-related modification of child support obligations). She did not, however, remain in Cache County; instead, she relocated with the children to Layton, Utah, a city located some sixty miles from her previous residence, and she did so without providing any advance notice to Sanchez-Garcia. He objected to Martinez’s move to Layton, and eventually amended his counter-petition to reflect this new development, asking the court to modify the custody order anyway, even though Martinez was not moving to Colorado, because she had relocated to Layton.
¶7 The court held a one-day bench trial to consider Sanchez-Garcia’s counter-petition regarding Martinez’s relocation to Layton, as well as Martinez’s petition regarding amendment of the parties’ child support obligations. The court heard testimony from both parties, as well as from the custody evaluator. In his testimony, Sanchez-Garcia described how his parent-time initially consisted of daily visits but no overnights, but gradually changed to a fairly consistent schedule of one weekday and alternate weekends. He noted that he has “to kind of share [his] parent time” with his extended family, who are very involved in the children’s lives. He expressed frustration that his parent-time was sometimes “covered up with sports and stuff like that.” And he explained that Martinez’s extended family was also very involved in the children’s lives, noting that “70 percent of the time” he was instructed to drop the children off, after parent-time, not at Martinez’s house but at the residence of one of her extended family members. When asked what his preferred parent-time would be, he answered “50/50” like “what [the custody evaluator] said.” But he acknowledged, on cross-examination, that he had never exercised his allotted four weeks of summer parent-time. And when asked if Martinez had offered to keep the children on their Cache County soccer teams, even after her move to Layton, Sanchez-Garcia confirmed that she had but said he declined the offer because his “work schedule was getting kind of crazy” and he would not be able to get the children to practice.
¶8 In her testimony, Martinez stated that the children were happy and doing well in Layton, and that her move to Layton had not changed the amount of parent-time Sanchez-Garcia received. To cut down on travel, Martinez had offered Sanchez-Garcia parent-time every Friday instead of his midweek day,[1] and although he mentioned that he wanted a different midweek day, he never specified which one. When asked why she had wanted to move to Colorado, Martinez explained that she had applied to nursing school there because she had found it was easier to gain admission there than to the nursing programs in Cache County. She stated that, after deciding not to move to Colorado, she moved to Layton instead because there were “more school options” there, and because she had remarried and her new husband “works closer to that area” and would not have to commute “through the canyon in the wintertime.” Martinez also explained that her remarriage had placed her in a better financial situation than when the custody evaluation occurred.
¶9 The custody evaluator testified that “the children are very well established with both parents” and recommended “50/50 parent time” if the parents lived near each other. His recommendation was largely influenced by the children’s “very well established support network” in Cache County, but he admitted that his recommendations about the children not moving were specific to a move to Colorado—more than five hundred miles away—and not to Layton—some sixty miles away. While acknowledging that he would be “speculating,” the custody evaluator “hypothesize[d]” that, if he were asked to assess the propriety of Martinez’s move to Layton (rather than Colorado), he “would entertain and evaluate the same concerns of removing the children from a very strong and well supported network.” But he conceded, on cross-examination, that he had not been asked to assess the propriety of a move to Layton, and that he did not “have a basis to form an opinion” about that specific move, especially since he had “not evaluated the children or interact[ed] with them for more than a year”; he testified that, in order to form an opinion about that particular relocation, he “would want to observe the home arrangements,” “understand the arrangements for care [and] how frequently surrogate care is arranged and by whom,” as well as “understand peer relationships, [and] the continuity of contact with extended family and cousins” in Cache County.
¶10 At the conclusion of the trial, the court issued a ruling from the bench granting Sanchez-Garcia’s petition to modify, “consistent with [the custody evaluator’s] recommendations,” and awarded Sanchez-Garcia primary physical custody of the children so long as Martinez remained in Layton. However, the court ruled that, in the event Martinez moved back to Cache County, custody should be shared equally. Nowhere in its oral ruling did the court discuss whether there had been a substantial and material change of circumstances that would justify reexamining the custody provisions of the decree.
¶11 About a month later, the court issued a written order memorializing its ruling. As in the oral ruling, the court did not discuss whether there had been a substantial and material change in circumstances, and made no findings or conclusions in that regard. It stated that it had “considered the evidence in light of the factors set forth in Utah Code [sections] 30-3-10 and 30-3-10.2,” but it discussed only three of those numerous factors in its ruling. It found that “both parents are well and able parents to provide for the children,” but that their “co-parenting skills [had] been compromised by the inability to communicate appropriately.” It noted that the custody evaluator’s recommendation—that the children not move to Colorado—“was based in large part on the fact that there is a family community here in Cache County” on both sides, and that the children’s “interactions” with extended family members “have been an important part of and support for the children’s lives” and that those interactions “significantly affect[] the children’s best interests.” The court also found that Martinez had “failed with communication,” specifically finding “problematic” her decision not to notify Sanchez-Garcia prior to her relocation to Layton. The court noted, nonspecifically, that it had “relie[d] on the expertise of the custody evaluator in making its orders,” but did not discuss the fact that the evaluator’s recommendations had been made with regard to a potential move to Colorado, and that the evaluator had expressly made no recommendation regarding a move to Layton. And the court did not discuss the fact that Martinez had, up until the court’s ruling, been the children’s primary caregiver for their entire lives.
¶12 Based on these findings, the court concluded that it was in the children’s best interest to be “brought back to reside in Cache County.” The court specified that, in the event that Martinez came back to Cache County with them, “the parties will have parent-time on a one week on, one week off alternating schedule,” but if Martinez remained in Layton, she would enjoy only statutory minimum parent-time.[2]
ISSUES AND STANDARDS OF REVIEW
¶13 Martinez now appeals from the district court’s ruling on Sanchez-Garcia’s counter-petition to modify the parties’ divorce decree, and she raises two issues that require our consideration. First, she contends that the court failed to make any findings regarding whether a substantial and material change in circumstances had occurred. This is a matter we review without deference, because a district “court must make findings on all material issues” when ruling on a modification petition, and a court’s “failure to delineate what circumstances have changed and why these changes support the modification . . . constitutes reversible error unless the facts in the record are clear, uncontroverted and only support the judgment.” Diener v. Diener, 2004 UT App 314, ¶ 7, 98 P.3d 1178 (quotation simplified), cert. denied, 106 P.3d 743 (Utah 2005).
¶14 Second, Martinez challenges the court’s custody determination, asserting that the court failed to consider many of the relevant factors, including the fact that she had been the children’s primary caregiver. “We review the district court’s custody and parent-time determination for abuse of discretion.” Twitchell v. Twitchell, 2022 UT App 49, ¶ 17, 509 P.3d 806 (quotation simplified).
ANALYSIS
¶15 “Under Utah law, petitions to modify custody orders are governed by a two-part test: ‘A court order modifying . . . an existing joint legal custody or joint physical custody order shall contain written findings that: (i) a material and substantial change of circumstance has occurred; and (ii) a modification . . . would be an improvement for and in the best interest of the child.’” Peeples v. Peeples, 2019 UT App 207, ¶ 13, 456 P.3d 1159 (emphasis added) (quoting Utah Code § 30-3-10.4(2)(b)). Martinez raises a challenge with regard to each part of this two-part test.
¶16 First, she asserts that the district court did not make any findings—written or oral—regarding whether “changes in the circumstances upon which the previous award was based” have occurred that “are sufficiently substantial and material to justify reopening the question of custody.” Id. ¶ 15 (quotation simplified). Martinez’s assertion is correct: we have examined the court’s oral and written rulings, and we are unable to find any discussion of whether a change in circumstances had occurred.[3] This was error; a finding of changed circumstances is a “threshold requirement for modifying a divorce decree,” Larson v. Larson, 888 P.2d 719, 722 n.1 (Utah Ct. App. 1994), and “only if a substantial change of circumstances is found should the district court consider whether a change of custody is appropriate,” Peeples, 2019 UT App 207, ¶ 13 (quotation simplified); see also Doyle v. Doyle, 2011 UT 42, ¶ 38, 258 P.3d 553 (“Even an overwhelming case for the best interest of the child could not compensate for a lack of proof of a change in circumstances.”).
¶17 Sanchez-Garcia acknowledges the lack of findings regarding changed circumstances, but nevertheless defends the court’s ruling on two bases, neither of which we find persuasive. First, he asserts that it is “clear and uncontroverted” in the record that a substantial and material change of circumstances occurred, and he points to Martinez’s “sudden relocation to Layton,” which necessitated a change in schools for the children as well as a distancing from their “extensive support network” in Cache County. We recognize that Martinez’s move to Layton changed the landscape, but it is not at all obvious to us that this move resulted in the sort of substantial and material change that would justify a second look at the custody arrangement. Martinez’s move was well inside the 150-mile threshold that triggers the relocation statute. See Utah Code § 30-3-37(1). Moves within that threshold, even if they involve the crossing of a county line, do not, by themselves, necessarily indicate that a substantial and material change has taken place. Martinez presented evidence— that the court did not discuss—that the children were doing well in Layton and that her move to Layton did not result in any loss of parent-time for Sanchez-Garcia; that is, Sanchez-Garcia was enjoying just as much parent-time after Martinez’s move to Layton as he had been before. Cf. Erickson v. Erickson, 2018 UT App 184, ¶ 18, 437 P.3d 370 (holding, on the facts of that case, that a “change in the pick-up times without a change in the number of overnights” does not amount to a material and substantial change in circumstances “that warrants a change in custody”). And the fact that the children changed schools is not necessarily something that constitutes a substantial change in circumstances; a hypothetical five-mile move across town within Cache County may also have necessitated a change in schools, yet it is unlikely that such a move would, in this context, have been considered a substantial and material change in circumstances. And evidence was presented indicating that the children, even after the move to Layton, continued to enjoy significant contact with extended family on both sides. We do not foreclose the possibility that a court, under circumstances similar to these, could make a supported finding that things had changed enough to justify a second look at the custody order. But such a conclusion is far from obvious, and we expect a district court to engage with this issue and explain why it believes that to be the case. On this record, we cannot excuse the lack of findings on the basis that a substantial and material change is clear from the facts.
¶18 Next, Sanchez-Garcia claims that Martinez invited any error in this regard, because she filed her own petition to modify and therein asserted that there had been a substantial and material change in circumstances. But her petition was filed with regard to a potential move to Colorado, and was in that regard effectively withdrawn prior to trial.[4] A move to Colorado—far more than 150 miles from Cache County—would unquestionably be a substantial and material change in circumstances. But it does not follow, from her unremarkable assertion that a move to Colorado would be a substantial and material change, that she was also admitting that a move to Layton would likewise qualify as such. Indeed, in her answer to Sanchez-Garcia’s amended counter-petition to modify, Martinez expressly denied Sanchez-Garcia’s allegation that her move to Layton constituted a substantial and material change in circumstances. Martinez therefore did not invite the court’s error in failing to engage with the first part of the modification test.
¶19 Thus, we find merit in Martinez’s first challenge, and conclude that, on this issue alone, we must vacate the district court’s modified decree and remand for further proceedings so that the court can have an opportunity to engage with this issue and explain why Martinez’s move to Layton constituted the sort of substantial and material change that necessitates a reopening of the custody provisions of the decree.[5]
¶20 We recognize that should the court on remand determine that a substantial change of circumstances has not occurred, no further analysis will be required. However, should the district court conclude that a substantial change in circumstances has occurred, the court’s analysis regarding custody will also require more thorough treatment; indeed, were the court’s analysis regarding custody the only matter at issue, we would vacate and remand that determination as well. Therefore, we offer the following guidance should the issue arise following remand. SeeState v. Garcia-Lorenzo, 2022 UT App 101, ¶ 58, 517 P.3d 424 (electing to consider additional raised and briefed issues, even though not necessary to the outcome of the appeal, “in an effort to offer guidance that might be useful on remand, where these issues are likely to arise again” (quotation simplified)), cert. granted, 525 P.3d 1263 (Utah 2022).
¶21 After a court has determined that a substantial and material change in circumstances has occurred, it must then proceed to analyze whether “a modification . . . would be an improvement for and in the best interest of the child.” See Utah Code § 30-3-10.4(2)(b). In so doing, the court “shall, in addition to other factors the court considers relevant, consider the factors outlined in Section 30-3-10 and Subsection 30-3-10.2(2).” Id. § 303-10.4(2)(a) (emphasis added). Section 30-3-10 lists seventeen factors for consideration, before authorizing courts to consider “any other factor the court finds relevant.” Id. § 30-3-10(2). And section 30-3-10.2(2)—applicable when the court is considering joint custody—sets forth another eight specific factors for consideration, before also authorizing consideration of “any other factor the court finds relevant.” Id. § 30-3-10.2(2). Thus, courts in this situation are statutorily required to “consider,” at least in some form, twenty-five enumerated factors, as well as “any other” relevant factor.
¶22 Of course, not all of these factors “are on equal footing,” and a district court “generally has discretion to determine, based on the facts before it and within the confines set by the appellate courts, where a particular factor falls within the spectrum of relative importance and to accord each factor its appropriate weight.” Twitchell v. Twitchell, 2022 UT App 49, ¶ 20, 509 P.3d 806 (quotation simplified). Some factors might not be relevant at all to the family’s situation, and others might be only tangentially relevant or will weigh equally in favor of both parents.[6]
¶23 Other factors, however, are of particular importance when considering a change in custody. For instance, “[a]t the critically important end of the spectrum, when the child is thriving, happy, and well-adjusted, lies continuity of placement.” Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491; see also Larson v. Larson, 888 P.2d 719, 722–23 (Utah Ct. App. 1994) (citing eight earlier Utah cases, and stating that “a factor of considerable importance in determining the best interest of children is the maintenance of continuity in their lives, and removing children from their existing custodial placement undercuts that policy”). Stated another way, when a court is “considering competing claims to custody between fit parents under the ‘best interests of the child’ standard, considerable weight should be given to which parent has been the child’s primary caregiver,” Davis v. Davis, 749 P.2d 647, 648 (Utah 1988), and “[e]xisting arrangements in which the child has thrived should be disturbed only if the court finds compelling circumstances,” Hudema, 1999 UT App 290, ¶ 26. The importance of this factor is further highlighted by the fact that applicable statutes mention it twice: not only does section 30-3-10 list it as one of the seventeen general custody factors, see Utah Code § 30-3-10(2)(m) (listing as a factor “who has been the primary caretaker of the child”), but the modification statute specifies that, in considering whether to modify a custody order, the court “shall give substantial weight to the existing . . . joint physical custody order when the child is thriving, happy, and well-adjusted,” id. § 30-3-10.4(2)(c).
¶24 In its custody analysis, the district court discussed only three of the twenty-five applicable statutory factors. The court began by finding that “both parents are well and able parents to provide for the children,” an apparent allusion to one of the general custody factors. See id. § 30-3-10(2)(c) (listing as a factor each “parent’s capacity and willingness to function as a parent”). It then discussed, at some length, the important relationships the children had with extended family members on both sides in Cache County. See id. § 30-3-10(2)(l) (listing as a factor a child’s “interaction and relationship with . . . extended family members”). The court also discussed Martinez’s failure to notify Sanchez-Garcia of her move to Layton, and viewed that as a failure of communication. See id. § 30-3-10.2(2)(c)(i) (listing as a factor each parent’s “co-parenting skills, including” the parent’s “ability to appropriately communicate with the other parent”). But that was the sum total of the court’s analysis; significantly, the court did not undertake any discussion of “who has been the primary caretaker of the child,” see id. § 30-3-10(2)(m), a factor that is “[a]t the critically important end of the spectrum,” Hudema, 1999 UT App 290, ¶ 26, and therefore entitled to “considerable weight,” Davis, 749 P.2d at 648; see also Utah Code § 30-3-10.4(2)(c) (requiring courts considering modification to give “substantial weight” to existing joint custody arrangements in which “the child is thriving, happy, and well-adjusted”).
¶25 At trial in this case, Martinez emphasized the “primary caregiver” factor, and put on evidence and made argument about that factor, asserting that she had always been the primary caregiver and that the children were doing well in her care, the move to Layton notwithstanding. Indeed, the custody evaluator testified that, in his view, “the children are very well established with both parents.” We acknowledge that “[d]etermining which
factors the court must address in a given case, and to what degree, presents a tricky task,” and that “courts are not required to render a global accounting of all evidence presented or to discuss all aspects of a case that might support a contrary ruling.” See Twitchell, 2022 UT App 49, ¶ 21 (quotation simplified). But “where significant evidence concerning a particular factor is presented to the district court,” especially where that factor is a critically important one, “findings that omit all discussion of that evidence” and of that factor “must be deemed inadequate.” Id.
¶26 Again, we do not foreclose the possibility that a change of custody could be warranted here after a more fulsome analysis of the relevant custody factors, and our opinion should not be read as placing a thumb on the scale in either direction. But a more complete analysis is required here, in which the court should—as required by statute, see Utah Code § 30-3-10.4(2)(a)—“consider” the relevant factors, at least in some form, especially the ones the parties emphasize. In particular, given the court’s heavy reliance on the importance of the children’s relationships with extended family in Cache County, the court should engage with our previous case law holding that, “[w]hile the close proximity of . . . extended family is an appropriate factor for the court to consider, this, by itself, is insufficient to disturb a previously determined custody arrangement in which the children are happy and well-adjusted.” Larson, 888 P.2d at 726.
CONCLUSION
¶27 We find merit in Martinez’s two arguments, and therefore vacate the court’s modification order and remand for further proceedings in which the court should analyze at least the first of these issues, and possibly the second, anew. In so doing, the court should expressly consider whether a substantial and material change of circumstances has occurred and, if it concludes that such a change has in fact occurred, the court should then consider, at least in some form, all the statutory factors relevant to custody modification, including the “primary caregiver” factor.
¶28 We also note that the court’s renewed analysis, on remand, should be conducted “in present-tense fashion, as of the date of the hearing or trial, and should not only take into account the items discussed in this opinion but, in addition, should take into account, in some form, any material developments with regard to [the children] that have occurred since the last trial,” see In re J.J.W., 2022 UT App 116, ¶ 38, 520 P.3d 38, including (if applicable) whether Martinez has since moved back to Cache County.
[1] At the time, the children’s school was asynchronous on Fridays, due to continuing COVID-19 restrictions.
[2] In connection with Martinez’s request to amend child support, the court also made findings regarding the parties’ respective incomes, and on that basis (as well as the modified custody orders) modified the parties’ child support obligations. The court’s findings regarding the parties’ respective incomes are not at issue in this appeal.
[3] It may not be sufficient for a court to make an oral—but not a written—ruling in this regard, because the governing statute requires courts to make “written findings” on both parts of the modification test. See Utah Code § 30-3-10.4(2)(b); see also Hutchison v. Hutchison, 649 P.2d 38, 42 (Utah 1982) (stating that a requirement of written findings allows an appellate court “to be in a position to review the propriety of the trial court’s order,” and this “requirement of written findings applies with even greater force to orders awarding or modifying the custody of a child” (quotation simplified)). But in this case, we need not consider whether an oral finding, standing alone, would be sufficient, because the court made neither an oral nor a written finding regarding changed circumstances.
[4] Her only affirmative issue remaining for trial was an assertion that the parties’ incomes had changed significantly enough to justify amendment to the amount of child support ordered.
[5] In connection with this inquiry, the court may need to concern itself with the question of whether the decree subject to modification was the product of litigation or stipulation or some combination of the two. In some cases, “a lesser showing of changed circumstances may support modifying a stipulated award than would be required to modify an adjudicated award.” See Peeples v. Peeples, 2019 UT App 207, ¶ 15, 456 P.3d 1159 (quotation simplified). But the “adjudicated/stipulated dichotomy” is not “entirely binary,” and “in assessing how much ‘lesser’ a showing might be required to satisfy the change-in-circumstances requirement, . . . courts should examine the origin of the order in question and analyze the extent to which the order—even if stipulated—reflects the result of robustly contested litigation aimed at ascertaining the best interest of the child.” See id. ¶ 17 (quotation simplified).
[6] Even with factors not relevant to the situation or factors that do not move the needle one way or the other, a court is well-served to at least mention those factors in its ruling and briefly indicate that it deems them irrelevant or of equal weight for each party. By mentioning them, even if only to say that they are irrelevant, a court ensures that the parties—and, significantly, a reviewing court—will be able to tell that the court at least “consider[ed]” them. See Utah Code § 30-3-10.4(2)(a).
STATE OF UTAH, in the interest of C.D.S. and W.E.S.,
persons under eighteen years of age.
A.S.,
Petitioner,
v.
STATE OF UTAH,
Respondent.
No. 20220580
Heard February 10, 2023
Filed June 8, 2023
On Certiorari to the Utah Court of Appeals
Eighth District Juvenile, Uintah County
The Honorable Ryan B. Evershed
Nos. 1178352, 1184710
Utah Court of Appeals, Salt Lake
No. 20220100
Attorneys:
K. Andrew Fitzgerald, Moab, for petitioner,
Sean D. Reyes, Att’y Gen., Carol L. C. Verdoia, John M. Peterson,
Asst. Atty’s Gen., Salt Lake City, for respondent
Martha Pierce, Salt Lake City, Guardian ad Litem for C.D.S.
and W.E.S.
ASSOCIATE CHIEF JUSTICE PEARCE authored the opinion of the Court,
in which CHIEF JUSTICE DURRANT, JUSTICE PETERSEN,
JUSTICE POHLMAN, and JUDGE CORNISH joined.
Having recused herself, JUSTICE HAGEN does not participate herein;
DISTRICT COURT JUDGE RITA M. CORNISH sat.
ASSOCIATE CHIEF JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 The juvenile court terminated the parental rights of a mother and father. They each had fifteen days to appeal. Father appealed within that window. Mother filed her notice of appeal on the wrong side of the deadline. The court of appeals dismissed Mother’s appeal as untimely.
¶2 Mother argues that the court of appeals erred for a couple of reasons. We reject Mother’s argument that a minute entry that came after the court signed the final order restarted the clock on her time to appeal. But we agree with her that Utah Rule of Appellate Procedure 52(c)—together with Father’s timely appeal—extended her time to file a notice of appeal. We reverse and remand to the court of appeals.
BACKGROUND
¶3 In September 2019, the Division of Child and Family Services (DCFS) petitioned the juvenile court to remove two-year-old Chester from Mother and Father’s custody. At the time, Mother was pregnant with their second child, Winnie.[1]
¶4 The juvenile court placed Chester in the temporary custody of his aunt and uncle. The court also ordered DCFS to provide Mother and Father with reunification services.
¶5 After Winnie was born, DCFS initially allowed Winnie to stay with Mother and Father. A few months after Winnie’s birth, however, DCFS filed a “Motion for Expedited Placement and Temporary Custody” for Winnie. From the beginning of 2020 to the beginning of 2021, the juvenile court conducted several permanency and review hearings for the children. At the end of 2020, the court authorized Chester to live with Mother and Father in a trial home placement.
¶6 At a hearing a few months later, the juvenile court determined that, while Mother and Father had substantially complied with the reunification plan, reunification was not likely to be appropriate within the next ninety days. The court terminated DCFS’s reunification services and changed the children’s primary permanency goal from reunification to adoption.
¶7 In November 2021, the juvenile court held a trial. At the trial’s conclusion, the court indicated that it would enter an order terminating Mother’s and Father’s parental rights.
¶8 The juvenile court entered the written termination order (Termination Order) on January 7, 2022, which terminated Mother’s and Father’s parental rights. In it, the court detailed the grounds it relied upon to terminate Mother’s and Father’s parental rights. The juvenile court found that DCFS made reasonable efforts to provide reunification services to Mother and Father, and found that it was in the best interest of the children for Mother’s and Father’s parental rights to be terminated and for the children to be adopted.
¶9 The Termination Order stated: “This is a final and appealable order. There will be no further order after this as related to the parent’s [sic] parental rights.” It also informed Mother and Father that they had “15 days from the signing of this order to file a Notice of Appeal with the Juvenile Court.”[2]
¶10 On January 10, 2022, the juvenile court filed a minute entry titled “Minutes.”[3] The Minutes contained a condensed recitation of what had occurred at trial. Among other particulars, it detailed who was present in the courtroom, the names of those who testified, and the exhibits the court entered into evidence. The Minutes also contained several findings of fact and ordered the termination of Mother’s and Father’s parental rights.
¶11 On January 24, 2022, Father filed his notice of appeal.[4] On January 25, Mother’s trial counsel filed a notice of appeal.
¶12 The court of appeals determined that Mother’s appeal was not filed within fifteen days of the Termination Order, as Utah Rule of Appellate Procedure 52(a) requires. The panel dismissed the appeal for lack of jurisdiction. This court granted certiorari review.
¶13 Mother contends that her appeal was timely filed for at least one of two reasons. Mother first points to the Minutes that the court filed several days after it entered the written termination order. Mother argues that the minute entry constitutes a new appealable order and that she had fifteen days from the entry of that order to file her notice of appeal. The State and the guardian ad litem disagree.
¶14 Mother next asserts that the Utah Rules of Appellate Procedure allow her to file a notice of appeal within five days of Father’s timely filed notice. Rule 52(c) states that after a party files a notice of appeal, “any other party” may file its notice of appeal within five days. Mother asserts that she is “any other party” within the rule’s meaning. The State largely agrees with Mother’s argument. The guardian ad litem does not.
STANDARD OF REVIEW
¶15 “Whether jurisdiction is proper is a legal question that we review for correctness . . . .” State ex rel. A.C.M., 2009 UT 30, ¶ 6, 221 P.3d 185. The court of appeals based its decision on an interpretation of the Utah Rules of Appellate Procedure. “The interpretation of a rule of procedure is a question of law that we review for correctness.” Arbogast Family Tr. v. River Crossings, LLC, 2010 UT 40, ¶ 10, 238 P.3d 1035 (cleaned up).
ANALYSIS
I. THE MINUTE ENTRY DID NOT EXTEND MOTHER’S TIME TO APPEAL
¶16 The court of appeals held that it lacked jurisdiction over Mother’s appeal because it was filed outside the fifteen-day timeframe that Utah Rule of Appellate Procedure 52(c) provides. Mother argues that the court of appeals erred when it calculated the fifteen-day period from the entry of the Termination Order and not the subsequently entered Minutes. Mother argues that she is entitled to appeal from the Minutes and that her notice of appeal of that ruling was timely filed.
¶17 The State and the guardian ad litem argue that the court of appeals correctly held that the minute entry was not a separately appealable order. The State claims that the Minutes were “a mere ministerial document from which the judgment must be drawn” and that the minute entry was not an appealable order because it “was a belated entry that did not modify or change the substance of the Termination Order.” The guardian ad litem similarly argues that the Termination Order “triggered the timing for the notice of appeal” and that the minute entry was an inconsequential “after-the-fact ministerial document[].”
¶18 The clock to file a notice of appeal starts when “the court directs that no additional order need be entered.” Giusti v. Sterling Wentworth Corp., 2009 UT 2, ¶ 35, 201 P.3d 966. There can be no doubt that the Termination Order met this test. The Order stated: “There will be no further order after this as related to the parent’s [sic] parental rights,” and informed Mother and Father that they had fifteen days to appeal.[5]
¶19 This statement in the Termination Order alone, of course, does not answer the question this case presents. Mother asks what the effect is of a subsequently entered order on the same topic as a final appealable order. This is a question that we answered long ago. If one order starts to run the time for appeal, the entry of another order does not restart the clock if the later entry does not change the substance of the first.
¶20 For example, in Adamson v. Brockbank, we held that the defendants could file their appeal from an order amending an original judgment, even though the date to file a timely appeal from the original order had already passed. Adamson v. Brockbank, 185 P.2d 264, 268 (Utah 1947). The amended order corrected an inconsistency in the original judgment. Id. This correction clarified the liability of a defendant, an alteration we held was significant enough to change the character of the judgment. Id. We articulated the principle that, “where a belated entry merely constitutes an amendment or modification not changing the substance or character of the judgment, such entry . . . relates back to the time the original judgment was entered.” Id.
¶21 We relied on this holding in State v. Garner, 2005 UT 6, 106 P.3d 729. There, a modification to an original judgment clarified the nature of the defendant’s conditional plea in greater detail. Id. ¶ 12. But this was “a redundant addition, not a material change” and thus did not extend the time for Garner’s appeal. Id.¶¶ 11, 13.
¶22 Here, the Minutes did not amend or modify the substance of the Termination Order. The Minutes recited short findings of fact and repeated the conclusion that the parental rights be terminated. It did not change the parents’ rights or the children’s status. The minute entry did not amend or modify the Termination Order, so the time to appeal ran from the entry of the Termination Order. The court of appeals did not err when it rejected Mother’s argument.
II. RULE 52(C) EXTENDED MOTHER’S TIME TO APPEAL
¶23 Mother also argues that the court of appeals incorrectly concluded that Father’s appeal, filed one day before Mother’s, did not extend Mother’s time to appeal. The court of appeals held that rule 52(c) of the Utah Rules of Appellate Procedure “relates to cross-appeals, i.e., appeals filed by someone who has already been made a party to the appeal.” The court, therefore, held that Mother was “required to file her own timely appeal” because she “was not a party to Father’s appeal.”
¶24 Mother argues that rule 52(c) allows a party five days to file a notice of appeal from the date another party to the case files its notice of appeal.[6] The State agrees with Mother and contends the court of appeals incorrectly determined that “rule 52(c) did not render Mother’s notice of appeal timely.”[7] The State expresses uncertainty on whether Mother has initiated her own appeal or must be limited to the issues presented in Father’s appeal, but it still concludes that the “plain language of appellate rule 52(c) means that Mother has, at least, successfully initiated a cross-appeal.”[8]
¶25 “When we interpret a procedural rule, we do so according to our general rules of statutory construction.” Arbogast Family Tr. v. River Crossings, LLC, 2010 UT 40, ¶ 18, 238 P.3d 1035. In statutory construction, “our primary goal is to evince the true intent and purpose of the Legislature,” the “best evidence” of which “is the plain language of the statute itself.” Zilleruelo v. Commodity Transporters, Inc., 2022 UT 1, ¶ 18, 506 P.3d 509 (cleaned up). Thus, “[w]e interpret court rules, like statutes and administrative rules, according to their plain language.” Arbogast Family Tr., 2010 UT 40, ¶ 18 (cleaned up). Although we do this with the added wrinkle that, when we interpret the Utah Rules of Procedure, the intent we most often attempt to discern through the text is ours, and not the Legislature’s.
¶26 Rule 52(c) is straightforward: “If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 5 days after the first notice of appeal was filed.” UTAH R. APP. P. 52(c). Nothing in the language of the rule itself limits the phrase “any other party” the way the court of appeals did. That is, nothing in the plain text limits the rule’s reach to a party who is already part of the appeal.
¶27 The court of appeals’ reading of rule 52(c) appears to have been influenced by the rule’s title. We put the label “Time for cross-appeal” on that subsection. However, we have noted that “[t]he title of a statute is not part of the text of a statute, and absent ambiguity, it is generally not used to determine a statute’s intent.” Blaisdell v. Dentrix Dental Sys., Inc., 2012 UT 37, ¶ 10, 284 P.3d 616 (cleaned up). We are in what some would consider good company with that proposition. A prominent treatise on the topic counsels that a “title or heading should never be allowed to override the plain words of a text.” ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 222 (2012).[9]
¶28 It nevertheless appears the court of appeals relied on this title and imported the language “party to this appeal” into the rule, such that it would read: “If a timely notice of appeal is filed by a party, any other party [who was made party to the appeal] may file a notice of appeal within 5 days after the first notice of appeal was filed.” UTAH R. APP. P. 52(c).
¶29 As Mother points out, “[t]he rules do not define ‘a party’ as something different than those who were parties to the proceedings before the district or juvenile court.” The court of appeals’ dismissal incorrectly “would define ‘a party’ in the lower courts as different than ‘a party’ before the appellate courts on the same matter.”
¶30 Our reading of the rule is buttressed by how we understand rule 52(c) came to be. It is based on rule 4 of the Utah Rules of Appellate Procedure, which is, in turn, based on rule 4(a)(3) of the Federal Rules of Appellate Procedure.[10] See UTAH RULES OF APPELLATE PROCEDURE: WITH NOTES OF THE SUPREME COURT ADVISORY COMMITTEE 14 (1984) (on file with the Utah State Law Library) (stating that rule 4(d) “adopts substantially the time period and concept of cross-appeal in Rule 4(a)(3)” of the Federal Rules of Appellate Procedure).
¶31 Rule 4(a)(3) of the Federal Rules of Appellate Procedure gives a party fourteen days after another party appeals to file its appeal.[11] Wright and Miller’s treatise on federal procedure explains that rule 4(a)(3) allows any party to take advantage of the additional time to file a notice of appeal. “The 14-day provision is not limited to cross-appeals, and plainly encompasses appeals by other parties such as co-parties or third-party defendants.” 16A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE: JURISDICTION § 3950.7 (5th ed. 2022) (Westlaw).[12]
¶32 This interpretation reflects the views of the advisory committee. When the committee recommended a substantive amendment to this rule, it noted:
The added time which may be made available by the operation of the provision is not restricted to cross appeals in the technical sense, i.e., to appeals by parties made appellees by the nature of the initial appeal. The exception permits any party to the action who is entitled to appeal within the time ordinarily prescribed to appeal within such added time as the sentence affords.
Advisory Committee Note to 1966 Amendments to Federal Rule of Civil Procedure 73(a), 39 F.R.D. 69, 131 (1966) (amending then rule 73(a) of the Federal Rules of Civil Procedure, a rule later incorporated into the appellate rules).
¶33 In other words, if Mother were in federal court, or in a non-child welfare case in a Utah court, her appeal would undoubtedly be timely filed under rules that in all aspects—other than title and time frame—mirror rule 52(c). The only part of rule 52(c) that suggests a different result is the title, and, as we have noted, we don’t use titles that way.
¶34 And here, there is additional reason to believe that we did not intend to use the rule’s title to work a substantive limitation on the rule’s text. In 2003, the Advisory Committee on the Utah Rules of Appellate Procedure heard from an assistant attorney general in the Child Welfare Division who “described child welfare proceedings and the need to expedite appeals from parental rights terminations” to “help stabilize” children’s lives. Approved Minutes, SUPREME COURT’S ADVISORY COMMITTEE ON THE UTAH RULES OF APPELLATE PROCEDURE, ADMINISTRATIVE OFFICE OF THE COURTS (hereinafter Approved Minutes, SUPREME COURT’S ADVISORY COMMITTEE) (Nov. 19, 2003).
¶35 The need for speed was reiterated at a 2017 committee meeting, which discussed amendments to rule 52 and other child welfare appellate rules. The minutes of that meeting laid out that “[t]he purpose of these amendments is to expedite adoption and termination of parental rights appeals from the district courts and put them on the same footing as appeals from child welfare proceedings in the juvenile courts.” Approved Minutes, SUPREME COURT’S ADVISORY COMMITTEE (Sept. 7, 2017).
¶36 The rules committee also discussed the relationship between rule 52 and rule 4 when a member “proposed, and the committee agreed, that Rule 52 should be amended to make it consistent with the recent changes that were approved to Rule 4(b).” Approved Minutes, SUPREME COURT’S ADVISORY COMMITTEE (May 5, 2016). Thus, it appears the drive behind these rules was not to have rule 52(c) exclude certain appeals that rule 4 includes but to maintain the structure of rule 4 while expediting child welfare proceedings.[13]
¶37 The guardian ad litem offers a different interpretation of the rule than Mother, the State, and the court of appeals. She avers that Mother was a party to her own termination proceedings but was never, even at the district court level, a party to Father’s termination proceedings. The guardian ad litem thus contends that Mother was not “any party” in the context of the rule because she was not a party to the proceedings Father appealed.
¶38 The guardian ad litem supports this argument with something we said in State ex rel. A.C.M. There, we noted that we “treat the termination of each parent’s rights separately for purposes of finality and appealability.” State ex rel. A.C.M., 2009 UT 30, ¶ 12, 221 P.3d 185. The guardian ad litem in A.C.M. claimed that the order terminating the father’s parental rights was not a final order because the mother’s rights had not yet been terminated. Id. We reasoned that the order terminating the father’s rights was “final and appealable because it constitute[d] a change in the child’s status” with respect to the father. Id. That also prompted the observation on which the guardian ad litem relies.
¶39 We stand by the observation that we can treat the termination of each parent’s rights separately for the purposes of finality and appealability. But that is not to say that parents cannot be parties to the same case. And A.C.M. says nothing about the applicability of rule 52(c) when the system adjudicates both parents’ rights in the same action and addresses them in the same order.
¶40 The guardian ad litem claims that there was one termination proceeding for Father and a separate one for Mother—and that the juvenile court consolidated these cases without making either parent party to the other’s case. The record before us does not bear that out. A separate case was initiated relating to each child. Mother and Father were parties in both cases. The juvenile court consolidated Chester’s case and Winnie’s case, though each case maintained its own case number. The court did not—indeed, it could not— consolidate the parents’ cases, because those cases did not exist. The court conducted a single trial in which both Mother and Father presented evidence and arguments. That trial resulted in a single order that lists both Mother and Father as parties.
¶41 On these facts, we have no trouble concluding that Mother was “another party” within the meaning of Utah Rule of Appellate Procedure 52(c) and is entitled to the additional five days to file a notice of appeal.[14]
III. WE DECLINE TO ADDRESS MOTHER’S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL
¶42 Mother spends a considerable portion of her brief arguing that her appeal should be considered timely because her counsel was ineffective for filing past the fifteen-day deadline. Mother also argues she was prejudiced by her denial of the right to appeal.
¶43 Mother asked us to grant certiorari review on this issue. We did not. We note for future reference that an order that does not grant certiorari on an issue is a pretty good signal that we do not intend to address the question.[15]
CONCLUSION
¶44 The court of appeals correctly ruled that the time for Mother to file her appeal ran from the entry of the Termination Order and not the subsequent Minutes. The court of appeals erred when it concluded that Utah Rule of Appellate Procedure 52(c) only applied to parties filing a cross-appeal. Mother timely filed her notice of appeal. We reverse and remand to the court of appeals to consider Mother’s appeal.
[2] The Utah Rules of Appellate Procedure provide the fifteen-day timeline in child welfare proceedings. Rule 52(a) states that in this setting, a notice of appeal “must be filed within 15 days of the entry of the order appealed from.” UTAH R. APP. P. 52(a).
[3] As we march through our analysis, we will refer to this document as both the minute entry and the Minutes.
[4] The fifteenth day was Saturday, January 22, 2022. By operation of rule 22(a) of the Utah Rules of Appellate Procedure, which does not require parties to file on Saturdays and Sundays, the time for filing the petition was extended to the following Monday, January 24. See UTAH R. APP. P. 22(a).
[5] Mother questions whether our precedent on the finality of orders applies to child welfare proceedings. It generally does, though our rules and precedent make some distinction between child welfare and non-child welfare cases. For example, rule 58A of the Utah Rules of Civil Procedure requires that “[e]very judgment and amended judgment must be set out in a separate document.” There is no such requirement in child welfare proceedings. See UTAH R. APP. P. 52(a); State ex rel. A.C.M., 2009 UT 30, ¶ 10, 221 P.3d 185. But no rule or precedent alters the conclusion that a belated entry or modification that does not change the substance of a final order does not create a new final and appealable order.
[6] Rule 52(c) of the Utah Rules of Appellate Procedure, titled “Time for cross-appeal,” reads:
If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 5 days after the first notice of appeal was filed, or within the time otherwise prescribed by paragraphs (a) and (b) of this rule, whichever period last expires.
[7] The State—both in its briefs and during oral argument— acknowledges that rule 52(c)’s plain language supports Mother’s argument. We commend the State for its candor.
[8] The guardian ad litem disagrees for reasons we will discuss and dismiss in a page or two.
[9] That is not to say that titles are irrelevant. When “we need help understanding an ambiguous provision, titles are persuasive and can aid in ascertaining the statute’s correct interpretation and application.” Graham v. Albertson’s LLC, 2020 UT 15, ¶ 24, 462 P.3d 367 (cleaned up). We just don’t use titles to create ambiguity. This is because titles are generally shorthand descriptions of what is to follow and can miss some of the complexities of the text to come.
[10] Utah Rule of Appellate Procedure 4 states, in relevant part: “If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed.” UTAH R. APP. P. 4(d). Unlike rule 52(c), it gives “any other party” fourteen days (instead of five) to file an appeal. In addition, rule 4(d) is titled “Additional or cross-appeal” rather than “Time for cross-appeal.” Compare UTAH R. APP. P. 4(d), with UTAH R. APP. P. 52(c).
[11] The federal rule bears the title “Multiple Appeals.” FED. R. APP. P. 4(a)(3).
[12] Other treatises echo this understanding. See, e.g., JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE: CIVIL § 304.11 (2023) (LexisNexis) (“This provision is not restricted, however, to parties named as appellees in the initial appeal.”); 18 BENDER’S FEDERAL PRACTICE FORMS, COMMENT ON APPELLATE RULE 4 (2022) (LexisNexis) (“This provision is not restricted to parties named as appellees in the initial appeal. Any party to the action is entitled to the benefit of the additional 14-day period.”). This is also the way several federal cases have interpreted the rule. See, e.g., N. A,ii. Sav. Ass’n v. Metroplex Dev. P’ship, 931 F.2d 1073, 1077–78 (5th Cir. 1991); Melton v. Frank, 891 F.2d 1054, 1056 n.1 (2d Cir. 1989); Jackson Jordan, Inc. v. Plasser A,ii. Corp., 725 F.2d 1373, 1374–76 (Fed. Cir. 1984).
[13] We encourage the Advisory Committee on the Utah Rules of Appellate Procedure to look at clarifying the title so it better reflects the rule’s language and intent.
[14] 14 There is logic underlying rule 52(c). There may be occasions when a party’s calculus on whether to file an appeal may be impacted by another party’s decision to appeal. Using the facts of this case, for example—and we stress that this is a hypothetical and not a reflection of what we think actually occurred—it is entirely possible that a person in Mother’s position might decide not to appeal the termination of her parental rights if she thinks it will only delay adoption of the children. Mother’s thinking could dramatically change if her co-parent appeals and the possible outcomes include not only adoption, but restoration of Father’s parental rights and not hers. In that case, it makes sense that our rules would give Mother a few additional days to assess the changed landscape and decide whether to appeal.
[15] The guardian ad litem advocates that we task our rules committee with considering a new rule that would “reinstate the time for appeal in child welfare cases where a parent’s right to effective counsel is implicated.” We have previously recognized that a trial court may extend the time for appeal in a proceeding on termination of parental rights if a parent was denied effective assistance of counsel. State ex rel. M.M., 2003 UT 54, ¶¶ 6, 9, 82 P.3d 1104. But this is not the same as a rule that says the court shall reinstate the time for appeal when a parent can show that they have been denied effective representation. We encourage the Advisory Committee on the Utah Rules of Appellate Procedure to explore such a rule, and we thank the guardian ad litem for the excellent suggestion.
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Deborah Jean West appeals from a jury’s determination that she violated a civil stalking injunction, challenging her conviction and the sentencing court’s sentence on several grounds. West asserts that the trial court erred in denying her pretrial motions to exclude certain evidence and to continue the trial. West also argues that her pro se post-trial motions to dismiss were denied in error. Finally, West argues that her constitutional right to be represented by counsel was violated when the court sentenced her without first determining whether her decision to represent herself was made knowingly and intelligently.
¶2 We uphold the trial court’s denial of the motion to exclude evidence and the motion to continue and therefore affirm West’s conviction. However, because the sentencing court did not ensure that West’s waiver of counsel was done knowingly, we vacate West’s sentence and remand for further proceedings. Because of our resolution of those issues, we do not reach the merits of West’s argument regarding her post-trial motions.
BACKGROUND
The Pretrial Motions and Trial
¶3 In May 2019, West was charged with violating a stalking injunction. The stalking injunction included the restriction that West was not to come within twenty feet of C.L. (Petitioner). The charge against West derived from an encounter between Petitioner and West that occurred in their housing community’s clubhouse library. At trial, the State bore the burden to prove that West intentionally or knowingly violated the stalking injunction. See Utah Code § 76-5-106.5(2)(b).
¶4 After being notified by the State that it intended to introduce evidence that West had allegedly violated the injunction on two other occasions after charges were filed, West filed a motion in limine the day before trial to preclude the admission of that evidence. The court addressed this motion on the first day of trial. West argued that the evidence should be excluded because it was improper character evidence, lacked any relevance, and posed a danger of unfair prejudice. The State argued that the evidence of West’s other alleged violations of the injunction should be admitted and presented to the jury to show West’s intent, knowledge, or lack of mistake, which the State argued was relevant to proving the intent element of the charged crime. See Utah R. Evid. 404(b) (stating that evidence of a crime, wrong, or other act is not admissible to prove propensity, but may be admissible to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident”).
¶5 When the trial court indicated its intention to admit the evidence, West’s counsel requested a continuance of the trial, arguing that as the State’s disclosure of the evidence was made only fifteen days before trial, he was precluded from appropriately preparing for the evidence, such as giving potential witnesses the proper notice to appear to testify. West’s counsel further contended that based on the sparse information regarding the State’s evidence, he would not have known whom to subpoena. The trial court ultimately denied the motion to continue, stating, “We have a jury here, a jury panel. I want the case tried,” indicating that it might “revisit the issue again” as the evidence was admitted.
¶6 During trial, the evidence presented showed that Petitioner was present at the clubhouse library, West entered the library, a brief verbal interaction occurred between the two, Petitioner called the police, and West left the library.
¶7 Petitioner testified that when she saw West was about to enter the library, she said, “Please don’t come in now. There is a 20-feet rule. You need to stay away from me 20-feet. . . . Or I’m going to have to call the police.” Despite this warning, West continued to enter the library and responded by saying something to the effect that she did not care and to “go ahead.” She then proceeded to remove her shoes, step onto a couch cushion, and hang a poster advertising a community event. Petitioner then left the clubhouse library in search of another person to witness that West had entered the clubhouse library where Petitioner had been. During Petitioner’s testimony, the State also showed video surveillance of the door to the clubhouse library, showing West walking in and Petitioner walking out shortly afterward. And a police officer testified that following the incident, based upon Petitioner’s report, he measured the approximate distance that would have been between Petitioner and West and concluded that West was easily within the twenty-foot radius prohibited by the stalking injunction.
¶8 The State also presented evidence of the two other interactions between West and Petitioner—both occurring after the library incident for which West was charged and before the trial—where West was alleged to have been closer to Petitioner than the injunction’s twenty-foot restriction. In the first incident, both West and Petitioner attended a community potluck, and West sat at a table within twenty feet of Petitioner. In the second incident, while attending services at their church, Petitioner was in the church foyer and West approached, put her things down near where Petitioner was standing, and then stood within the same area for an extended time.
¶9 West testified at trial and she and her counsel had the following exchange after viewing surveillance video from the clubhouse library:
Counsel: [S]o you saw in the video [Petitioner] walks off away from the library, correct? And then the video shows you walking out some seconds later in the same direction. Is that correct?
West: That is correct.
Counsel: Now did you know where she had gone?
West: No.
Counsel: Okay. So where were you going when you walked out of there?
West: I was going to the kitchen . . . . And then I went from there into the exercise room.
Counsel: So you hung up two more posters after the library. And then did you leave?
West: Yes . . . .
¶10 Following deliberation, the jury found West guilty of violating the stalking injunction.
The Post-trial Motions and Sentencing
¶11 After trial and prior to sentencing, West filed several pro se post-trial motions, claiming in each that she was no longer represented by counsel. West also aired numerous grievances, of which few are relevant here. Pertinent to this appeal, West took issue with the trial court’s admission of the evidence of the other instances of alleged contact between her and Petitioner, and she repeatedly requested that her case be dismissed.
¶12 During a sentencing review hearing in December 2019, the sentencing court[1] asked West if she would “like a new lawyer,” to which West responded in the negative. Without engaging in any colloquy[2] and without questioning West about her understanding of the significance and the risk of proceeding without counsel, the court accepted West’s indication to proceed pro se, ordered West’s trial counsel to withdraw, and allowed West to represent herself.
¶13 At her sentencing hearing approximately sixteen months later—the delay in proceedings due in small part to expected scheduling conflicts and in larger part to the COVID-19 pandemic—the court engaged in no further discussion with West about her decision to waive counsel and represent herself, other than to note that West “put [herself] at a disadvantage . . . having fired [her] lawyer,” which was “pretty clear in the record, and [West] confirmed that . . . at [the sentencing review].” During this hearing, the sentencing court focused on West’s post-trial motions. The sentencing court indicated on the record that West had “framed most of the written materials . . . as motions to dismiss,” and noted that the motions had not “been submitted for decision, which would normally be required under the [Utah] Rules of Criminal Procedure.” However, the court expressed its intention to provide immediate responses to the motions, having told West that the court “would rule on [the] motions” during the sentencing hearing. The court then proceeded to deny the portion of West’s motions to dismiss dealing with the evidence of the other alleged injunction violations admitted at trial.
¶14 Next, the sentencing court addressed the other issues raised in West’s motions, simply concluding that “frankly, . . . the motions that [West had] made [were] legally frivolous.” The court ultimately denied all of West’s motions in totality and then proceeded with sentencing. The court sentenced West to serve 364 days in jail, but it suspended the jail time, and imposed a fine. The court ordered West to serve eighteen months of probation with the conditions that she complete community service, complete an anger management course, and continue to comply with the stalking injunction. West appeals.
ISSUES AND STANDARDS OF REVIEW
¶15 The first issue we address is West’s challenge to the denial of her pretrial motions. She argues that the trial court erred in denying the motion in limine, contending that she was denied the right to a fair trial when the court allowed evidence of additional interactions between West and Petitioner to be admitted. We review for an abuse of discretion a trial court’s decision to admit evidence under rules 404(b), 402, and 403 of the Utah Rules of Evidence. See State v. Tarrats, 2005 UT 50, ¶ 16, 122 P.3d 581 (“Trial courts have wide discretion in determining relevance, probative value, and prejudice. Therefore, we will not reverse the trial court’s ruling on evidentiary issues unless it is manifest that the trial court so abused its discretion that there is a likelihood that injustice resulted.” (quotation simplified)). In the event that the trial court admits evidence in error, “we will not disturb the outcome of a trial if the admission of the evidence did not reasonably affect the likelihood of a different verdict.” State v. Miranda, 2017 UT App 203, ¶ 24, 407 P.3d 1033 (quotation simplified), cert. denied, 417 P.3d 581 (Utah 2018). And West “bears the burden of showing that [she] was harmed by the trial court’s error.” See id. ¶ 44.
¶16 West further asserts that the trial court erred in denying her request to continue the trial after the court determined the other-acts evidence was admissible. We review the court’s denial of a motion for continuance for an abuse of discretion. State v. Cabututan, 861 P.2d 408, 413 (Utah 1993) (“The standard of review for the denial of a motion for continuance is abuse of discretion: It is well-established that the granting of a continuance is discretionary with the trial judge. Absent a clear abuse of that discretion, the decision will not be reversed by this court.” (quotation simplified)). A trial court “abuses its discretion when it denies a continuance and the resulting prejudice affects the substantial rights of the defendant, such that a review of the record persuades the court that without the error there was a reasonable likelihood of a more favorable result for the defendant.” Mackin v. State, 2016 UT 47, ¶ 33, 387 P.3d 986 (quotation simplified).
¶17 Next, we address West’s argument that her constitutional right to be represented by counsel at sentencing was violated because the sentencing court did not adequately explore through an on-the-record colloquy whether her waiver of counsel was knowingly and intelligently made with an understanding of the risks of representing herself. In the absence of a colloquy, we review the record de novo to determine whether the defendant knowingly and intelligently waived her right to counsel. See State v. Pedockie, 2006 UT 28, ¶ 45, 137 P.3d 716 (“De novo review is appropriate because the validity of a waiver does not turn upon whether the trial judge actually conducted the colloquy, but upon whether the defendant understood the consequences of waiver.” (quotation simplified)). “Whether [West’s] waiver was knowing and intelligent involves a mixed question of law and fact which we review for correctness, but with a reasonable measure of discretion given to the [trial] court’s application of the facts to the law.” State v. Bozarth, 2021 UT App 117, ¶ 21, 501 P.3d 116 (quotation simplified).[3]
ANALYSIS
Pretrial Motions
¶18 West first challenges the trial court’s denials of her motion to exclude evidence and motion to continue the trial. We do not reach the merits of West’s argument that the trial court erroneously admitted the other-acts evidence or abused its discretion in denying her continuance motion because even if the trial court erred, West has failed to meet her burden to show that she was prejudiced by either alleged error such that our confidence in the jury’s verdict is undermined. See State v. High, 2012 UT App 180, ¶ 41, 282 P.3d 1046 (“We will not disturb the jury’s verdict unless the likelihood of a different outcome is sufficiently high to undermine confidence in the verdict.” (quotation simplified)). In other words, West has not persuaded us that a “reasonable likelihood exists that the [alleged] error affected the outcome of the proceedings.” State v. Bilek, 2018 UT App 208, ¶ 35, 437 P.3d 544 (quotation simplified), cert. denied, 440 P.3d 693 (Utah 2019). “A reasonable likelihood requires a probability sufficient to undermine confidence in the outcome.” State v. Gallegos, 2020 UT App 162, ¶ 62, 479 P.3d 631 (quotation simplified), cert. denied, 496 P.3d 717 (Utah 2021).
Motion to Exclude Rule 404(b) Evidence
¶19 West contends on appeal that evidence of other uncharged alleged violations of the stalking injunction admitted at trial was “precisely what [rule] 404(b) was intended to bar.”[4] West further argues that had the jury not heard the evidence of these other alleged violations, “there was a reasonable likelihood that West would not have been found guilty of the charge.” Rule 404(b) of the Utah Rules of Evidence provides that other-acts evidence, while prohibited to “prove a person’s character in order to show that on a particular occasion the person acted in conformity with the character,” may be admissible for other purposes, such as “proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Utah R. Evid. 404(b). Such evidence must also pass the muster of rules 402 and 403, which require that evidence be relevant and have probative value that is not substantially outweighed by a danger of unfair prejudice. See id. R. 402, 403.
¶20 However, we need not address the underlying question of whether the trial court erred in admitting the other-acts evidence because, “even if the admission of rule 404(b) evidence by the [trial] court was in error, reversal on appeal is not appropriate unless the defendant demonstrates that the error materially affected the fairness or outcome of the trial.” Bilek, 2018 UT App 208, ¶ 35 (quotation simplified). Thus, the burden rests on West to make such a showing, and she fails to carry her burden here. In arguing that she was prejudiced, West simply asserts that, “[a]bsent the 404(b) evidence, there was a reasonable likelihood that West would not have been found guilty of the charge herein.” But she does not then provide much discussion as to how the outcome of the trial would have differed absent the admitted other-acts evidence, other than to essentially conclude that because it was, therefore it is so. That is, West has failed to demonstrate how excluding evidence that she was close to Petitioner at church and at a potluck, after the events in the clubhouse library, would have changed the jury’s determination that West knowingly and intentionally came within twenty feet of Petitioner while in the clubhouse library in violation of the injunction.
¶21 To be sure, the evidence of the other acts was most likely helpful to the State in proving its case. Absent the evidence, the State would have had to rely solely on Petitioner’s credibility in the eyes of the jury and her testimony of what occurred between West and her to support its case that West had knowingly and intentionally violated the stalking injunction. See Utah Code § 76-5-106.5(2)(b). But even without the other-acts evidence, evidence and testimony presented to the jury during trial sufficiently supports our confidence in the jury’s verdict. See State v. Ferguson, 2011 UT App 77, ¶ 20, 250 P.3d 89 (acknowledging that while erroneously admitted evidence had “the potential of being highly prejudicial, the other evidence presented at trial was sufficiently strong as to convince us that there was no reasonable likelihood of a different result” (quotation simplified)), cert. denied, 262 P.3d 1187 (Utah 2011); High, 2012 UT App 180, ¶¶ 50– 51, 54 (noting that while the case was not like Ferguson, “where the evidence of guilt was overwhelming” in the absence of evidence allegedly admitted in error, the court’s “confidence in the jury’s verdict” was not undermined as “the jury would still have heard unchallenged and properly admitted” evidence supporting the defendant’s guilt).
¶22 For example, here the jury heard generally unchallenged testimony from Petitioner about the nature of her encounter with West: that she told West to stop and not enter until she was finished or she would have to call the police, and that West ignored her entreaty and threat and carried on with her business in the clubhouse library. The jury then heard West testify as to her actions following the encounter with Petitioner. Even by her own account, West did not immediately leave after the incident, but instead made her way through the clubhouse facilities without much concern about whether Petitioner was still in the area or not. The jury was also aware, by nature of the charge against West, that a stalking injunction was in place, and it could have reasonably inferred that West had a history of unwanted interactions with Petitioner that would warrant the imposition of the stalking injunction, and that the reported clubhouse library incident was not just a solitary incident. And West has not argued how all of this, standing alone and absent the added gloss of the rule 404(b) evidence, would have induced the jury to find in her favor instead.
¶23 Accordingly, we are not persuaded that exclusion of the other two alleged incidents would so tilt the jury’s view of West’s credibility as to change its verdict. In other words, West has failed to persuade us that even without the admission of the other alleged violations of the stalking injunction, the result of the trial would have been favorable for her.
Motion to Continue
¶24 West also contends the court’s denial of her motion to continue to address the other violations evidence “deprived [her] of her right to a fair trial.” A defendant bears the burden of showing that the trial court’s denial of the motion to continue was “an unreasonable action that prejudiced the party.” State v. Cornejo, 2006 UT App 215, ¶ 14, 138 P.3d 97 (quotation simplified). “Such prejudice exists when our review of the record persuades us that had the trial court not denied the continuance request there would have been a reasonable likelihood of a more favorable result for the moving party.” Id. (quotation simplified). West again fails to persuade us that the denial of the continuance was prejudicial.
¶25 West has not outlined on appeal how her defense strategy would have changed had she been given more time to prepare. And though she indicates in her brief and told the sentencing court judge that she had witnesses to one of the incidents, she has neither provided even the slightest information on who those witnesses may be nor provided an explanation as to whether they would have been available to testify within an appropriate time frame. Moreover, West does not flesh out on appeal why the State’s information was so lacking that she could not subpoena witnesses prior to trial. See id. ¶ 15 (“When a party to a criminal action moves for a continuance in order to procure the testimony of an absent witness, the party must demonstrate that: (1) the testimony sought is material and admissible, (2) the witness could actually be produced, (3) the witness could be produced within a reasonable time, and (4) due diligence had been exercised before the request for a continuance.” (quotation simplified) (quoting State v. Creviston, 646 P.2d 750, 752 (Utah 1982))). West contends only that once the trial court allowed the other-acts evidence to be introduced, “had the continuance been afforded as it should have been, counsel would have had time to gather evidence, find witnesses, and raise a defense against that other evidence.” This simply is not a sufficient showing on appeal to persuade us that the denial of her motion to continue affected the outcome of the trial. Therefore, her claim fails here as well.
Knowing and Intelligent Waiver
¶26 The next question before us is whether West knowingly and intelligently waived her right to be represented by counsel at sentencing. West argues that because there was no colloquy on the record that would inform this court that her waiver was knowingly and intelligently made, her waiver was invalid. The State disagrees and argues that even in the absence of a colloquy conducted by the sentencing court, the record shows that West knowingly and intelligently waived her right to counsel because she “was given a front row seat to the intricacies of navigating a criminal case” as she did not excuse her counsel until after the trial.
¶27 “Under both the United States and Utah Constitutions, a criminal defendant has the right to assistance of counsel,” State v. Hall, 2013 UT App 4, ¶ 25, 294 P.3d 632, cert. denied, 308 P.3d 536 (Utah 2013), which includes the right to effective counsel for sentencing proceedings, see State v. Casarez, 656 P.2d 1005, 1007 (Utah 1982) (“Sentencing is a critical stage of a criminal proceeding at which a defendant is entitled to the effective assistance of counsel.”). “Concomitant with that right is the criminal defendant’s guaranteed right to elect to present [one’s] own defense.” State v. Hassan, 2004 UT 99, ¶ 21, 108 P.3d 695; see also State v. Pedockie, 2006 UT 28, ¶ 26, 137 P.3d 716 (“Defendants also have the right to waive their right to counsel.”). Because the right to counsel and the right to waive counsel are mutually exclusive, “a trial court must be vigilant to assure that the choice [to waive counsel] is freely and expressly made ‘with eyes open.’” State v. Bakalov, 1999 UT 45, ¶ 15, 979 P.2d 799 (quoting Faretta v. California, 422 U.S. 806, 835 (1975)). “Before permitting a defendant to [self-represent], . . . a trial court should ensure that the waiver [of counsel] is voluntary, knowing, and intelligent.” Pedockie, 2006 UT 28, ¶ 26.
¶28 A defendant may employ any of three different methods to validly waive a right to counsel: “true waiver, implied waiver, and forfeiture.” State v. Smith, 2018 UT App 28, ¶ 17, 414 P.3d 1092.
¶29 At issue here is true waiver: “A true waiver is one in which the defendant affirmatively represents that [she] wishes to proceed without counsel.” Id. ¶ 18. To be a valid true waiver, a defendant must “clearly and unequivocally” communicate to the court the wish “to proceed pro se.” Id. (quotation simplified); see also State v. Bozarth, 2021 UT App 117, ¶ 34, 501 P.3d 116 (“True waiver occurs when a defendant directly communicates a desire to proceed pro se.”). “Where a defendant expressly declines an offer of counsel by the trial judge” but later challenges the validity of that waiver, “[she] has the burden of showing by a preponderance of the evidence that [she] did not knowingly and intelligently waive this right.” Bozarth, 2021 UT App 117, ¶ 39 (quotation simplified).[5]
¶30 There is no question in this case that West clearly and unequivocally communicated to the court her desire to represent herself at sentencing. In her written motions, and then at the sentencing hearing when the court asked if she wanted a new lawyer, West plainly expressed her wish to proceed on her own without the assistance of counsel. But waiver alone is not enough to verify that West understood the significant right being waived and how her waiver might be applied in the real-world setting of sentencing. So, we must next address whether West’s waiver was knowingly and intelligently made. See id. ¶ 34 (“To be a valid true waiver, the defendant must (1) clearly and unequivocally request self-representation and (2) act knowingly and intelligently, being aware of the dangers inherent in self-representation.” (quotation simplified) (emphasis added)).
¶31 For a waiver to be knowingly and intelligently made, a defendant must understand “the relative advantages and disadvantages of self-representation in a particular situation.” State v. Frampton, 737 P.2d 183, 188 (Utah 1987) (quotation simplified). In other words, a court must be satisfied that a defendant has “actual awareness of the risks of proceeding pro se under the particular facts and circumstances at hand.” Smith, 2018 UT App 28, ¶ 19 (quotation simplified). The best way to ascertain if a defendant has the requisite knowledge of the legal mire she wishes to wade into is for a court to engage in “penetrating questioning,” Frampton, 737 P.2d at 187, on the record, see Smith, 2018 UT App 28, ¶ 19. Such questioning is the “encouraged” practice for courts, utilizing Frampton’s “sixteen-point guide” as a framework to ensure a defendant is making the decision to proceed pro se knowingly and intelligently. See id.; see also Pedockie, 2006 UT 28, ¶ 42 (“The sixteen-point colloquy found in State v. Frampton establishes a sound framework for efficient and complete questioning.”); cf. State v. Patton, 2023 UT App 33, ¶ 14 n.5 (“We encourage trial courts to keep a prepared Frampton waiver-of-counsel colloquy script at the ready on the bench, for use when the occasion arises.”).
¶32 Absent a colloquy, it is still possible for a reviewing court to find that a defendant’s waiver was validly made after examining “any evidence in the record which shows a defendant’s actual awareness of the risks of proceeding pro se” at the time the defendant communicated the wish to self-represent. Frampton, 737 P.2d at 188. Therefore, we must conduct a “de novo review of the record to analyze the particular facts and circumstances surrounding the case” to establish “whether the defendant understood the consequences of waiver.” See Bozarth, 2021 UT App 117, ¶ 41 (quotation simplified). However, more than once and quite recently, Utah’s appellate courts have noted that such a conclusion is rare. See id. (“It is possible—although perhaps rare—for a defendant to knowingly and intelligently waive the right to counsel without a Frampton colloquy.” (citation omitted)); Pedockie, 2006 UT 28, ¶ 45 (“We therefore anticipate that reviewing courts will rarely find a valid waiver of the right to counsel absent a colloquy.”).[6]
¶33 Given the rarity, we look to Frampton and Bozarth for instruction, both of which demonstrate when the record may support a conclusion that a defendant did knowingly and intelligently waive the right to counsel in the absence of an adequate colloquy. See Frampton, 737 P.2d at 188–89; Bozarth, 2021 UT App 117, ¶¶ 42–48.
¶34 In Frampton, the defendant was represented by counsel at a trial that resulted in a hung jury. 737 P.2d at 186. The defendant then opted to represent himself at a second trial that resulted in a mistrial. Id. A third trial was scheduled, and prior to the third trial, the defendant filed eighteen of his own motions, two of which “asserted his right to assistance of counsel,” but he “insisted on being represented by a non-member of the Bar,” which option is not constitutionally protected. Id. at 189. On the day of the third trial, the defendant indicated that he wished to represent himself, and the court acknowledged the defendant’s right to self-representation and indicated that “[the defendant] would be accorded every courtesy along that line.” Id. at 186 (quotation simplified). The court then appointed standby counsel, over the defendant’s objections, but the defendant “refused to receive any help from the appointed counsel.” Id. at 186, 189. On appeal, the Utah Supreme Court concluded that the defendant had “knowingly and intelligently waived the right to representation by counsel” for several reasons. Id. at 188–89. First, the record clearly indicated that the “value of counsel should have been apparent to defendant” because while represented, his trial ended in a hung jury. Id. at 189. Furthermore, the court noted that the record showed several instances that, taken together, supported a conclusion that the defendant was sufficiently versed in legal procedures and proceedings: (1) he had filed eighteen of his own motions, (2) he had explained to jurors “the statute under which he was charged,” (3) he had been informed of the charge he faced and the possible penalty for a guilty verdict, and (4) he had been “accorded . . . every courtesy” by the court when it “explain[ed] applicable procedure and [gave] defendant extremely wide latitude in conducting his defense.” Id.
¶35 Likewise, in Bozarth, this court reached a similar conclusion regarding the question of whether a waiver was knowingly and intelligently made for a similar reason: the record showed as much. 2021 UT App 117, ¶ 44. In Bozarth, the defendant initially requested counsel but reserved his right to self-representation in the event that he wanted to “retake the helm” at a later time. Id. (quotation simplified). Additionally, prior to the defendant undertaking his own representation, the trial court had instructed and the defendant was aware of the importance of having counsel, and the defendant specifically requested that standby counsel be provided to “assist” only. Id. The defendant had even demonstrated knowledge about court procedures: he invoked the exclusionary rule at an evidentiary hearing and negotiated a plea deal that included his reservation of the right to appeal all prior objections, including “ineffective assistance of counsel.” Id. ¶¶ 14, 18. Lastly, the defendant had been informed of the charges against him and the potential penalties of a conviction on his charges. Id. ¶ 44. The Bozarth court then concluded that, with all these things taken together, the defendant had failed to meet his burden of proving that he “did not knowingly and intelligently waive his right to counsel.” Id.
¶36 But West’s case went differently. Here, unlike the defendants in both Frampton and Bozarth, there is no indication in the record that West had been informed by her counsel or by the sentencing court of the risks she faced by proceeding alone, nor was it clear that she understood the associated value of having the assistance of counsel during her sentencing or that she understood the law or the procedural requirements of a sentencing hearing. When West elected to proceed pro se, the sentencing court simply mentioned on the record that by doing so, she may have put herself at a disadvantage, with no other discussion or explanation as to why West’s decision would have done so. Again, this is in direct contrast to the facts of both Frampton and Bozarth, where those judges not only advised the defendants of the risks of proceeding pro se, but also encouraged or insisted on appointing standby counsel in the event assistance was needed.
¶37 Furthermore, while it is true that West filed several pro se motions prior to sentencing, which action on its face could indicate an awareness of court procedures like in Frampton, the content of West’s filings should have suggested to the sentencing court that she did not understand that attorneys and litigants are expected to conduct themselves with decorum and professionalism every time they enter the courtroom or file a pleading. The sentencing court even commented on the disparaging content of West’s motions: “If you were a lawyer, you would, in all likelihood, if you said those kinds of things to a judge, and wrote the kinds of things that you did, there’s a significant possibility that you would have sanctions issued against you.” But even with these indications that West perhaps did not grasp the implications of proceeding without counsel, the sentencing court’s investigation of West’s knowledge of the risks of self-representation stopped there.[7]
¶38 The State defends West’s waiver as knowing and intelligent because West “was given a front row seat” to observe her trial counsel at trial and argues that this knowledge was sufficient to establish that West knew the “intricacies of navigating a criminal case.” We disagree with this reasoning. Merely observing court proceedings does not provide an untrained pro se defendant with the awareness or knowledge of the risks of appearing for sentencing without representation. Few lay people, even after observing a trial from start to finish, would then be able to understand “the various matters germane to a sentencing proceeding,” such as the ability to argue mitigating circumstances and evidence to influence sentencing. See State v. Smith, 2018 UT App 28, ¶ 26, 414 P.3d 1092. For instance, a sentencing may involve discussion of the actions that a defendant may take following a guilty verdict, the financial ability that a defendant has to pay a fine or pay for a remedial course, appropriate lengths of jail time or suspended jail time, and previous criminal history. Without prior exposure to a sentencing for a charge of violating a stalking injunction, it is not persuasive to argue that West would understand the differences between a trial and a sentencing proceeding and the risks she assumed by continuing without the assistance of counsel to aid her in arguing, for instance, against the imposition of an anger management class or for a reduced fine or suspended jail time. We therefore strongly disagree that West’s “observations” of her attorney in action in court proceedings resulted in something that resembled the legal acuity or understanding of court proceedings that the defendants in Frampton and Bozarth exhibited.
¶39 Accordingly, we conclude that West has met her burden to show that her waiver of counsel prior to sentencing, though express, was not knowingly and intelligently made. The sentencing court should have conducted further inquiry into West’s awareness, or lack thereof, of the risks of self-representation before allowing her to be sentenced without the assistance of counsel. Therefore, we vacate West’s sentence and remand for resentencing.[8]
CONCLUSION
¶40 We are not convinced by West’s argument that the trial court abused its discretion in denying the pretrial motions, because West has not met her burden to show that if the other-acts evidence had been excluded or her motion to continue had been granted the outcome of her trial would have been different. We therefore affirm West’s conviction. However, we are persuaded that West did not knowingly and intelligently waive her right to be represented by counsel at her sentencing. We therefore vacate West’s sentence and remand for the limited purpose of resentencing.
[1] The judge who presided over West’s trial and ruled on the pretrial motions was not the same judge who presided over West’s sentencing hearings and denied West’s pro se post-trial motions.
[2] The entire exchange between the sentencing court and West consisted of the following:
Sentencing Court: [Trial counsel] was appointed to represent you previously?
West: He was.
Sentencing Court: Would you like a new lawyer?
West: No. I will represent myself. I can do better representing myself.
Sentencing Court: Okay. So [trial counsel] is allowed to withdraw from the cases. And Ms. West will represent herself.
[3] West also argues on appeal that the sentencing court erred in interpreting West’s pro se post-trial motions as motions to dismiss instead of considering them as motions for a new trial and denying those motions. However, given our determination that West did not knowingly and intelligently waive her constitutional right to counsel at sentencing, which requires vacating the sentence and remanding for further proceedings, we need not reach West’s final argument here. Remand for re-sentencing will allow West to refile her motions for consideration, with the assistance of counsel if she so chooses.
[4] West highlights in her brief the fact that these events occurred after the incident for which she is charged but does not further expound on any potential significance of this. Even so, we reiterate that timing of other acts in relation to the incident for which a defendant is charged is not a precluding factor to the admission of evidence of those acts: “Rule 404(b) itself . . . makes no reference to ‘prior’ crimes, wrongs, or acts, but refers only to ‘other’ crimes, wrongs, or acts.” State v. Barney, 2018 UT App 159, ¶ 16 n.2, 436 P.3d 231. “Many courts have recognized that other crimes, wrongs, or acts can be relevant, even if those acts occurred after the charged conduct.” Id. (collecting cases).
[5] This court has recently noted the dissonance between the language in State v. Frampton, 737 P.2d 183, 187 (Utah 1987)—that a defendant who expressly declines a trial court’s offer of counsel then bears the burden to show “by a preponderance of the evidence that [she] did not so waive this right”—and the language in State v. Pedockie, 2006 UT 28, ¶ 45, 137 P.3d 716—that because of the “strong presumption against waiver and the fundamental nature of the right to counsel, any doubts must be resolved in favor of the defendant.” See State v. Patton, 2023 UT App 33, ¶ 22 n.6. We again take the liberty to suggest that the “better, and far clearer, rule would be that where a trial court fails to employ a Frampton colloquy, the presumption is that waiver did not occur and the burden would be placed on the State to prove otherwise. We hope that our supreme court would look favorably on such an articulation.” Id.
[6] Echoing previous decisions addressing this issue, “we continue to strongly recommend a colloquy on the record as the preferred method of determining whether a defendant is aware of [the] risks.” Pedockie, 2006 UT 28, ¶ 42. While we are cognizant that the “colloquy is not mandatory,” State v. Bozarth, 2021 UT App 117, ¶ 41, 501 P.3d 116, it is nevertheless “the most efficient means by which appeals may be limited,” Frampton, 737 P.2d at 187. We encourage courts to engage in a full colloquy to ensure that criminal defendants are conscious of the challenges that come with self-representation.
[7] Of further note, the April 2021 sentencing hearing occurred sixteen months after the sentencing review hearing at which West verbally asserted her desire to self-represent at sentencing. Sixteen months is a long time—with a pandemic in the middle, no less—and it would have been helpful to revisit West’s intention of being sentenced without an attorney.
[8] During oral argument, there was discussion about whether what occurred at West’s sentencing would be subject to “harmless error” review. However, the State acknowledged that it did not brief this argument. Therefore, “we do not address [the argument] on its merits.” See State v. Smith, 2018 UT App 28, ¶ 27 n.2, 414 P.3d 1092.
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.
MORTENSEN, Judge:
¶1 Jackson Deem used social media to send several messages to Ellie Anderson, his teenaged schoolmate. Anderson requested a civil stalking injunction, and the district court issued a temporary order. Deem requested a hearing, at which the court revoked the injunction and dismissed the case. The court considered each incident separately as to its emotional or fear-inducing effect to reach a conclusion that Deem had not engaged in a course of conduct as required by the civil stalking statute. In addition, the court justified its decision by referring to Deem’s autism and to the potential availability of a no-contact order in an unadjudicated criminal case. Anderson appeals, claiming that the district court applied the wrong standard in its evaluation of the issues. We agree, reverse the revocation and dismissal of the petition (thereby reinstating the injunction), and remand this matter to the district court so that it may apply the correct standard.
BACKGROUND[1]
¶2 Deem and Anderson were schoolmates, having intermittently attended elementary through high school together. As it is material in this case, we note that Deem was diagnosed with autism when he was around nine or ten years old.
¶3 The troubles underlying the present case stem from an incident in August 2018 when Anderson and Deem were starting tenth grade. Deem posted a message on Instagram stating that he was considering suicide. Seeing this message, Anderson called 911 to request a welfare check on Deem. Shortly after this, Deem posted that he was upset that someone had made the call. Notably, the record does not state that Deem ever said he knew who made the call, and Anderson testified that she was “not sure if he realized” that it was her.
¶4 After this incident, Anderson alleged that Deem sent her a series of unwelcome communications over a period of about three years.
The Incidents of Alleged Stalking
¶5 First Incident: Allegedly—there is no evidence of this event apart from Anderson’s testimony—Deem posted a “hit list” on Instagram about a week after he posted the message alluding to suicide. According to Anderson, this message “stated that [Deem] wanted to shoot up the school and . . . listed people [he] was going to be targeting,” and she and her friend “were on there.” Anderson asserted that she provided a screenshot of the message to her principal but did not otherwise save it or report it. Deem categorically denied posting such a list.
¶6 Second Incident: In July 2019, on the occasion of Anderson’s sixteenth birthday, Deem posted a message to her Facebook page expressing the sentiment, “die, bitch.” After this post, Anderson attempted to block Deem from contacting her on social media.
¶7 Third Incident: In May 2021, Deem, using a different account, sent Anderson a series of Instagram messages. Anderson testified that the first message was an apology stating that Deem “didn’t think” Anderson was “going to take all of [his] threats seriously.” This message was deleted and does not appear in the record; it was followed by four messages, which do appear in the record, from Deem over a period of about three hours.
¶8 In the first of these messages, Deem wrote,
I don’t know if you saw my apology from before, but I take it back. I wish nothing but the absolute worst for you in life. You being angry at what I said is one thing, but telling other people and blackballing me is another entirely. Why even care about what I said? No one values my opinion. I can scream at people how much I hate them all I want, but it doesn’t erase the fundamental power imbalance. You and all the other people who’ve mistreated me over the years have destroyed my mental health irreparably. And the worst part is that no one cares or even acknowledges how they’ve hurt me. There’s no reason why anyone should remember me because they have great lives today. But I don’t have that luxury of not caring about the past because I have no future. Now there’s not a single person from those schools who doesn’t hate me, so those memories are tainted now.
In the next message, apparently sent immediately afterward, Deem stated,
Unlike you, I acknowledge that I’m a terrible person. But you go about it in a different way. All those times you were nice to me were purely self-serving.
¶9 About two hours later, Anderson messaged Deem, “[P]lease stop harassing me or I will be going to the police.” About an hour later, Deem expressed his discontent with her response by sending two messages of his own. The first read, “I’ll be waiting for you in hell.” And the second was the capitalized epithet “FUCK YOU”—followed by 529 exclamation points.
The Injunction and Dismissal
¶10 After receiving the May 2021 messages, Anderson requested a civil stalking injunction against Deem, citing the three incidents described above and one other incident.[2] See Utah Code § 78B-7-701(1)(a)(i) (“[A]n individual who believes that the individual is the victim of stalking may file a verified written petition for a civil stalking injunction against the alleged stalker with the district court in the district in which the individual or respondent resides, is temporarily domiciled, or in which any of the events occurred.”). The district court granted that request and issued a temporary stalking injunction, ordering Deem to have no contact with Anderson and to stay away from Anderson’s home, work, and school. See id. § 78B-7-701(3)(a). Deem requested a hearing on the temporary stalking injunction. See id. § 78B-7701(4)(a) (“[T]he respondent is entitled to request, in writing, an evidentiary hearing on the civil stalking injunction.”).[3]
¶11 At the hearing, Anderson, Deem, and Deem’s mother (Mother) testified. Anderson testified about the incidents described above, namely the suicide threat and the three incidents. Apart from the hit list, Anderson had screenshots of the communications that she referred to in her testimony. She also testified that she last saw Deem in person during their sophomore year of high school, sometime in 2018.
from Deem’s account. The court agreed with Deem, noting that the connection with Deem was tenuous and that the message was directed to a third party without reference to Anderson. Anderson does not challenge the exclusion on appeal.
¶12 Deem testified that he had not posted a hit list. He also testified that he never intended to cause Anderson fear or emotional distress. Rather, he said he “lashed out” on social media and had no intent to follow up, noting that Anderson was “just . . . the first person who came to mind as someone [he would] like to say those things to.” Deem also testified that he was homebound, did not drive or have a license, and never left his house without his parents. And he stated that he understood that he could not have any contact with Anderson and that he “did potentially cause [Anderson] emotional distress.” Finally, he testified that he did not know where Anderson lived.
¶13 Mother testified that she did not recall being informed by the school that Deem sent a hit list or threatened to shoot up the school in 2018. She testified that apart from an incident in fourth grade, she did not know Deem to be physically violent. However, she testified that Deem does “lash out with his words” from “behind a computer screen.” And concerning his mobility, she testified that Deem does not drive or leave the house without her or his father.
¶14 After hearing the evidence, the district court concluded that Anderson had “failed to meet the standard [of] by a preponderance of the evidence for a continuation of the injunction.” See id. § 78B-7-701(5) (“At the hearing, the court may modify, revoke, or continue the injunction. . . . [T]he burden is on the petitioner to show by a preponderance of the evidence that stalking of the petitioner by the respondent has occurred.”).
¶15 In arriving at its decision, the court considered the three incidents to determine if there was a course of conduct under the stalking statute: “An actor commits stalking if the actor intentionally or knowingly . . . engages in a course of conduct directed at a specific individual and knows or should know that the course of conduct would cause a reasonable person: (i) to fear for the individual’s own safety or the safety of a third individual; or (ii) to suffer other emotional distress . . . .” Id. § 76-5-106.5(2)(a).
¶16 Regarding the first incident, the court determined that it was “disputed and there was no independent evidence provided that the list was created or that . . . Anderson’s name was on it.” Concerning the second incident, the court stated that it “certainly” consisted of “conduct that could qualify under the statute as something that would create emotional distress.” And about the third incident, the court noted that it “contain[ed] two potentially concerning language references.” The first was the profane expression of “FUCK YOU,” but the court observed that this phrase is “so ubiquitous in our culture” as to have “no significance at all” or to be in “any way threatening.” The court stated, “[I]t’s not a term that causes emotional distress. It’s replete in our culture, in our language, in our entertainment.” Accordingly, the court found “that saying that to someone alone is not a basis to support the petition” for a stalking injunction. The court reasoned that the other phrase—“I’ll be waiting for you in hell”—“conveys that both parties have engaged in a pattern that makes them worthy of being relegated to hell” and that it was “not threatening on its face.”
¶17 The court reasoned that because “two of those events [did not] meet the standard for potentially satisfying the requirements of the statute,” it was left “with one [incident] that occur[red] over the period of three years,” which failed “to meet the course of conduct requirement of the statute.” See id. § 76-5-106.5(1)(a)(i) (defining course of conduct as “two or more acts directed at or toward a specific individual, including . . . acts in which the actor . . . communicates to or about an individual”).
¶18 The court acknowledged that Deem’s communications had a “significant impact” on Anderson. But when viewing the communications “independently” and “objectively,” and “weighing [the evidence] against the statutory requirement,” the court concluded “that there [was not] a further basis to enjoin . . . Deem’s behavior.” The court clarified that while Deem “communicated to or about” Anderson, he did not do so “in a way that invokes the necessity to enjoin him in the future,” noting that there was not “a course of conduct at issue here given the time frame [and] given the specific language that was used.”
¶19 The court then made two additional observations to justify
not extending the injunction. First, it delved into the impact of Deem’s autism:
And furthermore, I think that all this has to be taken in terms of whether or not he knowingly and intentionally[[4]] engaged in the course of conduct and whether or not he knew or should have known that a reasonable person would be in fear[.] [T]hat has to be viewed in light of . . . Deem’s special circumstances. If he didn’t have the diagnosis and the things that he does have, we might attribute more mens rea to him[,] and I think that somebody receiving communications from him in terms of how threatening they are or whether they would put someone in fear [or] apprehension, has to be viewed in the context of his condition, of the fact that he has no history of violence, that he’s not mobile. All those things relate to the reasonableness with which somebody would view this language.
¶20 Second, the court considered the impact of a criminal case—presumably related to the third incident. The court noted that Deem indicated that he would be “stipulating” to “a criminal no contact order . . . in that case.” The court observed that this potential no-contact order would provide Anderson “with the protection that she’ll need, if that protection is needed, which is, you know, not certain in this [c]ourt’s mind.”
¶21 With that, the district court ordered the stalking injunction dismissed. Anderson appeals.
ISSUE AND STANDARDS OF REVIEW
¶22 The issue on appeal is whether the district court “erred in its construction and application of the Utah stalking statutes” when it declined to continue the temporary stalking injunction. A court’s “interpretation and application of the relevant statutory provisions” regarding continuing a stalking injunction “is a question of law which we review for correctness, affording no deference to the district court’s legal conclusions.” Ellison v. Stam, 2006 UT App 150, ¶ 16, 136 P.3d 1242 (cleaned up). Although the question of whether the course of conduct would “cause a reasonable person [in a petitioner’s circumstances] to suffer fear or emotional distress” is “a question of fact that we review for clear error, we review the district court’s interpretation of the underlying legal standard for correctness.” See Ragsdale v. Fishler, 2021 UT 29, ¶ 16, 491 P.3d 835.[5]
ANALYSIS
¶23 Those who believe they are victims of stalking may file a petition for a civil stalking injunction against the alleged stalker with the district court. See Utah Code § 78B-7-701(1)(a)(i). If the court determines there is reason to believe that there has been an offense[6] of stalking, it may issue a civil stalking injunction restraining the alleged stalker from, among other actions, going near the other party or having contact with the other party. Id. § 78B-7-701(3)(a).
¶24 Our supreme court summarizes stalking as follows:
The crime of stalking consists of two elements. First, a person must intentionally or knowingly engage in a course of conduct directed at a specific person. Second, that person must know or should know that the course of conduct would cause a reasonable person to fear for the person’s own safety or suffer other emotional distress. A district court may enjoin an alleged stalker only if both elements are met.
Ragsdale v. Fishler, 2021 UT 29, ¶ 25, 491 P.3d 835 (cleaned up); see also Utah Code § 76-5-106.5(2)(a). Here, the district court’s approach suffered from two primary infirmities that we will address in turn. First, the district court erroneously considered incidents to be potentially part of a course of conduct only if each discrete incident was capable of causing fear or emotional distress. Second, and relatedly, the district court considered each incident in isolation as to whether fear or emotional distress might be engendered. In both regards, this approach is at odds with the applicable statute and precedent.
Course of Conduct Analysis
¶25 Here, there is no dispute as to the first element. Deem intentionally or knowingly communicated with Anderson in the second and third incidents.[7] Indeed, Deem “concedes that there was a course of conduct here, as defined by the statute.” But for the sake of clarity and as this matter is being remanded for further consideration, we note that a course of conduct does not necessarily involve threatening behavior—as it appears the district court seemed to require in its approach to this case. Rather, a course of conduct merely requires “two or more acts directed at or toward a specific individual.” See Utah Code § 76-5-106.5(1)(a)(i). These acts might well be threatening, but they don’t have to be. Instead, they can include “acts in which the actor . . . communicates to or about an individual,” directly or indirectly and by any means. See id. § 76-5-106.5(1)(a)(i)(A).
¶26 As our supreme court has made clear, establishing a course of conduct is the first step in the stalking analysis. See Ragsdale v. Fishler, 2021 UT 29, ¶ 25, 491 P.3d 835. This step should not be conflated or combined with the second part of the analysis, which involves a determination as to whether the course of conduct would cause a reasonable person fear or emotional distress. See id. Here, the district court’s analysis on this point lagged a bit in clarity. The court said that because two of the three alleged incidents were not capable of inducing fear or emotional distress in the court’s view, they did not “meet the standard for potentially satisfying the requirements of the statute, . . . leav[ing] us with one [incident] that occur[ed] over the period of three years[,] which also fails to meet the course of conduct requirement of the statute.” Insofar as the district court was saying that while Deem committed two more acts that would have satisfied the course of conduct requirement had those acts been threatening in nature, the district court erred in its interpretation of the statute. For the purpose of showing a course of conduct, the Ragsdale court clearly explained, “[I]f a respondent follows, threatens, or communicates to a petitioner only once, he or she has not engaged in a course of conduct. But if a respondent follows, threatens, or communicates to the petitioner on two or more occasions, he or she engages in a course of conduct directed at the petitioner.” Id. ¶ 31 (emphasis added).[8] Deem’s communications in the second and third incidents easily fit the bill required by the first element of the statute. Deem acknowledged that he intentionally or knowingly communicated on multiple occasions with Anderson. That’s likely why Deem concedes that the course of conduct occurred.
But the district court’s consideration of whether fear or emotional distress was associated with each communication was an erroneous distraction in this part of the statutory analysis.
Emotional Distress and Fear for Safety Analysis
¶27 Regarding the second element, the district court determined that only one communication—the second incident— would cause “a reasonable person to fear for the person’s own safety or suffer other emotional distress.” See Ragsdale v. Fishler, 2021 UT 29, ¶ 25, 491 P.3d 835 (cleaned up). In so concluding, the district court considered each communication in isolation. This was error.
¶28 The court declined to consider the alleged communication associated with the first incident because (1) the incident was disputed and (2) Anderson did not provide evidence, apart from her sworn testimony, to corroborate the claim that the hit list was created or that her name was on it. And the court concluded that the third incident was not threatening or emotionally distressful. Given that this effectively left only one incident to constitute the course of conduct in the court’s view, the district court concluded that Anderson had not shown by a preponderance of the evidence that Deem had stalked her so as to satisfy the conditions for continuing the injunction. See Utah Code § 78B-7-701(5). However, precedent holds that a district court should consider the course of conduct cumulatively. This the district court failed to do. While the district court was free to ignore the first incident because the court ruled it had not been proved to have occurred, the court erroneously failed to consider the remaining acts in the course of conduct collectively.
¶29 To qualify for a stalking injunction, “a petitioner must meet an objective—not subjective—standard.” Baird v. Baird, 2014 UT 8, ¶ 24, 322 P.3d 728. Under this “solely objective standard, the subjective effect of the respondent’s conduct on the petitioner is irrelevant. Rather, the petitioner must establish only that the respondent’s conduct would cause emotional distress to a reasonable person in the petitioner’s circumstances.” Id. ¶ 25. But by “including ‘in the victim’s circumstances’ as part of the ‘reasonable person’ definition,” the statute “provides for an individualized objective standard,” meaning that “a court must consider the entire context surrounding [the] defendant’s conduct.” Id. ¶ 26; see also State v. Miller, 2023 UT 3, ¶¶ 82, 91 (reciting the same standard); Utah Code § 76-5-106.5(1)(a)(v) (defining a reasonable person as “a reasonable person in the victim’s circumstances”). [9] Thus, “acts that seem perfectly innocent or even well intentioned may constitute stalking. For example, conduct such as sending the victim a dozen roses may seem benign and loving to the casual observer, but could mean a very different thing when understood in the context of the victim’s experience.” Baird, 2014 UT 8, ¶ 26 (cleaned up). “Courts applying this individualized objective standard have considered such factors as the victim’s background, the victim’s knowledge of and relationship with the defendant, any history of abuse between the parties, . . . and the cumulative effect of defendant’s repetitive conduct.” Id. ¶ 27 (cleaned up) (emphasis added); see also Miller, 2023 UT 3, ¶¶ 83–86 (noting that the factors listed in Baird are not exhaustive of the behaviors “that could, in certain circumstances, cause a victim emotional distress”).[10]
¶30 Here, the district court’s analysis was legally flawed because it approached the matter using an insular rather than a holistic framework to arrive at its conclusion that Deem’s course of conduct was not of such a type as to cause fear or emotional distress to a reasonable person. In other words, the court erred by looking at the individual acts that created the course of conduct rather than the course of conduct and other relevant incidents cumulatively.
¶31 The district court’s focus on the individual acts in isolation from the overall course of conduct is especially problematic with regard to the third incident. First, the district court concluded that the term “‘fuck you’ . . . is so ubiquitous in our culture” that it was of “no significance at all” or in “any way threatening.” The court stated that this profane statement is “not a term that causes emotional distress” given that its use is “replete in our culture, in our language, in our entertainment.” From its common use, the court found “that saying that to someone alone is not a basis to support the petition” for a stalking injunction. The court might be right that, standing alone, this term would not cause fear or emotional distress.[11] But analyzing the profanity in isolation from the other acts establishing a course of conduct is not what the stalking statute asks us to do. As our supreme court has clarified, courts “must consider the conduct cumulatively, accounting for the facts and circumstances of the individual case,” rather than considering the individual acts making up the course of conduct in isolation from each other. See Ragsdale, 2021 UT 29, ¶ 45 (cleaned up); see also Baird, 2014 UT 8, ¶ 27. Thus, while the profanity alone might not be enough to cause fear or emotional distress, when considered in conjunction with Deem’s wish to see Anderson in hell and his earlier communication that she was a “bitch” that he would like to see “die,” a different picture emerges. Moreover, Deem’s use of capital letters and hundreds (529, to be precise) of exclamation points in his final communication could be seen as expressing a certain amount of rage that goes well beyond the casual use of profanity. Thus, Deem’s overall course of conduct could very well be enough to cause fear or emotional distress.
¶32 Second, concerning Deem’s statement, “I’ll be waiting for you in hell,” the district court made a similar error in concluding that it conveyed nothing more than “that both parties [had] engaged in a pattern that [made] them worthy of being relegated to hell” and that it was “not threatening on its face.” Saying “I’ll see you in hell” might carry a benign meaning when said jokingly between friends, but when coupled with the profanity and Deem’s birthday greeting of “die, bitch,” it takes on an altogether different connotation. In other words, evaluating the hell statement in isolation makes it seem benign, but when viewed as part of Deem’s overall course of conduct, it could very well contribute to instilling fear or causing emotional distress.
¶33 On remand, we direct the district court to assess “the entire context surrounding” Deem’s conduct—rather than relying on a “blanket conclusion” that the ubiquity of profanity precludes it from instilling fear or causing emotional distress—so as to “account for the cumulative impact of his behavior” over the entire period of the course of conduct. See Ragsdale, 2021 UT 29, ¶ 47; see also Miller, 2023 UT 3, ¶ 116 (“Although the jury found that [certain] prior conduct did not constitute stalking, [that prior conduct] remained relevant to understand [the respondent and petitioner’s] relationship, the history they shared, and, therefore, whether [the respondent] knew or should have known [later actions] would cause a reasonable person in [petitioner’s] position emotional distress.”).
¶34 The district court also should conduct this analysis in light of the standard of a reasonable person in Anderson’s circumstances. See Ragsdale, 2021 UT 29, ¶ 48. This does not give license for the district court to conduct “a purely subjective analysis” that provides voice to unreasonable sensitivity or paranoia. See Baird, 2014 UT 8, ¶ 27. But it does mean that the court must consider factors such as Anderson’s “knowledge of and relationship” with Deem and their shared history in reaching its conclusion on whether Deem’s course of conduct would cause fear or emotional distress. See id.[12]
¶35 In sum, we remand this matter to the district court so that it may apply the appropriate objective standard as outlined above to its emotional distress and fear determination regarding the cumulative effect of Deem’s multiple communications directed at Anderson. This standard requires that the court look at the context surrounding Deem’s course of conduct. Specifically, we direct the district court to avoid looking at whether each of Deem’s individual acts induced fear or caused emotional distress, instead focusing on the impact of the overall course of his conduct on a reasonable person in Anderson’s circumstances.
CONCLUSION
¶36 The district court misapplied the standard in determining whether a course of conduct existed that would cause a reasonable person in Anderson’s circumstances to suffer fear or emotional distress. We reverse the revocation and dismissal of Anderson’s request for a civil stalking injunction (thereby reinstating the injunction) and remand this matter so that the court may apply the correct standard.
[1] In the context of a “civil stalking injunction, we will recite the facts in a light most favorable to the trial court’s findings.” Sheeran v. Thomas, 2014 UT App 285, ¶ 2 n.1, 340 P.3d 797.
[2] Anderson also asserted that “around [the] time or before [the] time” of the May 2021 messages, a hacked Instagram account sent a message to her friends’ accounts stating, “I will murder your family.” Anderson said the name on the sending account “was a bunch of scrambled letters” but that she had deciphered it to reveal Deem’s name. Anderson speculated that Deem was surreptitiously sending the message to her through a third-party account, even though the message did not reference her in any way. Anderson attached a screenshot of this message to her request for the stalking injunction. At the hearing for the injunction, Deem objected to the admission of this evidence on the ground that there was not “any foundation” to show that it was
[3] If a respondent requests a hearing within ten days “after the day on which the . . . civil stalking injunction is served,” the “burden is on the petitioner to show by a preponderance of the evidence that stalking of the petitioner by the respondent has occurred.” Utah Code § 78B-7-701(4)(a), (b)(ii). “If the respondent requests a hearing after the 10-day period after service, . . . the burden is on the respondent to show good cause why the civil stalking injunction should be dissolved or modified.” Id. § 78B-7701(7). Here, Deem filed the request within ten days. Accordingly, at the ensuing hearing, Anderson bore the burden of proof.
[4] The statutory standard is “intentionally or knowingly,” not “intentionally and knowingly.” See Utah Code § 76-5-106.5(2).
[5] Anderson also argues on appeal that the district court erred in considering that a no-contact order was available to her from Deem’s criminal matter—presumably arising from the third incident—in determining whether she was entitled to a stalking injunction. We agree. Consideration of whether other remedies (criminal or otherwise) exist is not contemplated in relevant caselaw or the stalking statute. See infra note 12. But we need not address this issue further given the manner in which we resolve this appeal.
[6] While it may seem odd to discuss an “offense” in a civil context, the stalking injunction statute borrows its definition from the criminal stalking statute. In other words, to “obtain a civil stalking injunction, a petitioner must establish the elements necessary to meet the definition of stalking in the criminal code.” See Higley v. Buhler, 2019 UT App 96, ¶ 11, 446 P.3d 92 (per curiam); see also Utah Code § 76-5-106.5(2).
[7] Deem stated that Anderson was “the first person who came to mind” when he wanted to lash out.
[8] The third incident likely established a course of conduct by itself. In Hardy v. Hardy, 2020 UT App 88, 467 P.3d 931, cert. denied, 474 P.3d 948 (Utah 2020), our court said, “We could conceive of a circumstance in which a single event with multiple distinct acts undertaken for different purposes or separated by some amount of time might constitute a course of conduct.” Id. ¶ 7 n.4; see also State v. Miller, 2023 UT 3, ¶ 126 (explaining that repeatedly replying to emails in the same thread “does not convert each of [the] separate emails into a single act” when the emails in the chain were sent over a period time). This is what we have in the third incident. See supra ¶¶ 7–9. First, there was an apology. Second, there were two consecutive messages in which Deem rescinded the apology and complained about the way he had been treated. Then—about three hours later and after Anderson had replied with a message telling Deem to “please stop harassing her or [she would] be going to the police”—Deem sent a third set of messages with the profanity and the reference to hell. These three communications likely constituted a course of conduct because each had “different purposes” and because they (or at least the second and third communications) were “separated by some amount of time.” See Hardy, 2020 UT App 88, ¶ 7 n.4. Thus, it seems likely that there were four communications—or “acts” in the parlance of the statute (namely, the second incident, the apology, the rescindment, and the profanity and hell comment)— to satisfy the course of conduct requirement.
[9] In this regard, the district court’s approach was arguably backward. The district court considered the individual circumstances of the respondent—a consideration absent in the statute—and failed to properly consider the individual circumstances of the petitioner. See supra ¶ 19.
[10] Still, our supreme court has cautioned that “when assessing these and other relevant factors, . . . courts must avoid succumbing to a purely subjective analysis, which is inconsistent with the objective standard’s intent to protect against criminalizing conduct that only an unreasonably sensitive or paranoid victim would find harassing so as to reduce the risk of a truly innocent defendant falling within the ambit of a stalking statute.” Baird v. Baird, 2014 UT 8, ¶ 27, 322 P.3d 728 (cleaned up).
[11] Although even this conclusion seems to rest on shaky ground. Our supreme court in Ragsdale v. Fishler, 2021 UT 29, 491 P.3d 835, noted, “[T]he fact that [the respondent] flipped off and communicated obscenities” to the petitioner “on two or more occasions” meant that the petitioner “could potentially obtain an injunction against” the respondent. Id. ¶ 39. Granted, the supreme court added, “But this does not mean that every person flipped off and sworn at two or more times by the same individual is entitled to a stalking injunction.” Id. ¶ 39 n.29. Yet, this is the point. In context, considering the particular circumstances of a petitioner, even profanity ubiquitous in society might very well form the basis for an injunction.
[12] Anderson asserts that the district court erred in considering Deem’s autism and other facts such as Deem’s lack of a history of violence and immobility. The district court’s consideration of these points strayed well into the realm of the irrelevant. There is nothing in the record to suggest that Anderson should have regarded Deem’s course of conduct as more or less threatening than it would have been had he not been diagnosed with autism. On remand, given the dearth of evidence about Anderson’s knowledge of (1) the impact autism had on Deem’s behavior, (2) Deem’s lack of past violent conduct, and (3) Deem’s other personal circumstances, we caution the district court to avoid the line of reasoning it previously embraced in this respect.
The district court should also avoid speculation regarding the availability of a no-contact order because consideration of other remedies is nowhere contemplated in the stalking statutes. The consolation of the merely potential no-contact order is nebulous at best, especially considering that the criminal case was unadjudicated at the time of the hearing. Cf. Miller, 2023 UT 3, ¶ 119 (noting that the availability of an existing stalking injunction does not necessarily “mitigate” or “eliminate the emotional distress [a respondent’s] behavior caused” when the course of conduct is ongoing).
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGE MICHELE M. CHRISTIANSEN FORSTER and
SENIOR JUDGE KATE APPLEBY concurred.[2]
ORME, Judge:
¶1 Following a consolidated bench trial, the court found Michael Schroeder guilty on three charges of protective order violations and one charge of criminal stalking, all class A misdemeanors. Schroeder now appeals, primarily contending that there was insufficient evidence to establish his guilt beyond a reasonable doubt on the convictions still at issue in this appeal.[3]
¶2 We conclude that Schroeder’s convictions for violations of a protective order are supported by sufficient evidence and affirm those convictions. But we conclude that Schroeder’s conviction for stalking is against the clear weight of the evidence developed at trial in support of that charge and therefore reverse that conviction.
BACKGROUND[4]
¶3 After Michael Schroeder and Samantha[5] ended their romantic relationship in 2018, Samantha sought a protective order against Schroeder. On August 13, 2018, Utah’s Fifth District Court held a protective order hearing. Because Schroeder was present and because he did not object to the protective order becoming permanent, the court signed and served the Protective Order, which required Schroeder to refrain from contacting Samantha, to stay at least 1,000 feet from her, and to stay away from her home.
September 23 Protective Order Charge
¶4 During the bench trial, Samantha, her friend, a police officer, and Schroeder each testified about an event that took place on September 23, 2018. Schroeder testified that on that day, he drove his truck through the city where he and Samantha lived and inadvertently turned onto Samantha’s street. After turning onto the street, he suddenly recognized where he was and further realized that if he maintained his course, he would ultimately pass Samantha’s home. He also recognized that driving past her home may violate the Protective Order, but he was not certain. Although he contemplated turning around to avoid passing Samantha’s home, he testified that he chose to continue driving down her street.
¶5 When Schroeder approached Samantha’s home, Samantha was sitting outside with a friend. She and her friend testified that they saw the truck approaching and recognized the truck as belonging to Schroeder. Samantha testified that she saw the truck slow down to almost a stop in front of her home. She was able to identify Schroeder as the driver of the truck through the truck’s open window. Samantha further testified that Schroeder stared at her and made “complete eye contact” with her before driving off. Samantha estimated that she was “maybe 20 feet” from where Schroeder drove past. Her friend testified that he too had been able to identify Schroeder through the truck’s open window. The friend further corroborated Samantha’s testimony that when Schroeder passed Samantha’s home, he was “maybe 20” or “25 feet” from their position and that Schroeder had slowed down to a stop and stared at them for “a few seconds” before driving off.
¶6 Samantha called the police and reported what had happened. An officer arrived and spoke with Samantha and her friend, then contacted Schroeder and met with him at his residence. Schroeder explained that he had made a wrong turn onto Samantha’s street, thought about turning around, made the decision not to, and then proceeded to drive past Samantha’s home. Schroeder also told the officer that he did not know the conditions of the Protective Order.
¶7 Soon after this event, the State filed an Information and Affidavit of Probable Cause against Schroeder, charging him with a protective order violation for coming within 1,000 feet of Samantha.
January 7 Protective Order Violation Charge and Stalking Charge
¶8 During the bench trial, Samantha and Schroeder also testified regarding an event that took place on the morning of January 7, 2019. Samantha testified that she was with her dog in front of her home when she heard a diesel truck approaching the cross street at the end of the block, three houses away. The distinctive sound of a diesel engine caused her to look up, and she saw Schroeder’s truck slowly driving by on the cross street. Samantha recounted that she made eye contact with Schroeder and shook her head at him before he drove off. When she went back inside her home, she again called the police and reported what happened. Samantha stated that she is “really . . . not good” with estimating distances, but she estimated she was “maybe 35 feet” from where she saw Schroeder. Schroeder denied having any knowledge of this incident and suggested that Samantha might have seen “some other gray truck” and confused it with his truck.
¶9 Following this incident, the State filed an Information and Probable Cause Statement against Schroeder, charging him with a violation of the Protective Order’s prohibition on coming within 1,000 feet of Samantha and also charging him with criminal stalking. The State predicated the stalking charge on events specified in the charging documents, discussed in more detail below.
Consolidated Trial
¶10 All cases and charges addressed in this appeal came before the trial court in a consolidated bench trial on April 4, 2019. In its case addressing the September 23 protective order violation, the State called Samantha, her friend, and the officer as witnesses. They testified as outlined above, and Schroeder testified in his defense but did not call other witnesses or present any other evidence. Following the trial, the court expressly found all the State’s witnesses to be credible. The court found that Schroeder had been properly served the Protective Order because he was present when the Protective Order was issued and did not object to its issuance. The court further found that because Schroeder recognized that he was driving down Samantha’s street and chose not to alter his course, he intentionally violated the Protective Order. Based on those findings, the trial court found Schroeder guilty of the protective order violation that occurred on September 23, 2018.
¶11 With respect to the January 7 protective order violation, the court found that the State presented sufficient evidence that Schroeder drove by on the adjacent street—which it found to be less than 1,000 feet away from Samantha—and that, while passing, Schroeder slowed down enough to stare at Samantha and for Samantha to identify him and shake her head at him. The court acknowledged that if Schroeder had just driven down the adjacent street and neither slowed down nor stared at Samantha, this likely would have been insufficient to support a protective order violation. But because he was driving down a street close to where he knew Samantha’s home to be and had slowed and stared at her while he passed, his actions were sufficient to amount to a violation of the Protective Order.
¶12 Regarding the stalking charge, the State specified the following three events in the Probable Cause Statement as the basis for the charge: (1) an alleged incident on January 6, 2019, at a local smoke shop; (2) the January 7 protective order violation; and (3) an alleged drive-by incident that occurred a few hours after the January 7 protective order violation. At trial, while the State presented evidence of the January 7 protective order violation, the State did not present any evidence of the other two events specified in the charging documents.
¶13 After both parties rested and presented closing arguments, the court determined that the September 23 and January 7 acts “were clearly course of conduct acts” that could and did cause Samantha “emotional distress and fear.” Thus, contrary to the State’s theory set out in the charging documents and not developed at trial, the court combined the September 23 and January 7 episodes to establish the proscribed course of conduct under the stalking statute.
¶14 Schroeder was convicted on all counts. This appeal followed.
ISSUE AND STANDARD OF REVIEW
¶15 Schroeder argues that there was insufficient evidence to prove his guilt beyond a reasonable doubt. “Unlike challenges to a jury verdict, a defendant need not file a separate motion or make a separate objection to challenge the sufficiency of the evidence supporting the court’s factual findings in a bench trial.” State v. Holland, 2018 UT App 203, ¶ 9, 437 P.3d 501, cert. denied, 437 P.3d 1252 (Utah 2019). “[W]e review a claim of insufficient evidence at a bench trial for clear error,” State v. Ayala, 2022 UT App 1, ¶ 15, 504 P.3d 755, meaning we “must sustain the district court’s judgment unless it is against the clear weight of the evidence, or if we otherwise reach a definite and firm conviction that a mistake has been made,” Holland, 2018 UT App 203, ¶ 9 (quotation simplified). In other words, “before we can uphold a conviction it must be supported by a quantum of evidence concerning each element of the crime as charged from which the factfinder may base its conclusion of guilt beyond a reasonable doubt.” Spanish Fork City v. Bryan, 1999 UT App 61, ¶ 5, 975 P.2d 501 (emphasis added) (quotation otherwise simplified).
ANALYSIS
Protective Order Violations
¶16 Schroeder asks us to conclude that the trial court erred in finding him guilty of the September 23, 2018 and the January 7, 2019 protective order violations. He contends that there was insufficient evidence from which the court could find him guilty beyond a reasonable doubt. See generally State v. Austin, 2007 UT 55, ¶ 6, 165 P.3d 1191. We address each of the court’s rulings in turn.
September 23 Protective Order Violation
¶17 Schroeder contends that the State did not produce sufficient evidence regarding Schroeder’s mental state when he drove past Samantha and her friend in front of Samantha’s home. As outlined by our Supreme Court, “when reviewing a bench trial for sufficiency of the evidence, we must sustain the trial court’s judgment unless it is against the clear weight of the evidence, or if we otherwise reach a definite and firm conviction that a mistake has been made.” State v. Gordon, 2004 UT 2, ¶ 5, 84 P.3d 1167 (quotation simplified). “An example of an obvious and fundamental insufficiency is the case in which the State presents no evidence to support an essential element of a criminal charge.” State v. Prater, 2017 UT 13, ¶ 28, 392 P.3d 398 (quotation simplified).
¶18 It is a violation of a protective order and “a class A misdemeanor,” Utah Code Ann. § 76-5-108(3) (LexisNexis Supp. 2022), when a defendant “intentionally or knowingly violates [an] order after having been properly served or having been present, in person or through court video conferencing, when the order was issued,” id. § 76-5-108(2)(b). Schroeder concedes that he was properly served with the Protective Order on August 13, 2018, and was aware of its existence. Therefore, what remains for us to decide is whether the State adduced sufficient evidence that Schroeder was aware of the Protective Order and that he “intentionally or knowingly” violated it. See id. In reviewing the sufficiency of the evidence, we are mindful that “credibility is an issue for the trier of fact.” Zappe v. Bullock, 2014 UT App 250, ¶ 8, 338 P.3d 242 (quotation simplified).
¶19 At trial, Schroeder conceded that he intentionally drove his truck past Samantha’s home after deciding not to turn around so as to avoid doing so. He recounted, “As soon as I turned on the road and realized what was going on, like I was going to flip around and then just kept on going through.” He also acknowledged that he came within 1,000 feet of Samantha’s home. Accordingly, we conclude that there was sufficient evidence to support the conviction. We further conclude that the trial court’s findings were not against the clear weight of the evidence and affirm Schroeder’s conviction regarding the September 23 protective order violation.
January 7 Protective Order Violation
¶20 Schroeder next contends that the State did not provide sufficient evidence on which the trial court could determine, beyond a reasonable doubt, that he slowed down and stared at Samantha as he drove by on the cross street three houses away from her home.
¶21 At trial, the court appropriately recognized that simply driving down a cross street near Samantha’s home would “not necessarily be a violation” of the Protective Order. But the court found that Schroeder did not simply drive down the cross street, minding his own business. Instead, based on Samantha’s testimony, which the court found to be credible, the court found that Schroeder slowed and stared at Samantha as he drove past. Samantha’s testimony included her estimation, apparently found reasonable by the trial court, that she was less than 1,000 feet from the cross street when Schroeder slowed and stared at her.
¶22 Therefore, there was sufficient evidence to support the conviction, and the trial court’s findings were not against the clear weight of the evidence. Accordingly, we also affirm Schroeder’s conviction regarding the January 7 protective order violation.
Stalking Conviction
¶23 Schroeder contends that the evidence supporting his stalking conviction was insufficient to establish the necessary course of conduct as charged by the State and that his conviction was therefore against the clear weight of the evidence.[6] We agree.
¶24 “Article I, section 12 of the Utah Constitution provides that every criminal defendant has a right to know ‘the nature and cause of the accusation.’” State v. Burnett, 712 P.2d 260, 262 (Utah 1985) (quoting Utah Const. art. I, § 12). “This entitles the accused to be charged with a specific crime, so that he can know the particulars of the alleged wrongful conduct and can adequately prepare his defense.” Id. Additionally, rule 4 of the Utah Rules of Criminal Procedure provides that “[a] prosecution may be commenced by filing an information,” Utah R. Crim. P. 4(a), which must contain “the name given to the offense by statute or ordinance, or stating in concise terms the definition of the offense sufficient to give the defendant notice of the charge,” id. R. 4(b)(2). And an information charging a felony or a class A misdemeanor must include “a statement of facts sufficient to support probable cause for the charged offense or offenses.” Id. R. 4(c)(1). Our Supreme Court has stated that “in a criminal proceeding . . . [the accused] is entitled to be charged with a specific crime so that he may know the nature and cause of the accusation against him” and that “the State must prove substantially as charged the offense it relies upon for conviction.” State v. Taylor, 378 P.2d 352, 353 (Utah 1963) (quotation simplified). This did not happen here with respect to the stalking charge.
¶25 The charging documents concerning the stalking charge alleged, in contemplation of section 76-5-106.5(2) of the Utah Code, as follows:
[Schroeder], on or about January 07, 2019, in Iron County, State of Utah, did (a) intentionally or knowingly engage in a course of conduct directed at [Samantha] and knew or should have known that the course of conduct would cause a reasonable person: (i) to fear for the person’s own safety or the safety of a third person; or (ii) to suffer other emotional distress[.]
¶26 Under section 76-5-106.5(2), an actor commits the offense of stalking when the actor “intentionally or knowingly . . . engages in a course of conduct” that “would cause a reasonable person . . . to fear for the individual’s safety” or “to suffer other emotional distress.” Utah Code Ann. § 76-5-106.5(2) (LexisNexis Supp. 2022). The statute also explains that a course of conduct comprises “two or more acts directed at or toward a specific individual,” id. § 76-5-106.5(1)(a)(i), and further defines emotional distress as “significant mental or psychological suffering, whether or not medical or other professional treatment or counseling is required,” id. § 76-5-106.5(1)(a)(ii)(A).
¶27 The Probable Cause Statement indicated that the stalking charge in this case was based on a course of conduct consisting of an event occurring “[oin or about January 6, 2019,” an event occurring the “following morning on January 7, 2019, between 8:00 a.m. and 9:00 a.m.,” and an event occurring “[liater that morning” on January 7, 2019. The charging documents concerning the stalking offense made no mention of the September 23 incident.
¶28 At trial, the State presented evidence only of the January 7 event. The State did not present any evidence addressing either of the other two events specified in the charging documents as establishing the requisite course of conduct for stalking. Accordingly, Schroeder had no reason to introduce controverting evidence when presenting his defense.
¶29 Following closing arguments, the trial court made findings of fact and entered its ruling. The court found Schroeder guilty of stalking based on its finding that the January 7 protective order violation and the September 23 protective order violation “were clearly course of conduct acts.”
¶30 Schroeder does not challenge the court’s finding that the January 7 protective order violation, included in the charging documents, could be a qualifying act to partially establish a stalking course of conduct. And the State presented sufficient evidence of its occurrence at trial. See supra Part I.B. But the State did not produce evidence concerning the other two incidents referred to in the Probable Cause Statement, and it never argued that the September 23 incident was relevant to the stalking charge, nor did it seek to amend the charging documents to incorporate that theory. Thus, by the end of trial, the State had established only one of the two or more incidents required to prove the stalking offense it charged. Because evidence is necessarily insufficient when the State fails to establish “an essential element of a criminal charge,” State v. Ayala, 2022 UT App 1, ¶ 15, 504 P.3d 755 (quotation simplified), we reverse Schroeder’s conviction for stalking.[7]
CONCLUSION
¶31 The trial court’s judgments were not against the clear weight of the evidence regarding Schroeder’s two convictions for the protective order violations. Therefore, we affirm Schroeder’s convictions regarding the September 23 protective order violation and the January 7 protective order violation. But because the State did not present evidence of any act specified in the relevant charging documents as constituting stalking, apart from the January 7 protective order violation, and because stalking is predicated on a course of conduct comprising two or more acts, the evidence was necessarily insufficient. Therefore, Schroeder’s stalking conviction was against the clear weight of the evidence, and we reverse that conviction.
[1] This case is the consolidated appeal of cases 20190339-CA, 20190507-CA, and 20190508-CA.
[2] Senior Judge Kate Appleby sat by special assignment as authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
[3] During the pendency of this appeal, Schroeder filed a motion for remand under rule 23B of the Utah Rules of Appellate Procedure on a claim of ineffective assistance of counsel he asserted in connection with his conviction for a protective order violation that was alleged to have occurred on January 26, 2019. We granted that motion. In March 2022, following a hearing on Schroeder’s rule 23B motion, the trial court granted the parties’ Stipulated Motion to Dismiss Charge with Prejudice. By so doing, the court dismissed the case concerning Schroeder’s January 26 protective order violation. For that reason, we do not discuss the events surrounding that charge, which is no longer at issue in this appeal.
[4] Following a bench trial, “we recite the facts from the record in the light most favorable to the findings of the trial court and present conflicting evidence only as necessary to understand issues raised on appeal.” State v. Cowlishaw, 2017 UT App 181, ¶ 2, 405 P.3d 885 (quotation simplified).
[6] As previously noted, “a defendant need not file a separate motion or make a separate objection to challenge the sufficiency of the evidence supporting the court’s factual findings in a bench trial.” State v. Holland, 2018 UT App 203, ¶ 9, 437 P.3d 501, cert. denied, 437 P.3d 1252 (Utah 2019). When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised on appeal regardless of whether the party raising the question has made an objection to such findings via a motion or otherwise. See State v. Jok, 2021 UT 35, ¶ 18, 493 P.3d 665 (noting that “a sufficiency of the evidence claim is effectively preserved by the nature of a bench trial and does not require making a specific motion”).
[7] Schroeder additionally argues that the trial court’s sua sponte reconstruction of the stalking charge, following trial, in which it embraced a theory of stalking not charged, was at odds with the variance doctrine. The variance doctrine prevents the State from introducing evidence at trial that varies from the charging documents where the variance would prejudice a defendant’s case. See State v. Fulton, 742 P.2d 1208, 1215 (Utah 1987). While we premise our affirmance on the more straightforward rationale that there was insufficient evidence to establish the stalking offense as charged by the State, we recognize that our reversal of that conviction also advances the salutary purposes served by the variance doctrine.
Third District Juvenile Court, Salt Lake Department
The Honorable Monica Diaz
No. 1205462
Julie J. Nelson Attorney for Appellant
Sean D. Reyes and John M. Peterson,
Attorneys for Appellee
Martha Pierce Guardian ad Litem
Before JUDGES GREGORY K. ORME,
MICHELE M. CHRISTIANSEN FORSTER, and AMY J. OLIVER.
PER CURIAM:
¶1 L.C.G. (Mother) appeals the juvenile court’s order terminating her parental rights. We affirm.
¶2 “To terminate parental rights, a juvenile court must make two separate findings.” In re C.T., 2018 UT App 233, ¶ 12, 438 P.3d 100 (quotation simplified). First, a court must find by clear and convincing evidence that there is at least one statutory ground for termination.” Id. (quotation simplified). “Second, “a court must find that termination of the parent’s rights is in the best interest of the child.” Id. Because a parent’s rights are constitutionally protected, a court may terminate parental rights only if it finds that termination is strictly necessary for the best interest of a child. See id.
¶3 Mother does not challenge the juvenile court’s determination that there were statutory grounds supporting the termination of her parental rights, or the court’s determination that doing so was strictly necessary and in F.C.G.’s (Child) best interest. However, the record supports the juvenile court’s determination that there were statutory grounds supporting the termination of Mother’s parental rights, that termination was strictly necessary, and that terminating Mother’s rights was in Child’s best interest.
¶4 Instead, Mother asserts that the juvenile court erred by determining that she waived her right to counsel, and by permitting counsel to withdraw at trial. Specifically, Mother asserts that the juvenile court violated rule 53(c) of the Utah Rules of Juvenile Procedure and her due process rights by permitting counsel’s withdrawal. “We review waiver of a statutory right to counsel for correctness but grant the trial court a reasonable measure of discretion when applying the law to the facts.” In re A.B., 2017 UT App 99, ¶ 5, 400 P.3d 1107 (quotation simplified). The “termination of parental rights involves a statutory right to counsel, not a constitutional right to counsel. See id. Accordingly, “waiver of a statutory right to counsel is proper as long as the record as a whole reflects the parent’s reasonable understanding of the proceedings and awareness of the right to counsel.” Id. (quotation simplified).
¶5 Rule 53(c) provides that a motion to withdraw may be made orally before the court, and counsel’s request to withdraw should demonstrate a parent’s familiarity with his or her right to counsel, the withdrawal of counsel, the right to appeal, and post-judgment motions. Utah R. Juv. P. 53(c)(1). The record demonstrates that Mother was aware of the rights identified in rule 53(c). On November 30, 2021, the juvenile court appointed counsel for Mother. Based on Mother’s lack of contact with counsel, and her failure to meaningfully participate in the proceeding, the court permitted counsel to withdraw.
¶6 On October 13, 2022, Mother appeared at the termination trial. Knowing that counsel had been permitted to withdraw, Mother once again requested the appointment of counsel. The juvenile court re-appointed Mother’s counsel and continued the trial until December 12, 2022, so that Mother could participate in trial preparations and trial. The court scheduled a pretrial hearing for November 7, 2022. Mother failed to appear at the pretrial hearing. Mother also failed to appear at the December 12, 2022 trial.
¶7 The court determined that Mother received notice of both the pretrial hearing and the continued trial when she appeared on October 13, 2022. Mother failed to communicate with counsel and assist in trial preparations. Mother’s counsel attempted to contact Mother at least twelve times prior to the continued trial. Mother’s counsel received only one email from Mother, but it was not substantive, and it did not address any of counsel’s “questions or advice or anything that I had given to her.” The court determined that based on Mother’s nonappearances in court, plus her lack of contact with counsel, Mother waived her right to counsel.
¶8 Mother next argues that the court violated her due process rights. Specifically, she argues that she had a constitutional right to counsel, beyond that of a statutory right to counsel. Mother asserts that “the Utah Supreme Court determined that, under certain factual circumstances, a parent facing termination of their parental rights has a right to counsel under the Due Process Clause of the Fourteenth Amendment of the federal constitution.” In re adoption of K.A.S., 2016 UT 55, ¶ 35, 390 P.3d 278. Mother argues that a constitutional right to counsel requires a heightened showing that a parent knowingly and voluntarily waived the right to counsel, rather than whether the “record as a whole reflects the parent’s reasonable understanding of the proceedings and awareness of the right to counsel.” In re A.B., 2017 UT App 99, ¶ 5.
¶9 Mother acknowledges that the Supreme Court did not hold that parents are always entitled to the constitutional right to counsel. The Supreme Court determined that “where, for example, the parent has not taken an interest in the proceedings and the weight of the evidence of the parent’s lack of interest is great—the presumption against the right to counsel will not be overcome.” In re adoption of K.A.S., 2016 UT 55, ¶ 38 (quotation simplified). Given the juvenile court’s determinations regarding Mother’s nonappearances in court, her lack of contact with counsel, and her lack of participation, the record supports the juvenile court’s determination that Mother did not take an interest in the proceedings, and the weight of the evidence of Mother’s lack of interest is great. The record does not support that Mother had a constitutional right to counsel, or that the court erred in its waiver determination and allowing counsel to withdraw.
¶10 Mother next asserts that she received ineffective assistance of counsel when counsel withdrew, rather than requesting another trial continuance or additional appointment of counsel. To prevail on an ineffective assistance of counsel claim, Appellant must show: (1) her counsel’s performance was deficient and (2) the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 669, 687 (1984); In re C.M.R., 2020 UT App 114, ¶ 19, 473 P.3d 184 (applying Strickland to an ineffective assistance of counsel claim in a child welfare proceeding). To demonstrate deficient performance, Mother must persuade this court that, considering the record as a whole, counsel’s performance was objectively unreasonable. State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350. To demonstrate prejudice, Mother must show that “there exists a reasonable probability that the case would have had a different outcome had trial counsel not performed deficiently.” State v. Florez, 2020 UT App 76, ¶ 43, 465 P.3d 307.
¶11 Mother asserts that counsel was deficient because he did not adequately comply with rule 53(c) of the Utah Rules of Juvenile Procedure. However, as addressed above, it was apparent from the record that Mother was familiar with her rights identified in rule 53(c). See Utah R. Juv. P. 53(c)(1)(iii). Counsel had been appointed twice in Mother’s proceeding, and the court permitted counsel’s withdrawal due to Mother’s refusal to communicate with counsel, participate, and to attend court. Counsel’s decision to withdraw, rather than request yet another continuance or additional counsel was not deficient. “Because the decision not to pursue a futile motion is almost always a sound trial strategy, counsel’s failure to make a motion that would be futile if raised does not constitute deficient performance.” State v. Powell, 2020 UT App 63, ¶ 20, 463 P.3d 705. Given the required short time frames in child welfare cases, Mother’s nonappearances, lack of communication with counsel, and her lack of participation, the record does not support Mother’s claim that counsel was ineffective for declining to request yet another continuance or requesting that the court appoint another attorney.
¶12 Mother next argues that the doctrine of structural prejudice suggests that she was prejudiced when counsel withdrew at trial. See State v. Bond, 2015 UT 88, ¶ 40, 361 P.3d 104. To satisfy this part of Strickland’s test, Mother must demonstrate particularized prejudice in her specific case. See State v. Juarez, 2021 UT App 53, ¶ 27, 489 P.3d 231. “Allegations of structural prejudice, or prejudice per se, are generally insufficient in the context of an ineffective assistance claim.” Id. (quotation simplified). However, we need not address both components of the Strickland inquiry if we determine that Mother made an insufficient showing on either prong. See id. ¶ 26. Because the record does not support Mother’s claim that counsel was deficient, we need not address this claim. See id.
¶13 The juvenile court’s order terminating Mother’s parental rights is affirmed.
I am not licensed to practice law in the state of New York, but I will answer your question according to the law of the jurisdiction where I do practice law (Utah) because that may give you an idea of how the issue is treated in Utah. You will need to consult with a knowledgeable New York family law attorney to know the correct answer to your question as it applies under New York law.
The decision in the Utah case of Lindsey v. Lindsey (392 P.3d 968, 833 Utah Adv. Rep. 16, 2017 UT App 38) is a perfect explanation of the circumstances under which a spouse’s separate property can be awarded to the other spouse in a divorce case, so I will cite excerpts from that decision below (I did not include the footnotes from the decision):
ANALYSIS
¶31 When distributing “marital property in a divorce proceeding, the overriding consideration is that the ultimate division be equitable-that property be fairly divided between the parties.” Granger v. Granger, 2016 UT App 117, ¶ 15, 374 P.3d 1043 (brackets, citation, and internal quotation marks omitted). To that end, a trial court must first “identify the property in dispute and determine whether it is marital or separate.” Dahl v. Dahl, 2015 UT 79, ¶ 121 (brackets, citation, and internal quotation marks omitted). Marital property ordinarily includes “all property acquired during marriage,” “whenever obtained and from whatever source derived.” Dunn v. Dunn, 802 P.2d 1314, 1317-18 (Utah Ct. App. 1990) (citation and internal quotation marks omitted). Separate property ordinarily includes premarital property, gifts, and inheritances, including any appreciation that may accrue during the marriage. See Dahl, 2015 UT 79, ¶ 143; Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988).
¶32 The presumption is that marital property will be divided equally while separate property will not be divided at all. See Dahl, 2015 UT 79, ¶ 121; Dunn, 802 P.2d at 1323. Married persons have a right to separately own and enjoy property, and that right does not dissipate upon divorce. See Mortensen, 760 P.2d at 308. Thus, equity generally requires that “each party retain the separate property he or she brought into the marriage, including any appreciation” thereof. Dunn, 802 P.2d at 1320, 1323; accord Dahl, 2015 UT 79, ¶ 143; Mortensen, 760 P.2d at 308.
¶33 But separate property “is not totally beyond a court’s reach.” Elman v. Elman, 2002 UT App 83, ¶ 19, 45 P.3d 176 (brackets, citation, and internal quotation marks omitted). Before carving property out of the marital estate, a trial court must consider whether circumstances warrant an equitable override of the separate-property retention rule. See Henshaw v. Henshaw, 2012 UT App 56, ¶ 15, 271 P.3d 837. Three circumstances have been identified under Utah law as supporting an award of separate property at the time of divorce. These exceptions are when separate property has been commingled [the Lindsey v. Lindsey case did not treat the commingling exception, so I will provide some information on that in a footnote to this answer[1]]; when the other spouse has augmented, maintained, or protected the separate property [the contribution exception]; and in extraordinary situations when equity so demands. See Mortensen, 760 P.2d at 308; Dunn, 802 P.2d at 1320. The latter two exceptions are at issue here.
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¶35 Under the contribution exception, a spouse’s separate property may be subject to equitable distribution when “the other spouse has by his or her efforts or expense contributed to the enhancement, maintenance, or protection of that property, thereby acquiring an equitable interest in it.” Mortensen, 760 P.2d at 308. This exception may be satisfied when one spouse brings assets into the marriage and the other spouse’s prudent investment of those assets substantially increases their value, see Dubois v. Dubois, 504 P.2d 1380, 1381 (Utah 1973), or when marital funds are expended or marital debt is incurred for the benefit of one spouse’s separate property, see Schaumberg v. Schaumberg, 875 P.2d 598, 602-03 (Utah Ct. App. 1994). In addition, this court has contemplated that the exception might apply when one spouse works for a business owned by the other spouse but is not “paid a wage or salary,” see Rappleye v. Rappleye, 855 P.2d 260, 262-63 (Utah Ct. App. 1993), or when a spouse elects to forgo salary or related compensation that would have benefited the marriage so that those funds may be reinvested in his or her separate business, see Keyes v. Keyes, 2015 UT App 114, ¶ 30, 351 P.3d 90. Under such circumstances, one spouse’s effort or investment may render the other spouse’s underlying asset, its appreciated value, or some portion thereof subject to equitable distribution. See, e.g., Schaumberg, 875 P.2d at 602-03.
¶36 While spouses often contribute to one another’s financial success in a variety of ways, Utah law draws a line between contributions that qualify as “enhancement, maintenance or protection” of a spouse’s separate property and those that do not. See Jensen v. Jensen, 2009 UT App 1, ¶¶ 11, 16, 203 P.3d 1020 (citation and internal quotation marks omitted). Under Utah law, perhaps the most common type of spousal assistance-taking on some measure of household or family responsibilities to allow the other spouse to spend time enhancing the value of his or her separate property-has been rejected as a standalone basis for awarding separate property under the contribution theory. See id. ¶ 16.
¶37 As this court concluded in Jensen, one spouse’s efforts to “maintain[] the household,” provide childcare, and run a part-time business that “contributed to [the] family finances” were insufficient to justify awarding even “part” of the appreciated value of the other spouse’s interest in the corporation of which he was president. Id. ¶¶ 4, 10-11, 15-16 (internal quotation marks omitted). Although the wife’s efforts may have enabled her husband to devote his attention to his employment, she had not sufficiently contributed to the increase in value of the corporation’s equity: “Wife did not assist in running the business nor contribute in any way to its increase in equity. Moreover, it [was] unclear whether the increase in equity was due to anything other than inflation.” Id. ¶ 16. Likewise, in Kunzler v. Kunzler, the contribution exception was not triggered by one spouse’s assumption of household responsibilities, which allowed the other spouse “to focus his time and energy on preserving and increasing the value” of his separate property. 2008 UT App 263, ¶¶ 19 & n.5, 32, 37, 190 P.3d 497.
¶38 The division of labor among married parties may take any number of forms, and the give-and-take often inherent in marital relationships is generally not a sufficient basis for judicially rewriting title to property. The presumption that parties retain their separate property at divorce would be rendered largely irrelevant if rebutted by any spousal effort that freed the other spouse to work on his or her separate property. Thus, for purposes of this exception, direct involvement with or financial expenditures toward a spouse’s separate property appear to be key.
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The Extraordinary Circumstances Exception
¶46 Under Utah law, a spouse’s separate property may be awarded to the other spouse “in extraordinary situations where equity so demands.” Elman v. Elman, 2002 UT App 83, ¶ 19, 45 P.3d 176 (citation and internal quotation marks omitted). The bar for establishing an extraordinary situation is high, traditionally requiring that “invasion of a spouse’s separate property” is “the only way to achieve equity.” Kunzler v. Kunzler, 2008 UT App 263, ¶ 35, 190 P.3d 497. A quintessential extraordinary situation arises when a spouse owns separate property but lacks income to provide alimony; in that circumstance, “an equitable distribution of the [separate property] would be well within the trial court’s discretion.” See id. ¶ 37; see also Burt v. Burt, 799 P.2d 1166, 1169 (Utah Ct. App. 1990) (“The court may award an interest in the inherited property to the non-heir spouse in lieu of alimony.”). An extraordinary situation has also arisen under “very unique” circumstances in which, absent the exception, a husband would have shared in profits his wife created as to their marital property, but she would not have shared in profits he created-and which she enabled him to create-with respect to his separate property. Elman, 2002 UT App 83, ¶ 24 & n.5.
¶47 Depending on the facts of a specific case, a court might take into account the rate of return earned on separate property during the marriage when determining whether an extraordinary situation exists or in calculating the amount of any such award. See, e.g., id. ¶¶ 20, 26, 29-30 (affirming an award of “a small share of the appreciation on [the husband’s] partnership interests,” which was “only above a reasonable rate of appreciation”). But an award of separate property may also be independent of any rate of return earned on the property during the marriage. See Henshaw v. Henshaw, 2012 UT App 56, ¶ 20 n.7, 271 P.3d 837 (rejecting the argument that, because the spouse’s separate property declined in value during the marriage, the other spouse could not receive an equitable interest under the “extraordinary situations” exception (citation and internal quotation marks omitted)). If a court were to award separate property due to a spouse’s inability to pay alimony, for example, that award could well be made irrespective of the rate of return earned on the property during the marriage.
[1] On the commingling exception:
See Dahl v. Dahl, 459 P.3d 276 (Utah 2015), 2015 UT 79
¶143 “Generally, premarital property, gifts, and inheritances [are considered] separate property, and the spouse bringing such … property into the marriage may retain it” in the event of a divorce. Keiter v. Keiter, 2010 UT App. 169, ¶ 22, 235 P.3d 782 (internal alterations omitted) (internal quotation marks omitted). But premarital property may lose its separate character where the parties have inextricably commingled it with the marital estate, or where one spouse has contributed all or part of the property to the marital estate with the intent that it become joint property. Dunn, 802 P.2d at 1320. Courts look to a party’s actions as a manifestation of a spouse’s intent to contribute separate property to the marital estate. Kimball v. Kimball, 2009 UT App. 233, ¶ 28, 217 P.3d 733.
JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES DAVID N. MORTENSEN and JOHN D. LUTHY concurred.
TENNEY, Judge:
¶1 James and Blanche Cox were married for over 20 years, during which time they had 10 children and acquired a large number of marital assets. In September 2012, Blanche filed for divorce.[1] After 4 years of pretrial litigation and then 14 days of trial, the district court issued a 35-page divorce ruling that settled various issues relating to child custody, child support, alimony, and the division of the marital estate.
¶2 James now appeals, arguing that many of the court’s rulings were not supported by adequate findings. We agree with James with respect to each challenged ruling. We accordingly vacate those rulings and remand for further proceedings.
BACKGROUND
¶3 James and Blanche Cox were married in 1990. During their marriage, they had 10 children and acquired a large number of assets. In September 2012, Blanche filed for divorce. After 4 years of litigation, the case went to trial, and that trial occurred over the course of 14 days between December 2016 and May 2017. In January 2017 (while the trial was proceeding), the court issued a bifurcated divorce decree granting Blanche’s request for a divorce and reserving other issues for further hearings and determinations.
The Ruling
¶4 In October 2017, the court issued a 35-page Ruling and Memorandum Decision (the Ruling) that entered findings of fact and legal determinations regarding many issues related to child custody, child support, alimony, and the valuation and division of the marital estate. This appeal implicates the court’s findings and determinations regarding essentially three groups of issues: the parties’ marital properties, alimony and child support, and marital debts.[2]
Marital Properties
¶5 The court found that James and Blanche “enjoyed the benefit or acquired” five properties during their marriage: (1) the Hildale Home, (2) the Henderson Home, (3) the Eagle Mountain Home, (4) the Rockville Property, and (5) the Cedar Highlands Lots. The court then entered findings and made rulings regarding how to divide the parties’ marital interest in each property.
¶6 The Hildale Home: The court found that James built this home (located, as our reference would suggest, in Hildale, Utah) before his marriage to Blanche. The court found that James, Blanche, and their children lived in this property until 2010, after which they moved to a different residence. The court heard testimony that title to the Hildale Home was held by the United Effort Plan Trust (the Trust). But the court then concluded that no evidence had been presented of the value of James’s interest in the Trust and that “establishing the value of a beneficial interest in property of the [Trust]” would be “practically and legally impossible.” The court acknowledged that Blanche had submitted an appraisal of the Hildale Home at trial (which, according to the record on appeal, estimated its value as being around $200,000), but the court concluded that the appraisal was deficient because it failed to account for costs and fees associated with the Trust ownership. From all this—and without any further explanation— the court then ruled that Blanche was “entitled to an award of $100,000” based on the home’s value.[3]
¶7 The Henderson Home: The court found that this home was purchased by James in 2004 for $420,000. It found that after the parties fell behind on mortgage payments, at which point they still owed around $288,000, the house was “lost in a short sale in 2013 for $225,000.” The court made a finding that the fair market value of the home at the time, according to Zillow, was $323,861.
¶8 But the court also heard competing testimony from the parties about whether the loss of the home could have been avoided. From Blanche, the court heard testimony that the home “could have been rented out” but that James refused to sign papers that would have modified the loan and, theoretically, allowed the parties to avoid losing it. From James, however, the court heard testimony that maintaining or leasing the home wasn’t actually possible for several different reasons.
¶9 From this, the court found that “[t]he parties would likely have had at least $100,000 in equity to split if they had kept” the Henderson Home and “rented it as suggested by [Blanche] numerous times.” The court then ruled that James “should be responsible to, and give [Blanche] credit for, $50,000 in equity representing her share of the lost asset dissipated by him.”
¶10 The Eagle Mountain Home: The court found that James and Blanche bought this home in 2009 and made a $120,000 down payment on it, $80,000 of which was borrowed from James’s mother. The court found that they moved into the home sometime in 2010 and began using it as their primary residence. James testified that he had at one point intended to sell the Eagle Mountain Home in an effort “to cover all the debts” on the parties’ credit cards but that Blanche refused to cooperate with him on the sale. Evidence presented at trial suggested that the home was sold in 2015 by a bankruptcy trustee for $520,000, with the parties still owing $292,000 at that time. Without citing any specific piece of evidence, the court found that if the Eagle Mountain Home had “not been lost to a forced sale, [Blanche] would have been able to receive at least another $25,000 today because of the current market value of $606,000,” and the court then ruled that she was “entitled to that sum.”
¶11 The Rockville Property: The court described this as a “7.5 acre parcel of farm property” located near Rockville, Utah. In its ruling on how to divide the marital interest in this property, the court referred to evidence it had received indicating that the parties were “forced to sell” the property for $270,000 after falling behind on the mortgage payments, as well as evidence showing that the parties still owed around $190,000 on the property when it was sold.
¶12 But the court then referred to several sources of evidence it had received that suggested that this property had a higher value and could have been sold for more. For example, it referred to evidence that a realtor had listed what the court thought was a similar 11.4 acre parcel for $1,195,000 (though the court then acknowledged that it was “debatable” whether this comparison provided an accurate valuation for the Rockville Property). The court also noted testimony that a realtor had valued the property at “approximately $900,000” due to “28 [shares of] water rights [that were] attached to it.” And the court referred to an “analysis from Zillow” that suggested the property’s value was $1,195,000.
¶13 From all this, the court then found that the forced sale of the property for $270,000 was a loss that “cost the parties at least $450,000 each,” and the court awarded Blanche “damages of $450,000 offset by monies she did receive in the amount of $42,000.”
¶14 The Cedar Highlands Lots: The Cedar Highlands Lots were “two lots down by Cedar City,” one of which was around 2 acres and the other around 2.5 acres. The court found that the lots were purchased for $40,000 each sometime in 2003 but that they were later “lost” through a forced sale because of the parties’ ongoing failure to pay various taxes and fees.
¶15 At trial, there was conflicting evidence and argument about the amount of the loss suffered by the parties because of the sale of these lots. James testified that the parties lost $60,000, while Blanche claimed that they lost somewhere between $153,000 and $280,000 (with her estimate being largely based on the lots’ appreciation in value since the time that the parties had purchased them—and, thus, the parties’ loss of potential equity by virtue of the forced sale). The court ultimately found that the parties’ inability to “pay the property taxes and Homeowners Association fees . . . resulted in [an] $80,000 loss to the parties.” The court did not explain how it had arrived at the $80,000 amount, nor did it explain how this loss was to be distributed between the parties.
Alimony and Child Support
¶16 Blanche’s Income: Under an initial subheading of the Ruling that was entitled “The Parties[’] Income,” the court found that Blanche is “an experienced bookkeeper with QuickBooks who has elected to be employed by About Faceology,” but that she was currently a “self employed Uber/Lift driver and has been so since 2015.” Under a subsequent subheading entitled “Income of the Parties,” however, the court then determined that “[f]or child support purposes [Blanche’s] income cannot be imputed at more than [the] minimum wage of $1,257 per month.” Elsewhere in the Ruling, and without explanation for the discrepancy, the court found that Blanche’s imputed minimum wage income was actually $1,260 per month (rather than $1,257). The court included no explanation for its conclusion that Blanche’s income could not be imputed at more than the minimum wage.
¶17 Child Support: At the time of the Ruling, the parties had five minor children. The court initially ordered James to pay $3,781 per month in child support. Elsewhere in the Ruling, however, and again without explanation, the court stated that it was ordering James to pay $3,336 per month in child support.
¶18 Alimony: Turning to alimony, the court noted that under the controlling statute, it should consider a number of factors. One of the factors it considered was Blanche’s “financial condition and needs.” With respect to this factor, the court opined that Blanche’s “needs have been overstated in her financial declarations,” but the court made no ruling about Blanche’s financial condition and what her needs actually were. With respect to Blanche’s earning capacity, the court again noted that Blanche “claim[ed] she earns just a little better than minimum [wage] even though she is an experienced and sophisticated bookkeeper with many years of experience having run, managed, overseen and monitored millions of dollars in income and expenses that ran through the parties[’] businesses.” But the court made no further findings about her particular earning capacity as it related to a potential alimony award. The court also noted that there were “minor children in the home,” five of whom were “younger than eighteen years of age or have not yet graduated from high school with their expected class.” But the court made no findings about how (or how much) these children impacted Blanche’s earning capacity. Finally, with respect to James’s ability to pay alimony, the court found that James was a “voluntarily under employed” electrician, and it then opined that “[t]here is no question that [Blanche] claims that her needs exceed hers and [James’s] monthly incomes.” Considering these factors together, the court then ordered James to pay $8,286 per month in alimony.
Marital Debts
¶19 Finally, the court made certain findings concerning the “business debt” that was “incurred” by the parties during the marriage. While the divorce proceedings were pending, James filed a Chapter 7 bankruptcy petition. In the Ruling, the court found that, after the bankruptcy proceedings had begun, James incurred $30,000 in debt while purchasing stock in his business and business-related property from the bankruptcy trustee. Since the court determined that Blanche was “entitled to 50% of [the] value” of the business, the court then concluded that she was entitled to an award of $15,000 as a result of this debt.
¶20 The court also noted that Blanche had “received financial compensation from the sale of assets and the conversion of assets into cash.” But the court opined that it was “difficult, if not impossible, to decipher whether each expenditure was personal, business related, or partially business-related.” From this, and without further explanation, the court awarded Blanche “judgment against [James] in the amount of $50,000.”
Motions for Clarification
¶21 James and Blanche were both dissatisfied with the Ruling, and in January 2018, they each filed a motion requesting clarification. Each motion raised a host of issues regarding alleged errors.
¶22 Of note here, in her motion, Blanche asked for clarification “as to whether or not” she was entitled to $25,000 for the Eagle Mountain Home or, instead, “another amount.” She argued that an award of $25,000 “seem[ed] incorrect mathematically” because if the fair market value of the Eagle Mountain Home was $606,000, and the home sold for $520,000, the “resulting equity would have been $86,000, which if divided equally would result in [Blanche] receiving judgment for $43,000,” as opposed to $25,000. Blanche also requested clarification as to the court’s determination “that the loss to the parties” concerning the Cedar Highlands Lots was $80,000. She argued that, based on the evidence presented at trial, the loss was $280,000. Blanche also requested clarification regarding the court’s determination of marital debts, specifically, whether the $15,000 was “to be added to the $50,000 for a total of $65,000” or whether “there [was] another number the court considered.” Finally, Blanche requested clarification of the court’s order regarding child support, given that in one portion of its Ruling the court ordered James to pay child support in the amount of $3,781 per month, and in another portion it altered that amount to $3,336 per month.
¶23 In his motion, James likewise requested clarification of various aspects of the Ruling. Among other things, he asked the court to “enter supplemental, amended, and or additional findings” regarding its ruling that Blanche was “entitled to $100,000” concerning the Hildale Home, explaining that he was “unaware of any evidence upon which the [court] could have relied in finding the $100,000 in equity the [court] awarded” Blanche. James also asked for clarification on the court’s findings concerning the Henderson Home, Eagle Mountain Home, and Rockville Property, asserting that the court had not “identified the facts upon which it relied” in making its calculations. Regarding the Henderson Home, James alleged that the court’s finding that “the parties would likely have had at least $100,000 in equity if the home had been rented” for the years 2013 through 2017 “fail[ed] to account for the costs of managing a rental property from a long distance, the likelihood of vacancies, the cost of utilities, maintenance, repairs, property taxes” and other related fees. Regarding the Eagle Mountain Home, James argued that the Ruling did not “accurately account for the additional $25,000” that Blanche received from the bankruptcy trustee “in addition to the $102,486.28 she received” from the sale. Regarding the Rockville Property, James requested clarification as to what facts the court relied upon to conclude that “the parties owned 28 shares of water,” given that the evidence “actually showed,” in his view, that they owned only 19 shares of water. Additionally, James requested clarification as to the court’s comparison of the Rockville Property to a parcel of “11.4 acre[s] of land with Virgin River frontage that was listed for $1,195,000.” Finally, with respect to the marital debts, James asked the court to “enter supplemental, amended and or additional findings” that would “identify the facts upon which [the court] relied in awarding [Blanche] $15,000 representing [the business’s] hypothetical equity or value.”
¶24 In the meantime, the Office of Recovery Services (ORS) intervened in the case based on its obligation to provide child support enforcement services. ORS filed a memo in response to Blanche’s motion for clarification in which it likewise requested clarification of the child support amount. After recounting its view of the evidence, ORS recommended that if Blanche’s income was imputed at minimum wage, and if James’s income was imputed at $18,500 per month, James should be ordered to pay $3,236 per month for the five minor children.
¶25 In August 2018, the court issued a ruling on James’s and Blanche’s motions. With respect to the child support amount, the court now ordered that James’s monthly obligation be $3,236 per month, thus apparently adopting ORS’s recommendation. With respect to the properties, the court now ruled—without explanation—that Blanche was entitled to $25,000 in relation to the Eagle Mountain Home and $40,000 for the Cedar Highland Lots. And with respect to the marital debts, the court found— again without explanation—that “[t]he $15,000 amount awarded is to be added to the $50,000 amount awarded for a total of $65,000” to be awarded to Blanche.
¶26 The court ordered Blanche’s counsel to prepare the final findings of fact and conclusions of law. In a November 2018 filing, however, Blanche alleged that she was unable to do so without “additional findings” regarding, among others, the marital debts. In May 2019, the court heard additional oral arguments. After the parties filed additional objections and motions, the case was reassigned from Judge Lynn Davis—who had heard the trial testimony and had issued both the Ruling and the rulings on the motions for clarification—to Judge Robert Lunnen. Judge Lunnen then heard oral arguments on the parties’ objections and outstanding motions.
The Supplemental Decree
¶27 In April 2021, the court (through Judge Lunnen) issued a “Supplemental Decree of Divorce” (the Supplemental Decree).[4]
¶28 The Supplemental Decree reiterated and incorporated many of the findings and determinations from the Ruling. As in the Ruling, for example, the court awarded Blanche $100,000 for the Hildale Home, $50,000 for the Henderson Home, and the (clarified) amount of $40,000 for the Cedar Highlands Lots. But without explanation, the court altered the order regarding the Eagle Mountain Home, awarding Blanche $43,000 as opposed to the $25,000 that was previously ordered. Also without explanation, the court altered the order regarding the Rockville Property, first concluding that Blanche’s offset should be $38,000, not $42,000, and now awarding Blanche $412,000 from this property as opposed to the $408,000 that had previously been awarded.
¶29 The court also determined that Blanche’s income should be imputed at minimum wage for a total of $1,260 per month. Based on its findings about the parties’ incomes, it then ordered James to pay $3,236 per month in child support, and it again ordered him to pay $8,286 per month in alimony.
¶30 Finally, the court awarded Blanche $65,000 relating to the marital debts. The court explained that $15,000 of that amount “represent[ed] her interest” in various purchases made by James from the bankruptcy trustee and that the remaining $50,000 represented “her interest in other assets, business and otherwise.”
¶31 James timely appealed.
ISSUE AND STANDARD OF REVIEW
¶32 James argues that the district court issued “inadequate” fact findings to explain its rulings regarding the marital properties, child support and alimony, and marital debts. “We review the legal adequacy of findings of fact for correctness as a question of law.” Lay v. Lay, 2018 UT App 137, ¶ 4, 427 P.3d 1221 (quotation simplified); see also Brown v. Babbitt, 2015 UT App 161, ¶ 5, 353 P.3d 1262 (“We review the legal sufficiency of factual findings—that is, whether the trial court’s factual findings are sufficient to support its legal conclusions—under a correction-of-error standard, according no particular deference to the trial court.” (quotation simplified)).[5]
ANALYSIS
¶33 A district court’s “[f]indings of fact are adequate . . . only when they are sufficiently detailed to disclose the steps by which the district court reached its ultimate conclusion on each issue.” Oldroyd v. Oldroyd, 2017 UT App 45, ¶ 5, 397 P.3d 645. When assessing a challenge to the adequacy of a district court’s findings, we look to whether the court “adequately disclosed the analytic steps” it took in reaching its conclusions. Keiter v. Keiter, 2010 UT App 169, ¶ 21, 235 P.3d 782. In this sense, the court’s findings of fact must show that its “judgment or decree follows logically from, and is supported by, the evidence.” Id. ¶ 17 (quotation simplified). “This obligation facilitates meaningful appellate review and ensures the parties are informed of the trial court’s reasoning.” Shuman v. Shuman, 2017 UT App 192, ¶ 5, 406 P.3d 258; see also Fish v. Fish, 2016 UT App 125, ¶ 22, 379 P.3d 882 (explaining that findings “are adequate when they contain sufficient detail to permit appellate review to ensure that the district court’s discretionary determination was rationally based”). While “unstated findings can be implied if it is reasonable to assume that the trial court actually considered the controverted evidence and necessarily made a finding to resolve the controversy, but simply failed to record the factual determination it made,” Fish, 2016 UT App 125, ¶ 22 (quotation simplified), we “will not imply any missing finding where there is a matrix of possible factual findings and we cannot ascertain the trial court’s actual findings,” Hall v. Hall, 858 P.2d 1018, 1025–26 (Utah Ct. App. 1993) (quotation simplified).
¶34 James argues that a number of the court’s findings were inadequate. His arguments address three groups of findings— namely, findings regarding (I) marital properties, (II) child support and alimony, and (III) marital debts. We address each group in turn.[6]
Marital Properties
¶35 James first challenges the adequacy of the findings that supported the rulings about how to value and distribute the parties’ marital properties. We recognize at the outset that district courts “have considerable discretion in determining property distribution in divorce cases.” Marroquin v. Marroquin, 2019 UT App 38, ¶ 11, 440 P.3d 757 (quotation simplified). But while a district court “does not have to accept [a party’s] proposed valuation” of an item in the marital estate, the court “does have to make findings sufficient to allow us to review and determine whether an equitable property award has been made.” Taft v. Taft, 2016 UT App 135, ¶ 53, 379 P.3d 890. In ruling on such a claim, we will uphold a district court’s “valuation of marital assets” if “the value is within the range of values established by all the testimony, and as long as the court’s findings are sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.” Wadsworth v. Wadsworth, 2022 UT App 28, ¶ 64, 507 P.3d 385 (quotation simplified), cert. denied, 525 P.3d 1259 (Utah 2022).
The Hildale Home
¶36 James first argues that the court’s findings regarding the Hildale Home were inadequate. In James’s view, the court “simply concluded that $100,000 was an appropriate amount of an award without providing factual findings” supporting “the appropriateness” of that award. We agree.
¶37 The court’s discussion of the Hildale Home spans roughly two pages of the Ruling. Much of the discussion concerns the ownership of the home. The court found that the home’s title is held by the Trust, that James’s interest in the home is that “of a beneficiary” to the Trust, and that Blanche, by contrast, is “not a legal beneficiary” of the Trust. But the court then found that “[n]o evidence was presented to the court of the value [of] [James’s] beneficial interest” in the Trust and that “establishing the value of a beneficial interest in property of the [Trust] is practically and legally impossible[,]” in part, because “the Trust is not receptive to, nor responsive to, legal inquiries.” The court also recognized that Blanche submitted an appraisal of the home, but it then concluded that the appraisal was not an adequate mechanism for establishing the home’s value because the appraisal failed to account for “title to the home being in the [Trust], the costs of getting the [Hildale Home] conveyed from the [Trust], or the thousands of dollars owed to the [court] appointed Trustee of the [Trust] which the Trustee is owed for administering the [Trust’s] assets.” After discounting its ability to rely on either James’s interest in the Trust or Blanche’s appraisal, the court ruled that the property was “a marital asset” to some “narrow extent.” Without further explanation, it then ruled that while it couldn’t grant title to Blanche, she was “entitled to an award of $100,000.”
¶38 We recognize the difficulties that the court faced with this trial in general—as should be clear by now, this was a very complicated divorce with a lot of things to decide and divide. And as evidenced by the preceding paragraph, the nature of parties’ apparent interest in the Hildale Home made the question of how to divide that interest particularly complicated. But even so, we see nothing in the Ruling that “adequately disclosed the analytic steps” the court took, Keiter, 2010 UT App 169, ¶ 21, when deciding that Blanche was entitled to $100,000. The court clearly explained what it thought it couldn’t rely on, but it didn’t explain what it thought it could rely on or how it arrived at this particular amount. Without such an explanation, James has no meaningful way to challenge that $100,000 award, nor do we have any meaningful way to assess whether it was legally warranted in light of the “matrix of possible factual findings” on this issue that are apparent from the record. Hall, 858 P.2d at 1025 (quotation simplified). We accordingly vacate this determination.
The Henderson Home
¶39 James next argues that the court “did not provide any analysis” as to how it determined there was $100,000 in equity in the Henderson Home and that, as a result, the $50,000 award to Blanche was based on inadequate findings. We agree.
¶40 The court found that the home was purchased by James in 2004 for $420,000. It explained that by August 2012, James and Blanche were “months behind in their [mortgage] payment” and that they owed $288,000 when the home was “lost in a short sale in 2013 for $225,000.” The court made a finding that the fair market value of the home at the time—according to Zillow—was $323,861.[7] The court found that James and Blanche “would likely have had at least $100,000 in equity to split if they had” managed to keep the home, but because James “ignored” Blanche’s suggestions to rent the home out, which in theory would have prevented them from losing it, it then ruled that James “should be responsible to, and give [Blanche] credit for, $50,000 in equity representing her share of the lost asset dissipated by him.” It appears the court thus based the $50,000 award on its finding that “the parties could likely have rented and made money as shown or just maintained [the Henderson Home] and sold it for profit presently.”
¶41 James’s initial argument here is that it’s unclear how the court arrived at the $100,000 in equity that it then divided. In response, Blanche suggests that this amount could have been derived from the court’s apparent acceptance of the home’s fair market value as being $323,861 (a value derived from Zillow— which, again, neither party has challenged on appeal as being improper), an amount that is approximately (though, we note, not precisely) $100,000 more than the parties received in the short sale. We have some concern that Blanche is asking us to do too much inferential work on our own, and we could vacate on this basis alone. But in any event, the court’s division of the apparent equity also seems to have been based on a dissipation (or, perhaps, a waste) determination stemming from James’s conduct. Assuming this was so, the court’s findings about James’s conduct, whether the home could actually have been rented out, what the parties could have received in rent, and whether this unspoken amount would actually have prevented them from losing the home were all either missing or decidedly cursory. We’ve previously held, however, held that when a court rules that a party “should be held accountable for the dissipation of marital assets,” the court must support the ruling with “sufficiently detailed findings of fact that explain the trial court’s basis” for that ruling, and we’ve also laid out a number of factors that “may be relevant to” and could support such a ruling. Rayner v. Rayner, 2013 UT App 269, ¶¶ 19–21, 316 P.3d 455 (quotation simplified). While that list is not mandatory or exhaustive, we still have an inadequate findings-based foundation here from which we could review what seems to have been an implicit dissipation determination. When coupled with the lack of explanatory findings about the basis for the equity determination, we conclude that the findings about this home are, as a whole, legally inadequate to support meaningful appellate review of this ruling. We accordingly vacate them.
The Eagle Mountain Home
¶42 James argues that the court’s findings regarding the Eagle Mountain Home were legally inadequate. We agree.
¶43 In the Ruling, the court (through Judge Davis) initially awarded Blanche $25,000 for this home. But the court failed to explain the analytic steps it took to arrive at that amount. The court did enter a few findings about this home—namely, that the parties made a $120,000 down payment when they purchased the home in 2009 ($80,000 of which was borrowed from James’s mother), that they were forced to sell it in 2015 in conjunction with James’s bankruptcy, and that, as a result of that sale, Blanche received “one half” of its equity. But the court made no findings about the sale price or how much equity the parties had in the home at the time of the sale. And then, without any explanation, the court opined that “[h]ad it not been lost to a forced sale,” Blanche “would have been able to receive at least another $25,000 today” because of the home’s “current market value.” The court provided no basis for the $25,000 amount, and we see no reasonable basis in its findings for inferring one.
¶44 Of note, the court (through Judge Lunnen) then changed the awarded amount in the Supplemental Decree, now awarding Blanche $43,000 for it. But the court didn’t explain why it increased this award from the award that had previously been entered in the Ruling. And while Blanche suggests on appeal that the court had now accepted a new valuation of the home that she offered in her motion for clarification, the court never said that it was doing so, nor did it provide any other explanation for why it increased this award at all, let alone by this particular amount.
¶45 In light of this procedural history, it’s unclear to us what analytic steps led the court to first award Blanche $25,000 for this home and what caused the court to later change that award to $43,000. As a result, the findings with respect to this home are legally inadequate and are therefore vacated.
The Rockville Property
¶46 James argues that the court’s findings about the Rockville Property are legally inadequate because it’s “not clear” how the court “reached its valuation of the Rockville Property” or how it divided that value as part of its division of the marital estate. We agree.
¶47 In the Ruling, the court explained that the Rockville Property was a “7.5 acre parcel of farm property” owned by James and Blanche near Rockville, Utah. As for its value and how to determine that value, the court pointed to three options: (1) it noted that a realtor had listed a similar 11.4 acre parcel for $1,195,000, though the court opined that this valuation was “debatable”; (2) the court noted that Blanche “discussed” its value with a realtor who “indicated back then” (which, though unsaid by the court, seems from context to have been in 2013) that the “lot was worth approximately $900,000, due to the 28 water rights attached to it”; and (3) the court pointed to a “[c]urrent market value analysis from Zillow” that “estimate[d]” the property’s value at $1,195,000. The court then found that the parties were “forced to sell” the property in December 2013 for $270,000 due to financial troubles. And the court apparently faulted James for this, determining that at the time of the forced sale, the parties “only owed approximately $190,000” on the property, that it could have been refinanced, and that it was James’s fault that they did not do so. From this, the court found that the forced sale “cost the parties at least $450,000 each,” and it accordingly awarded Blanche “damages of $450,000 offset by monies she did receive in the amount of $42,000.”
¶48 From an adequacy-of-the-findings perspective, the initial problem here is that the court never stated whether it was accepting $1,195,000 or $900,000 as the property’s value. Given that the property’s value would be the numerator for any division of it as a marital asset, this omission is, of course, significant. And while Blanche invites us to engage in some loose math that would account for both possibilities and arrive at the same endpoint, the difference between the two initial valuations might matter if James wished to mount a sufficiency of the evidence challenge. Moreover, to the extent that the court’s determination about how to divide the property’s value turned on an implicit dissipation determination, we again note that the court failed to support such a determination with adequate findings. And finally, while the court offset the award to Blanche by “monies she did receive in the amount of $42,000,” an amount that it later changed to $38,000 in the Supplemental Decree, the court didn’t explain the basis for either amount in either ruling.[8]
¶49 Given the unanswered questions about how the court valued both this property and the offset, we have no basis for conducting a meaningful review of this award. We accordingly vacate it.
The Cedar Highlands Lots
¶50 James’s final property-related challenge is to the findings regarding the Cedar Highlands Lots. In James’s view, the court improperly failed to “indicate . . . how the $80,000 was calculated.” We again agree.
¶51 In the Ruling, the court found that James and a business partner had purchased the two lots for $40,000 each, that Blanche had “controlled the book-keeping for the marital businesses,” and that the lots “were lost when the parties were unable or could not pay the property taxes and Home Owners Association fees,” thus “result[ing] in [an] $80,000 loss to the parties.” In a subsequent ruling, the court determined that this loss should now result in an award of $40,000 to Blanche, and that award was later confirmed in the Supplemental Decree.
¶52 From the court’s findings, it’s unclear why the court determined that there was an $80,000 loss. The court seems to have assumed that the lots were completely lost with no return in value, but the court never said so. And more importantly, even assuming that this was the implicit finding, the court never explained why it concluded that Blanche should receive an award of $40,000 as the result of this particular loss to the marital estate of $80,000. Without such an explanation, we have no meaningful basis for reviewing the ruling. As a result, we vacate it.
Child Support and Alimony
¶53 James challenges the adequacy of the findings relating to child support and alimony. James’s challenges here fall into two groups: first, he challenges the adequacy of the findings relating to Blanche’s income (which, as explained below, matter to both child support and alimony); and second, with respect to the alimony determination, he challenges the adequacy of the court’s findings relating to Blanche’s financial condition and needs.
Blanche’s Income
¶54 James argues that the court’s findings regarding Blanche’s income were inadequate because they failed to “provide any reasoning for disregarding [Blanche’s] earning capacity.” We agree.
¶55 A party’s income matters to a determination of both child support and alimony. First, with respect to child support, a “noncustodial parent’s child support obligation is calculated using each parent’s adjusted gross income.” Twitchell v. Twitchell, 2022 UT App 49, ¶ 34, 509 P.3d 806 (quotation simplified); see also Utah Code §§ 78B-12-202, -301 (establishing guidelines for child support awards). Importantly, the court “is required to enter detailed and specific findings on all material issues which must be considered when making a child support award.” Breinholt v. Breinholt, 905 P.2d 877, 881 (Utah Ct. App. 1995) (quotation simplified). But “so long as the steps by which the ultimate conclusion on each factual issue was reached are apparent, a trial court may make findings, credibility determinations, or other assessments without detailing its justification for finding particular evidence more credible or persuasive than other evidence supporting a different outcome.” Shuman, 2017 UT App 192, ¶ 6 (quotation simplified). Second, with respect to alimony, a court must examine, among other factors, “the recipient’s earning capacity or ability to produce income.” Miner v. Miner, 2021 UT App 77, ¶ 16, 496 P.3d 242 (quotation simplified). And a court must in “all cases . . . support its alimony determinations with adequate findings . . . on all material issues,” and “failure to do so constitutes reversible error, unless pertinent facts in the record are clear, uncontroverted, and capable of supporting only a finding in favor of the judgment.” Id. ¶ 17 (quotation simplified).
¶56 Of note, when “there is insufficient evidence of one of the statutory alimony factors, courts may impute figures.” Gardner v. Gardner, 2019 UT 61, ¶ 98, 452 P.3d 1134 (quotation simplified). For example, a “court may impute income to a former spouse for purposes of calculating alimony after finding that the former spouse is voluntarily unemployed or voluntarily underemployed.” Fish, 2016 UT App 125, ¶ 15. And it “is not unusual for courts to impute income to a spouse who has not worked during the marriage (or who has not worked for a number of years preceding the divorce) but who is nevertheless capable of producing income.” Petrzelka v. Goodwin, 2020 UT App 34, ¶ 26, 461 P.3d 1134 (emphasis in original). But when a court imputes income, the “imputation cannot be premised upon mere conjecture; instead, it demands a careful and precise assessment requiring detailed findings.” Christensen v. Christensen, 2017 UT App 120, ¶ 22, 400 P.3d 1219 (quotation simplified); see also Reller v. Argenziano, 2015 UT App 241, ¶ 33, 360 P.3d 768 (“Before imputing income to a parent, the trial court must enter findings of fact as to the evidentiary basis for the imputation.” (quotation simplified)).
¶57 Income can likewise be imputed as part of a child support determination. See Utah Code § 78B-12-203(8). But, as with an alimony award, a court must support such an imputation with adequate findings. See id. § 78B-12-203(8)(a) (explaining that in contested cases, “[i]ncome may not be imputed to a parent unless,” after an evidentiary hearing on the matter, the court “enters findings of fact as to the evidentiary basis or the imputation”); id. § 78B-12-203(8)(b) (detailing the evidentiary bases upon which a court may impute income for child support purposes); see also Rayner, 2013 UT App 269, ¶ 10 (“Imputation cannot be premised upon mere conjecture; instead, it demands a careful and precise assessment requiring detailed findings.” (quotation simplified)).
¶58 Here, the court determined that although Blanche was currently working as a “self employed Uber/Lift driver,” her “income cannot be imputed at more than minimum wage of $1,257 per month.” In a different portion of the Ruling, however, the court found that Blanche’s “gross income” should actually be imputed at “$1,260 per month.”
¶59 On appeal, James doesn’t focus on this three-dollar discrepancy. Rather, James argues that the court erred by failing to explain why Blanche’s income should be imputed at minimum wage at all. As James points out, the court elsewhere found that Blanche is “an experienced bookkeeper with QuickBooks who has elected to be employed by About Faceology,” and it further found that she was “an experienced and sophisticated bookkeeper with many years of experience having run, managed, overseen and monitored millions of dollars in income and expenses that ran through the parties[’] businesses.”
¶60 Having reviewed the Ruling, we see no explanation for the court’s determination that, although Blanche is an experienced bookkeeper with the skill set to manage millions of dollars in income for a company, her income should still be imputed at minimum wage. In an attempt to justify this on appeal, Blanche points to a passing statement from the alimony portion of the ruling in which the court noted that the parties “have ten children, five of which are younger than eighteen years of age or have not yet graduated from high school with their expected class.” But as James points out in response, the parties had even more minor children at home during the years in which Blanche was working as a bookkeeper with responsibilities for “millions of dollars in income.” And while it’s possible that the court believed that something had now changed that would prevent Blanche from still doing this work (such as her new status as a post-divorce single parent), the court never said this or entered any findings to support such a determination, it never explained why it was implicitly determining that Blanche could work as an Uber/Lyft driver but not as a bookkeeper, and it entered no findings to explain why her current employment as an Uber/Lyft driver would result in an income imputation of minimum wage.
¶61 To be clear: as with the other issues in this appeal, we express no opinion about the proper resolution of any of these questions. But without an explanation from the district court, James has no basis for properly challenging the decision about Blanche’s income, nor do we have an adequate basis for reviewing it. Given the importance of Blanche’s income to both child support and alimony, we accordingly vacate those rulings.
Blanche’s Financial Condition and Needs
¶62 As part of its alimony determination, the court was also required to consider Blanche’s “financial condition and needs.” Miner, 2021 UT App 77, ¶ 16 (quotation simplified). James argues that the court failed to enter adequate findings to support this assessment. We agree.
¶63 In the Ruling, the court noted that Blanche had claimed that she had “monthly needs of $18,565,” but it then concluded that these needs were “overstated.” And while Blanche had also suggested that she needed the alimony award to account for “over $200,000 in credit card and business debts,” the court suggested that this debt was either accounted for by other portions of its ruling or had “been discharged in the bankruptcy case.”
¶64 But even so, while the court then concluded that James “simply does not make sufficient money to satisfy all of [Blanche’s] claims” about what “she reasonably needs to support herself,” the court did not make any determination about what Blanche’s needs actually are. As James correctly points out, the absence of such an explanation prevents us from conducting a meaningful review of how this factor should weigh into the court’s alimony award, a problem that is compounded by the failure discussed above to adequately explain its determination about Blanche’s income.
¶65 We accordingly vacate the alimony award to allow the court to enter more detailed findings and, “if necessary, recalculat[e] . . . appropriate alimony.” Fitzgerald v. Fitzgerald, 2005 UT App 67U, para. 6 (quotation simplified); see also Eberhard v. Eberhard, 2019 UT App 114, ¶¶ 39–40, 449 P.3d 202 (faulting a district court for not “spelling out” “how much more [the petitioner] actually needs each month to pay down her debt and elevate herself to the marital standard of living,” thus leaving the appellate court “unable to discern whether the alimony award, in fact, exceeds her needs”).
III. Marital Debts
¶66 Finally, James challenges the adequacy of the court’s findings with respect to the parties’ marital debts. We agree that these findings are inadequate.
¶67 “In issuing a divorce decree, a trial court must include an order specifying which party is responsible for the payment of joint debts, obligations, or liabilities of the parties contracted or incurred during marriage.” Fox v. Fox, 2022 UT App 88, ¶ 32, 515 P.3d 481 (quotation simplified), cert. denied, 525 P.3d 1263 (Utah 2022); see also Utah Code § 30-3-5(3)(c)(i). Utah law “requires only a fair and equitable, not an equal, division of the marital debts.” Fox, 2022 UT App 88, ¶ 32 (quotation simplified). A district court is in the “best position to weigh the evidence, determine credibility and arrive at factual conclusions”; as a result, a district court’s division of marital debts is “entitled to a presumption of validity.” Mullins v. Mullins, 2016 UT App 77, ¶ 20, 370 P.3d 1283 (quotation simplified). But, again, the district court must enter findings of fact that are “sufficiently detailed to disclose the steps by which [it] reached its ultimate conclusion on each issue.” Oldroyd, 2017 UT App 45, ¶ 5.
¶68 Here, the court found that the “parties incurred business debt while married.” James challenges the adequacy of the findings with respect to two of those debts.
¶69 First, the court found that as a result of James’s bankruptcy, James took on $30,000 in debt to finance the purchase of his business’s stock and other business-related property. In the court’s view, Blanche was “entitled to 50% of [the] value” of the business, which meant, in its view, that she was also entitled to $15,000. But the court never explained why it concluded that Blanche was entitled to this amount. While it’s possible, as Blanche now suggests, that the court thought that James had drawn the $30,000 from marital assets—and, thus, that $15,000 of it belonged to Blanche—the court didn’t say this, and its reference to this as “$30,000” in “debt” that James had incurred is somewhat at odds with this inference. In the absence of any explanation, we vacate this ruling.
¶70 Second, at the close of the “Marital Debts” section of its ruling, the court found that Blanche had “received financial compensation from the sale of assets and the conversion of assets into cash.” But it then opined that it was “difficult, if not impossible, to decipher whether each expenditure was personal, business related, or partially business-related.” Without any further explanation, the court then held that Blanche
was “awarded judgment against [James] in the amount of $50,000.”
¶71 It’s entirely unclear to us what the basis for this $50,000
award was. So far as we can tell, the court seems to have concluded that Blanche had already received some prior distributions from marital assets and that she should now receive $50,000 more. But there’s no explanation for how the court arrived at this particular amount, what the amount was linked to, or why it would be listed alongside an analysis of “Marital Debts.” Without any such explanation, we vacate this award.
CONCLUSION
¶72 We agree with James’s assertion that the challenged findings were not legally adequate and that these inadequacies impaired both his ability to challenge the court’s various rulings and our ability to review them. We accordingly vacate the above rulings and remand the case with instructions for the court to enter more detailed findings and then alter any of its rulings as may be necessary.
[1] Because the parties share the same last name, we’ll follow our normal practice and refer to them by their first names, with no disrespect intended by the apparent informality.
[2] In this Background, we’ll recount the main findings regarding each ruling at issue on appeal, but in some instances, additional relevant findings will be discussed in the Analysis below.
[3] With respect to some (though not all) of the dollar amounts included in the rulings at issue, the court added “.00” signifiers. For readability, those have been omitted throughout this opinion.
[4] As noted above, the court had previously entered a bifurcated divorce decree while the trial on the parties’ assets and the like was still ongoing.
[5] As evidenced by the passages quoted above, there’s something of a disconnect in how we’ve referred to this kind of argument in past cases. In some cases, we’ve described it as an argument about the “legal adequacy” of the district court’s findings, see, e.g., Lay v. Lay, 2018 UT App 137, ¶ 20, 427 P.3d 1221, but in others, we’ve described it as an argument about the “legal sufficiency” of the findings, see, e.g., Brown v. Babbitt, 2015 UT App 161, ¶ 5, 353 P.3d 1262. For consistency’s sake, it might be better if bench and bar alike settled on a single usage. And on reflection, we suggest that such an argument should be described in adequacy terms.
The reason for this is to reduce the potential for confusing this kind of argument with the similar sounding but substantively distinct “sufficiency of the evidence” argument. At the risk of over-simplification: a sufficiency of the evidence argument asserts that there was insufficient evidentiary support for a particular factual finding. As detailed more fully below, however, the argument at issue here—a challenge to the adequacy of the findings—asserts that the court’s findings did not adequately explain the basis for the court’s rulings, thereby impairing our ability to review those rulings (for sufficiency of the evidence or anything else).
[6]Two notes are warranted at the outset—one about our usage patterns regarding the rulings at issue, and one about a threshold argument made by Blanche.
First, as discussed above, there are two decisions that largely drive the various arguments in this case: the Ruling and the Supplemental Decree. The Ruling was issued by Judge Davis, who heard the trial evidence, while the Supplemental Decree was issued by Judge Lunnen, who was assigned to the case after the Ruling was issued. At one of the hearings in the intervening period, Judge Lunnen responded to a party’s argument by stating that “[t]he findings, they’re set in stone. So all this is . . . a result of the findings.” As noted, however, Judge Lunnen did alter a few of the Ruling’s legal determinations in the Supplemental Decree. In consequence of how this all played out, the Supplemental Decree recites many of the findings that were issued in the Ruling, though not with the same level of detail. It instead essentially incorporates the bulk of the Ruling by implicit reference. For this reason, the parties’ arguments on appeal have largely focused on whether the findings from the Ruling were adequate, and we’ll follow suit. To avoid redundancy, we won’t repeatedly mention whether we think the findings from the Supplemental Decree were likewise inadequate (even if they were reiterated in the Supplemental Decree); instead, we’ll discuss the Supplemental Decree only in those instances where it differs in some meaningful way from the Ruling (usually because of an altered legal determination).
Second, in her opening brief, Blanche argues that James did “not comply with Utah’s marshaling requirement” in his briefing on appeal. But the marshaling requirement applies when a party “seeks to prevail in challenging the sufficiency of the evidence to support a factual finding or a verdict on appeal.” State v. Nielsen, 2014 UT 10, ¶ 40, 326 P.3d 645; see also State v. Wall, 2020 UT App 36, ¶ 53, 460 P.3d 1058; Wilson v. Sanders, 2019 UT App 126, ¶ 17, 447 P.3d 1240. As noted, however, James is not arguing that there was insufficient evidence to support any particular finding. Rather, James is arguing that the findings were inadequate to explain the court’s various rulings. As we’ve explained, an argument about the adequacy of the findings presents a legal question. Because of this, “marshaling is not required.” Jensen v. Jensen, 2009 UT App 1, ¶ 8 n.3, 203 P.3d 1020; see also Woodward v. Fazzio, 823 P.2d 474, 477–78 (Utah Ct. App. 1991) (“There is, in effect, no need for an appellant to marshal the evidence when the findings are so inadequate that they cannot be meaningfully challenged as factual determinations. . . . Rather, appellant can simply argue the legal insufficiency of the court’s findings as framed.”).
[7] While a topic at oral argument, neither party raised on appeal the issue of whether the district court could appropriately rely on Zillow for its valuation of the property, as opposed to evidence submitted at trial. For this reason, we do not address the issue here.
[8] It seems possible (if not probable) that this offset was intended to reflect a determination that the parties received $80,000 in equity when they sold the property for $270,000 while still owing $190,000 on it. But if this was the determination, (1) the court didn’t say so, and (2) it also didn’t explain the basis for initially deviating upward by $2,000 to arrive at $42,000, nor did it explain the basis for subsequently deviating downward by $2,000 to arrive at $38,000.
Whether my recollection is true or not, I remember being taught in law school that tithing and other regular charitable giving cannot be treated as a personal expense deduction in bankruptcy. It appears that is no longer true (if ever it was). I was taught as a divorce lawyer by people who should have known better that tithing or regular charitable giving could not be considered a personal expense when analyzing need and ability to pay in the context of the alimony award. I don’t know if that was ever true, but I know it’s not true now. In the Utah Court of Appeals decision in the case of Knowles v. Knowles, 2022 UT App 47, 509 P.3d 265, the trial court refused to include tithing expenditures as part of the alimony calculation because it was “not a necessary living expense.” The Utah Court of Appeals reversed that decision, explaining that it “ignored the requirement that [trial courts] assess the expense based on how the parties chose to spend and allocatetheir money while married.” the Utah Court of Appeals decision in the case of Mintz v. Mintz – 2023 UT App 17, at ¶24 , the Utah Court of Appeals opined that “the marital standard of living analysis is not merely a question about what the parties spent their money on or whether they spent it at all. Rather, in terms of alimony, the marital standard of living analysis is about whether the parties’ proposed points of calculation are consistent with the parties’ manner of living and financial decisions (i.e., the historical allocation of their resources). Something may contribute to the marital standard of living even though it may not result in a direct benefit or detriment to the marital estate’s net worth.”
STATE OF UTAH, IN THE INTEREST OF P.J.R., A PERSON UNDER EIGHTEEN YEARS OF AGE.
C.S.,
Appellant,
V.
STATE OF UTAH,
Appellee.
Opinion
No. 20220264-CA
Filed March 23, 2023
Sixth District Juvenile Court, Manti Department
The Honorable Brody L. Keisel
No. 1097003
Emily Adams, Freyja Johnson, and Caleb Proulx,
Attorneys for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N.
MORTENSEN concurred.
HARRIS, Judge:
¶1 C.S. (Mother) appeals an order terminating her parental rights regarding P.J.R. (Child). But Mother does not contest the juvenile court’s findings that there were grounds for termination and that termination was in Child’s best interest. Instead, Mother limits her appellate challenge to the court’s determination that the Division of Child and Family Services (DCFS) made reasonable efforts, during the course of the case, toward reunification of Mother and Child. Specifically, she claims that the court applied an incorrect evidentiary standard in arriving at its reasonable efforts determination and—alternatively—challenges the merits of that ultimate determination. We find Mother’s arguments unpersuasive, and therefore affirm.
BACKGROUND
¶2 In 2019, DCFS filed a petition seeking protective supervision of Mother’s five children, including Child. In the petition, DCFS alleged that Mother had abused and neglected Child, and specifically alleged (among other things) that, during an incident in the waiting room of a family counseling center, Mother “grabbed [Child] by the back-collar area of his shirt in such a manner that it restricted his ability to breathe and caused him to choke,” and then “shoved his face into the corner with force.” Even after Child “told Mother he was having difficulty breathing and that Mother was hurting him,” Mother “did not let up on his shirt or the forcing of his face into the corner.” At an ensuing shelter hearing, the juvenile court placed all five children in the temporary custody of DCFS.
¶3 Mother responded to the petition by admitting some of the State’s allegations and, with respect to the rest, neither admitting nor denying them; this response resulted in the court deeming the State’s allegations true. See Utah R. Juv. P. 34(e) (“A respondent may answer by admitting or denying the specific allegations of the petition, or by declining to admit or deny the allegations. Allegations not specifically denied by a respondent shall be deemed true.”). On the basis of Mother’s responses, the court adjudicated Child as abused and neglected by Mother. Mother appealed that adjudication order, and this court affirmed it but remanded for additional proceedings on issues not material to this appeal. See In re C.M.R., 2020 UT App 114, ¶ 33, 473 P.3d 184.
¶4 Following adjudication, the court issued a disposition order in September 2019, setting the primary permanency goal as reunification and the concurrent permanency goal as adoption. In connection with setting reunification as the primary permanency goal, the court adopted a service plan—prepared with Mother’s input and cooperation—and found, “by clear and convincing evidence,” that fulfillment of the plan’s terms would “constitute reasonable efforts on the part of . . . DCFS to finalize the permanency goals,” including reunification. Among other things, the plan required DCFS to “follow up with [Child]’s therapist to monitor his progress in therapy,” to follow up with Mother’s therapist regarding her treatment, to promptly communicate with Mother, to “assess [Mother]’s increase in parenting skills during supervised parent-time,” and to ensure that Child’s living, academic, and health needs were being addressed.
¶5 As the case progressed, friction arose between Mother and the DCFS caseworker. As Mother showed at trial, the conflict became apparent at one supervised visit between Mother and her daughters; in a “heated interaction,” the caseworker cut the visit short after observing Mother say certain things to her daughters that the caseworker deemed inappropriate. On a later occasion, the caseworker sent a text message to the guardian ad litem lamenting the fact that Mother received visitation with one of her daughters at all, noting that “[t]hese kids have been the victims of severe physical and emotional abuse for years.” Eventually, Mother refused to communicate with the caseworker (other than by text message) without her attorney present. Even the State’s attorney noticed that the caseworker was having a hard time keeping her “emotions out of this case,” and admonished the caseworker to be more circumspect in her communication.
¶6 Mother also came to believe that the caseworker was interfering with family therapy during the course of the case. Under the service plan, family therapy involving Mother and Child was to begin when Mother’s and Child’s therapists both recommended it, and the caseworker was supposed to follow up with both therapists. In December 2019, the caseworker apparently told Mother that Child’s therapist did not recommend face-to-face visits when, in fact, the caseworker had not yet communicated with Child’s therapist. The first documented communication between the caseworker and Child’s therapist about family therapy was in June 2020, about nine months after the service plan was put in place. However, some evidence shows that the caseworker had “reached out to [Child]’s therapist regularly throughout the case,” and that as of May 2020, Child’s therapist did not “recommend family therapy with [Mother] at this time.” But when the caseworker was asked at trial whether she communicated with Child’s therapist prior to June 2020, she stated that she did not recall. When the caseworker did reach out to Child’s therapist inquiring about family therapy, the therapist responded that before family therapy would be recommended, Mother would need to take a parenting course, continue her own therapy, and “take[] accountability for her actions and . . . learn[] . . . to regulate her own emotions.”
¶7 Shortly thereafter, Mother complained that the caseworker might be attempting to influence the therapists away from holding family therapy, and the caseworker then told the therapists that the court had instructed her to tell them that they were to communicate with each other (rather than through the caseworker as an intermediary) about “whether family therapy with [Mother] and [Child] would be in [Child’s] best interest.” By this point, Child’s therapist had come to believe that family therapy was now appropriate, and expressed interest in beginning the process. The caseworker said she would follow up to see whether Mother and Child were making progress from the therapy, but—apparently in response to Mother’s request that DCFS “back off”—she stated that she would “not be a part of the scheduling process.”
¶8 In August 2020, the caseworker learned that criminal charges had been filed against Mother, and informed the therapists of this fact. Mother believes that the caseworker implied that the conduct in question had occurred recently, when it had actually occurred prior to removal of the children from Mother’s care. After the therapists learned of the charges, communication between them seemed to halt, and family therapy between Mother and Child never did take place.
¶9 During the reunification period, the court held periodic review hearings to assess Mother’s progress under the service plan; at some of these hearings, Mother voiced concerns about the fact that family therapy was not occurring, and on other occasions she expressed concerns about certain statements the caseworker was alleged to have made. But for the most part Mother was nonspecific about what else DCFS could have done to improve its efforts; indeed, on at least one occasion, the court expressly asked Mother’s attorney if “there’s anything else . . . as far as services go . . . that could be provided by [DCFS],” or if there was “anything else that you think [DCFS] should be providing to help [Mother] complete the service plan,” and counsel responded that he did not “have any specific request of [the court] right now.” The most specific complaint Mother raised was in August 2020 when she filed a “motion to take evidence and make findings regarding reasonable efforts” in which she accused DCFS of “hostility” and “actively work[ing] against the reunification goal.”
¶10 But by the time this motion was filed, the court had already made—on several different occasions during the reunification period—specific findings that DCFS was making reasonable efforts toward accomplishing the stated permanency goals, including reunification. For instance, in November 2019, the court after a hearing found that “DCFS has provided and is providing reasonable efforts to finalize the permanency goals.” Several months later, the court made a similar finding, noting along the way that Mother’s attorney “could not articulate other efforts that DCFS should be making to further the permanency goals.” In August 2020, the court found that “DCFS has and continues to provide reasonable efforts to finalize the child/children’s permanency goals and to comply with its court ordered responsibilities.” And a few weeks after that, the court did so again, noting that “[n]o party suggested efforts/services that could be provided by DCFS which are not already being provided.” There is no record of Mother making any objection to any of these interim findings regarding reasonable efforts.
¶11 In November 2020, after fourteen months of reunification services and with a permanency hearing looming, the parties engaged in settlement negotiations and entered into a stipulation that resolved many of the issues in the case. The parties and counsel then appeared before the court to put the terms of their stipulation on the record. Following the hearing, counsel for the State prepared an order memorializing the events of that hearing, and circulated it to Mother’s counsel for review. Mother’s counsel did not object or otherwise comment on the proposed form of the order, and therefore the State submitted it to the court “as being stipulated to,” and the court entered it as an order of the court. That order recites that the parties stipulated that “DCFS or other agency/ies continue to make reasonable efforts to assist the family finalize the service plan and its permanency goals.” The order recites that the parties also stipulated that the court would “terminate reunification services” as to Child, and that “termination of those services” was in Child’s best interest. Based on this stipulation, the court changed Child’s primary permanency goal from reunification to adoption. Mother did not object to the terms of this order, either before or after its entry, and did not object to the change in permanency goal.
¶12 Thereafter, the State filed a petition seeking the termination of Mother’s parental rights regarding Child. Some months later, the parties again entered into negotiations and agreed to resolve some of the issues surrounding the State’s termination petition. In particular, Mother stipulated “to the Court finding that it is in Child’s best interests and strictly necessary for the Court to terminate her parental rights should the Court also find legal grounds for terminating her parental rights.” After entry of this stipulation, the court scheduled a two-day termination trial to consider whether grounds for termination existed and whether DCFS had made reasonable efforts toward reunification.
¶13 The trial took place in November 2021. When the parties and their attorneys appeared for the first day of trial, the State informed the court that it did not intend to call any witnesses in its case-in-chief and, instead, asked the court to “take judicial notice of all the filings in the . . . case.” Mother objected to the court taking judicial notice of such a large quantity of material, arguing that she would never be able to respond to everything in the docket and the court would not have time to review so many documents. Eventually, the State narrowed its request to all the “findings and orders specific to [Child],” and Mother did not object. The court then agreed to take judicial notice of all its interim findings and orders regarding Child. The State then asked the court to take judicial notice of the court-ordered child and family plan pertaining to Child, psychological evaluations of Mother and Child, and court reports pertaining to Child; Mother did not object to the court taking judicial notice of the plan, but did object to the court taking judicial notice of the evaluations and court reports. The court initially took the matter under advisement, but later decided to take judicial notice of the service plan as well as the court reports, reasoning that they had been explicitly incorporated into the court’s previous orders and findings. The reports showed efforts the caseworker made, such as visiting all involved parties, providing transportation for Child, inspecting foster parents’ and Mother’s living situations, communicating with therapists, gauging Mother’s progress, promptly communicating with Mother, and ensuring Child had proper educational, medical, and mental health care.
¶14 The State then made its opening statement, pointing out that the only two issues for trial were grounds for termination and reasonable efforts, and arguing that grounds had already been established through the juvenile court’s previous adjudication that this court affirmed. Regarding reasonable efforts, the State argued that, throughout the entire proceeding, the juvenile court had periodically and continuously found that DCFS had made reasonable efforts toward reunification. The State also asserted that, at the end of the reunification period, Mother had stipulated—as part of the November 2020 stipulation prior to the permanency hearing—that DCFS had made reasonable efforts. The State asserted that it had sufficiently proven its case regarding grounds and reasonable efforts through the judicially noticed documents, and it rested its case without calling any witnesses.
¶15 After the State rested, Mother made a “motion for judgment as a matter of law,” arguing that the court’s previous orders “cannot as a matter of law be relied upon for a finding of reasonable efforts in the context . . . of a termination of parental rights trial” and that these orders were only “interim orders” and “can be revisited.” Mother also suggested that she never actually stipulated to a finding of reasonable efforts, even though the court’s order—to which she had not objected—stated otherwise. The court took Mother’s motion under advisement, and did not ever make an explicit ruling on it, but implicitly denied it by eventually making a ruling on the merits in the State’s favor.
¶16 Mother then proceeded with her case-in-chief, in which she called the caseworker and her therapist in addition to presenting her own sworn testimony. The caseworker testified about the events described above, outlining the actions she took to facilitate reunification and discussing her disagreements with Mother. Mother’s therapist testified about her sessions with Mother and the progress Mother made through therapy. Mother testified about the events, described above, that caused her to believe that DCFS was not making reasonable efforts toward reunification.
¶17 At the conclusion of trial, the court took the matter under advisement. About three months later, the court issued an oral ruling,[1] concluding that there were grounds to terminate Mother’s parental rights, and that the State had demonstrated that DCFS had indeed made reasonable efforts to facilitate reunification. After announcing its ruling, the court instructed the State to prepare an order reflecting the court’s ruling. The State did so, and circulated the proposed order to Mother; within her time to object, Mother filed an objection taking issue with one small part of the order, but did not make any objection to the order’s treatment of the proper evidentiary standard.
¶18 Eventually, the court signed a version of the written order prepared by the State, finding “by clear and convincing evidence” that grounds for termination existed because “Child was previously adjudicated to be abused and neglected” in an order that had been affirmed on appeal.
¶19 The court also found—based on “the review hearings, court reports, and other evidence”—that DCFS had provided reasonable efforts toward reunification, although the court did not specify which standard of proof (e.g., clear and convincing evidence or preponderance of the evidence) it was applying with regard to this determination. Among other things, the court found that DCFS had taken action to (i) ensure that Child’s medical, dental, and mental health needs were met, (ii) visit Child at placements, (iii) supervise visits, (iv) review education records, (v) transport Child, (vi) communicate with Child’s therapist, (vii) “coordinate[] virtual parent-time,” (viii) communicate with Mother, and (ix) answer questions and arrange visits. The court also noted that it had, throughout the pendency of the case, “consistently found reasonable efforts on the part of DCFS” in its previous orders and findings. However, the court did not treat these orders and findings as dispositive, and went on to examine the rebuttal evidence offered by Mother, directly addressing her two main arguments: “personal friction between the Mother and [the caseworker], and the delay in starting family therapy with all of the children.” Regarding the friction, the court noted that “DCFS cases are almost always high stress situations and there are bound to be disagreements between DCFS and the parent whose rights are at risk.” And in this case, the court determined that “[t]he disagreements here were based on the DCFS caseworker’s frustration/stress at the lack of progress made by [Mother], which in some sense suggests the DCFS caseworker’s desire for [Mother] to progress and move forward toward reunification.” Regarding the delay in family therapy, the court noted that “DCFS regularly reported that they were following up with the therapist and that the strategy taken by the therapist was determined by the therapist, not DCFS,” and concluded that, “while there may not have been perfection in the case, . . . DCFS has acted reasonably in their efforts.”
¶20 Accordingly, the court entered an order terminating Mother’s rights as to Child.
ISSUES AND STANDARDS OF REVIEW
¶21 Mother now appeals from the court’s termination order, but her appeal is narrowly targeted. As noted, Mother did not contest best interest at trial, after stipulating that termination of her parental rights to Child would be in Child’s best interest. And here on appeal, Mother does not contest the court’s determination that grounds for termination existed. She does, however, challenge—in three different ways—the court’s determination that DCFS made reasonable efforts toward reunification.
¶22 Her first challenge concerns the evidentiary standard the juvenile court applied in making its reasonable efforts determination. She contends that the court should have, but did not, apply a “clear and convincing evidence” standard in making its reasonable efforts determination. “The applicable burden of proof for termination proceedings is a question of law we review for correctness.” In re G.D., 2021 UT 19, ¶ 36, 491 P.3d 867.
¶23 Next, she challenges the merits of the court’s reasonable efforts determination, and this challenge has two parts. First, she contends that the court erred in denying her motion, made at the conclusion of the State’s case-in-chief, for “judgment as a matter of law.” In a bench trial, a motion for judgment as a matter of law’s “procedural counterpart,” Grossen v. DeWitt, 1999 UT App 167, ¶ 8, 982 P.2d 581, is a motion for involuntary dismissal, In re J.A., 2018 UT App 29, ¶ 26, 424 P.3d 913, cert. denied, 420 P.3d 704 (Utah 2018). Such a motion “should be granted when the trial judge finds that the claimant has failed to make out a prima facie case or when the trial judge is not persuaded by the evidence presented.” Accesslex Inst. v. Philpot, 2023 UT App 21, ¶ 33 (quotation simplified). “Whether a party has established a prima facie case is a question of law which we review for correctness.” In re M.L., 965 P.2d 551, 558 (Utah Ct. App. 1998).
¶24 Next, Mother challenges the court’s ultimate finding that DCFS made reasonable efforts toward reunification. “A court’s determination that DCFS made reasonable efforts to provide reunification services involves an application of statutory law to the facts that presents a mixed question of fact and law, requiring review of the juvenile court’s factual findings for clear error and its conclusions of law for correctness, affording the court some discretion in applying the law to the facts.” In re N.K., 2020 UT App 26, ¶ 15, 461 P.3d 1116 (quotation simplified). “Because reasonableness determinations are fact-intensive, we afford the juvenile court broad discretion in determining whether reasonable reunification efforts were made.” In re S.T., 2022 UT App 130, ¶ 17, 521 P.3d 887 (quotation simplified). “Absent a demonstration that the [reasonable efforts] determination was clearly in error, we will not disturb the determination.” In re K.F., 2009 UT 4, ¶ 52, 201 P.3d 985 (quotation simplified). “A finding of fact is clearly erroneous only when, in light of the evidence supporting the finding, it is against the clear weight of the evidence.” In re A.W., 2018 UT App 217, ¶ 23, 437 P.3d 640 (quotation simplified).
ANALYSIS
¶25 We first address Mother’s contention that the juvenile court applied an incorrect evidentiary standard in making its reasonable efforts determination. After that, we address Mother’s challenges to the merits of the court’s determination. For the reasons that follow, we are unpersuaded by Mother’s arguments.
I. Evidentiary Standard
¶26 Mother’s first assertion is that the juvenile court needed to make its reasonable efforts determination by clear and convincing evidence—rather than by the lower preponderance of the evidence standard—and that it did not do so. The first part of Mother’s assertion is correct, but the second part is unsupported by the record in this case.
¶27 With regard to what the proper legal standard is, Mother’s position is correct: the juvenile court needed to apply the clear and convincing evidence standard in making its reasonable efforts determination. Neither the State nor the guardian ad litem takes issue, in this case, with Mother’s position regarding the proper legal standard. And this position is clearly supported by statutory mandate. In all cases in which reunification services are offered, the reasonable efforts determination is a necessary part of the termination inquiry—it is mandated by the statutes governing termination proceedings, see Utah Code § 80-4-301(3)(a) (stating that, “in any case in which the juvenile court has directed the division to provide reunification services to a parent, the juvenile court must find that the division made reasonable efforts to provide those services before” terminating parental rights)—and all facts in termination cases must be established by clear and convincing evidence, see id. § 80-4-103(2)(a) (commanding juvenile courts, in all termination cases, to “require the petitioner to establish the facts by clear and convincing evidence”); see also In re Castillo, 632 P.2d 855, 857 (Utah 1981) (stating that the presumption of parental rights “should be overcome only by clear and convincing evidence”); Utah R. Juv. P. 41(b) (discussing “[t]he burden of proof in matters brought before the juvenile court,” and stating that “cases involving the permanent deprivation of parental rights must be proved by clear and convincing evidence unless otherwise provided by law”).
¶28 But the other half of Mother’s contention—that the juvenile court applied a different standard to its reasonable efforts inquiry—is simply not borne out by the record. As an initial matter, examination of the court’s order indicates that it was generally applying the clear and convincing evidence standard in this termination case. With regard to its determination about grounds for termination, the court specified that it was using the higher evidentiary standard, stating that it “finds that DCFS has proven, by clear and convincing evidence,” that grounds for termination are present. And later in its order, it specified that it was making its legal conclusions regarding termination “by clear and convincing evidence.” Significantly, nowhere in its order did the court reference, even obliquely, any other evidentiary standard. Moreover, earlier in the case, in the court’s September 2019 order approving the service plan, the court had indicated its awareness of the correct evidentiary standard, finding at that point, “by clear and convincing evidence,” that fulfillment of the service plan would “constitute reasonable efforts on the part of [DCFS] to finalize the permanency goals.”
¶29 Mother points out, however, that—while the court, in its final order, specified that its grounds determination and its legal conclusions were being made by clear and convincing evidence— the court did not specifically indicate that it was making its reasonable efforts determination by clear and convincing evidence. As noted, it did not indicate the application of a different evidentiary standard; rather, the reasonable efforts section of the court’s final order was simply silent regarding which evidentiary standard was being applied. As Mother sees it, any uncertainty about which standard the court was applying should be held against the court; in particular, she asks us to infer from this uncertainty that the court was applying an evidentiary standard to that section of its analysis that was different from what it specifically applied to the other sections.
¶30 But this is not the way such inferences work. Uncertainty in the record “is not a basis for reversal.” State v. Hummel, 2017 UT 19, ¶ 82, 393 P.3d 314. Indeed, “[u]ncertainty counts against the appellant, who bears the burden of proof on appeal, and must overcome a presumption of regularity as to the record and decision in the trial court.” Id. “Thus, a lack of certainty in the record does not lead to a reversal and new trial; it leads to an affirmance on the ground that the appellant cannot carry [the] burden of proof.” Id.
¶31 We encountered a similar situation in Gerwe v. Gerwe, 2018
UT App 75, 424 P.3d 1113. In that case, a district court determined, after an evidentiary hearing, that a man had fraudulently induced his ex-wife into signing a postnuptial agreement. Id. ¶ 3. But in so doing, the court was silent regarding which evidentiary standard it was applying; it “did not expressly state that [the ex-wife] presented clear and convincing evidence of fraudulent inducement,” but “it never suggested that a lower standard of proof applied.” Id. ¶ 13. On that record, we rejected the appellant’s assertion of error, stating that a “reviewing court will not presume from a silent record that the court applied an incorrect legal standard but must presume the regularity and validity of the district court’s proceedings, and that it applied the correct legal standard, in the absence of evidence to the contrary.” Id. (quotation simplified). We concluded our analysis by stating that “[b]ecause nothing in the record suggests that the court applied something less than the clear and convincing standard, [the appellant] cannot establish error.” Id. (quotation simplified).
¶32 So too here. Mother offers no evidence—aside from the uncertainty engendered by silence—that the juvenile court applied an evidentiary standard other than clear and convincing to its reasonable efforts determination. And as in Gerwe, this is not enough to satisfy Mother’s appellate burden, especially where the court—in two other places in the order—indicated that it was applying the clear and convincing standard.[2] On this basis, we reject Mother’s contention that the juvenile court applied an incorrect evidentiary standard.
II. Reasonable Efforts
¶33 Next, Mother challenges the merits of the juvenile court’s reasonable efforts determination, and this challenge has two parts. First, Mother asserts that the court erred in failing to grant the motion she made at the conclusion of the State’s case-in-chief. Second, she asserts that the court’s ultimate reasonable efforts determination was against the clear weight of the evidence. We address, and reject, each of these arguments, in turn.
A
¶34 At the end of the State’s witness-less case-in-chief, Mother made an oral motion for “judgment as a matter of law.” The court took the motion under advisement, but never issued an express ruling on it; the court implicitly denied the motion when it ruled in the State’s favor on the merits of the reasonable efforts question. Mother challenges the court’s implicit denial of that motion.
¶35 Although Mother referred to her motion as either a motion for summary judgment or a motion for judgment as a matter of law, in bench trials the proper reference is a motion for involuntary dismissal. See In re Trujillo, 2001 UT 38, ¶ 21 n.13, 24 P.3d 972 (stating that “a motion for a directed verdict contemplates only jury trials,” and “[i]n the context of a bench trial, the directed verdict’s procedural counterpart is a motion for involuntary dismissal”); accord Accesslex Inst. v. Philpot, 2023 UT App 21, ¶ 33. As already noted, the relevant question raised by such a motion—at least where the nonmovant bears the burden of proof on the issue at hand—is whether the nonmovant has, during its case-in-chief, made at least a prima facie case in support of its claim. See Accesslex Inst., 2023 UT App 21, ¶ 33 (stating that, where “the party making [the motion] is the party that does not bear the burden of proof,” the motion “should be granted when the trial judge finds that the claimant has failed to make out a prima facie case” (quotation simplified)). “A prima facie case has been made when evidence has been received at trial that, in the absence of contrary evidence, would entitle the party having the burden of proof to judgment as a matter of law.” In re J.A., 2018 UT App 29, ¶ 27, 424 P.3d 913 (quotation simplified), cert. denied, 420 P.3d 704 (Utah 2018). Thus, we must consider whether the State—the nonmovant who bore the burden of proof—made out at least a prima facie case in support of its reasonable efforts claim during its case-in-chief.
¶36 Our supreme court has defined “reasonable efforts” as a “fair and serious attempt to reunify a parent with a child prior to seeking to terminate parental rights.” In re K.F., 2009 UT 4, ¶ 51, 201 P.3d 985 (quotation simplified). Thus, in order to make a prima facie showing with regard to reasonable efforts, the State had to produce evidence that would—at least before consideration of any contrary evidence—show that DCFS had made a fair and serious effort to reunify Mother with Child during the reunification period. As noted, the State called no witnesses in its case-in-chief, choosing instead to rely entirely on documentary evidence that included the juvenile court’s previous interim orders and the court reports incorporated into those orders. But despite this unorthodox approach,[3] in our view the State did enough—on the facts of this particular case—to make at least a prima facie showing in support of its reasonable efforts claim.
¶37 The State’s evidence, such as it was, included the juvenile court’s interim orders, and those orders indicated that the court, in its ongoing supervisory role over the proceedings during the reunification period, had made multiple and repeated findings that DCFS had engaged in reasonable efforts to further the permanency goals, the primary one of which was reunification. The court never made a contrary finding, despite Mother having registered some dissatisfaction on this point at various stages of the case. Moreover, those interim orders incorporated the court reports, which included detailed accounts of the measures DCFS took to fulfill the requirements of the service plan, including visiting Child, providing transportation for Child, inspecting foster parents’ and Mother’s living situations, communicating with the therapists, gauging Mother’s progress on the service plan, communicating with Mother, and ensuring Child had proper educational, medical, and mental health care. Finally, at the end of the reunification period in November 2020, with a permanency hearing looming, Mother apparently stipulated that “DCFS or other agency/ies continue to make reasonable efforts to assist the family finalize the service plan and its permanency goals.” The use of the word “continue” in the stipulation could reasonably be taken to mean that Mother was acknowledging that, throughout the entirety of the reunification period up until the date of the stipulation, DCFS had made reasonable efforts to accomplish the permanency goals, including reunification. Thus, in this particular case, the State’s evidentiary presentation, despite its truncated and unorthodox nature, was sufficient to indicate— at least in the absence of Mother’s contrary evidence, which had yet to be presented—that DCFS had made a fair and serious effort to reunify Mother with Child.
¶38 We recognize that Mother was eventually able to point to at least some contrary evidence. For instance, Mother put on evidence about the ongoing friction between herself and the DCFS caseworker, and about the issues that came up regarding initiation of family therapy. In addition, Mother had some colorable arguments to make about the November 2020 stipulation, asserting that the parties’ actual agreement had not in fact included any stipulation about reasonable efforts and that, if any such stipulation had been reached, its scope was limited. But at the time the court was considering Mother’s motion for involuntary dismissal—at the close of the State’s case-in-chief— none of that evidence had been presented. And in assessing whether the State had made out a prima facie case regarding reasonable efforts, the court was not supposed to consider whatever contrary evidence Mother might eventually produce. The prima facie case inquiry is simply whether the State produced sufficient evidence, standing on its own and without considering any rebuttal, to support its claim. And on the facts of this unique case, we conclude that it did.
¶39 For these reasons, we discern no error in the juvenile court’s implicit denial of Mother’s motion for involuntary dismissal made at the conclusion of the State’s case-in-chief.
B
¶40 Finally, Mother challenges the juvenile court’s ultimate determination, made as factfinder after trial, that DCFS had made reasonable efforts to facilitate reunification. As noted already, we review this determination deferentially, giving “broad discretion” to the juvenile court “in determining whether reasonable reunification efforts were made.” See In re K.F., 2009 UT 4, ¶ 52, 201 P.3d 985; see also In re A.C., 2004 UT App 255, ¶ 12, 97 P.3d 706 (stating that a juvenile court “is in the best position to evaluate the credibility and competence of those who testify regarding the services that were provided” and to assess the reasonable efforts question). See generally supra ¶ 24.
¶41 Here, the juvenile court listened to the testimony of Mother, the caseworker, and Mother’s therapist, and examined the dozens of exhibits submitted by the parties. This same court had previously been involved in all of the interim review hearings during the reunification period, during which the court assessed DCFS’s reasonable efforts throughout the case. In issuing its ultimate determination, the court took its previous orders into account, but correctly did not treat them as completely dispositive of the question; instead, it considered those orders as potentially persuasive evidence supporting the State’s position, but evaluated that evidence in the context of the rebuttal evidence Mother offered.[4]
¶42 Indeed, the court directly addressed both of Mother’s specific arguments: that the “personal friction” between Mother and the caseworker indicated that the caseworker did not make reasonable efforts, and that the caseworker caused delay in the start of family therapy. With regard to the friction, the court rather astutely noted that child welfare cases “are almost always high stress situations and there are bound to be disagreements between DCFS and the parent whose rights are at risk.” But the court, after reviewing the friction in the context of the entire case, concluded that the disagreements between Mother and the caseworker, while regrettable, did not rise to the level of indicating that the caseworker had failed to provide reasonable efforts. On this record, we cannot say that such a determination is “against the clear weight of the evidence.” See In re A.W., 2018 UT App 217, ¶ 23, 437 P.3d 640.
¶43 With regard to the delay in family therapy, the court noted that, under the service plan, family therapy was not to begin until both Mother’s and Child’s therapists recommended it, and the court was aware that responsibility for scheduling the therapy sessions, once both therapists were on board, was to be up to the therapists themselves. The court, after reviewing this issue in context, concluded that most of the blame for any delay in family therapy should not be laid at the feet of the caseworker, observing that “DCFS cannot, nor should they be required to hold the hand of every party involved to ensure that those parties are also making some efforts,” and ultimately determined that, “while there may not have been perfection in the case, . . . DCFS has acted reasonably in their efforts.” On this record, we cannot say that this determination is against the clear weight of the evidence either.
¶44 Accordingly, we discern no abuse of the juvenile court’s discretion in its ultimate determination, made as factfinder after trial, that DCFS provided reasonable efforts toward reunification.
CONCLUSION
¶45 Mother has not carried her appellate burden of demonstrating that the juvenile court applied an incorrect evidentiary standard to its reasonable efforts determination. And we reject Mother’s challenges to the merits of the court’s ultimate determination that DCFS provided reasonable efforts toward reunifying Mother with Child during the reunification period.
[1] A transcript of the court’s oral ruling was not included in the record submitted to us.
[2] Moreover, Mother had an opportunity to bring this issue to the court’s attention prior to entry of the order. Recall that the court issued an oral ruling, which was then memorialized by the State into a written order and circulated to Mother for her input. Mother filed a limited, targeted objection to one point in the draft order, but—notably—did not raise any objection to the court’s discussion of the evidentiary standard it was applying to its determinations. Any lack of clarity about the standard being applied could easily have been remedied at that stage. See Jensen v. Skypark Landowners Ass’n, 2013 UT App 48, ¶ 6 n.4, 299 P.3d 609 (per curiam) (stating that a party who made “no objection to the form of the order” could not complain, for the first time on appeal, that the order was “vague and ambiguous”), cert. denied, 308 P.3d 536 (Utah 2013); cf. In re K.F., 2009 UT 4, ¶ 63, 201 P.3d 985 (stating that “[j]udicial economy would be disserved” by permitting an appellant to bring, “for the first time on appeal,” a challenge regarding the adequacy of the court’s findings, because such errors are “easy for a trial judge to correct” and are “best corrected when the judge’s findings are fresh in the judge’s mind,” and because “the only likely remedy is merely a remand to the trial court for more detailed findings”).
[3] It would not have been difficult for the State to call at least one critical live witness—the DCFS caseworker—in support of its reasonable efforts claim. The caseworker was available that day to testify, and indeed did testify when she was called to do so by Mother. We do not go very far out onto the proverbial limb by stating that, in most cases, it would be preferable (and, indeed, advisable) for the State, in reasonable efforts cases, to do more than simply rely on previous interim court orders, and we hope that our decision to affirm the juvenile court in this case does not encourage the State to present similarly truncated cases-in-chief in future reasonable efforts cases.
[4] Considering such orders, as well as Mother’s failure to formally object to them, as potentially persuasive but nondispositive evidence appears consistent with previous decisions by this court in reasonable efforts cases. See In re A.W., 2018 UT App 217, ¶ 31, 437 P.3d 640 (“Father also ignores the several times in the record in which the juvenile court made an unchallenged periodic finding—before its termination order—that DCFS had made reasonable efforts to provide him with reunification services.”); see also In re S.T., 2022 UT App 130, ¶ 21, 521 P.3d 887 (noting that, “[a]t no point did Mother object to the court’s findings or indicate that she needed additional or different services.”); In re A.C., 2004 UT App 255, ¶ 17, 97 P.3d 706 (“It is the parent’s responsibility to demand services if they are not offered prior to the termination hearing.” (quotation simplified)).