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Category: Women’s Divorce Issues

Merrill v. Merrill – 2024 UT App 94 – Tax Rate, Expenses, Affect on Income Calculation

Merrill v. Merrill – 2024 UT App 94

THE UTAH COURT OF APPEALS

LUTISHA MERRILL, Appellee, v. JOHN RICHARD MERRILL, Appellant.

Opinion No. 20210785-CA Filed July 11, 2024

Third District Court, Silver Summit Department

The Honorable Teresa L. Welch No. 194500031

Luke A. Shaw and Jill L. Coil, Attorneys for Appellant, Julie J. Nelson, Attorney for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY concurred.

LUTHY, Judge:

¶1        John Richard Merrill appeals from the district court’s final order resolving issues related to his divorce from Lutisha Merrill. John[1] challenges several of the court’s decisions related to its calculation of the parties’ incomes, its determination of Lutisha’s reasonable expenses, its alimony award, and its valuation and division of the marital estate. We affirm most of the district court’s challenged decisions. On the issues of Lutisha’s tax rate and her claimed expense for property maintenance, however, we vacate the district court’s decisions and remand the case for additional proceedings consistent with this opinion.

BACKGROUND
The Marriage

¶2        Lutisha and John were married in 2001 and had twins together in 2007. Lutisha filed for divorce in 2019.

The Parties’ Employment and Incomes

¶3        During their marriage, the parties were able to sustain a comfortable standard of living through their substantial incomes. Lutisha has significant experience in advertising and radio advertising sales. From 2011 to 2014, she worked as the vice president of sales for a large media company, earning an average of $168,730.00 annually. In 2014, she left that position and formed her own business, 360 Touch LLC (360 Touch), a “full-service advertising agency.” As part of her business practice, Lutisha paid for expenses, including advertising for her clients, on a business credit card that earned frequent flyer miles, which resulted in her earning between 1.5 million and 1.8 million miles during both 2019 and 2020. In the years leading up to the COVID-19 pandemic, 360 Touch grew significantly; however, with the onset of the pandemic in 2020, the business “experienced a 37% decline in revenue,” and Lutisha’s income “declined 42%” from the prior year.

¶4        John was employed at the time of trial as the chief financial officer of a publicly traded software company. He had a base annual salary of $225,000.00, with quarterly bonuses of up to 50% of his salary. His contract at the time of trial also provided for nearly $100,000.00 worth of restricted stock shares, a third of which was set to vest in each of May 2020, May 2021, and May 2022.

The Family Homes

¶5        The parties owned two homes that were purchased during their marriage—their primary home in Park City (the Park City property) and a vacation home in Coalville (the Coalville property). Upon separation, Lutisha remained in and maintained the Park City property while John maintained the Coalville property, although he also rented an apartment in Park City to live closer to the children. According to Lutisha, at the time John moved out of the Park City property, the parties “knew that the home desperately needed a new roof . . . , new carpet . . . , [and] new interior paint . . . and that the exterior wood was rotted and needed to be replaced.” The court found that Lutisha paid for the roof to be replaced in May 2020 at a cost of $18,380.00.

The Parties’ Financial Declarations

¶6        As the parties prepared for trial, they provided various financial declarations. Lutisha’s final amended financial declaration listed current monthly expenses totaling $26,489.57 and marital monthly expenses of $27,183.89. Relevant to this appeal, these expenses included line items for minimum credit card payments ($1,322.50), additional credit card payments ($2,000.00), personal loan payments ($970.00), real estate maintenance ($1,792.84), food and household expenses ($4,580.70), clothing expenses ($229.83), entertainment/travel expenses ($696.84), health care expenses ($1,054.67), and divorce legal fees ($5,375.20). John’s final amended financial declaration listed his current monthly expenses at $21,518.85 and marital monthly expenses of $30,973.02. His declaration included a line item for monthly legal expenses of $3,233.66.

The Divorce Trial

¶7        Trial was held remotely in May and June of 2021.[2] The parties agreed to rely on prepared declarations from Lutisha and John in place of direct examination, while still allowing for a real-time opportunity for cross-examination of each party.

Lutisha’s Testimony

¶8        Lutisha’s testimony was presented first. As to her income, she testified regarding the pandemic’s negative impact on 360 Touch and some of the steps she had taken to try to mitigate that impact. She testified, “[A]ny time that’s not taken by a client with a specific project, I now spend cold-calling and working on the business.” She estimated that at the time of trial she was “cold-calling 30 minutes to an hour every day.” She also explained that shortly before the pandemic, her full-time assistant reduced her hours to part time and that although Lutisha had intended to hire a second part-time assistant, she did not do so. Additionally, she identified the following actions she took to mitigate the impact of the pandemic on her business: “I also closed my office, which was very difficult for me. I enjoyed having an office. And I worked with my different vendors to decrease what I was paying them as far as subscription services, those types of things. I’ve done everything possible to create revenue while managing my expenses.” As to the possibility of returning to a radio sales manager position similar to the position she had before forming 360 Touch, Lutisha said that such jobs “don’t exist anymore.” She explained, “I have spoken to all of the general managers of the different radio companies in town, and their current situation is they’re actually getting rid of sales managers. They are terminating people because of the situation their companies are in due to COVID.”

¶9        Lutisha testified that she had struggled to pay her expenses during the pandemic and that her economic situation had forced her to take out a personal loan of $100,000.00 to make ends meet. She testified, “That money went to pay my personal expenses. My mortgage, my car, my food, utilities. It went to pay for everything.”

John’s Testimony

¶10 John’s testimony was presented next. Regarding his income, John testified about his employment agreement. He acknowledged his $225,000.00 base annual compensation as well as the potential for quarterly bonuses. And he said that although he considered the stock shares to be part of his compensation package, he did not “rely on those numbers in planning [his] life,” explaining, “I know that . . . whether it’s stock options or restricted shares, there is a vesting period and a holding period and you can’t sell those shares until sometime in the future.”

Lutisha’s Expert Evidence

¶11      Each party also presented the testimony of a financial expert, along with prepared financial expert reports, to help establish income amounts for the parties. Lutisha’s expert had determined Lutisha’s income from 360 Touch by calculating her average monthly incomes for both 2019 and 2020, “presenting the two calculations . . . to show the impact of the COVID-19 pandemic on [Lutisha’s] earnings.” Those calculations showed an average monthly income in 2019 of $19,555.00 and an average monthly income in 2020 of $10,316.00. Lutisha’s expert concluded:

COVID-19 has had a significant negative impact on 360 Touch and the Advertising Agencies industry. 360 Touch’s sales in 2020 decreased by 37.43 percent compared to 2019. Our analysis of 360 Touch’s 2020 sales shows that many of the Company’s clients have significantly decreased their marketing spending compared to historical expenditures. [Lutisha] informed us that this decrease is caused by decreased demand caused by uncertainty from the impacts of COVID-19. [Lutisha’s] assertion is consistent with industry data . . . .

Lutisha’s expert then quoted from a nationwide report stating that “[r]evenue for the Advertising Agencies industry is anticipated to decline 10.2 percent in 2020 due to reductions in ad spending” and that “[h]igh levels of uncertainty tend to reduce consumer and business spending.” Lutisha’s expert’s report also included calculations showing growth projections for 360 Touch. The calculations showed a 25% loss in 2021, 20% growth in 2022, and 2.4% growth thereafter.

¶12 Lutisha’s expert also calculated an average monthly income for John in both 2019 and 2020. In addition to John’s wages, this calculation relied on various company-related benefits, such as 401(k) contributions, health savings account contributions, and vested common stock. Lutisha’s expert testified that it was important to include the vested stock in John’s income “[b]ecause it’s wealth that’s generated through his work effort.” The result was an average monthly income of $25,922.00 in 2019 and $27,708.00 in 2020.

¶13      Lutisha’s expert testified generally as to the type of stock issued to John, unregistered restricted common stock shares (RSUs):

They have additional limitations on trading when the shares are held by an affiliate or an insider like [John]. So in order to sell those shares, you have to hold them for a certain period of time, but you also have to submit forms that indicate your intent to sell, and then . . . depending on what the limitations are on selling shares of a particular company that you own shares in, you may have to hold those shares for additional periods.

However, when asked, Lutisha’s expert was not able to elaborate on the specific restrictions applicable to John’s stock, responding, “Well, it really varies significantly from one company to another and one stock program to another. And so . . . there aren’t general parameters that I could give you. But RSUs that I’ve seen vary dramatically as to how the insiders can trickle shares into the stock market.”

¶14 During cross-examination, Lutisha’s expert was questioned as to whether, “based upon standard practice in [his] profession,” he counts frequent flyer miles “as a monetary value when computing income.” Lutisha’s expert responded, “I don’t, no.”

John’s Expert Evidence

¶15      John also retained a financial expert. In March 2020, John’s expert had conducted a valuation analysis of 360 Touch. This analysis had projected that for 2020, 360 Touch “would have over $2,000,000 in revenue . . . and would generate $176,000 in salary to [Lutisha], plus another $37,000 in net income to [Lutisha].” However, John’s expert acknowledged at trial that by the 2021 trial dates, actual 2020 numbers were known and instead showed that the real “results for 360 Touch in 2020 were just under $1.6 million in revenue,” a “$121,000 payroll to [Lutisha],” and “a small net loss.” He conceded that “in hindsight,” it appeared that his projection for 2020 was probably “overstated by over 43 percent.”

¶16 John’s expert provided another report in March 2021, which specifically addressed Lutisha’s earning potential. This analysis relied on an industry research report[3] of advertising agencies in 2020—a report “related to the advertising industry as a whole”—to project a “monthly net income after taxes . . . of $13,774 for 2020, and $14,466 for 2021.” Upon cross-examination, John’s expert acknowledged that his information was “not specific to 360 Touch’s customer base,” that he was not “aware of the impact political advertising had on the advertising world in 2020” (a factor with potential to have had an outsized impact on such data in an election year, like 2020), and that he did not “have any data on single-person advertising agencies in Utah and the impacts the pandemic ha[d] had on those agencies.”

¶17      Unlike Lutisha’s expert, John’s expert did include Lutisha’s frequent flyer miles in his analysis of her earnings, explaining that although frequent flyer miles may not have “an actual cash value,” they “could be turned into . . . personal spending or business spending so they actually have a value.” He also considered the level of rewards in this case to not be “typical” because he had not previously “seen this level of rewards . . . where someone is able . . . to amass this amount of $1.5 million in spending on a credit card.” However, when questioned as to the standard in his profession, he conceded that monetizing frequent flyer miles as income was “typically . . . not done.” And on cross-examination he also conceded that he usually follows this standard and does not “typically include rewards points in the valuation of income.”

The Post-trial Proceedings

¶18      After the conclusion of the trial, the district court issued its Findings of Fact and Conclusions of Law and Order. Lutisha thereafter filed a motion to reconsider and amend the findings, requesting changes to the court’s order to address alleged inconsistencies therein and requesting additional findings regarding the court’s property division. John responded to that motion and also counter-requested “correction or reconsideration” of a number of items, highlighting various “other discrepancies” in the court’s order. After holding a clarification hearing, the court entered an Amended Findings of Fact and Conclusions of Law and Order. The court then entered its Decree of Divorce.

¶19 The district court’s amended order was forty-two pages long and addressed a multitude of issues. We confine our recitation here to only those issues relevant to this appeal.

The Court’s Determination of the Parties’ Incomes

¶20 First, the court determined the gross monthly income for each party. The court reviewed the testimony presented by both experts and then found that “[Lutisha’s expert’s] analysis and opinion regarding [Lutisha’s] income [was] more credible than [was John’s expert’s].” The court explained that this was because John’s expert had relied on national projections as opposed to more localized data, had made projections based on data from an election year without knowing the impact of political advertising on such data, had relied on financial information compiled by John as opposed to the actual financial records of Lutisha and 360 Touch, and had made extrapolations predicting Lutisha’s income that ultimately significantly overstated Lutisha’s actual income  for 2020. Thus, the court adopted Lutisha’s expert’s income calculation and set Lutisha’s monthly gross income at $10,316.00.

¶21 As to John’s argument that a higher income should be imputed to Lutisha based on her historical earnings, the court determined that John had not shown that Lutisha was voluntarily underemployed or that, with reasonable effort, she could be earning more. The court found that John did not present testimony regarding what jobs were locally available to an individual with Lutisha’s background, and the court found credible Lutisha’s assertions that the type of marketing positions she had held previous to starting her own business were no longer available and that she had made reasonable efforts to maintain her income in the face of pandemic-related challenges.

¶22      As to John’s gross income, the district court again relied on Lutisha’s expert’s testimony, “which was based on [John’s] wages, bonuses, 401(k) contributions, Section 125 Benefits,[4] Health Savings Account Contributions, Group Term Life Insurance Benefit and Vested Common Stock” to determine a monthly gross income amount of $27,708.00. Although John had argued that, at least for purposes of calculating child support, the stock should not be considered as part of his gross monthly income, the court disagreed. The court reasoned that John’s “employment contract and work/payment history indicate[d] that [John] regularly receives stock options and bonuses as part of his regular income/compensation” and that “including [John’s] bonuses and regularly received stock options as part of his income is consistent with the sources of income as outlined in Utah Code § 78B-12-203(1).” See generally Utah Code § 78B-12-203(1) (defining “gross income” for purposes of the Utah Child Support Act).

The Alimony Order

¶23 Next, the district court addressed alimony. The court initially recognized that the following facts were indicative of the parties’ standard of living during the marriage: “the family traveled regularly, they maintained a second home, they enjoyed outdoor activities (and had recreational vehicles to do so), they dined out regularly, they had a nanny to care for the children, they skied at Deer Valley and Park City Mountain Resort, and they contributed to retirement savings.” As a result, the court accepted John’s marital monthly expenses figure of $30,973.02. Based on these facts, the court determined that, with the exception of the line items for monthly legal expenses, the parties’ listed expenses were “reasonable in light of the marital standard of living and in light of [the other party’s] monthly needs.” With the removal of the attorney fees expenses (and an adjustment to John’s child support expense due to a change in the ordered child support amount), Lutisha was left with a total monthly expense amount of $21,114.80, and John was left with a total monthly expense amount of $19,118.19.

¶24 The court then determined that Lutisha’s net monthly income of $7,846.00—the amount left of her gross monthly income after considering her tax rate, “[b]ased upon [her] 2020 tax return” of “19% federal and 4.95% state”—was insufficient to meet her reasonable needs and left a monthly shortfall of $13,268.80. And the court determined that John’s net monthly income after taxes of $19,409.00 was sufficient to cover his expenses, leaving a surplus of $290.81. The court then applied that surplus to Lutisha’s shortfall and, thereafter, “[e]qualizing the poverty,” split the remaining shortfall between the two parties. This resulted in a monthly alimony amount of $5,529.31, which the court ordered John to pay for five years, allowing Lutisha “to maintain the marital standard of living until the [m]inor [c]hildren reach the age of majority, and . . . allow[ing] [Lutisha] sufficient time to rehabilitate her income.”

The Property Division

¶25 The district court then moved to the task of dividing the marital estate, valuing the estate as of the time of trial. As to real property, the court awarded the Park City property to Lutisha and the Coalville property to John. Regarding the furniture in the homes, the court stated that because “credible trial evidence” showed that the Park City property and the Coalville property had “comparable items that are comparable in value,” it was “reasonable and equitable” to award Lutisha the “furniture, personal property, and the like” at the Park City property and to award John the “furniture, personal property, and the like” at the Coalville property.

¶26      The district court then awarded certain accounts and other property to Lutisha and John respectively. Relevant to this appeal, the court awarded the following to John: (1) two sets of stock options received as compensation from his employer, one valued at $99,198.00 and another valued at $99,996.75; (2) his 2021 first quarter bonus of $28,125.00; (3) a “travel credit” of $15,426.57 for a canceled trip to Bora Bora, with the court noting that although John “received a refund for the travel, the refund is not reflected anywhere else and thus should be included in the division of property”; and (4) the furniture that John had somewhat recently purchased for his Park City apartment, at a value of $26,318.86.

¶27 In dividing the marital estate, the district court declined John’s request to award him reimbursement for half of the $62,304.63 that he contended he spent on maintaining marital property and paying related expenses. The court determined that John “did not provide credible evidence that these were in fact marital expenses,” and it identified examples of listed items that “[did] not appear to be marital expenses,” such as “clothing purchases, contact lenses, Weller Recreation, and Marine Products.”

¶28 The district court did, however, determine that the $100,000.00 personal loan obtained by Lutisha was part of the marital estate because the loan was used “to pay for legitimate marital expenses.” In making this determination, the court pointed to, among other things, Lutisha’s “financial condition at that time” (when her income “had dropped significantly” and John “was under-paying his child support obligations”) and the parties’ “historical spending practices.”

¶29 The district court then divided the remaining marital property and debts. Finally, the court ordered an additional $102,243.09 equalization payment from John to Lutisha.

ISSUES AND STANDARDS OF REVIEW

¶30      John now appeals. He first challenges several components of the district court’s calculation of the parties’ incomes. “Courts have broad discretion to select an appropriate method of assessing a spouse’s income, including determinations of income imputation.” Bond v. Bond, 2018 UT App 38, ¶ 6, 420 P.3d 53 (cleaned up). When challenging an income determination, “appellants bear a heavy burden, and we can properly find abuse [of discretion] only if no reasonable person would take the view adopted by the trial court.” Pankhurst v. Pankhurst, 2022 UT App 36, ¶ 13, 508 P.3d 612 (cleaned up).

¶31      John also challenges several of Lutisha’s expenses that the district court found to be reasonable, the court’s method of calculating alimony, and the court’s division of the marital property. “In a divorce proceeding, the trial court may make such orders concerning property distribution and alimony as are equitable. The trial court has broad latitude in such matters, and orders distributing property and setting alimony will not be lightly disturbed.” Olsen v. Olsen, 2007 UT App 296, ¶ 8, 169 P.3d 765 (cleaned up). “Therefore, we review [property distribution and] alimony awards under an abuse of discretion standard.” Id.

ANALYSIS

I. The Parties’ Incomes

A.        Imputation of Income to Lutisha

¶32      John argues that the district court abused its discretion in determining Lutisha’s gross income. Specifically, he challenges the district court’s refusal to impute wages beyond the $10,316.00 monthly income calculated by Lutisha’s expert.

¶33      As an initial matter, we note that in determining Lutisha’s income, the district court referenced outdated law when it cited Busche v. Busche, 2012 UT App 16, 272 P.3d 748, cert. denied, 280 P.3d 421 (Utah 2012), for the proposition that “[t]he court must find that the spouse is voluntarily unemployed or underemployed” before it may impute income. Id. ¶ 24. While such a finding was a statutory prerequisite to imputing income prior to 2007, “the current version of the Utah Code requires only that the judge ‘enter[] findings of fact as to the evidentiary basis for the imputation.’” Pankhurst v. Pankhurst, 2022 UT App 36, ¶ 14, 508 P.3d 612 (alteration in original) (quoting Utah Code § 78B-12­203(8)(a)). “Thus, while voluntary unemployment or underemployment may be relevant when considering whether a party is concealing income or shirking in his or her efforts to earn income, a finding of voluntary unemployment or underemployment is not a prerequisite to imputing income.” Id. (cleaned up). Instead, “the focus of the imputation analysis is on the detailed findings of fact necessary to support a decision to impute income rather than the ultimate fact or legal conclusion of voluntary unemployment or underemployment.” Id. (cleaned up).

¶34 Notwithstanding the district court’s reference to the outdated rule cited in Busche, the court’s analysis was ultimately based on the correct concern—whether there was sufficient evidence to support imputation of a higher income to Lutisha. The court determined there was not because John presented no evidence “as to the current salaries or job availability in the prevailing market for persons with backgrounds similar to [Lutisha’s] or what [Lutisha’s] employment capacity and earnings potential would be in the prevailing markets in the community.”

¶35      Although John’s expert testified that Lutisha had a higher income potential than what Lutisha’s expert testified to, the court determined that John’s expert’s analysis was less credible than Lutisha’s expert’s analysis because John’s expert “relied on projections at the national level, but he had no data for single-person advertising agencies in Utah and the impacts of COVID-19 on a single-person agency.” The court also noted that the national numbers on which John’s expert relied were election-year numbers and that John’s expert “conceded that he had no knowledge of the impact of political advertising on the media industry numbers at the national level.” Additionally, the court observed that John’s expert “relied on [John’s] self-created spreadsheets for his financial analysis rather than on the actual billing and financial records for 360 Touch and [Lutisha] from 2020.” Indeed, the court found that the revenue projections John’s expert had made for 360 Touch for 2020 were “overstated by over 43% compared to the actual numbers” that were available for that year.

¶36      The court determined that the income analysis of Lutisha’s expert was more credible, as it was based on “income tax returns for [Lutisha] and 360 Touch, and on accounting records for 360 Touch.” After analyzing these records, Lutisha’s expert opined that “360 Touch has experienced a 37% decline in revenue since 2019, and that [Lutisha’s] income has declined by 42% from 2019.” The district court also found that Lutisha “credibly testified that marketing jobs (like the one she held prior to starting 360 Touch) are no longer available” and that she “provided credible testimony that she made reasonable efforts to maintain her income despite the negative impacts of the COVID-19 Pandemic on 360 Touch.”

¶37      John challenges the district court’s credibility assessments and evidentiary findings, specifically arguing that Lutisha’s testimony regarding the availability of marketing jobs “cannot be taken as credible or as a basis for an implication that no jobs exist,” that she “had not made good faith or reasonable efforts to mitigate the loss of her income,” and that she operates her business “without structure or good business practices.” But “[i]t is the province of the trier of fact to assess the credibility of witnesses, and we will not second-guess the trial court where there is a reasonable basis to support its findings.” Reed v. Reed, 806 P.2d 1182, 1184 (Utah 1991); see also Utah R. Civ. P. 52(a)(4) (“Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the credibility of the witnesses.”); Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 27, 176 P.3d 476 (“The trial court considered conflicting evidence on this point and rejected [the husband’s] explanation in favor of [the wife’s]. We defer to the trial court’s assessment of the credibility of this testimony.”). “If there is evidence supporting a finding, absent a legal problem—a fatal flaw—with that evidence, the finding will stand, even though there is ample record evidence that would have supported contrary findings.” Lobendahn v. Lobendahn, 2023 UT App 137, ¶ 27, 540 P.3d 727 (cleaned up). John has shown no such fatal flaw. Instead, our review of the evidence reveals a reasonable evidentiary basis supporting the district court’s factual findings on this issue, and we therefore see no abuse of discretion in the court’s refusal to impute a higher income to Lutisha.

¶38 John also argues that the district court should have considered “expected growth” of 360 Touch. However, the district court was of the opinion that the expected growth asserted by John’s expert was not sufficiently supported, which is understandable given that John’s expert projected an increase in Lutisha’s income for 2020 that ended up being 43% higher than the actual growth in Lutisha’s income for that year. And although Lutisha’s expert testified that “[i]ndustry-wide the projection is for growth,” he emphasized that this projection was, indeed, an industry-wide projection and “not specific to [Lutisha’s] company.”

¶39      John counters that even Lutisha’s expert “projected growth of 20% starting in 2022” for 360 Touch and that such growth “means that [Lutisha will] regain all her lost income by 2024.” But the projection to which John refers first shows a 25% retraction in 2021. And although the projection does predict a 20% growth in 2022, it does not support John’s assumption that a 20% growth rate would continue each year thereafter. Indeed, that projection’s predicted growth rate for the following years was only 2.4%, not a continued 20%.

¶40      In light of all this, the district court did not abuse its discretion by declining to base its income calculations on such varying and uncertain projections and instead leaving it to the parties to seek modification of the court’s orders if either of their incomes were to substantially change in the future. See Johnson v. Johnson, 855 P.2d 250, 253–54 (Utah Ct. App. 1993) (reasoning that “if a trial court knows that a party will be receiving additional future income[,] it should make findings as to whether such additional income will affect the alimony award,” but recognizing that if future income is “too speculative at the time of trial,” the court may delay that determination and a party can “bring a modification proceeding at the appropriate time”). See generally Utah Code § 30-3-5(11)(a) (“The court has continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantial material change in circumstances not expressly stated in the divorce decree or in the findings that the court entered at the time of the divorce decree.”); id. § 78B-12­210(9) (“A parent, legal guardian, or the [Office of Recovery Services] may at any time petition the court to adjust the amount of a child support order if there has been a substantial change in circumstances. . . . [A] substantial change in circumstances may include . . . material changes of 30% or more in the income of a parent . . . .”).

B.        Calculation of Lutisha’s Tax Liability

¶41      John contends that the district court’s calculation of Lutisha’s tax liability was improper, resulting in a net income for her that was lower than it should have been. The district court found that “[b]ased upon [Lutisha’s] 2020 tax return, her tax rate is 19% federal and 4.95% state.” John correctly observes, however, that calculations based on Lutisha’s 2020 tax return show that she actually paid an overall federal tax rate of approximately 13% and an overall state tax rate of approximately 4.8% in 2020. Thus, John asks for a “correction of the numbers to appropriately reflect the underlying source” and a resulting correction to “the corresponding calculations for alimony.”

¶42      Lutisha, on the other hand, defends the tax rates the district court applied to her income. In doing so, she correctly observes that when the standard federal tax rates for 2020 are applied to her current gross monthly income as found by the district court, the result is an overall federal tax rate of 19%; that Utah’s single-person tax rate for 2020 was 4.95%; and that these rates match the rates that the district court applied to her income. She also asserts that although John is correct in his calculations based on numbers derived from her 2020 tax return, the income number on that return “included more than just her earnings”—“[i]t also included $70,000 she withdrew from an IRA that year.” For these reasons, Lutisha asks us to affirm the district court’s application of a 19% overall federal tax rate and a 4.95% state tax rate to her income.

¶43      In short, Lutisha presents a plausible basis for the tax rates the district court actually applied to her income, but it is squarely at odds with the stated basis for the rates the court said it would apply to her income. And we are without a reasoned basis upon which to resolve the inconsistency in the court’s ruling. Accordingly, we vacate the court’s ruling as to the tax rates to be applied to Lutisha’s gross income, and we remand the case for the district court to clarify its ruling on this point and, if necessary, to adjust its net income and alimony calculations accordingly. See generally Wight v. Wight, 2011 UT App 424, ¶¶ 29–30, 268 P.3d 861 (remanding “for clarification” where an aspect of the trial court’s ruling on division of the marital estate “appear[ed] to be internally inconsistent” and the court of appeals was “unable to determine which result the trial court intended”), cert. denied, 280 P.3d 421 (Utah 2012).

C.        Non-inclusion of Lutisha’s Frequent Flyer Miles

¶44      John argues that the district court abused its discretion in failing to account for the large number of frequent flyer miles that Lutisha accrues each year. He argues that the court should have included the value of the miles in her income or, at the very least, used that value to reduce her expenses. We see no abuse of discretion in the court’s treatment of the frequent flyer miles.

¶45 As for not including the frequent flyer miles in its calculation of Lutisha’s income, this was consistent with the testimony of each party’s financial expert. Lutisha’s expert testified that “based upon standard practice in [his] profession,” frequent flyer miles are not counted “as a monetary value when computing income.” And while John’s expert did include the frequent flyer miles in his earnings analysis, he conceded that he does not “typically include rewards points in the valuation of income.” Although John believes that the court should have treated Lutisha’s frequent flyer miles differently due to the unusually high number of them, we decline to classify as an abuse of discretion the court’s decision to adhere to the only generally accepted accounting approach for which evidence was received, even in this somewhat unusual situation.[5]

¶46 Moreover, even if the frequent flyer miles were to be classified as a source of income, Utah “caselaw directs district courts to consider all sources of income when determining alimony[;] it does not dictate that all sources of income be counted as income received by a spouse for that purpose.” Eberhard v. Eberhard, 2019 UT App 114, ¶ 21, 449 P.3d 202. A district court retains “broad discretion to treat sources of income as the court sees fit under the circumstances.” Id. Here, as Lutisha points out, the frequent flyer miles were “not used to offset any of the expenses [she] reported on her financial declaration or that the court found to be her expenses.” The expense category for which frequent flyer miles would almost certainly have been used to offset expenses was Lutisha’s entertainment/travel expenses category, and her declared monthly expenses for that category amounted to $696.84. This amount was supported by financial statements showing that Lutisha spent $10,452.60 out of pocket over a fifteen-month period—for a monthly average of $696.84— in the entertainment/travel category. Because this expense amount accounted only for entertainment/vacation expenses that Lutisha paid for out of pocket, her frequent flyer miles were effectively used to reduce her expenses.

¶47 For both of the foregoing reasons, we determine that the district court did not abuse its discretion in its treatment of Lutisha’s frequent flyer miles.

D.        Inclusion of Stock Grants in John’s Income

¶48 John contends that the district court abused its discretion in calculating his gross income as well. The court determined John’s monthly gross income to be $27,708.00. The court again relied on Lutisha’s expert’s calculations in making this determination, which calculations included amounts for John’s vested RSUs. The court relied on Lutisha’s expert’s testimony that “even if the stock received by [John] is restricted stock, it becomes income in the year in which it vests.” The court also explained that it was including the stock in its income calculation because “[John’s] employment contract and work/payment history indicate that [he] regularly receives stock options and bonuses as part of his regular income/compensation.”

¶49 John contests the inclusion of the vested stock in the calculation of his income. He contends that this inclusion was an abuse of discretion because the example sources of “gross income” listed in Utah Code section 78B-12-203(1) all have values that “can be determined,” while the value of unliquidated stock “cannot be determined” until it is liquidated.[6] He also argues that the inclusion of the vested stock in the calculation of his income was an abuse of discretion because the stock “represents income not actually realized” since he “does not have free access to trade or liquidate the stock at the time of vesting.”

¶50      We first observe that “income” in this context is defined to include “all gain derived from . . . labor,” Utah Code § 78B-12­102(14)(b), and that “gross income” is defined to include “prospective income from any source,” id. § 78B-12-203(1). Under these definitions, the value of vested stock that a person is anticipated to receive in exchange for labor falls squarely within the statutory definition of gross income. John does not dispute this point, as he concedes that the value of vested but unliquidated stock “could fit in ‘prospective income from any source.’”

¶51      We next observe that John is mistaken in his assertion that the example sources of gross income listed in section 78B-12­203(1) all have values that can be determined, while the value of vested but unliquidated stock cannot be determined. One reason John’s assertion is not correct is that bonuses and gifts—two examples of gross income listed in section 78B-12-203(1)—might themselves take the form of vested stock. More importantly, “gross income” refers to “prospective income,” id. (emphasis added), in other words, income that a person is anticipated to receive in the future. Thus, as to every category of income— wages, commissions, bonuses, dividends, capital gains, vested stock, etc.—when a court calculates a person’s prospective income, it is making a prediction, based on current data, of the value the person will receive in the future. And as to every category, the actual future value may end up being different from the amount predicted. For this reason, the code allows for adjusted alimony orders and new child support orders when there is a substantial change between a party’s future income as anticipated and the party’s future income as it turns out to be. See id. §§ 30-3-5(11)(a), 78B-12-210(9). The fact that with stock there is uncertainty both as to what its value will be when it is received in the future and as to what its value will be when it is liquidated thereafter does not convince us to require exclusion of stock received in exchange for labor from gross income calculations.[7]

¶52 John’s other assertion is that the inclusion of the vested stock as part of his gross income was an abuse of discretion because of the stock’s nonliquidity at the time of its vesting. At one level, John’s point is well taken: because “the overarching aim of a . . . [divorce] decree . . . is to achieve a fair, just, and equitable result between the parties,” Dahl v. Dahl, 2015 UT 79, ¶ 25, 459 P.3d 276 (cleaned up), if the inclusion of a nonliquid asset as part of a party’s income makes it unduly difficult or impossible for that party to comply with a payment obligation calculated based on his or her income, equity may require the exclusion of that asset from the income calculation. But the burden of demonstrating that the inclusion of a particular form of income in the income calculation results in an inequity is on the party challenging the income calculation. See Lamb v. Lamb, 2024 UT App 16, ¶ 39, 545 P.3d 273 (stating that “the party challenging” an award “adjusting the financial and property interests of the parties” has the “heavy burden” to show “that such a serious inequity has resulted as to manifest a clear abuse of discretion” (cleaned up)). And here, John has made an insufficient showing of inequity resulting from inclusion of his RSUs as part of his gross income.

¶53      Although John points to Lutisha’s expert’s testimony that the RSUs are “restricted in trading” and that there are “additional limitations on trading when the shares are held by an affiliate or an insider like [John],” Lutisha’s expert testified only in general terms:

So in order to sell those shares, you have to hold them for a certain period of time, but you also have to submit forms that indicate your intent to sell, and then . . . depending on what the limitations are on selling shares of a particular company that you own shares in, you may have to hold those shares for additional periods.

Thus, his testimony was ultimately unhelpful to a determination of what restrictions were in place in this case. In fact, when questioned more specifically as to the restrictions generally in effect for individuals in John’s circumstances, Lutisha’s expert responded, “Well, it really varies significantly from one company to another and one stock program to another. And so . . . there aren’t general parameters that I could give you. But RSUs that I’ve seen vary dramatically as to how the insiders can trickle shares into the stock market.” To demonstrate a restriction on liquidity sufficient to render the district court’s inclusion of the RSUs in John’s income an abuse of discretion, John would need to direct us to evidence showing what particular restrictions were placed on the RSUs he received. It is not enough for John to argue, without more, that some restrictions apply. Accordingly, John has failed to show that the district court abused its discretion in relying on Lutisha’s expert’s calculation of John’s income, including the vested restricted stock.

II. Lutisha’s Expenses

¶54 John argues that several of Lutisha’s expenses “are unreasonably high, not actually incurred/or paid by other resources . . . , or not ongoing after the divorce.” We address each of the specifically challenged expenses in turn.

A.        Additional Credit Card Payments

¶55 John first challenges Lutisha’s “additional credit card payments” expense of $2,000.00. He argues that because Lutisha “inferred that all of her expenses are paid via credit card,” this “means additional payments on the card each month are going to pay for other stated monthly expenses that are charged to that card.” But that line item appears to address pre-existing credit card debt and therefore would not be duplicative of other listed expenses. John has pointed to no evidence to the contrary; therefore, he has not demonstrated an abuse of discretion in the court’s treatment of this expense.

B.        Lutisha’s Personal Loan

¶56 As we discuss more fully below, as part of its property division, the district court determined that Lutisha’s personal loan was part of the marital estate. See infra ¶ 83. John argues that because he was therefore “responsible for half the value of [Lutisha’s] personal loan,” the court should have halved Lutisha’s listed monthly expense for payment on this debt and shifted the other half to his monthly expenses. However, it appears that this issue was not preserved for our review. We do not see that the issue was raised in any of the portions of the record John cites as having preserved it—including his counter-request for reconsideration that asks for several other of Lutisha’s expenses to “be scrutinized.” See generally Utah R. App. P. 24(a)(5) (requiring an appellant to provide either “citation to the record showing that the issue was preserved for review” or “a statement of grounds for seeking review of an issue not preserved”). “Parties are required to raise and argue an issue in the district court in such a way that the court has an opportunity to rule on it.” Issertell v. Issertell, 2020 UT App 62, ¶ 21, 463 P.3d 698 (cleaned up). “When a party fails to raise and argue an issue in the district court, it has failed to preserve the issue, and an appellate court will not typically reach that issue absent a valid exception to preservation.” Id. (cleaned up). Because no such exception is argued here, we do not reach this issue.

C.        Maintenance of the Park City Property

¶57 John contests Lutisha’s monthly expense of $1,792.84 for “real estate maintenance.” He argues that this expense is “inflated” because it was calculated based, in large part, on $19,086.00 paid to a roofing company, $4,200.00 paid to a fabrication and welding company, and $2,443.61 paid to a plumbing company over a fifteen-month period—expenditures that John contends will not be “ongoing expenses that [Lutisha] will incur after the divorce.”

¶58 We agree that using expenditures for capital improvements, as opposed to costs for regularly recurring maintenance, as the basis of a monthly expense item is an abuse of discretion. “Capital improvements are betterments of a long lasting nature which add to the capital value of the property.” Bettinger v. Bettinger, 793 P.2d 389, 393 (Utah Ct. App. 1990) (cleaned up). Thus, when addressing capital improvements, the court should adjust the value of the improved property rather than use the cost of the improvement in the calculation of a party’s post-divorce expenses.

¶59      Accordingly, we vacate the district court’s ruling as to Lutisha’s expense line item for real estate maintenance and instruct the court on remand to make findings as to whether the payments to the roofing company, fabrication and welding company, and plumbing company were for capital improvements, regularly recurring maintenance, or some other purpose. The court should then adjust Lutisha’s expenses and the value of the Park City property as may be merited and, if necessary, also adjust any other calculations impacted by that change, including the alimony award and the asset equalization amount.

D.        Food, Household Expenses, Clothing, and Travel

¶60      John also contests Lutisha’s monthly expense of $4,580.70 for “food and household supplies.” He argues that the district court’s “adoption of [his] represented marital expenses doesn’t support the amounts represented by [Lutisha].” That is, he argues that because the court adopted his calculation for total monthly marital expenses, and because his calculated marital expense for this specific category was $2,945.00, Lutisha’s significantly higher asserted expense in this area is suspect and was not “properly reviewed and scrutinized by the court.”

¶61 As an initial matter, we observe that John provides no authority suggesting that one party’s listed expense for a given category is automatically suspect when it is not in line with another party’s calculated marital expense for that same category. Indeed, our case law instructs that a district court need not make a specific finding as to an overall marital expense amount, let alone precise marital expense amounts, for various expense categories. See Clarke v. Clarke, 2023 UT App 160, ¶ 57, 542 P.3d 935 (“There is usually no need for a trial court to make a separate specific finding regarding the overall ‘marital standard of living’ as measured by the total amount of money spent each month by the couple while they were married.” (cleaned up)). And although the court in this case accepted as “reasonable” John’s monthly marital expense amount of $30,973.02, the court made no such finding concerning the marital expenses listed for any of the specific expense categories. Moreover, we note that there is some variation between the expense categories that John and Lutisha employed and their decisions as to what expenditures belonged in which categories. In fact, one of the arguments John raises is precisely that—that certain amounts Lutisha categorized as household expenses should have instead been categorized as clothing and travel expenses.

¶62 Yet regardless of these variances between the parties’ financial declarations and how they categorized certain expenditures, we are ultimately presented with a case where (1) the court determined that the parties had enjoyed quite a comfortable standard of living during the marriage and ultimately adopted as “reasonable” the overall monthly marital expense of $30,973.02 provided by John and (2) Lutisha based her declared expenses on fifteen months of actual charges made to her accounts, and she provided the court with a document listing all those charges and how she had categorized them.[8] Against this backdrop, the court determined that after deducting the parties’ respective temporary legal expenses, their remaining expenses ($21,114.80 for Lutisha and $19,118.19 for John) were “reasonable in light of the marital standard of living.” See id. ¶ 59 (explaining that a court should “assess[] a party’s claimed line-item expenses in light of” the marital standard of living, and explaining that the “marital expenses” column on the parties’ financial declarations is “to assist with this process” (cleaned up)). All considered, we do not see a lack of supporting evidence for the district court’s decision that these challenged expenses were reasonable. Nor do we see any merit to John’s assertion that the court failed to “properly review[] and scrutinize[]” those expenses.

E.         Lutisha’s Medical Expenses

¶63      John argues that Lutisha’s “expense for health care should be scrutinized as she failed to distinguish between what amounts were for her and [what amounts were for] the children” and that this is problematic because John is already required to reimburse her for half of the children’s medical expenses. But again, similar to his objection to Lutisha’s personal loan, see supra ¶ 56, this particular objection to this line item is not referenced in his counter-request for reconsideration that addressed several expenses that he contended should “be scrutinized,” and John does not cite any other portion of the record where this argument was preserved. Accordingly, we do not reach this issue. See Issertell v. Issertell, 2020 UT App 62, ¶ 21, 463 P.3d 698.

III. Alimony Calculation

¶64      John challenges the district court’s overall alimony award as inequitable because the amounts of money left to each party after John’s alimony payment are not equal. He argues that “the court abused its discretion by awarding [Lutisha] any more than half of the disposable income of the parties on a monthly basis.” He points out that the total monthly amount available to Lutisha is $15,876.31 (including her net income of $7,846.00, the child support award of $2,501.00, and the alimony award of $5,529.31) and the amount available to him is $9,571.56 (his net income of $19,409.00 minus the amounts he must pay in child support and alimony). We do not agree that the district court abused its discretion as John contends.

¶65      A proper alimony assessment proceeds as follows:

First, the court should assess the needs of the parties, in light of their marital standard of living. . . . Next, the court should determine the extent to which the receiving spouse is able to meet [his or] her own needs with [his or] her own income. If the court determines that the receiving spouse is able to meet all [of his or] her needs with [his or] her own income, then it should not award alimony.

If the court finds, however, that the receiving spouse is not able to meet [his or] her own needs, it should then assess whether the payor spouse’s income, after meeting his [or her] needs, is sufficient to make up some or all of the shortfall between the receiving spouse’s needs and income.

Rule v. Rule, 2017 UT App 137, ¶¶ 19–20, 402 P.3d 153 (cleaned up). Should the court then encounter the common dilemma that “the parties’ combined resources do not stretch far enough to meet the legitimate needs of what are now two households rather than one,” the court must apply an “equalization of poverty” approach, ensuring “that when the parties are unable to maintain the standard of living to which they were accustomed during marriage, the shortfall is equitably shared.” Id. ¶ 20.

¶66 This is precisely the approach followed by the district court. It first addressed Lutisha’s financial condition and needs, determining that, after removing her temporary legal expenses, her remaining expenses of $21,224.80 were “reasonable in light of the marital standard of living and in light of [John’s] monthly needs.” The court then subtracted from this amount Lutisha’s net income and the ordered child support, arriving at a shortfall of $10,767.80. The court also addressed John’s financial condition, needs, and ability to pay. The court found, after also removing his temporary legal expenses, that John’s remaining expenses of $19,118.19 were “reasonable in light of the marital standard of living and in light of [Lutisha’s] monthly needs.” Then the court determined that John’s net income was sufficient to cover all his expenses with a surplus of $290.81 to go toward Lutisha’s shortfall. Finally, the court calculated the shortfall that would be remaining after applying John’s surplus of $290.81 and, “[e]qualizing the poverty,” divided that remaining shortfall by two. Thus, the court followed exactly the procedures required by Utah law and did not abuse its discretion in arriving at the resulting alimony amount.

¶67      John pushes back, arguing that “[u]nder no circumstances” can the district court’s alimony award “be viewed as equitable” because Lutisha will be left with a higher net income than he will be left with. John argues that the more equitable result would be “each party having 50% of the disposable income.” But “equalization [of the parties’ standards of living] does not require a court to award alimony so that each party is left with an equal monthly income. Rather, it requires a court to divide the shortfall of income equitably between the parties in light of each party’s demonstrated needs as well as the other relevant circumstances in the case.” Id. ¶ 21 (emphasis added) (cleaned up). Indeed, we have previously vacated alimony awards for doing exactly what John urges here—equalizing the money each party has at his or her disposal instead of equalizing the shortfall. See Vanderzon v. Vanderzon, 2017 UT App 150, ¶ 52, 402 P.3d 219 (“[B]ecause the court had already determined that the expenses of each party were reasonable, its decision to equalize income rather than shortfall—even though [the wife’s] needs were greater than [the husband’s]—appears to have left [the wife] to bear significantly more of the burden of insufficient resources than [the husband].”); Bakanowski v. Bakanowski, 2003 UT App 357, ¶ 12, 80 P.3d 153 (“Here, the trial court never determined [the wife’s] needs based on the parties’ historical standard of living. Instead, the trial court engaged in an effort to simply equalize income. In attempting to equalize the parties’ income rather than going through the traditional needs analysis, the trial court abused its discretion.”). Thus, John’s argument on this point is unavailing.

IV. Property Division

¶68      Finally, John challenges the district court’s treatment of several pieces of marital property. We address each in turn.

A.        John’s Stock Grants

¶69 John argues that because the district court included in John’s income the value of the stock he received from his employer, the court’s inclusion of that stock in the marital estate as well amounted to “double-dipping.” We are unconvinced. While the court considered the value of one year’s worth of vested stock when it calculated John’s income, the purpose of that calculation was to provide a prospective income number to serve as a basis for determining alimony and child support awards going forward. In contrast, the court included stock in the marital estate because there was an existing accrual of stock that had previously been given to John by his employer. The court including one year’s worth of anticipated future stock receipts in John’s prospective income and separately considering already-accrued stock in its division of the marital estate is no different from a court including a party’s anticipated salary in that party’s prospective income and separately including in the marital estate the already-paid salary remaining in the parties’ bank accounts when it divides the marital estate. The court did not abuse its discretion by considering the stock in both contexts.

¶70 John also argues that if any amount of already-received stock is marital property, it should only be the vested portions of stock. Yet John cites no authority indicating that it would be an abuse of discretion for the court to treat granted but unvested stock as part of the marital estate when the evidence is that the stock will vest over a moderate term as a matter of course. “An appellate court is not a depository into which parties may dump the burden of their argument and research,” and John’s inadequate briefing on this point “is by definition insufficient to discharge [his] burden to demonstrate trial court error.” Andersen v. Andersen, 2015 UT App 260, ¶ 6, 361 P.3d 698 (per curiam) (cleaned up).

¶71 John next argues that the values assigned to the stock “were arbitrary and place [an] unreasonable risk on [John].” But the values placed on the stock are the “current balance” values given to the stock by John himself in his most recent financial declaration, making those values anything but arbitrary. John’s real point in this regard seems to be that because the value of the stock will almost certainly change in the future, the court abused its discretion by assigning it a present value for purposes of summing and dividing the marital estate. However, the court’s approach was no different from the one we routinely allow courts to take with other marital assets—such as homes and vehicles— that are valued as of the time of trial and then awarded to one party as part of the division of marital property, despite the fact that their value will almost certainly change. “The valuation of marital property is necessarily a snapshot in time, and such a moment does not consider the myriad situations in which the value of the parties’ property might be positively or negatively affected in the future.” Wadsworth v. Wadsworth, 2022 UT App 28, ¶ 97, 507 P.3d 385 (cleaned up), cert. denied, 525 P.3d 1259 (Utah 2022).

¶72 John also argues that the court did not “consider the tax consequences of the asset,” if it is ever sold, when valuing the stock and awarding it to John as part of the property division. Yet it is not clear that John will ever liquidate the stock, and “we do not generally expect courts to speculate about hypothetical future tax consequences.” Id. (cleaned up).

¶73 Finally, John argues that the court should have mitigated the future uncertainty of the stock values by “adopting a different form of distribution,” such as dividing the vested stocks or ordering John to liquidate the stock as it becomes available and provide half the proceeds to Lutisha. But such an approach goes against the district court’s responsibility to “equitably distribute [marital property] with a view toward allowing each party to go forward with his or her separate life.” Marroquin v. Marroquin, 2019 UT App 38, ¶ 27, 440 P.3d 757 (cleaned up); see also Gardner v. Gardner, 748 P.2d 1076, 1079 (Utah 1988) (“The purpose of divorce is to end marriage and allow the parties to make as much of a clean break from each other as is reasonably possible. An award of deferred compensation which ties a couple together long after divorce can frustrate that objective.”). We therefore cannot say that the court’s determination to not delay the division of the stock was an abuse of its discretion.

¶74      In sum, each of John’s arguments related to the stock grants is unavailing. We see no abuse of discretion in the court’s treatment of the stock.

B.        John’s 2021 Bonus

¶75 John next argues that the district court should not have included his bonus of $28,125.00 from the first quarter of 2021 as a separate item in the marital estate. He asserts that the bonus had already been deposited into his bank accounts that were subject to equitable division and, therefore, that the bonus was essentially counted twice. But as Lutisha points out, the total value of those other accounts combined (approximately $3,400.00) was far less than the bonus amount, suggesting that John had either spent the bonus or not deposited it into those accounts as claimed. And John has not shown that, if spent, the bonus was applied to marital costs. Thus, we cannot say that it was an abuse of discretion for the court to count the bonus as a separate item in the marital estate and award it to him.[9]

C.        John’s Travel Credit

¶76 In the fall of 2020, John booked travel to Bora Bora for himself and the parties’ children for April 2021. The trip later had to be canceled when Bora Bora was closed due to the COVID-19 pandemic. The court included the resulting travel credit of $15,426.57 as part of the marital estate and awarded it to John as part of the property division. The court’s reasoning was as follows: “The [c]ourt notes that while [John] provided updated bank statements at trial showing he received a refund for the travel, the refund is not reflected anywhere else and thus should be included in the division of property.”

¶77      John contests this award, arguing that the court’s reasoning “does not make sense on its face.” He asserts that “the evidence supports this credit being to an account [that] was subject to equitable division at the time of trial”; in other words, because the travel credit served to reduce the marital debt on the credit card, the travel credit was already accounted for when the reduced credit card debt was included in the equitable property division. We disagree that this is what happened.

¶78      Although the district court could have provided a clearer explanation, we understand the court to have recognized that although John had provided an updated credit card statement at the time of trial showing travel refunds, those refunds were not reflected on the prior statements before the court, which the court used to determine the assets and debts of the parties. Thus, it was not the case that these travel refunds reduced the marital debt that was before the court when it determined the assets and debts of the parties. The numbers support this interpretation: the marital debt on the credit card that was allocated to John was $44,484.00 on the statement that the court used when determining the assets and debts of the parties, and the balance on that card as reflected on the more recent statement, provided at trial, showed an outstanding debt of only $29,202.72—a difference quite close to the amount of the travel-related refund. Because the travel refund was not reflected in the documents on which the court based its property division, and because John received the refund after the date of those documents, the court did not abuse its discretion by separately including the amount of the travel-related refund as marital property and allocating it to John.

D.        John’s Furniture

¶79 John argues that the furniture at the Park City property was worth more than the furniture at the Coalville property and, therefore, that the district court abused its discretion in not treating the $26,318.86 that John spent on new furnishings for his primary residence (an apartment in Park City) as rectifying this imbalance. Instead, the court determined that because “credible trial evidence” showed that the Park City property and the Coalville property had “comparable items that are comparable in value,” it was “reasonable and equitable” to award Lutisha the “furniture, personal property, and the like” at the Park City property and to award John the “furniture, personal property, and the like” at the Coalville property. The court thus considered the $26,318.86 value of the newer furniture as a separate item of marital property subject to division. John argues, however, that “evidence presented to the court supports an equitable finding that the property in each [party’s] possession and residences awarded to them equally offset the other,” that is, that including the value of the new furniture in John’s apartment “would be sufficient to offset the difference in value” of the furniture located at the other two properties.

¶80      “Generally, district courts have considerable discretion concerning property distribution in a divorce proceeding and their determinations enjoy a presumption of validity.” Dahl v. Dahl, 2015 UT 79, ¶ 119, 459 P.3d 276 (cleaned up). “[A]n appellate court’s role is not to reweigh the evidence presented at trial but only to determine whether the court’s decision is supported by the evidence.” Barrani v. Barrani, 2014 UT App 204, ¶ 24, 334 P.3d 994. Here, John has provided no citation or argument showing how the court’s decision was not supported by the evidence. John’s briefing simply points out that the court was provided with photographs “of both properties and the furniture therein” and then asserts that “[t]he evidence presented to the court” was sufficient to support a different finding. This bald assertion does not convince us that the court’s decision was not supported by the evidence before it. Thus, we see no abuse of discretion on this point.

¶81      Additionally, John argues that even if the new furniture is subject to division as marital property, there was no evidence that the furniture “maintains the same value as it had at the time of purchase more than eighteen months prior to trial.” Given, however, that the court was presented with evidence that this furniture was only eighteen months old and slightly used, and given that John presented no evidence of its depreciated value, we see no abuse of discretion in the court’s reliance on the purchase price amounts to assess the value of the furniture.

E.         John’s Requested Reimbursement of Marital Expenses

¶82      The district court refused to award reimbursement to John for half of $62,304.63 that he claimed to have spent “maintaining the marital property and expenses,” explaining that John “did not provide credible evidence that these were in fact marital expenses” and citing a few examples of listed expenses that were non-marital, such as “clothing purchases, contact lenses, Weller Recreation, and Marine Products.” John contests this determination, arguing, among other things, that his documentation also showed payments toward maintenance of marital property such as the mortgage, HOA fee, and insurance on the Coalville property, as well as insurance on the parties’ boat and certain ATVs. But each of John’s arguments on this point asks us to reassess credibility and reweigh the evidence, something that, again, we will not do, see Burruni v. Burruni, 2014 UT App 204, ¶ 24, 334 P.3d 994. And John’s general assertions do not demonstrate that the court’s finding that the evidence John provided was not “credible evidence” of marital expenses was not supported by the evidence. We therefore see no abuse of discretion in the court’s refusal to award the requested reimbursement.

F.         Lutisha’s Personal Loan

¶83 John contests the inclusion in the marital estate of the $100,000.00 personal loan that Lutisha obtained to pay expenses while the parties were separated. He argues that because “the majority of the debt incurred and paid off with that loan were for [Lutisha’s] attorney fees,” including the loan in the marital estate is contrary to the district court’s requirement that the parties be responsible for their own attorney fees. Although John overstates Lutisha’s admission that her monthly expenses, including her legal fees, may have been paid, in part, by the loan, the real issue here is that John overstates the district court’s ruling on attorney fees. The court’s order was as follows: “[B]oth [Lutisha] and [John] are awarded financial and property assets in the division of the marital estate in this divorce action . . . . Thus, because both [p]arties have access to financial and property resources, the [c]ourt now orders that each [p]arty shall pay for their own attorney fees and costs.” (Emphasis added.) Thus, the court’s requirement that each party bear his or her own legal fees was in relation to those fees moving forward. We therefore see no conflict in the court’s actions with regard to Lutisha’s personal loan and, thus, no abuse of discretion.

CONCLUSION

¶84 The district court enjoys broad discretion in addressing issues of income, alimony, and property distribution. And, with just two exceptions, John has not shown an abuse of that discretion. Those exceptions are the uncertainty regarding the tax rates to be applied to Lutisha’s gross income and the possible inclusion of capital improvements to the Park City property in determining Lutisha’s monthly expenses. Thus, we generally affirm the order but vacate the district court’s determinations on those two issues. We remand those issues to the district court for clarification and, if necessary, adjustment, recognizing that any adjustments to these items may also necessitate adjustments to the ultimate alimony award, child support award, and property distribution.

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


[1] As is our practice, because the parties share the same last name, we refer to them by their first names, with no disrespect intended by the apparent informality.

[2] Prior to trial, in September 2020, the parties entered into a stipulation that “resolved the issues of child custody, parent time, number of overnights for purposes of calculating child support . . . , payment of the children’s expenses, the claiming of the children on taxes, and other more minor issues.” None of these issues are relevant to this appeal, and we therefore do not discuss them further.

[3] 3. This report was created by IBISWorld, which describes itself as a global company that “provides trusted industry research on thousands of industries worldwide.” IBISWorld’s Story, IBISWorld, https://www.ibisworld.com/company/our-story/ [https://perma.cc/N3PY-Z77A].

[4] Lutisha’s expert explained these benefits as follows: “They are generally the purchased cafeteria plan benefits. They’re just a selection of benefits that the IRS allows employers to offer to their employees on a pretax basis.”

[5] John suggests that the district court improperly “refused to allow [his expert to testify] on facts and circumstances of this case that would warrant deviating from the standard practice in [the expert’s] profession.” This statement mischaracterizes the court’s action. The court only refused to allow testimony as to other cases, not as to the circumstances of this case:

I don’t want [John’s expert] talking about other cases that are not this case. What I want him to talk about, though, is general principles that are applied in his profession, in his expertise in terms of how travel benefits would be incorporated, how they’re incorporated, and how he applied those principles to this case. So . . . I am permitting that. . . . But I’m not going to permit him to talk about other cases . . . because that is outside the scope.

Under this ruling, John’s expert was free to present general principles for the treatment of frequent flyer miles when the number of miles at issue is unusually high. Yet he provided no such principles.

[6] Specifically, section 78B-12-203(1) says that “‘gross income’ . . . 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.” Utah Code § 78B-12-203(1).

[7] John further argues that the stock grants in his case are only guaranteed in the current contract term and may not be included in future contracts with his employer. But here again, the fact that income (in all its sources) might change in the future does not impact the district court’s need to determine prospective income based on data available at the time of divorce, and if John’s compensation substantially changes in the future, modification may be sought to address the change.

[8] John suggests that the court erred when it did not require more evidence supporting Lutisha’s expenses and “did not find that [Lutisha] met her burden to prove the marital standard of living as required via Dahl v. Dahl, [2015 UT 79, 459 P.3d 276,] but instead used [John’s] financial declaration to find [Lutisha’s] request reasonable.” But Dahl does not “automatically require[] a court to deny a request for alimony in the absence of documentation.” Wadsworth v. Wadsworth, 2022 UT App 28, ¶ 101, 507 P.3d 385, cert. denied, 525 P.3d 1259 (Utah 2022). “In fact, the [Dahl] court explicitly acknowledged that the district court could have imputed a figure to determine the wife’s financial need based either on the husband’s records of the parties’ predivorce expenses or a reasonable estimate of the wife’s needs.” Id. ¶ 102 (cleaned up). Therefore, we do not consider this argument further.

[9] John raises a separate plain error argument with regard to his bonus; however, “plain error review is not available in ordinary civil cases unless expressly authorized by rule.” Kelly v. Timber Lakes Prop. Owners Ass’n, 2022 UT App 23, ¶ 44, 507 P.3d 357; see also Duffin v. Duffin, 2022 UT App 60, ¶ 36 n.7, 511 P.3d 1240 (applying this rule in a divorce case), cert. denied, 525 P.3d 1262 (Utah 2022). We therefore do not address this argument—or any other plain error arguments—further.

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Thorup v. Thorup – 2024 UT App 93

Thorup v. Thorup – 2024 UT App 93
THE UTAH COURT OF APPEALS

MONA THORUP, Appellee, v. MARCUS THORUP, Appellant.

Opinion No. 20220583-CA Filed July 5, 2024

Third District Court, Salt Lake Department

The Honorable Amy J. Oliver

Commissioner Joanna Sagers

No. 204906416

Jonathan G. Winn, Attorney for Appellant, Jenna Hatch, Attorney for Appellee

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

HARRIS, Judge:

¶1        In this case, we are asked to consider whether the district court properly allocated—as between a divorcing couple—the equity in the house in which the couple lived during their marriage. In particular, Marcus Thorup challenges the court’s determination that substantial portions of the value of the house, which was originally his separate property, became commingled into the marital estate. We find merit in many of Marcus’s arguments, and therefore reverse the court’s equity allocation order and remand the case for further proceedings.

BACKGROUND

¶2        Marcus and Mona Thorup married in 1986.[1] Eleven years later, in 1997, they moved into a new house (the House) built—at the apparent cost of $445,000—by Marcus’s father’s construction company. For the next seven years, the House was titled in the name of Marcus’s father’s company, and Marcus and Mona lived there rent-free. During some of this time, Marcus and Mona obtained a homeowners insurance policy that listed both of them as “owners” of the House, even though that was not actually the case. And for a year or so around 1997, Mona’s mother lived in a separate apartment on the property, and she paid Marcus and Mona some $13,000 that went toward the costs associated with building the separate apartment.

¶3        In May 2004, Marcus’s father (through his company) “gifted” the House to Marcus “as an inheritance.” Thereafter, title to the House was in Marcus’s name; Mona was never placed on title. In December 2004, Marcus used the House as collateral for a $150,000 loan. Marcus later testified that the proceeds from the loan were not spent on the House but, instead, were spent on marital matters, such as medical bills, credit card bills, some other unspecified “investments,” and a payment on the couple’s “cabin lot.” Over the next ten years, the loan was fully repaid, entirely with marital funds.

¶4        Between 1997 and 2020, Marcus, Mona, and their children lived in and maintained the House. They also made some improvements to the House over that time. For purposes of this dispute, Marcus retained an expert who determined that the out-of-pocket cost of the family’s improvements had been $12,171, and that the family’s maintenance of and improvements to the House “contributed about $20,000 to its current value.”

¶5        In 2020, Mona filed this divorce action and asked (among other things) that the House and all its equity be awarded to her. Marcus responded by filing a counterclaim in which he contended that the House was an “inheritance from his father” and was his “separate property.” This dispute eventually worked its way to trial, and the parties agreed, by written stipulation, to resolve the issue by way of an “informal custody trial” before a domestic relations commissioner, a procedure usually limited to resolution of custody disputes and whose parameters are set forth in rule 4-904 of the Utah Code of Judicial Administration. Under this procedure, the parties agreed to “present[] their case[s]” to the commissioner, under oath, without questioning by attorneys. In addition to providing their own testimony, the parties agreed that they could each “present any documents they want[ed] the [c]ourt to consider” and that, “[a]fter the [c]ourt [had] heard from both parties,” only then would attorneys be allowed “to make legal argument.” In stipulating to this procedure, the parties agreed to “waive the normal question and answer manner of trial” and to “waive the rules of evidence,” and they agreed that “[t]he other party [could] tell the [c]ourt anything he or she feels is relevant.” The parties also waived their right to “challenge any of the documents or testimony that was considered” by the commissioner during the informal trial, and they agreed that “[t]he only issue on appeal [would] be whether the [c]ourt abused its discretion in reaching its findings and conclusions.”

¶6      During the course of the informal trial—which took place over parts of two trial days—the commissioner heard from Marcus and Mona, who testified (largely through proffer by counsel) about the events described above. In addition, the parties by stipulation submitted sworn declarations and other similar documents from other witnesses, which evidence the commissioner accepted and considered. And the parties’ attorneys made extensive arguments, both in written briefs filed prior to the trial and in oral arguments made during the trial.

¶7        Mona took the position that, even if the House was originally Marcus’s separate property, “the separate property converted into marital property during the marriage.” She made two specific arguments in this regard, asserting both (a) that she had contributed to the value of the House through maintenance and improvements, and had thereby acquired an equitable interest in it, and (b) that the House had been commingled into the marital estate. Marcus, on the other hand, took the position that the House was, and always had been, his separate property, and that it had not been commingled into the marital estate. He acknowledged that “Mona may have a contribution claim” regarding the House, but he pointed to evidence indicating that the family’s contributions had increased the value of the House by only $20,000, and he argued that, at most, Mona was therefore entitled to only $10,000 of the House’s total value.

¶8        At the conclusion of the trial, and after hearing the arguments, the commissioner made an oral ruling, determining that much of the House’s value—$150,000 of its original value, plus all of its appreciation—had been commingled into the marital estate. As support for this determination, the commissioner noted that the marital estate had repaid the $150,000 loan that used the House as collateral, and reasoned that the loan indicated “that the family in essence bought that mortgage and paid it back.” The commissioner also relied on the facts that, during the period before Marcus was gifted the House, the parties obtained homeowners insurance indicating that they were both owners of it and that Mona’s mother had paid $13,000 toward “the mother-in-law apartment being enhanced.” And the commissioner found relevant the fact that Mona had been “responsible for maintaining” the House and its “landscaping.” The commissioner also found—by averaging two appraisals—that the House was worth $312,500 in 2004 when it was gifted to Marcus and was worth $765,000 at the time of trial. The commissioner then concluded that Marcus should receive $162,500 ($312,500 minus $150,000) as his separate property, and that the parties would split the remaining $602,500 equally.

¶9        The commissioner’s oral ruling was later encapsulated in written findings of fact and conclusions of law and a decree of divorce, which documents were signed by the assigned district court judge.

ISSUES AND STANDARDS OF REVIEW

¶10 Marcus now appeals, and he challenges the specific portions of the commissioner’s ruling that concern allocation of the value of the House. In particular, he takes issue with the commissioner’s determination that much of the House’s value was commingled into the marital estate. And he challenges the finding that the House was worth $312,500 in 2004.

¶11      Mona asserts that, because this case comes to us from an “informal custody trial,” the applicable standard of review is deferential and the scope of appeal is “steep and constricted.” Mona is certainly correct that, when parties agree to resolve their issues through an informal trial, they waive their right to appeal certain evidentiary issues. See Utah R. Jud. Admin. 4-904(b)(7) (stating that parties may not appeal from an informal trial on “grounds that . . . rely upon the Utah Rules of Evidence”). In this case, Marcus and Mona agreed that they would “not be able to challenge any of the documents or testimony that was considered” during the proceeding, and neither party attempts to raise any evidentiary issues on appeal. But Mona is incorrect when she asserts that the appellate standards of review—on the issues that are appealable—are any different in appeals from informal trials than they are in other cases. The court’s ultimate ruling is appealable, see id. (stating that a “final order” from an informal trial “may be appealed on any grounds” other than grounds that “rely upon the Utah Rules of Evidence”), and will be reviewed under the same appellate standards of review that are applicable in appeals from formally tried cases.

¶12      Mona resists this conclusion by pointing to language in the parties’ stipulation stating that “[t]he only issue on appeal will be whether the [c]ourt abused its discretion in reaching its findings and conclusions.” She argues therefrom that all issues in this appeal—regardless of the usual standards of review—must be reviewed for abuse of discretion. We disagree. The form the parties used to encapsulate their stipulation is a form that—in keeping with the usual usage of the informal trial procedure—is designed for custody cases. We thus interpret the form’s reference to the “abuse of discretion” standard as simply indicating that the court’s ultimate ruling regarding custody will be reviewed as per usual: for abuse of discretion. See Lobendahn v. Lobendahn, 2023 UT App 137, ¶ 18, 540 P.3d 727 (“We review custody determinations under an abuse of discretion standard, giving the district court broad discretion to make custody awards.” (quotation simplified)). We do not interpret the form as indicating that—for issues that are appealable—the standards of appellate review are any different in cases coming to us after an informal trial than they are in cases coming to us in the usual manner.

¶13      Now that we have determined that the standards of review in this appeal will be the same as in an appeal from a formally tried case, we must determine what those standards of review are. Marcus contends that both of the court’s determinations that he is here challenging—regarding commingling and the House’s value in 2004—are conclusions of law properly reviewed for correctness. Mona, on the other hand, asserts that these determinations are factual and reviewed for abuse of discretion or clear error. We agree with Mona.

¶14      “[District] courts are in the best position to determine whether property is marital or separate, and we defer to their findings of fact [in this regard] unless clearly erroneous.” Thompson v. Thompson, 2009 UT App 101, ¶ 10, 208 P.3d 539; see also Lindsey v. Lindsey, 2017 UT App 38, ¶ 26, 392 P.3d 968 (“We generally defer to a [district] court’s categorization and equitable distribution of separate property and uphold its determinations in that regard unless a clear and prejudicial abuse of discretion is demonstrated.” (quotation simplified)). Thus, we review a district court’s factual findings in this regard for clear error, and we review for abuse of discretion its ultimate determination of whether a particular item is separate or marital property.

¶15      And this same standard of review also applies to the more specific question of whether the House was commingled into the marital estate. See Dahl v. Dahl, 2015 UT 79, ¶ 143, 459 P.3d 276 (reviewing a commingling ruling for abuse of discretion); Oliekan v. Oliekan, 2006 UT App 405, ¶¶ 18–19, 147 P.3d 464 (same). A court’s determination that a piece of originally separate property has been commingled into the marital estate is just a particular way of determining that the property is marital (rather than separate) property.

¶16      Finally, we also apply a deferential standard of review to Marcus’s challenge to the court’s finding regarding the value of the House in 2004. See Marroquin v. Marroquin, 2019 UT App 38, ¶ 10, 440 P.3d 757 (“We defer to [a] district court’s findings of fact related to property valuation and distribution unless they are clearly erroneous.” (quotation simplified)); see also Rothwell v. Rothwell, 2023 UT App 50, ¶ 33, 531 P.3d 225 (“A district court’s factual determinations are clearly erroneous only if they are in conflict with the clear weight of the evidence, or if this court has a definite and firm conviction that a mistake has been made.” (quotation simplified)), cert. denied, 537 P.3d 1011 (Utah 2023).

ANALYSIS

¶17 We first discuss Marcus’s challenge to the court’s ruling that much of the House’s value had been commingled into the marital estate. We then turn to Marcus’s challenge to the court’s finding that the House was worth $312,500 in 2004.

I. The House: Separate or Marital Property?

¶18      On the question of whether and to what extent the House constitutes marital property, we begin by discussing what is at issue in this appeal and—notably—what is not at issue in this appeal. Neither party challenges the court’s determination that the House was originally Marcus’s separate property when title was placed in his name in 2004. The court awarded Marcus $162,500, intended to represent the original value of the House in 2004, less the later loan amount. The basis for this award, as we understand it, was the commissioner’s (at least implicit) determinations that the House was Marcus’s separate property in 2004 and that Marcus is entitled to keep his separate property to the extent it was not commingled or subject to an equitable contribution made by Mona. No party challenges that portion of the commissioner’s ruling.

¶19 Marcus does challenge two other aspects of the commissioner’s ruling regarding the House’s status as separate or marital property. First, Marcus challenges the commissioner’s determination that $150,000 of the original value of the House— the amount of the December 2004 loan—had been commingled into the marital estate. Second, Marcus takes issue with the determination that the appreciation, over time, in the value of the House became commingled into the marital estate. We discuss these two challenges, in turn, after first setting forth applicable legal principles regarding separate property and commingling.

A. Background Legal Principles

¶20      One of the tasks courts often face in adjudicating divorce cases is making an equitable division of the marital estate between the divorcing spouses. Our supreme court has described this property-division process as follows:

Before a district court distributes marital assets, it must (1) identify the property in dispute and determine whether it is marital or separate property, (2) consider whether there are exceptional circumstances that overcome the general presumption that marital property be divided equally, (3) assign values to each item of marital property so that a distribution strategy can be implemented, and (4) distribute the marital assets consistent with the distribution strategy.

Dahl v. Dahl, 2015 UT 79, ¶ 121, 459 P.3d 276 (quotation simplified). Marcus’s first challenge concerns the first step in this process: assessing whether a particular piece of property—here, the House—is marital property that belongs to the marital estate or is instead separate property that belongs to him alone.

¶21 “Marital property ordinarily includes all property acquired during [the] marriage, whenever obtained and from whatever source derived.” Lindsey v. Lindsey, 2017 UT App 38, ¶ 31, 392 P.3d 968 (quotation simplified). Separate property, on the other hand, includes each spouse’s “premarital property”— that is, property owned by one spouse prior to the marriage—as well as “gifts[] and inheritances” received by a spouse during the marriage. See id.see also Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988) (stating that courts should “generally award property acquired by one spouse by gift and inheritance during the marriage . . . to that spouse”).

¶22      Property determined to be part of the marital estate will be divided equitably—and presumptively equally—between the divorcing spouses. See Lindsey, 2017 UT App 38, ¶ 32 (“The presumption is that marital property will be divided equally . . . .”). But separate property “will not be divided at all,” id., and will “generally” be awarded, “together with any appreciation or enhancement of its value,” to the spouse whose separate property it is, see Mortensen, 760 P.2d at 308; see also Lindsey, 2017 UT App 38, ¶ 32 (“Equity generally requires that each party retain the separate property he or she brought into the marriage, including any appreciation thereof.” (quotation simplified)).

¶23      In some situations, however, property that begins as one spouse’s separate property can lose its separate identity and become part of the marital estate. See Mortensen, 760 P.2d at 308; see also Lindsey, 2017 UT App 38, ¶ 33 (stating that, sometimes, “circumstances warrant an equitable override of the separate-property retention rule”). Our case law has identified three such situations: (1) where “separate property has been commingled” into the marital estate, Lindsey, 2017 UT App 38, ¶ 33; (2) where “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; and (3) “in extraordinary situations when equity so demands,” Lindsey, 2017 UT App 38, ¶ 33.

¶24 First, with regard to commingling, one rather obvious situation in which commingling occurs is where “one spouse has contributed all or part of the property to the marital estate with the intent that it become joint property.” See Dahl, 2015 UT 79, ¶ 143. But even short of an outright intended contribution, property that started out as separate property may be considered commingled if it becomes inextricably and untraceably intertwined with marital assets. See id. (“[P]remarital property may lose its separate character where the parties have inextricably commingled it with the marital estate . . . .”). Quite important to any commingling analysis, then, is whether the property in question has retained “its separate character.” See id. And this inquiry often turns on whether the property’s separate identity can still be traced or accounted for. See Mortensen, 760 P.2d at 307 (stating that property is commingled when it “completely loses its identity and is not traceable”); see also Pusey v. Pusey, 728 P.2d 117, 119 (Utah 1986) (upholding a district court’s determination that property was commingled because “it could not trace any assets to any source”). Indeed, in one case we phrased the relevant question as whether the property at issue “became so commingled that [it] could not be segregated” from the marital estate, and we determined that it had not, because “the marital and premarital interests were reasonably capable of being determined” and “it was still possible to trace and separately identify” the separate property. Oliekan v. Oliekan, 2006 UT App 405, ¶¶ 20–23, 147 P.3d 464. Thus, separate property will be considered commingled when it has been mixed in with marital assets to such a degree that it is no longer reasonably possible to distinguish between the separate and marital property. On the other hand, if “the marital and premarital interests” are still “reasonably capable” of being traced and identified, then the separate property retains its separate nature and will not be considered commingled. See id.

¶25 Second, “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.” Lindsey, 2017 UT App 38, ¶ 35 (quotation simplified). “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, or when marital funds are expended or marital debt is incurred for the benefit of one spouse’s separate property.” Id. (quotation simplified). “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.” Id.

¶26      Third, there exists a catch-all exception for situations—not covered by either of the first two exceptions—in which “extraordinary circumstances . . . warrant a departure from the presumptive rule.” Henshaw v. Henshaw, 2012 UT App 56, ¶ 15, 271 P.3d 837. This exception is rarely applied; we have stated that 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.” Lindsey, 2017 UT App 38, ¶ 46 (quotation simplified).

¶27 During the informal trial, Mona made arguments under the first two of these exceptions, arguing that—even if the House was Marcus’s separate property in 2004 when it was gifted to him—at least part of the House’s value became part of the marital estate due to commingling or due to the family’s equitable contribution. The commissioner accepted Mona’s commingling argument, and therefore opted not to consider whether, or to what extent, Mona had acquired an equitable interest in the House through contributions.

B. The $150,000 Loan

¶28      The first part of the commissioner’s commingling analysis with which Marcus takes issue is the ruling that $150,000 of the House’s original value became commingled into the marital estate. In December 2004, some seven months after the House was gifted to Marcus, he used the House as collateral for a $150,000 loan, and that loan was fully repaid, over the next ten years, with marital funds. The commissioner determined that, given these facts, “the marital estate paid for that portion of the [H]ouse directly by paying off the mortgage,” and ruled that the amount of the House’s original value collateralized by the loan ($150,000) was marital property rather than Marcus’s separate property.

¶29 We acknowledge the facial appeal of the commissioner’s ruling: the fact that the marital estate paid the loan back certainly makes it look like the estate might have acquired an interest in the House. But our supreme court has made clear that a separate asset does not necessarily become marital property simply because a marital estate pays back a loan drawn from that asset. See Dahl v. Dahl, 2015 UT 79, ¶¶ 142–145, 459 P.3d 276. At a minimum, more analysis is required in order to reach that conclusion.

¶30 In Dahl, a husband had possessed certain retirement accounts (IRAs) “prior to his marriage” that were his “separate property.” Id. ¶ 142. During the marriage, the husband “withdrew funds from the IRA[s] to pay off a home equity loan secured by the marital home and then replenished the funds using a marital bank account.” Id. The wife contended that, by this action, the husband had “commingled” the IRAs with marital assets and thereby “converted [them] to marital property.” Id. ¶¶ 142, 144.

¶31      Our supreme court rejected the wife’s argument, holding that the husband’s actions did not cause the IRAs to lose “their separate identity.” Id. ¶ 144. In the court’s view, the transaction was “best characterized as a loan from [the husband] to the marital estate, which was in turn repaid with marital funds.” Id. On the facts presented in Dahl, there was “nothing . . . suggesting that [the husband] intended to commingle his IRA funds with the marital estate.” Id. And the court held that the IRAs “did not become so inextricably commingled into the marital estate that the district court was incapable of tracing [them].” Id. (quotation simplified). In summary, the court noted that the IRAs did not lose their “separate identity simply because [the husband] made a loan from [the IRAs] to pay off a home equity loan.” Id. ¶ 145.

¶32 The lesson of Dahl, as relevant here, is that when one spouse uses his or her separate property to facilitate a loan to the marital estate, the proceeds from that loan are used to benefit the marital estate, and the marital estate pays the loan back with marital funds, the separate property used to facilitate the loan does not, simply by virtue of the loan, become commingled into the marital estate.

¶33 Marcus asserts that Dahl is materially indistinguishable from this case. As he sees it, he facilitated a loan to the marital estate using his own separate property—the House—as collateral, and the marital estate was obligated to pay that loan back just like it would have needed to pay off a loan collateralized in any other way. He asserts that—just like the transaction in Dahl—nothing about this transaction indicates any intent on his part to commingle the House with the marital estate. And he notes— correctly—that this loan did not render a factfinder incapable of tracing his separate property. We find Marcus’s arguments at least potentially persuasive, and we note that Mona (in her appellate brief) did not cite Dahl and made no effort to rebut Marcus’s argument that Dahl is controlling here.

¶34      We agree with Marcus that the commissioner’s analysis is at odds with Dahl.[2] The commissioner’s analysis on this point was quite brief, and simply assumed that, because the marital estate repaid the $150,000 loan amount, it had “paid for that portion of the [H]ouse directly.” As noted, it does not necessarily follow, simply from the fact that the marital estate repaid the loan, that the asset that facilitated the loan—here, the House—became commingled into the marital estate. See id. ¶ 144.

¶35 The question of whether repayment of the loan by the marital estate resulted in commingling turns on whether the proceeds of the loan were used for marital-estate purposes unrelated to the House or were, instead, used to increase the value of the House. If the proceeds were used—as they were in Dahl— entirely for marital-estate purposes unrelated to the asset leveraged for the loan, then Marcus is correct that the situation here would be materially indistinguishable from Dahl, and the transaction would be “best characterized as a loan . . . to the marital estate” facilitated by Marcus’s separate property. See id. On the other hand, if the loan proceeds were used to improve the House, the marital estate’s repayment of that loan might accurately be said to have resulted in the marital estate “[paying] for that portion of the [H]ouse directly,” a situation that might support a determination that commingling (or, alternatively, acquisition of an equitable interest) had occurred.

¶36      On the question of what the loan proceeds were used for, the commissioner made no findings. Marcus testified that the loan proceeds were spent not on the House (or on any other personal endeavors of Marcus) but on marital things, such as medical and credit card bills, other unspecified “investments,” and a payment on the couple’s “cabin lot.” But neither in the oral ruling made at the conclusion of the informal trial nor in the written ruling issued thereafter did the commissioner make any specific findings about either the credibility of Marcus’s testimony on this point or about whether any of the loan proceeds were spent on the House.[3]

¶37 In the end, we view the commissioner’s analysis as incomplete. Because the reason the commissioner gave for determining that the loan amount had been commingled does not necessarily support that conclusion, and because the commissioner did not make certain factual findings necessary to complete the analysis, we must reverse the commissioner’s determination that $150,000 of the House’s original value was commingled into the marital estate, and we remand the matter to the district court for further proceedings on this point.

C. The House’s Appreciation

¶38 The second part of the commissioner’s commingling analysis with which Marcus takes issue is the ruling that all of the House’s appreciation since 2004—an amount the commissioner determined to be $452,500 ($765,000 minus $312,500)—was no longer Marcus’s separate property because it had been commingled into the marital estate. As support for this ruling, the commissioner cited (a) the homeowners insurance policies acquired before Marcus owned the House that listed both Marcus and Mona as “owners,” (b) Mona’s testimony that she was responsible for maintaining the House and its landscaping, and (c) the fact that Mona’s mother had paid $13,000 toward “a mother-in-law apartment” in the late 1990s. Even applying a deferential standard of review, we agree with Marcus that the commissioner committed an abuse of discretion in so ruling.

¶39 We begin our analysis by repeating the long-established legal principle that, ordinarily, appreciation on separate property belongs not to the marital estate but, rather, to the spouse whose separate property it is. Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988) (stating that separate property, “together with any appreciation or enhancement of its value,” belongs to the separate spouse); Keyes v. Keyes, 2015 UT App 114, ¶ 28, 351 P.3d 90 (“In most cases, equity requires that each party retain the separate property that he or she brought into the marriage, including any appreciation of the separate property.” (quotation simplified)); Thompson v. Thompson, 2009 UT App 101, ¶ 12, 208 P.3d 539 (“An award of separate property includes its appreciation during the marriage.”); Burt v. Burt, 799 P.2d 1166, 1169 (Utah Ct. App. 1990) (“Inherited or donated property, as well as its appreciated value, is generally regarded as separate from the marital estate and hence is left with the receiving spouse in a property division incident to divorce.”).

¶40      This general rule—that a spouse should receive his or her separate property, together with any appreciation—may be varied on the basis of commingling, but only when it is clear that the spouse intended to contribute the property to the marital estate, or when it becomes functionally impossible to trace or account for the separateness of the spouse’s property. See Oliekan v. Oliekan, 2006 UT App 405, ¶¶ 20–23, 147 P.3d 464 (stating that the question in commingling cases is whether the property “became so commingled that [it] could not be segregated” from the marital estate, and determining that commingling was not present because “the marital and premarital interests were reasonably capable of being determined” and because “it was still possible to trace and separately identify” the separate property); see also Dahl, 2015 UT 79, ¶ 143 (“[P]remarital 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.”).

¶41 Commingling occurs most commonly with money, because dollars are fungible and, when separate money is deposited into the same account as marital money, it can become difficult to tell which dollar is which. See, e.g.Pusey v. Pusey, 728 P.2d 117, 119 (Utah 1986) (affirming a district court’s finding “that throughout the marriage [the husband] had commingled corporate and personal funds so that [the court] could not trace any assets to any source”). Yet even money will not be considered commingled if the separate property funds can be identified and traced. See, e.g.Oliekan, 2006 UT App 405, ¶ 23 (affirming a district court’s determination that no commingling had occurred because “it was still possible to trace and separately identify the funds” at issue); accord Arnason v. Arnason, 2002 UT App 243U, para. 2.

¶42 Real property is easier to trace than money, and it is therefore perhaps not as common for commingling to occur with regard to real property as it is with money. Cf. Dahl, 2015 UT 79, ¶ 146 (“A spouse can maintain the separate identity of premarital [real] property by utilizing section 1031 exchanges to avoid commingling separate property with marital property.”). But it is at least conceivable that separate real property—or at least the proceeds therefrom—can become commingled into a marital estate. For instance, in one case we concluded that, where proceeds from the sale of separate property (including real property) had been “deposit[ed] into the parties’ joint accounts” and thereby lost its separate identity, commingling had occurred. Dunn v. Dunn, 802 P.2d 1314, 1321 (Utah Ct. App. 1990). And in other cases, we have observed that, where significant or substantial marital assets are invested to support, maintain, or improve separate real property, commingling may have taken place. Keiter v. Keiter, 2010 UT App 169, ¶ 23, 235 P.3d 782 (stating that “expending marital funds toward otherwise separate real estate supports a determination of commingling that may convert separate property into marital property”); Schaumberg v. Schaumberg, 875 P.2d 598, 603 (Utah Ct. App. 1994) (affirming a district court’s determination that commingling of the “appreciated portion” of a husband’s separate real property had occurred where the parties had “used substantial marital funds to maintain and augment” the property).

¶43 In this case, however, the House was never sold, and therefore no proceeds from any sale were ever deposited into a marital account. And there was no evidence presented that the parties invested significant sums of marital money into supporting, maintaining, or otherwise improving the House. Here, tracing the separate nature of the House, including the appreciation in its value, is fairly obvious, and we see no evidence indicating that the House ever lost its separate identity.

¶44 In particular, we find the evidence upon which the commissioner relied unpersuasive and entirely unsupportive of a determination that all appreciation of the House after 2004 was commingled into the marital estate. Two of the three items upon which the commissioner relied—that both Marcus and Mona appeared as “owners” on homeowners insurance policies, and that Mona’s mother paid $13,000—occurred prior to 2004, before Marcus even owned the House. These items therefore have extremely limited value in the analysis, and they simply do not point to any commingling of post-2004 appreciation.

¶45      The other item upon which the commissioner relied—the fact that Mona had been involved in some of the maintenance of the House, especially the landscaping—is likewise insufficient to support a determination that the entirety of the House’s appreciation was commingled into the marital estate. As noted above, the investment of substantial marital assets into separate real property can support a determination that the separate property was commingled. See Keiter, 2010 UT App 169, ¶ 23; Schaumberg, 875 P.2d at 603. But here, no such evidence was presented; Mona did not offer evidence of any specific monetary contributions, nor did she attempt to provide many particulars about the nature of her landscaping and other contributions.[4] One spouse’s residence at, and assistance with the day-to-day maintenance of, the other spouse’s separate real property will not usually be enough to render the entirety of that property’s appreciation commingled into the marital estate. Under the circumstances presented here, we conclude that Mona’s rather non-specific contributions to maintenance and landscaping are insufficient to support a determination that the entirety of the House’s appreciation was commingled into the marital estate.

¶46      That is not to say that such contributions are irrelevant to the ultimate separate-or-marital-property analysis. As noted, Mona also made an argument, at the informal trial, that she had made an equitable contribution to the value of the House that should be recognized under the contribution exception to the general rule that separate property goes to the individual spouse. While Mona’s evidence is insufficient to support a determination that the entirety of the House’s appreciation was commingled into the marital estate, such evidence might be sufficient to support a determination that Mona made an equitable contribution to the House that ought to be quantified and recognized in the distribution of marital property.

¶47 Accordingly, we conclude that the commissioner committed an abuse of discretion in determining, on this record, that the entirety of the House’s appreciation had been commingled into the marital estate, and we therefore reverse that determination. We remand the matter, however, so that the district court might have an opportunity to consider Mona’s alternative argument—not reached by the commissioner—that she made an equitable contribution to the value of the House that should be considered in the distribution of the marital estate.

II. The House’s 2004 Value

¶48      Marcus also challenges the court’s finding that the value of the House, when it was gifted to him in 2004, was $312,500. Marcus argues that the House’s value was actually $445,000—the amount his father’s construction company spent to build it. On this record, however, we conclude that the court’s finding is supported by competent evidence and that the commissioner therefore did not commit clear error in making it.

¶49      When a court is asked to value real property, it may do so in any one of several ways, depending on the evidence presented. Certainly, one way to value a house is to assess how much it cost to build it. See Carter v. Sorenson, 2004 UT 33, ¶ 2, 90 P.3d 637 (referring to the “traditional appraisal methods” as “the cost approach, the income approach, and the sales comparison approach”). But more commonly, appraisers value residential real property using a “comparable sales” approach, in which they attempt to “locate and analyze sales of ‘comparable’ properties . . . between a willing buyer and a willing seller in which the sale price is determined by market forces.” See Utah Dep’t of Transp. v. Admiral Beverage Corp., 2011 UT 62, ¶ 40, 275 P.3d 208.

¶50      During the informal trial, Marcus presented evidence that his father’s construction company spent $445,000 to build the House in the 1990s. Had that been the only evidence presented at trial, Marcus may have a credible argument that the court committed clear error by not adopting that methodology in assessing the House’s 2004 value. But that was not the only evidence presented at trial. Marcus also presented an appraisal of the House, as of May 2004, that applied a comparable-sales methodology; the first draft of that appraisal valued the House at $285,000, and an “amended draft” valued it at $340,000. The court found, based on this evidence, that the best indication of the value of the House in 2004 was an “averag[e] of the two values proposed by” Marcus’s appraiser, which is $312,500.

¶51      This finding is amply supported by evidence in the record and is therefore not clearly erroneous. See Kimball v. Kimball, 2009 UT App 233, ¶ 20 n.5, 217 P.3d 733 (“The pill that is hard for many appellants to swallow is that if there is evidence supporting a finding, absent a legal problem—a fatal flaw—with that evidence, the finding will stand, even though there is ample record evidence that would have supported contrary findings.” (quotation simplified)). We therefore reject Marcus’s challenge to the court’s finding that the House was worth $312,500 when it was gifted to him in 2004.

CONCLUSION

¶52      We reject Marcus’s challenge to the court’s factual finding regarding the value of the House in 2004. But we sustain Marcus’s challenges to the court’s commingling determination, and specifically to its rulings that (a) $150,000 of the House’s original value was commingled and (b) the entirety of the House’s post-2004 appreciation was commingled. We therefore reverse the court’s equity allocation order, and we remand the case to the district court for further proceedings, consistent with this opinion, regarding the use to which the parties put the 2004 loan proceeds and regarding Mona’s claim to an equitable interest in the appreciation of the House under the contribution exception.

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


[1] Because the parties share the same last name, we use their first names for clarity, with no disrespect intended by the apparent informality.

[2] In fairness to the commissioner, Marcus did not cite Dahl during the informal trial. But this does not present a preservation problem, because litigants are permitted to cite new authority for the first time on appeal to support arguments regarding issues properly raised below. See Patterson v. Patterson, 2011 UT 68, ¶ 18, 266 P.3d 828 (“[W]e routinely consider new authority relevant to issues that have properly been preserved . . . .”). In this instance, the parties raised the relevant issue at the informal trial—whether $150,000 of the House’s original value was commingled into the marital estate—and are therefore entitled to bring new authority to our attention on appeal bearing on this preserved issue.

[3] At the conclusion of the informal trial, the commissioner stated that some of the loan proceeds were “used to pay some medical bills for” Mona. It is unclear from the record whether this statement constituted an oral factual finding or merely a musing on the part of the commissioner, and no such finding appears in the written ruling. In any event, we are unaware of any statements or findings, written or oral, made by the commissioner about whether any of the loan proceeds were used on the House.

[4] The best evidence of Mona’s contributions appears to be found in her answer to a written interrogatory from Marcus that asked her to “detail” all her contributions to the House. In that answer, she stated generally that she “maintained and upkept” the House and “was in charge of maintaining the yard.” She also described other remodeling and maintenance activities, such as helping to repaint, retile, and redecorate various rooms in the House. But she made no effort—whether in that interrogatory response or otherwise—to quantify her efforts in dollars, and she did not hire an appraisal expert to assess any increase in value to the House that her efforts might have brought about or to rebut Marcus’s appraisal expert’s conclusions in that regard.

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2024 UT App 84 – Corn v. Groce – Modification of Parent-Time or Custody

2024 UT App 84 – Corn v. Groce

THE UTAH COURT OF APPEALS

JANETTE CORN, Appellee, v. BLAKE GROCE, Appellant.

Opinion No. 20220526-CA Filed May 31, 2024

Second District Court, Farmington Department

The Honorable Ronald G. Russell No. 194700657

Alexandra Mareschal and Julie J. Nelson, Attorneys for Appellant, Emily Adams, Freyja Johnson, and William M. Fontenot, Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

CHRISTIANSEN FORSTER, Judge:

¶1        Blake Groce (Father) appeals the district court’s rejection of his petition to modify parent-time. He also challenges the court’s calculation of Janette Corn’s (Mother) net income for child support purposes. Because the court did not abuse its discretion when ruling on either issue, we affirm.

BACKGROUND

¶2        Father and Mother are the parents of twin daughters (the Children). In 2015, the parties agreed to joint legal and physical custody of the Children, with Father exercising parent-time four overnights during a two-week period, and the district court entered a decree reflecting this agreement (Original Decree). In 2016, Father moved out of state for work. The following year, Father began dating stepmother (Stepmother); the two married in 2019.

¶3        In 2019, due in part to Father’s relocation out of state, Mother petitioned to modify the Original Decree, seeking sole physical custody of the Children subject to Father’s parent-time. Father responded to the petition and filed a counterpetition seeking orders related to the Children’s healthcare. Father did not ask for a change in parent-time.

¶4        Shortly thereafter, the parties entered into a stipulation (2019 Stipulation). By its express terms, the 2019 Stipulation did “not resolve the competing petition and counterpetition to modify custody.” It did, however, set forth a “temporary” parent-time schedule that would increase Father’s parent-time upon his planned relocation to Utah. The parties agreed that upon Father’s relocation, the parties would follow, “on a temporary basis until further agreement of the parties or further order of the Court,” the parent-time schedule in Utah Code section 30-3-35.1. Pursuant to that schedule, Father would exercise five overnights during a two-week period (an increase of one overnight). The parties further agreed that if the increased parent-time schedule were to take effect, they would adhere to it “for at least six (6) months.” At that point, if either party wanted to change parent-time, the party could submit a written request communicating the desired change, after which the parties would attend mediation. And if the parties had not “otherwise reach[ed] an agreement regarding a permanent parent-time order” after Father had exercised the increased schedule for “six (6) months and thereafter,” either party could “request mediation in writing.”

¶5        In August 2019, Father made the move to Utah and began exercising his increased parent-time. The following year, the district court entered the 2019 Stipulation as an order (2020 Order).

¶6        In August 2020, Father filed a petition to modify the custody and parent-time awarded in the 2020 Order. In this petition, Father sought sole physical and legal custody of the Children based on circumstances that he alleged had changed since the entry of the 2020 Order. The changes included the decreased quality of education at the Children’s school, Father’s desire to teach the Children religious values, Father’s work trips and the right of first refusal created a “disconnect” between the Children and Stepmother, the parties’ disagreement over the Children’s vaccines, Mother’s changing financial situation, and Mother’s failure to use a Google calendar. Most notably, Father also alleged that Mother exhibited “inappropriate behaviors” in front of the Children, causing them mental health issues that required counseling, which Mother had refused to allow. In a separate motion, Father asked the court to appoint a custody evaluator to aid the court in making a custody determination. The court granted Father’s request and appointed an evaluator (Evaluator).

¶7        As the case proceeded, the district court held several pretrial conferences to determine which issues were to be certified for trial. After much confusion on both sides, the court entered a pretrial order stating that the issues certified for trial were intended to resolve (1) Mother’s 2019 petition to modify the Original Decree, (2) Father’s 2019 counterpetition to modify the Original Decree, and (3) Father’s petition to modify the 2020 Order. But at the final pretrial conference a few months later, Mother informed the court that she was “not pursuing” her 2019 petition to modify.

¶8        Shortly before trial, Father submitted a trial memorandum to the district court addressing the issues certified for trial. Regarding “[p]hysical custody/parent time,” Father asserted that “[j]oint physical custody is appropriate” and requested that the court award him either “220 overnights to Mother’s 145 overnights” or “equal parent time.”[1] And regarding “[l]egal custody/terms of parenting plan,” Father asserted that “[j]oint legal custody is appropriate” and requested that the court implement a parenting plan filed by Father. Father also requested changes to child support.

¶9        In response to Father’s request to change child support, Mother filed an updated financial declaration. Mother is a self-employed realtor. In her financial declaration, Mother listed her monthly income as $6,599 ($6,000 salary plus $599 child support), and her annual salary as “approximately” $72,000. Mother supported the declaration with her 2020 tax return and three months of bank statements. The tax return listed $106,408 in gross income and $30,745 of expenses, resulting in a net income of $75,663. Those expenses included advertising, vehicle expenses, insurance, office expenses, office rent, office supplies, bank charges, membership dues and fees, education costs, internet fees, telephone charges, referral fees, software fees, website charges, equipment fees, and broker fees.

¶10 A two-day bench trial was held in March 2022. At the outset of the trial, Mother asked for clarification with respect to what relief Father was requesting. She explained that Father had requested sole physical custody in his petition to modify but that he had requested only a change to parent-time in his trial memorandum. She asserted the difference was relevant because “based on what [Father’s] requesting, either just additional parent-time or actually sole legal custody . . . , then that would change the showing that he needs to make.”

¶11      In response, Father reiterated his position, as set forth in his memorandum, that he had “changed [his] position from asking for sole custody” and was seeking only a change in parent-time. Mother objected to “an amendment to the petition to modify if now [Father is] requesting just a change in parent-time” because that had “not been pleaded” and it was “not going to be tried by consent.” The court “note[d] [Mother’s] objection” but concluded that the trial could proceed because Father’s requested relief “include[d] a number of items” and was “fairly broad,” which would allow the court to order relief as it “deem[ed] appropriate.” The court concluded by directing the parties “to present [their] evidence regarding the substantial change in circumstances so that can be considered.”

¶12      Over the course of the trial, the district court heard testimony from Evaluator, the parties, and multiple other individuals involved in the Children’s lives. The parties also presented evidence regarding their monthly incomes.

¶13      Evaluator testified about what custody changes would be in the best interest of the Children; she specifically did not discuss whether there had been a change in circumstances. Evaluator opined that since “the very beginning,” the parties “had difficult communication,” they were “at odds about parent-time [and] about the role of each parent,” and Mother “saw herself as the primary person who would care for the [C]hildren and make decisions about them.” She expressed that both parents had “some fault in the coparenting difficulties.”

¶14      Regarding Mother, Evaluator did not observe any “intense and sudden mood swings,” as had been alleged by Father. She noted that Mother “was quite open and forthright about the fact that she lost her temper with the [C]hildren sometimes” but concluded that the behavior was “[n]ot out of the ordinary.” Evaluator further expressed that she had not observed Mother acting in an “irrational” manner. Regarding Father, Evaluator observed that in “some circumstances” Father’s actions were not proportionate and that on occasion, he had been “overly concerned about relatively small things.”

¶15 Evaluator recommended that the Children have “equal amounts of time with both parents,” noting that although the Children “struggle with some anxiety and some stress about parental conflict,” overall they “are thriving with both parents” and “have a good relationship with both parents.” She opined that “both parents demonstrate appropriate decision-making in terms of the [C]hildren, are good role models for the [C]hildren, and lead an appropriate lifestyle.”

¶16 Concerning child support and income, Father introduced Mother’s 2020 tax return as an exhibit. Relying on that document, Mother testified that her 2020 net income was “right around $76,000.” She explained that she has “lots of business expenses,” totaling around “30-something-thousand dollars,” which generally include a monthly Multiple Listing Service fee, a monthly payment to her brokerage, a monthly payment for office rent, yearly dues, and mileage. In addition, Mother noted she pays for trainings, continuing education classes, and seminars; open house expenses; signs; and general office expenses such as paper, business cards, and photos. Lastly, she testified that she deducts a portion of her cell phone and home internet. Father did not object at any point during this portion of Mother’s testimony.

¶17      At the close of the trial, the district court issued an oral ruling, which it later reduced to writing. The court declined to change the custody status or to alter parent-time, but it agreed to modify child support payments. Regarding custody and parent-time, the court first noted that although Father sought a change in custody in his petition to modify, at trial he elected to seek only a change in parent-time. The court then explained that to modify a custody order, a party must show both that “(1) a material and substantial change in circumstances has occurred, and (2) a modification would be in the best interest of the children.” As relevant here, the court then made two specific findings pertaining to the change in circumstances requirement. First, the court found that “the [2020 Order] in fact reflects the results of robustly contested litigation aimed at ascertaining the best interest of the [C]hildren.” Second, the court examined each of Father’s alleged changed circumstances and found that “there has not been a material and substantial change in circumstances shown that would support a modification in the current custody order.”

¶18 As to child support, the district court concluded that although there had not been a substantial and material change sufficient to warrant a change in custody, a change in child support was nevertheless warranted due to “material changes of 30% or more in the income of a parent.” Father verbally indicated his agreement with the court’s position. In response, Mother also agreed to “stipulate to modification of child support,” as long as her income was set at what “she testified to at trial, which . . . was $76,000 a year.” The court then ruled:

So my findings for purposes of child support are that the parties’ incomes are as stated in their financial declarations. [Father’s] financial declaration was stated as $5,808, his monthly income. [Mother’s] monthly income stated in her financial declaration was actually $6,599. And I went back and looked at the testimony and the business expenses that were claimed. And I understand that in the real estate business, that things go up and down and that . . . the cost of doing business goes up and down. And that may change from time to time. So I . . . don’t want to see a roller coaster going on here, where you’re . . . forced to go back and forth . . . each year. So for purposes of child support, that is what my ruling is.

Thereafter, the court asked Mother’s counsel to calculate child support “based on the number of days that each party has the [C]hildren.”

ISSUES AND STANDARDS OF REVIEW

¶19 Father now appeals, raising two issues for our review. First, Father argues the district court abused its discretion when it declined to modify parent-time on the ground that Father had not demonstrated a material and substantial change in circumstances. “When reviewing such a decision, we review the district court’s underlying findings of fact, if any, for clear error, and we review for abuse of discretion its ultimate determination regarding the presence or absence of a substantial change in circumstances. The district court’s choice of legal standard, however, presents an issue of law that we review for correctness.” Spencer v. Spencer, 2023 UT App 1, ¶ 13, 524 P.3d 165 (quotation simplified).

¶20 Second, Father argues the district court abused its discretion when it calculated Mother’s income for child support purposes. “In reviewing child support proceedings, we accord substantial deference to the district court’s findings and give it considerable latitude in fashioning the appropriate relief. We will not disturb that court’s actions unless the evidence clearly preponderates to the contrary or there has been an abuse of discretion.” Twitchell v. Twitchell, 2022 UT App 49, ¶ 18, 509 P.3d 806 (quotation simplified).

ANALYSIS

I. Custody and Parent-Time

¶21      While not challenging any of the district court’s factual findings, Father argues the court abused its discretion in determining there had not been a substantial and material change in circumstances warranting a modification of parent-time. Father contends the court “applied the wrong legal standard” when evaluating whether the changes alleged in his petition to modify were sufficient to warrant a modification. Specifically, Father asserts the court should have required a “lesser” showing of a change of circumstances because (1) he was seeking to modify parent-time, not custody; (2) he was seeking to modify a stipulated order; and (3) the provisions in the 2020 Order were temporary. Father argues that under this “lesser” standard, he made a sufficient showing to justify a modification. Because Father’s argument hinges on whether the court correctly applied the statutory standard for modifying a custody order, we begin by discussing that standard. We then evaluate the application of that standard to the factual findings made by the court.

A.        Statutory Standard for Modification of a Custody Order

¶22      To modify a custody order, a district court must engage in a two-step procedure. First, the court must find that “a material and substantial change of circumstance has occurred.” Utah Code § 30-3-10.4(4)(b)(i). Second, the court must find that “a modification of the terms and conditions of the order would be an improvement for and in the best interest of the child.” Id. § 30-3-10.4(4)(b)(ii).

¶23      To satisfy the first step, “the party seeking modification must demonstrate (1) that since the time of the previous decree, there have been changes in the circumstances upon which the previous award was based; and (2) that those changes are sufficiently substantial and material to justify reopening the question of custody.” Hogge v. Hogge, 649 P.2d 51, 54 (Utah 1982). “Only if circumstances have materially and substantially changed may the court proceed to the second step—a determination as to the manner in which custody should be modified, if at all, based on a de novo review of the child’s best interests.”[2] Doyle v. Doyle, 2011 UT 42, ¶ 24, 258 P.3d 553 (quotation simplified). “The district court’s determination that there has or has not been a [material and] substantial change in circumstances is presumed valid and is reviewed only for an abuse of discretion.” Harper v. Harper, 2021 UT App 5, ¶ 13, 480 P.3d 1097 (quotation simplified).

¶24      “Because the required finding of a material and substantial change of circumstances is statutory, neither this court nor the supreme court has purported to—or could—alter that requirement.” Peeples v. Peeples, 2019 UT App 207, ¶ 13, 456 P.3d 1159 (quotation simplified). As such, the change-in-circumstances requirement applies in all cases where a district court is considering a petition to modify custody. However, Utah courts have recognized that in certain cases, a petitioner seeking to modify a custody order may be required to make a lesser showing that a change of circumstances qualifies as “sufficiently substantial and material.” Hogge, 649 P.2d at 54. Courts have allowed a lesser showing in two general types of cases.

¶25 The first category of cases turns on “the type of modification sought.” Haslam v. Haslam, 657 P.2d 757, 758 (Utah 1982). “While altering custody orders generally requires a showing of substantial change in circumstances material to the modification of custody, a lesser showing may be required when the change sought is not a change of custody.” Jones v. Jones, 2016 UT App 94, ¶ 10, 374 P.3d 45 (citation omitted). Where a petitioner is seeking to modify parent-time, rather than custody, “the petitioner is required to make only some showing” of a material and substantial change in circumstances, “which does not rise to the same level as the substantial and material showing required when a district court alters custody.” Erickson v. Erickson, 2018 UT App 184, ¶ 16, 437 P.3d 370 (quotation simplified). Indeed, a court may “determine that a change in circumstances warrants modification of parent-time while simultaneously determining there is no substantial and material change in circumstances to justify a modification of custody. In other words, it is not necessarily erroneous for a court to determine that a particular change in circumstances is sufficient enough to warrant a change in a parent-time schedule, but not significant enough to warrant a modification of custody.” Id.

¶26 “Custody and parent-time are conceptually distinct.” McFarland v. McFarland, 2021 UT App 58, ¶ 36, 493 P.3d 1146 (quotation simplified). “[P]hysical custody encompasses the ability to make day-to-day decisions in a child’s life,” Blake v. Smith, 2023 UT App 78, ¶ 15, 534 P.3d 761, whereas “parent-time more narrowly refers to the amount of time that a parent is entitled to spend with the child,” Widdison v. Widdison, 2022 UT App 46, ¶ 44, 509 P.3d 242 (quotation simplified). Moreover, there are two types of physical custody: joint physical custody and sole physical custody. See Utah Code § 30-3-10.1(3)(a). The “dividing line” between the two is statutorily defined by “the number of overnight visits enjoyed by each parent.” McFarland, 2021 UT App 58, ¶ 36. When a “child stays with each parent overnight for more than 30% of the year,” the parents have joint physical custody of the child. Utah Code § 30-3-10.1(3)(a). But when a child stays with one parent for “at least 70% of the overnights,” that parent is considered to have “sole physical custody” of the child. See McFarland, 2021 UT App 58, ¶ 36. Therefore,

when a change occurs that causes one parent to obtain enough additional overnights to move from one category to another (e.g., from 25% of overnights to 35%, or from 65% to 75%), there has been a change in physical custody. But when a change occurs in which one parent obtains a few additional overnights but not enough to move from one category to another, the change constitutes only a change in parent-time, and not a change in physical custody, as that term is statutorily defined.

Id. (quotation simplified). Thus, although parent-time and custody are conceptually distinct, a parent-time schedule is merely a subspecies of a custody order, see Utah Code § 30-3-10(1), and modification of a parent-time schedule is therefore governed by the same statute that controls modification of a custody order, see id. § 30-3-10.4.

¶27 The second category of cases turns on “the nature of the underlying custody award.” Zavala v. Zavala, 2016 UT App 6, ¶ 17, 366 P.3d 422. The change-in-circumstances requirement for modifying a custody award “is based in the principles of res judicata, for courts typically favor the one-time adjudication of a matter to prevent the undue burdening of the courts and the harassing of parties by repetitive actions.” Taylor v. Elison, 2011 UT App 272, ¶ 13, 263 P.3d 448 (quotation simplified). But not all custody decrees are adjudicated; indeed, a custody award may be “determined by stipulation or default.” Elmer v. Elmer, 776 P.2d 599, 603 (Utah 1989). In cases where a district court is considering an unadjudicated award, such as the stipulated award at issue in this case, “the res judicata policy underlying the changed-circumstances rule is at a particularly low ebb.” Id. Because of this, “a lesser showing will support modifying a stipulated award than would be required to modify an adjudicated award.” Zavala, 2016 UT App 6, ¶ 17.

¶28 A court assessing exactly how much lesser the required showing might be should not “view the adjudicated/stipulated dichotomy as entirely binary” but should instead “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.” Peeples, 2019 UT App 207, ¶ 17. Thus, in a situation where a custody order is technically stipulated, the court may nevertheless decline to water down the change-in-circumstances showing if the circumstances are such that the court has a “relatively high confidence that the custody order was in line with the best interests of the children.” Id. ¶ 20; see also id. ¶ 18 (concluding that although the custody order being modified was technically stipulated, the district court did not err in requiring a normal change-of-circumstances showing because the stipulation was entered after the parties participated in years of litigation, during which they were represented by counsel); Spencer v. Spencer, 2023 UT App 1, ¶ 19, 524 P.3d 165 (same).

B.        Modification of Parent-Time

¶29      With this legal standard in mind, we now turn to Father’s contention that the district court abused its discretion in finding that he had not shown a sufficient change in circumstances to justify modifying parent-time. Father raises three arguments in support of his contention. First, he argues that the changes occurring between the 2019 Stipulation and the March 2022 trial constitute “sufficient” changes to justify modification of parent-time under the lesser change of circumstances showing. Second, he argues that modifying the 2020 Order based on the 2019 Stipulation also required a lesser showing because the 2020 Order was not the product of “robustly contested litigation.” Third, he asserts that the “conditional” nature of the 2019 Stipulation should have factored into the court’s change-of-circumstance analysis. We address each argument in turn.

1.         Allegations of Changed Circumstances

¶30      In arguing that he made a sufficient showing to justify a change in parent-time, Father points to three things that occurred between the 2019 Stipulation and the March 2022 trial date that he believes constitute sufficient changes to justify modification of parent-time. Those changes are (1) Father’s relocation to Utah, (2) the Children’s strong relationship with Stepmother, and (3) Mother’s troubling behaviors and “emotional reactivity.” But the first two changes on which Father focuses here were not alleged in his petition to modify (or even addressed in his trial memorandum). Nor did they constitute changes that have occurred since the entry of the 2020 Order. And the district court properly concluded that the changes that were alleged in Father’s petition did not justify revisiting the 2020 Order.

¶31      Father’s petition alleged several instances of changed circumstances. After hearing two days of evidence, the district court rejected all of them. It found that three of Father’s allegations—those relating to the Children’s schooling, Mother’s alleged cohabitation, and the issue with vaccinations and medical care—were not supported by any credible evidence. It found that Father’s need to participate in training courses for his employer once or twice a year and Mother’s failure to use a Google calendar were not material changes. And, after analyzing Mother’s finances, it rejected Father’s assertion that Mother could not financially provide for the Children.

¶32 The district court also considered and appropriately rejected the allegation raised by Father that Mother’s behaviors and emotional reactivity were a changed circumstance that had negatively impacted the Children. Instead, it found that the way in which both Mother and Father have interacted contributed to the Children’s need for counseling and that this situation was not a change from prior interactions. It reached a similar conclusion with respect to Father’s allegation that Mother had attempted to undermine him with the Children. And Father has not challenged any of these factual findings.

¶33      Father’s two remaining arguments are that his relocation to Utah and the strong relationship that the Children had forged with Stepmother constitute changed circumstances. But these arguments fail to account for the fact that Father had already remarried and planned on returning to Utah at the time of the 2019 Stipulation. Indeed, the primary rationale for the 2019 Stipulation (on which the 2020 Order was based) was Father’s planned relocation and the 2020 Order had already increased Father’s parent-time based upon that relocation.

¶34    We therefore conclude that the district court correctly applied the change-in-circumstances requirement when determining that Father had not demonstrated a sufficient change. As the party seeking modification, Father bore the burden of demonstrating “(1) that since the time of the previous decree, there [had] been changes in the circumstances upon which the previous award was based; and (2) that those changes [were] sufficiently substantial and material to justify reopening the question of custody.” Hogge v. Hogge, 649 P.2d 51, 54 (Utah 1982). After considering the evidence presented over the course of the two-day trial, the court concluded that Father had not carried his burden on any of the changes alleged in his petition to modify. Even assuming, for purposes of the discussion, that Father needed to make only a “lesser” showing of changed circumstances, it was not an abuse of discretion here for the court to determine that Father’s showing was insufficient. Because Father has not demonstrated that the court abused its discretion in so finding, we will not second-guess the court’s determination. See Harper v. Harper, 2021 UT App 5, ¶ 13, 480 P.3d 1097 (“The district court’s determination that there has or has not been a substantial change in circumstances is presumed valid and is reviewed only for an abuse of discretion.” (quotation simplified)).

2.         Stipulated Order

¶35      Father next contends the district court should have allowed him to get by with a lesser showing of a change of circumstances because he was seeking to modify a stipulated order. However, on the facts of this case, Father has not demonstrated that the court abused its discretion in declining to allow a lesser showing on this basis.

¶36 In its order declining to modify Father’s parent-time, the district court considered whether the 2020 Order should be considered stipulated or adjudicated. Citing Zavala v. Zavala, 2016 UT App 6, 366 P.3d 422, the court explained that the “adjudicated/stipulated dichotomy is not strictly binary” but instead requires an examination of the “origin” of the underlying order. See id. ¶ 17. The court then found that, “after examining the record and considering the testimony presented, the [2020 Order] in fact reflects the results of robustly contested litigation aimed at ascertaining the best interest of the [C]hildren.”

¶37 Although Father believes the district court should have permitted him to make a lesser change-in-circumstances showing because the 2020 Order was stipulated, he has not directly challenged the court’s factual finding that the 2020 Order was the “result[] of robustly contested litigation aimed at ascertaining the best interest of the [C]hildren.” Given the court’s unchallenged finding, which is supported by the record and entitled to deference on appeal, we will not reweigh the evidence. See Lobendahn v. Lobendahn, 2023 UT App 137, ¶ 27, 540 P.3d 727 (“The existence of conflicting evidence in the record is not sufficient to set aside a district court’s findings. The pill that is hard for many appellants to swallow is that if there is evidence supporting a finding, absent a legal problem—a fatal flaw—with that evidence, the finding will stand, even though there is ample record evidence that would have supported contrary findings.” (quotation simplified)). Consequently, Father has not demonstrated that the court abused its discretion in rejecting his argument that the nature of the 2020 Order allowed him to make a lesser showing of a substantial and material change in circumstances.

3.         Temporary Order

¶38 Lastly, Father contends the district court should have considered the 2020 Order as a “temporary order[], which require[s] no showing of changed circumstances to modify, rather than a fully enforceable custody order.” See Harper v. Harper, 2021 UT App 5, ¶ 17, 480 P.3d 1097 (“[U]nlike a permanent custody order, a temporary custody order is modifiable without a showing of a substantial and material change in circumstances.”). We disagree with Father’s contention that the 2020 Order was “temporary.”

¶39      Because the 2020 Order was stipulated, Father contends it must be “interpreted as if it were a contract between the parties.” See McQuarrie v. McQuarrie, 2021 UT 22, ¶ 18, 496 P.3d 44. To that end, he argues, we should “consider each provision [of the 2020 Order] in relation to all others, with a view toward giving effect to all and ignoring none.” Id. (quotation simplified).

¶40 The 2020 Order provides that “[u]pon [Father’s] move to Utah, on a temporary basis until further agreement of the parties or further order of the Court, [Father] shall exercise [extended] parent-time” pursuant to statute. The 2020 Order then outlines the procedure for changing that parent-time: “[A]fter exercising [extended] parent-time for at least (6) months and communicating in writing the desired change in parent-time, the parties will mediate parent-time.”

¶41      Taken together, Father contends these provisions indicate (1) that the conditional parent-time schedule was meant to be temporary and (2) that by entering into the 2019 Stipulation, the parties essentially agreed that Father would not be required to show a change in circumstances in order to modify parent-time. Father is wrong on both fronts.

¶42      First, the extended parent-time schedule did not have an expiration date. Although the provision refers to the schedule being used on a “temporary basis,” when considered in conjunction with the rest of the provision, it is clear that the schedule was intended to be ongoing. Indeed, “temporary basis” is followed immediately after with the phrase “further agreement of the parties or further order of the Court.” As a whole, then, this implies that the schedule outlined in the 2020 Order would continue until the parties could agree on a new schedule or until the court ordered something different. And if neither the parties nor the court sought to change the schedule, then it would remain in place.[3]

¶43      Second, nothing in the 2020 Order explicitly or impliedly eradicated the change-in-circumstances requirement; instead, that order merely set forth part of the process for changing custody. Pursuant to the 2020 Order, the only condition the parties put on modifying the extended parent-time schedule was to notify the other party in writing, triggering a mediation. Father argues that “interpreting that language to mean nothing more than how a party would normally go about modifying a custody order would render that language . . . superfluous.” Thus, in Father’s view, “when Mother and Father agreed that either party could request to modify the parent-time once the conditions in the provision were met, . . . the parties essentially agreed that satisfaction of the conditions (Father’s relocation and exercising the section 30-3-35.1 schedule for six months) constitute a changed circumstances sufficient to modify this parent-time in the future.”

¶44 But “essentially agreeing” is not enough to override the change-in-circumstances requirement. Cf. id. ¶¶ 23–27 (concluding that a divorce decree did not require payment of alimony after remarriage because there was no provision “specifically overrid[ing] the statutory presumption” that alimony terminate upon remarriage (quotation simplified)). The district court is statutorily required to find a material and substantial change in circumstances prior to modifying a custody order. See Utah Code § 30-3-10.4. Thus, without a specific provision overriding the change-in-circumstances requirement, the court was bound by statute to find that circumstances had sufficiently changed prior to modifying the 2020 Order.[4] See McQuarrie, 2021 UT 22, ¶¶ 23–27.

¶45 In sum, the 2020 Order was not temporary. The district court therefore did not err when it declined to treat that order as a temporary order.

II. Child Support

¶46      Next, Father argues the district court abused its discretion when ordering child support. Specifically, Father contends the court erred in calculating Mother’s income because the court deducted Mother’s business expenses from her gross income even though Mother did not prove what those expenses were. But we discern no abuse of discretion in the court’s calculation of Mother’s net income.

¶47 “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). When a parent is self-employed, “gross income” is calculated by “subtracting necessary expenses required for self-employment . . . from gross receipts.” Utah Code § 78B-12­203(4)(a). However, “[o]nly those expenses necessary to allow the business to operate at a reasonable level may be deducted from gross receipts.” Id. The individual claiming business expenses carries the burden of demonstrating that “those expenses are necessary to allow the business to operate at a reasonable level.” Ouk v. Ouk, 2015 UT App 104, ¶ 4, 348 P.3d 751 (quotation simplified). Because the district court is “best equipped to find whether expenses are necessary,” we accord a court broad discretion to make such determinations. Barrani v. Barrani, 2014 UT App 204, ¶ 11, 334 P.3d 994 (quotation simplified). “Generally, so long as the steps by which the ultimate conclusion on each factual issue was reached are apparent, a [district] 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.” Twitchell, 2022 UT App 49, ¶ 36 (quotation simplified).

¶48 Shortly before trial, Mother filed an updated financial declaration, which listed her net monthly income as $6,599. Mother supported the declaration with her 2020 tax return and three months of bank statements. The tax return listed $106,408 in gross income and $30,745 of expenses, resulting in a net income of $75,663. Those expenses included advertising, vehicle expenses, insurance, office expenses, office rent, office supplies, bank charges, membership dues and fees, education costs, internet fees, telephone charges, referral fees, software fees, website charges, equipment fees, and broker fees. At trial, Father presented Mother’s 2020 tax return as an exhibit, and Mother testified regarding the information contained therein. Mother’s testimony regarding her income was largely consistent with the information listed in her tax return. She testified that her 2020 net income was “right around $76,000,” because even though her gross income was over $106,000, she had “lots of business expenses” totaling around “30-something-thousand dollars.” Mother then listed a number of those expenses. Father did not object during this portion of Mother’s testimony, nor did he object to the admission of the underlying evidence; indeed, Mother’s tax return was offered into evidence by Father himself.

¶49      Based on this evidence, the district court ordered that child support payments be calculated using “the incomes listed on the parties’ financial declarations,” with Father’s monthly income set at $5,808, and Mother’s monthly income set at $6,599. The court explained, “Real estate income and costs fluctuates, and the Court does not want to see a change of child support every year, and therefore sets child support with the income listed on the financial declaration.” We discern no abuse in the district court’s calculation of Mother’s net income. As the person claiming business expenses, Mother bore the burden of proving that her expenses were necessary. See Ouk, 2015 UT App 104, ¶ 4. To that end, Mother submitted a financial declaration, which was supported by a tax return and bank statements, showing her business expenses. And at trial, she further testified as to these expenses. All this evidence was unrefuted by Father. Because there was evidence before the court regarding Mother’s business expenses, we must defer to the court’s determination that Mother has carried her burden of proving those expenses.

CONCLUSION

¶50 The district court did not abuse its discretion when it declined to modify Father’s parent-time. In particular, the court did not abuse its discretion in concluding, on this record, that Father had not made even a “lesser” showing of changed circumstances. And the court did not abuse its discretion in calculating Mother’s net income.

¶51 Affirmed.


[1] Father’s requested change would have increased his number of overnights from 130 to 220 and would have decreased Mother’s overnights from 235 to 145. Father’s alternative request for equal parent-time would have also greatly changed the number of overnights awarded to each parent, with Father receiving 182 overnights and Mother receiving 183 overnights. These requests sought significant changes in the parties’ child-care arrangement, even though these requests were, technically speaking, requests for changes to “parent-time” and not to “physical custody.” See McFarland v. McFarland, 2021 UT App 58, ¶ 36, 493 P.3d 1146.

[2] At the outset of the trial, the parties discussed how to present their respective cases in light of the two-step approach. Mother suggested that the district court should “bifurcate[] the process and handl[e] it in two different phases.” Father pushed back on Mother’s suggestion, acknowledging that although Father would not be entitled to relief absent a showing of a material and substantial change in circumstances, that showing was “so intertwined” with the second-phase best-interest inquiry “that it [would] not make sense to hear them separately.” Ultimately, the court agreed with Father that “these issues are somewhat intertwined” and declined to bifurcate the trial. Father’s position and, in turn, the court’s decision, are consistent with Utah caselaw. Our supreme court has recognized that some early Utah cases addressing the two-step approach could be read as supporting the notion that each step should be completely “bifurcated.” See, e.g.Hogge v. Hogge, 649 P.2d 51, 54 (Utah 1982). However, the court has since clarified that our two-step approach requires “only analytical—and not formal procedural— bifurcation,” recognizing that “the evidence supporting changed circumstances is often the same evidence that is used to establish the best interests of the child.” Doyle v. Doyle, 2011 UT 42, ¶¶ 28, 33, 258 P.3d 553 (quotation simplified).

[3] This conclusion is also bolstered by the fact that the 2020 Order contains other provisions that were not meant to be temporary. For example, the 2020 Order provides that summer parent-time is to be scheduled with Mother exercising “first choice . . . in odd years.” This language is closely mirrored in a provision outlining which years the parties can claim the Children for tax purposes, with the parties to “alternate years.”

[4] Moreover, the district court specifically found that nothing in the 2019 Stipulation or the 2020 Order “would make inapplicable the statutory requirement that a party requesting a change to the custody order must allege and prove a material and substantial change in circumstances.” Father has not challenged this finding as clearly erroneous.

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State v. Smith – 2024 UT App 82

State v. Smith – 2024 UT App 82

THE UTAH COURT OF APPEALS

STATE OF UTAH, Appellee, v. STEVEN TIMOTHY SMITH, Appellant.

Opinion No. 20220299-CA Filed May 31, 2024

Fifth District Court, St. George Department, The Honorable Jeffrey C. Wilcox No. 211501082

Nicolas D. Turner and K. Andrew Fitzgerald, Attorneys for Appellant, Sean D. Reyes and Karen A. Klucznik, Attorneys for Appellee

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

OLIVER, Judge:

¶1 After coming home ¶1 After coming home from work, Shawntell Smith (Shawntell) gathered her family as she had planned and calmly told her husband of nearly thirty years, Steven Timothy Smith (Smith), that she was leaving him and taking their kids with her. Over the next twenty-five minutes, Smith left the house, drove to the bank and withdrew $15,000, returned home and put the cash in a drawer, got his gun from the closet and loaded the magazine, and asked his two sons if they agreed with the plan to move out. He then fatally shot Shawntell seven times in the back as she stood in the kitchen. At trial, Smith confessed on the stand, and a jury convicted him of first-degree murder. Smith challenges his conviction on the grounds that the trial court erred in denying his request for a jury instruction on the defense of extreme emotional distress and in denying his last-minute motion for a continuance to hire an expert witness. We reject both of Smith’s arguments and affirm his conviction.

BACKGROUND[1]

¶2        Shawntell and Smith were married and had four children, three of whom were adults in May 2021. The two youngest sons, a fourteen-year-old (Teen Son) and a twenty-year-old (Adult Son), lived at home. Smith “was quick to anger or snap at the kids,” threatening them with a belt, cussing at them frequently, and sometimes throwing things at them. Smith also directed his temper, which he believes “every male has,” at his wife, Shawntell. As Adult Son testified, Smith once got so angry when Adult Son wanted Shawntell’s—not Smith’s—help with homework that Shawntell said she would call the police if Smith did not calm down. Smith then “got into her face” and said, “I’m going to put a bullet in your head.” Shawntell rarely stood up for herself, was often sleep-deprived from working two jobs— including a graveyard shift—to pay the bills, and had stopped inviting her friends into her house.

¶3        Shawntell eventually decided to leave Smith. For months, she quietly put a plan into action: she confided in her close friends and neighbors, asking for their help storing some of her things; she slowly began packing up boxes; and she found a townhouse and arranged for Adult Son to sign the lease on it. Shawntell decided she would hold a family meeting on May 21, 2021, to tell Smith she was leaving him that same day; she arranged for a couple of friends and neighbors to come help her move after the meeting. One neighbor (Neighbor) was worried about Shawntell’s safety if she left the same day she told Smith and suggested, instead, giving Smith “time to process” the news before moving out. But, Shawntell insisted on sticking with her plan out of fear Smith would “retaliat[e]” if she stayed. Neighbor remained “concerned enough” for Shawntell’s safety that he “put a gun in [his] truck.”

¶4        On May 21, just after 5:00 p.m., Shawntell and three of the kids—Adult Son, a twenty-five-year-old daughter (Daughter), and Teen Son—went into the home office where Smith was on his computer. Shawntell calmly told Smith she was leaving that day and that Adult Son and Teen Son were leaving with her. Smith simply said, “Okay,” and asked where they were going, along with who would pay rent on the family house. Shawntell replied that rent “would be his responsibility.” Smith calmly turned off his computer, walked to the master bedroom, and looked in the closet for his keys despite always keeping them on the dresser. Shawntell followed him and asked if she could help him find anything. Smith asked if Teen Son had known of her plan to leave, and Shawntell replied that only the older children had known beforehand.

¶5        Despite being “distraught” at the news his wife was leaving and he “was the last one to know,” Smith did not reach for any of the guns he kept in a chest on one of the bedroom dressers. Instead, he got his car keys and walked out of the bedroom, leaving the house at about 5:30 p.m. in a “calm” mood. Smith decided to take Shawntell’s car rather than the Suburban that was packed up, inferring she was taking the Suburban. He drove down the street to the bank and asked for a specific employee to help him withdraw $15,000 in cash. Smith opted to wait for that employee, who was busy with another customer. The employee suggested that a cashier’s check would be safer than carrying around so much cash. Smith refused and told the employee he was not concerned about safety because he was a retired police officer.

¶6        Smith drove home, arriving at approximately 5:45 p.m. A box truck that Adult Son had brought to help move was taking up most of the driveway, so Smith changed his mind about parking there, reversed the car, and found another parking spot. Neighbor observed Smith driving “at kind of a high rate of speed that just led [him] to believe that [Smith] was agitated.” Neighbor tried “to defuse the situation in some manner” by saying hello. Smith replied, “Get the fuck off my property” and Adult Son, who overheard Smith, said to Neighbor, “My dad’s true colors shining through.”

¶7        Smith walked into the house and went straight to the master bedroom, where he put the cash in a dresser drawer. Smith then saw a friend of Shawntell’s packing up her things from the closet and “forcefully” told her to leave. According to Smith, he “wanted to shoot” himself at that point, so he took out a .45 caliber pistol from the gun chest on his dresser and ammunition from the closet, and he went to the bathroom and sat on the toilet to load the gun. Smith claimed he felt “foggy” and “extremely out of it,” so when he tried to load the magazine, he did it the wrong way. He realized his mistake and then properly filled the magazine with seven bullets.

¶8        Deciding to kill himself in the backyard, Smith first went to find his sons, intending to ask them “if they wanted [him] around.” What he ended up asking, though, was whether they were okay with Shawntell’s plan to leave and take them. When they said they were, Smith said it felt like a slap in the face.

¶9        At approximately 5:52 p.m., Smith walked down the hallway to the back door and saw Shawntell with her back to him, her attention focused on doing something in a kitchen drawer. Smith thought to himself, “Okay. It’s her fault.” Lifting his gun, Smith aimed it at Shawntell and pulled the trigger seven times, hitting her each time. According to the medical examiner, the bullets penetrated Shawntell’s lungs, heart, kidney, bowel, and wrist. Smith watched Shawntell fall, face down, on the kitchen floor. He then went and sat on the couch, placing the gun on the nearby hutch.

¶10      Hearing gunshots from the driveway, Adult Son cried out and ran into the house, where he and Daughter found their mother lying on her stomach. Neither of them saw Smith near their mother, but Adult Son noticed Smith going into the master bedroom and followed, physically attacking him and asking, “Why? Why would you do this?” Smith responded, “I have nothing left.” Meanwhile, Daughter called 911 and attempted CPR.

¶11 When the police arrived, Teen Son ran out of the house, and the officers directed him to stay near them as another officer (Officer) “took a tactical position in front of the house.” The other two children came out, looking “frantic.” Adult Son exclaimed, “I beat the fuck out of my dad. He shot her. The gun is empty. And he’s sitting on the couch.” Officer ordered Smith to exit the house with his hands up. Smith calmly complied and was arrested. The police asked where the gun was, and Smith told them it was inside. Upon entering the house, the officers found Shawntell’s dead body surrounded by blood and seven .45 mm shell casings. After searching for “a long time,” the officers found the gun Smith used in the master closet, under a bloody American flag and “tucked” by the wall.

¶12 Smith was taken to the police station, where he received medical treatment for injuries caused by Adult Son. At the beginning of his first police interview, Smith was “pretty calm” but had “periods where he would become emotional.” Smith claimed to have memory gaps in the events leading up to the murder, so the police interviewed him a second time to ascertain whether he “recalled or was able to recall anything.” During the second interview, Smith claimed he did not remember shooting Shawntell, but he also “never denied that he shot her” and made statements such as, “I don’t deny that I’m not innocent” and, “I probably shot my wife.”

¶13      A few days later, the State charged Smith with murder. He pleaded not guilty. Out of an abundance of caution, Smith’s appointed counsel (Trial Counsel) requested a competency evaluation. The court granted the request, and Smith was later found competent to proceed. In mid-October, the parties agreed they would be ready for trial if it were set for the following month. On October 29, the State moved to preclude a jury instruction on an extreme emotional distress (EED) defense, contending the evidence would not support the defense under the new governing statute, which requires (among other things) evidence that the defendant had an “overwhelming reaction of anger, shock, or grief” to a “highly provoking act” by the victim, which reaction both (a) “cause[d] the defendant to be incapable of reflection and restraint” and (b) “would cause an objectively reasonable person to be incapable of reflection and restraint.” Utah Code § 76-5-205.5(1)(a)(i).[2] The court heard argument and deferred ruling until trial.

¶14 Two business days before trial, Smith filed a “two-page motion” requesting the appointment of an expert witness for an EED defense, a continuance, and funding for the expert. At oral argument on the motion, Trial Counsel argued an expert was needed to help the jury “recognize shock, anger, or grief, and how those things could be manifest.” Regarding the lateness of the filing, Trial Counsel argued that a continuance was “a reasonable accommodation” for “a complex issue” and “[t]here are other cases that are set to go if this one has to be continued.” In response, the State asserted “the statute is written in such a way that it doesn’t require expert testimony.” The trial court agreed and denied the motion, concluding that although expert testimony may explain the subjective part of the statute that looks to whether a defendant is “incapable of reflection and restraint,” see Utah Code § 76-5-205.5(1)(a)(i)(A) (2019), an expert is unnecessary to explain how an “objectively reasonable person” would react to a common occurrence like divorce, see id. § 76-5-205.5(1)(a)(i)(B). The trial court reasoned, “People get divorced all the time. And it is very rare that when someone is told, nothing more, ‘I’m leaving you,’ that that becomes so shocking and overwhelming[] that the person . . . leaving gets killed.”

¶15 At the three-day trial, two adult children, neighbors, friends, officers, and the medical examiner testified as recounted above. Smith testified in his defense, confessing on the stand that as he walked to the backyard, “I saw Shawntell right there. And that’s when I shot her.” At the close of evidence, the trial court heard argument outside the presence of the jury on the State’s motion to exclude the EED jury instruction. The court, finding that Shawntell did not engage in any type of highly provoking act before Smith killed her, ruled that the instruction would not be allowed because the evidence did not meet “the statutory requirement of a highly provocative act of the victim.” In closing, Trial Counsel argued, “[Smith] did not mean to shoot his wife. That was not his intent.” In response, the State pointed out there was plenty of evidence to support Smith’s intent to shoot and kill Shawntell, including his own statement that he shot her, the fact he never claimed it was a mistake, and the way he pulled the trigger seven times and did not miss a single time, all indicating Smith “clearly intended to kill her.”

¶16 The jury convicted Smith of murder, and the trial court sentenced Smith to fifteen years to life in prison. The court gave Smith credit for time served but then “recommend[ed] to the Board of Pardons [and Parole] that [Smith] remain in jail for the rest of [his] natural life.”

ISSUES AND STANDARDS OF REVIEW

¶17 Smith argues the trial court erred in granting the State’s motion to exclude the EED jury instruction. The parties cite differing standards of review for this issue. The State asserts that we should review the decision to give a jury instruction for abuse of discretion, see State v. Karren, 2018 UT App 226, ¶ 18, 438 P.3d 18, while Smith states that we should review the decision for correctness, see State v. Kruger, 2000 UT 60, ¶ 11, 6 P.3d 1116.[3]

Ultimately, however, we need not resolve the question of which standard applies because, even under the more stringent correctness standard, we affirm the trial court’s decision denying Smith a jury instruction on EED.

¶18 Smith also argues the trial court erred by denying his motion seeking a continuance to obtain an expert witness on an EED defense. “We will not reverse the trial court’s decision to grant or deny a continuance absent a clear abuse of discretion.” State v. Alonzo Peraza, 2020 UT 48, ¶ 58, 469 P.3d 1023 (cleaned up).

ANALYSIS

I. EED Jury Instruction

¶19      Smith asserts the trial court erred when it declined to give

an EED jury instruction that could have reduced his murder charge to manslaughter. See Utah Code § 76-5-205.5(2)(a)–(b), (5) (2019). Specifically, Smith claims the court “substituted itself as the trier of fact” when it failed to consider Smith’s “background or experience” and concluded that no special mitigation existed because Shawntell committed no “highly provoking act,” id. § 76­5-205.5(2)(b).

¶20 “When requested by a criminal defendant, a trial court must give an instruction regarding a particular affirmative defense if evidence has been presented . . . that provides any reasonable basis upon which a jury could conclude that the affirmative defense applies to the defendant.” State v. Rivera, 2019 UT App 27, ¶ 19, 440 P.3d 694 (cleaned up). However, “a court need not instruct the jury on the requested affirmative defense where the evidence is so slight as to be incapable of raising a reasonable doubt in the jury’s mind as to whether the defendant” killed the victim while under the influence of EED. State v. Burke, 2011 UT App 168, ¶ 81, 256 P.3d 1102 (cleaned up).

¶21 Under Utah law, EED is defined as “an overwhelming reaction of anger, shock, or grief that . . . causes the defendant to be incapable of reflection and restraint” and “would cause an objectively reasonable person to be incapable of reflection and restraint.” Utah Code § 76-5-205.5(1)(a)(i). As relevant here, the defense applies only when the defendant acted “under the influence of extreme emotional distress that is predominantly caused by the victim’s highly provoking act immediately preceding the defendant’s actions.” Id. § 76-5-205.5(2)(b).

¶22      Here, the trial court correctly declined to give a jury instruction on the EED defense because the facts do not constitute a “highly provoking act.” As the trial court noted, “People get divorced all the time. And it is very rare that when someone is told, nothing more, ‘I’m leaving you,’ that that becomes so shocking and overwhelming[] that the person . . . leaving gets killed.” Shawntell’s announcement was a common one— relationships routinely end and people move out—and she made her announcement in a composed and rational way that she had thoughtfully planned out, calmly telling Smith she was leaving during a family meeting in his home office. Under these circumstances, the trial court correctly concluded that Shawntell’s actions were not “highly provoking.”

¶23 But even if we were to somehow construe Shawntell’s civilized, calm disclosure to Smith that she was leaving as a “highly provoking act,” it would still not satisfy the statute because it did not occur “immediately preceding” her murder. Approximately twenty-five minutes elapsed between the time Shawntell told Smith she was leaving and when he fatally shot her in the back seven times. Smith argues that the highly provoking act was more like a compilation of acts that was “ongoing from the time Shawntell informed him, and through her efforts to immediately remove everything from the home utilizing the aid of many friends and neighbors.” According to the relevant language of the statute, however, a defendant’s EED must be “predominantly caused by the victim’s highly provoking act immediately preceding the defendant’s actions.” Id. (emphasis added). Smith didn’t shoot Shawntell immediately after she told him she was leaving. He shot her twenty-five minutes later when she was in the kitchen doing something in a drawer with her back turned. Shawntell standing in her kitchen facing away from Smith was the antithesis of “highly provoking.”

¶24 Thus, the evidence at trial was “incapable of raising a reasonable doubt in the jury’s mind as to whether [the] defendant killed the victim while under the influence of” EED. State v. Piansiaksone, 954 P.2d 861, 872 (Utah 1998) (cleaned up). We therefore conclude the trial court correctly declined to give the jury instruction on the EED defense.

II. Continuance to Obtain an Expert Witness

¶25 Smith also contends that the trial court should have granted his motion for a continuance to obtain an expert witness because the shock or grief required by the EED statute “may require expert explanation to the jury about the various ways in which such emotions or psychological issues can manifest themselves.” The State, however, contends the trial court did not abuse its discretion because Smith failed to meet his burden for such a motion to be granted.

¶26 Because Smith moved “for a continuance to procure the testimony of an absent witness,” he must show (1) “that the testimony sought is material and admissible”; (2) “that the witness could actually be produced”; (3) “that the witness could be produced within a reasonable time”; and (4) “that due diligence has been exercised before the request for a continuance.” Mackin v. State, 2016 UT 47, ¶ 33, 387 P.3d 986 (cleaned up). “A failure to establish even one aspect of the above test defeats [a defendant’s] claim.” Id. Here, Smith falls well short of establishing the required elements.

¶27      First, Smith must show that an expert witness was material to his defense, which required him to “demonstrate with a reasonable probability that the nonadmitted evidence would affect the outcome of the criminal proceeding.” Id. ¶ 34 (cleaned up). But because Smith was not entitled to the EED jury instruction, see supra Part I, any testimony from an expert witness on the elements of the EED defense would have been irrelevant.[4] Thus, any such expert testimony was not material and Smith cannot demonstrate that there is “a reasonable likelihood of a more favorable result” at trial had the motion been granted. Id. ¶ 37 (cleaned up).

¶28      Next, the cursory motion was lacking any of the required specifics. It failed to identify any expert by name, the substance of the expert’s testimony, how quickly the expert could be retained and prepared to testify, and that the unnamed expert would actually be able to appear at trial. Id. ¶ 33.

¶29      Finally, Smith failed to demonstrate that he acted with due

diligence. He filed his expert witness motion requesting the continuance on the eve of trial, after the State had raised the issue the previous month in its motion to exclude the EED jury instruction.

¶30 In the face of such deficiencies in Smith’s expert witness motion, the trial court acted well within its discretion in denying the motion. Id. (“A failure to establish even one aspect of the above test defeats [the defendant’s] claim.”).

CONCLUSION

¶31 Shawntell’s calm announcement to Smith that she was leaving and taking the kids with her did not constitute the “highly provoking act” required for an EED defense and, in any event, it did not occur “immediately preceding” Smith’s fatal shooting of her. Therefore, the trial court did not err when it declined to instruct the jury on the EED defense. The court likewise did not abuse its discretion when it denied Smith’s last-minute motion for an expert witness to assist in presenting that defense. Accordingly, we affirm Smith’s conviction.


[1] “On appeal, we review the record facts in a light most favorable to the jury’s verdict and recite the facts accordingly.” State v. Samples, 2022 UT App 125, n.3, 521 P.3d 526 (cleaned up), cert. denied, 525 P.3d 1279 (Utah 2023).

[2] In 2019, the legislature overhauled Utah Code section 76-5­205.5, which governs how a defendant may seek mitigation of a criminal homicide offense for “mental illness or provocation,” including “extreme emotional distress.” Compare Utah Code § 76­5-205.5 (2018), with id. (2019).

[3] This dispute may stem from a shift our supreme court made in Miller v. Utah Department of Transportation, 2012 UT 54, 285 P.3d 1208. There, the court held that “the refusal to give a jury instruction is reviewed for abuse of discretion, although in some circumstances that discretion will be narrowly constrained.” Id. ¶ 13. The court went on to clarify that “in certain circumstances a district court’s discretion will be constrained such that a party is legally entitled to have a particular instruction given to the jury. In those circumstances, refusal constitutes an error of law, and an error of law always constitutes an abuse of discretion.” Id. ¶ 13 n.1. The court concluded by holding that “[t]o the extent earlier cases conflict with this opinion in their enunciation of the standard of review for refusal to give a jury instruction, this opinion controls.” Id.

But despite this clarification, there remains confusion as to when the trial court’s “discretion will be narrowly constrained” such that the refusal to give a jury instruction “constitutes an error of law,” Id. ¶ 13 & n.1. See, e.g.State v. Rivera, 2019 UT App 27, ¶ 14, 440 P.3d 694 (reviewing “a trial court’s refusal to give a requested jury instruction for correctness” with no mention of the abuse of discretion standard set forth in Miller (cleaned up)); State v. Dozah, 2016 UT App 13, ¶ 12, 368 P.3d 863 (same); State v. Karren, 2018 UT App 226, ¶¶ 18, 24, 438 P.3d 18 (identifying the standard of review for refusal to give a jury instruction as abuse of discretion, but concluding that “the district court did not err” in denying to give the requested jury instruction). Thus, “we flag the issue for consideration in a future case, noting the apparent lack of clarity in Utah law as to the appropriate standard of review” for the refusal to give a requested jury instruction. Amundsen v. University of Utah, 2019 UT 49, ¶ 19 n.5, 448 P.3d 1224.

[4] Additionally, testimony about whether Smith was “incapable of reflection and restraint,” see Utah Code § 76-5-205.5(1)(a)(i)(A), may have been inadmissible under rule 704(b) of the Utah Rules of Evidence, which prohibits an expert witness in a criminal case from giving “an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.”

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2024 UT App 91 – In re R.D. – Juvenile Court Jurisdiction – Parental Presumption

2024 UT App 91 – In re R.D.

THE UTAH COURT OF APPEALS

IN THE INTEREST OF R.D. AND Z.J., PERSONS UNDER EIGHTEEN YEARS OF AGE.

K.J., Appellant, v. N.J. AND A.J., Appellees.

Opinion No. 20220798-CA Filed June 27, 2024, Second District Juvenile Court, Ogden Department

The Honorable Debra J. Jensen No. 1174368

K. Andrew Fitzgerald, Attorney for Appellant, Jason B. Richards, Attorney for Appellees Martha Pierce, Guardian ad Litem

JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1 A mother and her children were in the company of the mother’s boyfriend as he allegedly robbed a business. The children had recently been adjudicated as abused by their father, who was living with the mother at the time of the abusive events, and were thus under the jurisdiction of the juvenile court. Fearing that this latest incident might result in the children being placed in foster care, the mother sent the children to her parents in Texas. The children have been in Texas ever since. After the children moved in with them, the grandparents intervened in the juvenile court case and petitioned the court for guardianship and custody, which the court granted. The mother now appeals, asserting, in addition to other claims of error and ineffective assistance of counsel, that the juvenile court lacked jurisdiction to grant the guardianship and custody. We affirm on all grounds.

BACKGROUND[1]

¶2 K.J. (Mother) has two children (the Children) by the same man (Father)—a girl born in December 2015 and a boy born in January 2018.

¶3 In October 2018, law enforcement was dispatched to a disturbance at the family home. Father was intoxicated, had become “destructive,” and was “not making much sense.” Father transported to the hospital. Within a few days of this incident, Mother sent the Children to live with her parents, N.J. and A.J. (Grandparents), in Texas, where they stayed about three months.

¶4 In February 2019, law enforcement was again dispatched to the family home. Father was again found intoxicated, and he had locked Mother out of the residence. It was reported that Father would “jump on” Mother and “shake her.”

¶5 In April 2019, law enforcement responded to a call involving aggravated assault at the family home. Father was yet again intoxicated, and he had pushed Mother into a wall of their apartment, an action that knocked her to the ground. Father had then grasped Mother from behind and had begun hitting her, giving her a bloody nose. Father had also choked Mother, causing her to nearly lose consciousness. The Children were present during this assault.

¶6 A few days after this incident, having received a referral regarding the Children, the Utah Division of Child and Family Services (DCFS) initiated a home visit. Mother admitted that law enforcement had been called to the home due to Father’s “drinking and getting out of control.” But she “minimized the domestic violence incidents,” noting that that she could usually get the Children to bed and sleeping so they would not hear any of the parents’ arguments. Mother asked the DCFS caseworker to tell Father that she still wanted “to be with him,” but the caseworker advised Mother that doing so would be a violation of a no contact order that was in place. And as the caseworker was leaving the home, Mother said, “So what [you are] saying is the best thing I can do is go to court next week and ask for the no contact order to be dropped?” The caseworker responded that was not what was being communicated, and she discussed with Mother “the concerns of her failure to protect the [C]hildren from the ongoing domestic violence.” Mother responded that she just wanted to speak with Father.

¶7 About a week later, DCFS spoke with Father, who was at this point incarcerated. He admitted that there had been a “scuffle” in which he had “knocked” Mother in the nose but claimed there had only been one physical altercation between the two of them.

¶8        In May 2019, DCFS initiated proceedings, pursuant to Utah Code section 80-3-201(1), by filing a petition for protective supervision services (PSS petition) that alleged the Children were abused, neglected, or dependent.[2] Mother and Father both entered rule 34(e) pleas in response to the allegations contained in the PSS petition. 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.”).

¶9 In July 2019, the juvenile court determined that the Children were subject to the jurisdiction of the juvenile court and adjudicated them “abused children” by Father in that they “suffered non-accidental harm or threatened harm” when Father “committed domestic violence” in their presence by assaulting Mother. Accordingly, the court appointed a guardian ad litem (GAL) to represent the best interests of the Children; ordered DCFS to provide protective supervision services; ordered Mother and Father to comply with a family plan that included mental health assessments, a domestic violence assessment, completion of a parenting course, and maintenance of stable housing and income; and ordered Father to complete drug and alcohol assessment and treatment. The juvenile court further ordered Mother and Father to “have no contact with each other in the presence” of the Children.

¶10 Notably, the court made a custody determination at this juncture in two respects. First, at least impliedly, it determined that the Children would remain in the custody of Mother, albeit subject to the jurisdiction of the court pursuant to the provisions of the family plan. Second, it placed severe restrictions on Father’s parent-time with the Children. Specifically, the court ordered that Father “shall not return to the family home until further order” of the court. And the court specified that “[v]isitation between [Father] and the [C]hildren shall be reasonable and supervised as approved by the [GAL], until further order of the [c]ourt.”

¶11 Not long after the adjudication, Mother began a relationship with another man (Boyfriend). This relationship too was marked by incidents of domestic violence. In one instance, Boyfriend called police claiming that Mother tried to hit him with her car, while a witness said it was Boyfriend who jumped on the hood of Mother’s car. But a more serious incident—at least insofar as it concerned the safety of the Children—happened when Boyfriend allegedly robbed an oil-change shop while Mother and the Children were with him in Mother’s car. This prompted Mother, in October 2019, to arrange for the Children to go to Texas to live with Grandparents again. Mother was apparently “afraid that the [Children] would go to foster care if [authorities] thought [she] was involved in the robbery.” The Children have been in Texas ever since.

¶12 In June 2020, Grandparents moved to intervene in the Children’s welfare action and petitioned the juvenile court for temporary child custody. The court granted the motion and awarded them temporary custody. In an October 2020 hearing, the court changed the Children’s permanency goal to permanent custody with a relative and terminated reunification services with Mother and Father. Also in October 2020, Grandparents petitioned for permanent custody and guardianship, which was supported by the GAL. Mother and Father opposed

Grandparents’ petition. As relevant here, Mother argued that there had been a substantial and material change in her circumstances and requested the Children be returned to her custody. In December 2020, the court released DCFS from the case.

¶13 In August 2022, the juvenile court entered detailed findings, concluding that Mother had not changed her circumstances and that it was necessary for the welfare of the Children that Grandparents be awarded permanent custody and guardianship.[3]

¶14      Mother appeals.

ISSUES AND STANDARDS OF REVIEW

¶15 Mother first contends that the juvenile court lacked jurisdiction under the Utah Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), see generally Utah Code §§ 78B13-101 to -318, to enter custody orders in favor of Grandparents. Whether a court has jurisdiction is a matter of law reviewed for correctness. In re adoption of B.B., 2017 UT 59, ¶ 16, 417 P.3d 1.

¶16 Next, Mother argues that the juvenile court violated the Interstate Compact on the Placement of Children (ICPC), see generally Utah Code §§ 80-2-901 to -910, by failing to ensure that Grandparents were fit for custody of the Children prior to placement. “The proper interpretation and application of a statute is a question of law which we review for correctness.” In re adoption of B.H., 2019 UT App 103, ¶ 9, 447 P.3d 110 (cleaned up), aff’d, 2020 UT 64, 474 P.3d 981.

¶17 Mother next asserts that her trial counsel (Counsel) was ineffective for failing to call her therapist to testify on her behalf regarding her current mental health status. “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” In re C.M.R., 2020 UT App 114, ¶ 11, 473 P.3d 184 (cleaned up).

¶18 Mother lastly maintains that the juvenile court erred in applying an incorrect standard of proof, arguing that the custody dispute should have been governed by the parental presumption. The application of the correct standard of proof, including the juvenile court’s “interpretation of the parental presumption, presents a legal issue, which we review for correctness.” In re A.T., 2020 UT App 50, ¶ 11, 464 P.3d 173.

ANALYSIS

I. Jurisdiction

¶19 Mother argues that the juvenile court lacked jurisdiction to consider Grandparents’ custody petition because the Children had been residing in Texas for more than six months prior to the petition. Mother’s argument is grounded in the UCCJEA, which states, in pertinent part, that

a court of this state has jurisdiction to make an initial child custody determination only if . . . this state is the home state of the child on the date of the commencement of the proceeding[] or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.

Utah Code § 78B-13-201(1)(a). In developing this argument, Mother points to the definition of a child custody proceeding found in the Utah Code:

“Child custody proceeding” means a proceeding in which legal custody, physical custody, or parenttime with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear.

Id. § 78B-13-102(4).

¶20 From these statutory provisions, Mother argues that the PSS petition filed by DCFS did not indicate that “legal custody” or “physical custody” of the Children was at issue, asserting “the PSS petition was arguably not a ‘child custody proceeding’ for purposes” of the UCCJEA. Mother further argues that because the Children had been in Texas for more than six months by the time Grandparents petitioned for custody in June and August 2020, “Texas was the ‘home state’ of the Children under” the UCCJEA and Utah did not have jurisdiction to consider Grandparents’ custody petition.

¶21 Mother is mistaken. The statutory language makes it clear that the Utah juvenile court had jurisdiction over the custody petition. Under the plain language of the UCCJEA, Utah was the “home state” of the Children “on the date of the commencement of the proceeding” that determined child custody. See id. § 78B-13201(1)(a) (“[A] court of this state has jurisdiction to make an initial child custody determination only if . . . this state is the home state of the child on the date of the commencement of the proceeding . . . .”). And a “child custody proceeding” includes “a proceeding in which . . . parent-time with respect to a child is an issue.” See id. § 78B-13-102(4) (emphasis added).

¶22 Here, the “child custody proceeding” commenced when the juvenile court adjudicated the PSS petition. While it is true that the PSS petition—filed in May 2019 when the Children were living in Utah—did not mention legal custody, physical custody, or parent-time, it did recount three incidents of domestic violence, one of which was committed in the presence of the Children, perpetrated by Father. Based on these allegations, DCFS asked the juvenile court to adjudicate the Children “abused, neglected and/or dependent” because they had “suffered non-accidental harm or threatened harm . . . [w]hen [Father] committed domestic violence in the presence of the [C]hildren by hitting [Mother,] causing her a bloody nose, choking her, and knocking her to the ground.”

¶23 In adjudicating the PSS petition, the court specifically found that the Children were “abused” by Father in that the Children had “suffered non-accidental harm or threatened harm” when Father “committed domestic violence” in their presence.

And, as it was allowed to do given the finding of abuse,[4] the juvenile court also made a “custody” determination—at least according to the terms of the UCCJEA—when it limited Father’s parent-time. Specifically, the juvenile court ordered that Father “shall not return to the family home until further order” of the court. And it further specified that “[v]isitation between [Father] and the [C]hildren shall be reasonable and supervised as approved by [DCFS] and the [GAL], until further order of the [c]ourt.”

¶24 The Utah juvenile court obtained jurisdiction as soon as it entertained the PSS petition because two conditions were met. First, the PSS petition resulted in a “proceeding for . . . abuse . . . and protection from domestic violence.” Id. § 78B-13-102(4). Second, in that proceeding, “parent-time with respect to [the Children was] an issue.” Id. Accordingly, under the terms of the UCCJEA, the PSS petition gave rise to a child custody determination because parent-time—specifically with respect to Father—was “an issue.” Id. And the juvenile court had jurisdiction from that time on because Utah was the “home state of the [Children] on the date of the commencement” of the PSS petition and resulting proceeding. See id. § 78B-13-201(1)(a).

¶25 Once jurisdiction attached at the commencement of proceedings by the filing of the PSS petition, it remained intact. Mother argues the opposite—that while Utah may have had jurisdiction of the initial matters in the PSS petition, jurisdiction switched to Texas for the custody matters related to

Grandparents. We rejected a similar argument in In re A.J.B., 2017 UT App 237, 414 P.3d 552, where we stated that “once a state makes an initial child custody determination, that state obtains exclusive, continuing jurisdiction, which exists until that state relinquishes or is divested of its exclusive jurisdiction in accordance with the UCCJEA or a similar act.” Id. ¶ 16 (cleaned up). Because the juvenile court never relinquished its jurisdiction over the case here, “whether pursuant to section 207 of the UCCJEA or any other statute,” it retained jurisdiction over the Children. See id.see also Utah Code § 78B-13-207(1) (“A court of this state that has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.”).

¶26 In sum, the Utah juvenile court’s jurisdiction commenced on the filing of the PSS petition—which alleged abuse, neglect, and dependency due to domestic violence—and resulted in limitations on Father’s parent-time. Accordingly, Mother’s first claim of error fails.

II. ICPC Violation

¶27 Mother next contends that the juvenile court also violated the ICPC by failing to ensure that Grandparents were fit for custody before placing the Children with them.[5]

¶28 The purpose of the ICPC is to ensure that “[e]ach child requiring placement” receives “the maximum opportunity to be placed in a suitable environment and with persons or institutions having appropriate qualifications and facilities to provide necessary and desirable care.” Utah Code § 80-2-905 art. I(1). The ICPC also allows the “appropriate authorities in a state where a child is to be placed [to] have full opportunity to ascertain the circumstances of the proposed placement, thereby promoting full compliance with applicable requirements for the protection of the child.” Id. § 80-2-905 art. I(2). Moreover, the ICPC ensures that the “proper authorities of the state from which the placement is made may obtain the most complete information on the basis of which to evaluate a projected placement before it is made.” Id. § 80-2-905 art. I(3).

¶29 By its own terms, the ICPC is oriented toward facilitating interstate placements in the context of anticipated adoptions coordinated by state authorities or private agencies, a point that it makes explicitly clear:

This compact shall not apply to . . . [t]he sending or bringing of a child into a receiving state by [the child’s] parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt, or . . . guardian and leaving the child with any such relative or nonagency guardian in the receiving state.

Id. § 80-2-905 art. VIII(1). Thus, the ICPC exempts parents from the requirement of ascertaining the suitability of the placement if the parent is sending the child to one of the identified relatives or guardians.

¶30 Here, Mother is the one who sent the Children to stay with Grandparents, a point about which there is no disagreement. Mother sent the Children to live with Grandparents after a criminal episode allegedly committed by Boyfriend in the presence of the Children because she was concerned that her alleged involvement in the incident might lead to the placement of the Children in foster care. Thus, the sending of the Children to live with Grandparents was voluntarily and directly done by Mother while the Children were in her custody. It was only later, after Grandparents petitioned for custody due to Mother’s persistent instability and ongoing involvement in relationships plagued by domestic violence, that the juvenile court entered custody orders for Grandparents. And by this time, the Children were physically living in Texas.

¶31 The provisions of the ICPC that work to ensure the suitability of the placement to which a child is sent simply do not apply here because Mother herself sent the Children to live with Grandparents long before they petitioned for custody. Accordingly, Mother’s second claim of error fails.

III. Ineffective Assistance

¶32 Mother’s next claim is that she received ineffective assistance when Counsel failed to call her therapist to testify “as to her current mental health status in terms of her ability to parent the Children effectively.” Mother argues that having her therapist testify would have shown that “she was actively engaged in and had never stopped working on her mental health issues/concerns,” thus allowing the juvenile court “to make better informed decisions” about her parenting abilities.

¶33 Parents are entitled to the effective assistance of counsel in child welfare proceedings. See In re. E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994) (recognizing an implicit guarantee of effective assistance of counsel in a proceeding to terminate the fundamental right of parenting one’s children); see also Utah Code § 78B-22-201(1)(b). “To prevail on an ineffective assistance of counsel claim, Mother must show that (1) Counsel’s performance was deficient and (2) this deficient performance prejudiced the defense. Because failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim, we are free to address Mother’s claims under either prong.” In re C.M.R., 2020 UT App

114, ¶ 19, 473 P.3d 184 (cleaned up). For the deficiency prong, Mother must demonstrate “that, considering the record as a whole, Counsel’s performance was objectively unreasonable.” In re R.G., 2023 UT App 114, ¶ 16, 537 P.3d 627. “In other words, Mother must show that . . . Counsel rendered a deficient performance in some demonstrable manner, and that Counsel’s performance fell below an objective standard of reasonable professional judgment.” In re C.M.R., 2020 UT App 114, ¶ 20 (cleaned up).

¶34 Here, Counsel had an easily discernable strategic reason to refrain from calling Mother’s therapist to report on her current mental health progress. The record indicates that the juvenile court made findings that Mother had been untruthful throughout the proceedings and was not taking her mental health treatment seriously. Specifically, the court found that Mother (1) had not “internalized her treatment”; (2) was not “truthful with [DCFS], her treatment providers, her parents, or the [c]ourt”; (3) did not disclose domestic violence incidents involving Father; (4) claimed that she “was fully engaging in her individual counseling and being honest with her therapist” while also admitting through her testimony that she was “not fully honest [with her therapist] about the extent of her contact” with Boyfriend; and (5) was “vague” in stating that she did not know if she was present when Boyfriend committed the robbery with the Children in the car. The court also stated that “[b]ecause of [Mother’s] dishonesty to the [c]ourt for nearly two years,” it had no way of knowing whether Mother was currently in contact with Boyfriend. And it concluded, “She has continued to violate [c]ourt orders, . . . and she continues to not understand the dangerous situation she puts [the Children] in when bringing people around them with violence and drug use problems.”

¶35 Knowing of Mother’s serious credibility problems— problems obviously well known to the court—Counsel had a sound strategic reason not to call her current therapist as a witness. Mother’s ongoing pattern of lying, not following court orders, and failing to internalize her therapy would have given Counsel little reason to suspect that anything had changed with respect to her behavior. Counsel might well have feared that calling her current therapist would have, at best, done nothing to help Mother’s case or, more likely, compounded the honesty concerns that already plagued her.

¶36 Moreover, Counsel would have legitimate concerns about what might be revealed on cross-examination. While limiting exposure of inconsistencies that would exacerbate Mother’s credibility issues might be possible on direct examination, Counsel would have no such control over the direction of questioning on cross-examination, where opposing counsel would certainly take the opportunity to highlight Mother’s already glaring credibility issues.

¶37 Because Counsel had a strategically reasonable basis for not calling the therapist as a witness, Mother’s ineffective assistance claim necessarily fails.

IV. Burden of Proof

¶38 Mother’s final assertion is that the juvenile court applied the incorrect standard for the post-adjudication hearing. More specifically, Mother argues that the court “applied the wrong standard by requiring proof” from Grandparents of what was necessary for the welfare of the children, see Utah Code § 78A-6357(4)(a), rather than considering the more demanding parentalpresumption standard. The parental presumption means that “where one party to [a custody dispute] is a nonparent, there is a presumption in favor of the natural parent, even if an ordinary best-interest inquiry would come out in favor of the nonparent.” In re A.T., 2020 UT App 50, ¶ 12, 464 P.3d 173 (cleaned up).

Parental Presumption

¶39 Mother was not entitled to the parental presumption. Our supreme court has expressly stated that “the parental presumption does not apply . . . to cases brought before the juvenile court on abuse, neglect, or dependency petitions. In such cases, the petition alone is sufficient to overcome the parental presumption for purposes of adjudicating the allegations in the petition.” In re K.F., 2009 UT 4, ¶ 69, 201 P.3d 985 (cleaned up); accord In re A.S.A., 2012 UT App 151, ¶ 3, 279 P.3d 419. And “in cases in which abuse, neglect, or dependency is established, the usual parental presumption that prevents the State (a nonparent) from intervening in parental decision-making no longer applies, and the State (supervised by the juvenile court) may take custody of children, even over their parents’ objections, and place them appropriately.” In re A.T., 2020 UT App 50, ¶ 14.

¶40 Here, not only had DCFS filed a petition alleging abuse, neglect, or dependency, but the juvenile court had actually adjudicated the Children as abused. This court long ago observed that “the legislature has determined, as evidenced by the statutory scheme, that in cases involving a petition alleging the abuse, neglect, or dependency of a child, the parental presumption does not apply. . . . The legislature has determined that abuse or neglect of a child at the hands of a parent, or dependency of a child, is incompatible with the presumption that the child is best served by being in the parent’s custody.” In re J.M.V., 958 P.2d 943, 948 (Utah Ct. App. 1998). Since the Children had been so “adjudicated and the court had continuing jurisdiction over them, it was also within the court’s dispositional authority to vest legal custody” in DCFS or in another appropriate person. See In re S.F., 2012 UT App 10, ¶ 44, 268 P.3d 831 (cleaned up); see also Utah Code § 80-3-405(1)– (2) (“Upon adjudication . . . , [t]he juvenile court may vest custody of an abused, neglected, or dependent minor in [DCFS] or any other appropriate person . . . .”). Thus, Mother’s parental presumption didn’t apply because the juvenile court exercised continuing jurisdiction over the Children after the adjudication, which allowed the court “to impose any of the dispositional choices available to it.” See In re M.J., 2011 UT App 398, ¶ 56, 266 P.3d 850; see also In re S.A., 2016 UT App 191, ¶ 6, 382 P.3d 642 (“The adjudication of a child as dependent, neglected, or abused forms the basis for juvenile court jurisdiction, thereby making all of the dispositional options . . . available to that court.”).

¶41 In sum, after the juvenile court’s adjudication pursuant to Mother’s entry of a rule 34(e) plea in response to the allegations of abuse, neglect, or dependency contained in the PSS petition, Mother was not entitled to invoke the parental presumption.

Burden of Proof

¶42 Even deprived of the parental presumption, Mother argues that the juvenile court held her “to a higher standard than required under the rules for her to modify a temporary order of custody,” thereby shifting the burden to her rather than keeping it with Grandparents. It appears that Mother is arguing that the juvenile court erred not in applying the wrong burden of proof to Grandparents—namely “by clear and convincing evidence”—but that it applied that same standard to her as well. But because Mother was not entitled to the parental presumption, the question becomes what standard of proof the juvenile court should have applied to Mother’s petition to modify or restore custody.

¶43 Mother’s petition to modify or restore custody was considered along with Grandparents’ petition for custody. The juvenile court recognized that modifications to custodial orders are generally “treated as disposition hearings and subject to the preponderance of the evidence standard.” However, because DCFS was no longer a party to this case at this point, the juvenile court determined that it was “more similar to a custody dispute between a parent and non-parent.” And given this circumstance, the court concluded that the dispute “should proceed at the clear and convincing standard of proof for all parties.”

¶44 It appears that the juvenile court applied the wrong standard of proof to Mother’s petition to modify or restore custody. Modifications of an interim order, which was the procedural situation here, are governed by rule 47 of the Utah Rules of Juvenile Procedure. See Utah R. Juv. P. 47(b)(2)–(3), (c) (providing the process for modification of prior dispositional orders). And the burden of proof employed in imposing “any of the dispositional choices” available to the juvenile court, In re M.J., 2011 UT App 398, ¶ 56, is the preponderance of the evidence standard, cf. Utah R. Juv. P. 41(c) (“[M]atters regarding child custody, support, and visitation certified by the district court to the juvenile court must be proved by a preponderance of the evidence . . . .”).

¶45 While Mother may be right that the clear and convincing standard should not have been applied to her petition to modify, she has made no showing that an application of the correct standard of proof—preponderance of the evidence—would have resulted in a better outcome. Thus, any error of the juvenile court as to the standard of proof has not been shown to have prejudiced Mother. Cf. In re L.B., 2015 UT App 21, ¶ 6, 343 P.3d 332 (per curiam) (“Harmless error is an error that is sufficiently inconsequential that there is no reasonable likelihood that it affected the outcome of the proceedings.” (cleaned up)); accord In re A.M., 2009 UT App 118, ¶ 21, 208 P.3d 1058.

¶46 First, Mother makes no showing that Grandparents failed to demonstrate that it was in the Children’s best interest to award them permanent custody and guardianship. Thus, the application of the wrong standard of proof—which was more rigorous in any case—was largely irrelevant to Grandparents’ ability to prove their case.

¶47 Moreover, the juvenile court entered extensive factual findings. Based on these findings, the court concluded that Mother had “not changed her circumstances,” making it unnecessary to conduct an examination of the Children’s best interests with regard to Mother’s petition to modify custody. Such an examination was unnecessary because a change of circumstance is necessary to restore custody to a parent whose legal custody has been transferred by the juvenile court. See Utah Code § 78A-6-357(3)(b) (“A parent or guardian may only petition the juvenile court [for restoration of custody] on the ground that a change of circumstances has occurred that requires modification or revocation in the best interest of the child or the public.”). Mother has not challenged the court’s finding that she has not changed her circumstances. Nor has she made any attempt to show how the court’s application of a less rigorous burden of proof would have made a difference in its determination that a consideration of the Children’s best interests was unnecessary given the lack of the change in circumstances.

¶48 Because Mother has not demonstrated how this alleged error regarding the increased burden of proof prejudiced her, this claim fails.

CONCLUSION

¶49 Mother’s challenge to the jurisdiction of the Utah juvenile court fails because the court’s jurisdiction commenced with the filing of the PSS petition, which resulted in limitations on Father’s parent-time and the continued jurisdiction of the juvenile court. Mother’s claim that the juvenile court violated the ICPC fails because she voluntarily sent the Children to live with Grandparents. Mother’s ineffective assistance claim falls short for lack of deficient performance. And the parental presumption was unavailable to Mother owing to the juvenile court’s jurisdiction over the Children, so Mother has not demonstrated prejudice on her burden-of-proof claim.

¶50      Affirmed.

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


[1] We limit our discussion to “those background facts necessary to resolve the issues on appeal.” Blosch v. Natixis Real Estate Cap., Inc., 2013 UT App 214, ¶ 2 n.2, 311 P.3d 1042 (cleaned up). And we recite the evidence in a light most favorable to the juvenile court’s findings. See In re adoption of B.H., 2020 UT 64, n.2, 474 P.3d 981.

[2] While courts and practitioners frequently refer to a petition for protective supervision services, see, e.g., In re M.J., 2011 UT App 398, ¶ 2, 266 P.3d 850; In re T.M., 2003 UT App 191, ¶ 2, 73 P.3d 959, the term does not formally exist in the juvenile code. Instead, Utah Code section 80-3-201(1) states that “any interested person may file an abuse, neglect, or dependency petition.” The PSS petition filed by DCFS in this case referenced section 78A-6-304, which has since been renumbered and amended as section 80-3201. See Act of Mar. 3, 2021, ch. 261, § 64, 2021 Utah Laws 1752, 1799–800.

[3] The court found that while Father had met the burden of proof showing a change in circumstances, a change of custody was nevertheless in the best interest of the Children.

[4] A custody determination is implicit in a petition asking a juvenile court for a finding of abuse, which is precisely what DCFS presented here. The statute does not require a talismanic invocation of the words “custody” or “parent-time,” because it is presumed that once a finding of abuse is reached, custody or parent-time will naturally be addressed. Indeed, section 80-3-405 states that the “juvenile court may vest custody of an abused, neglected, or dependent minor in [DCFS] or any other appropriate person.” See Utah Code § 80-3-405(1)–(2).

Moreover, that DCFS did not mention “custody” or “parent-time” in the PSS petition did not deprive the juvenile court of jurisdiction, because the petition is not where the issue (continued…) must arise for a proceeding to become a “[c]hild custody proceeding.” See id. § 78B-13-102(4). The statute merely says that a child custody proceeding “includes a proceeding for,” among other things, “neglect, abuse, dependency,” or “protection from domestic violence, in which the issue” of “legal custody, physical custody, or parent-time with respect to a child . . . . may appear.”

Id.

[5] Grandparents argue that this challenge is unpreserved, an assertion that has some merit. However, “if the merits of a claim can easily be resolved in favor of the party asserting that the claim was not preserved, we readily may opt to do so without addressing preservation.” State v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415 (cleaned up). “[B]ecause we can easily dispose of” Mother’s ICPC claim on its “merits, we choose to exercise our prerogative to simply assume that [it was] preserved and proceed to consideration of the merits.” Id.

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If I Agreed to Sign up a Prenup With My Billionaire Husband Does That Mean I Would Not Get Anything Not Even a Dollar?

I can’t speak to what the law governing prenuptial agreements is in any jurisdiction other than the one in which I practice divorce and family law (Utah), but as to how your question could be answered in Utah, I’ll give you my opinion (this is not legal advice, but my opinion):

While it is possible that a Utah court could—in determining whether a prenuptial agreement that was intended to ensure you get nothing from your billionaire husband in the event of a divorce—rule that such a provision of the prenuptial agreement is enforceable, it is by no means guaranteed. Why?

First, there is this provision of the Utah Code governing prenuptial (premarital) agreements:

  • 30-8-4. Content

(1) Parties to a premarital agreement may contract with respect to:

(a) the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

(b) the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

(c) the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;

(d) the modification or elimination of spousal support;

(e) the ownership rights in and disposition of the death benefit from a life insurance policy;

(f) the choice of law governing the construction of the agreement, except that a court of competent jurisdiction may apply the law of the legal domicile of either party, if it is fair and equitable; and

(g) any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

(2) The right of a child to support, health and medical provider expenses, medical insurance, and child care coverage may not be affected by a premarital agreement.

As you can see, § 30-8-4 provides that parties to a premarital agreement may contract with respect to 1) the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located; 2) the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event; and 3) the modification or elimination of spousal support.

But § 30-8-6 provides:

  • 30-8-6. Enforcement.

(1) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:

(a) that party did not execute the agreement voluntarily; or

(b) the agreement was fraudulent when it was executed and, before execution of the agreement, that party:

(i) was not provided a reasonable disclosure of the property or financial obligations of the other party insofar as was possible;

(ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and

(iii) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

(2) If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.

(3) An issue of fraud of a premarital agreement shall be decided by the court as a matter of law.

So, while an otherwise duly prepared premarital agreement in which you agreed to waive any claim to any of your husband’s premarital property or even any future marital property might be (and in my opinion, likely would be) enforceable against you, if the agreement provided that you waived spousal support, but would result in you becoming eligible to be a public charge (i.e., a government welfare (“public assistance”) recipient), the court, notwithstanding the terms of the agreement, could (not shall, but could) require your spouse “to provide support to the extent necessary to avoid that eligibility.”

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

Eric Johnson’s answer to If I agreed to sign up a prenup with my billionaire husband does that mean I would not get anything not even a dollar? – Quora

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Taking Your Divorce Case to Trial Requires Just as Much from You as It Does of Your Lawyer, By Braxton Mounteer, Legal Assistant

Taking your divorce case to trial is almost always a long, complicated, and emotionally exhausting process. You may be tempted to believe you can leave all of the work to your lawyer and show up the day of trial to sit on the sidelines while your lawyer does all the work. It might be nice if this were the way it could be, but it can’t.

Your trial is the final round; you need to work harder at your trial than you did in the months (perhaps even the years) leading up to the trial. You should be ready to testify—knowledgeably and shrewdly[1] on any issue in your case at your trial, and if your lawyer is good, he or she will have prepared you to testify that way.

If you leave all of the work to your lawyer, he or she cannot be as effective as he or she otherwise can be.

Failing or refusing to tell your attorney the truth, to give your attorney the documentation and other information needed to have a clear picture of the case. The strengths and the weaknesses of your case. Hiding this information from your attorney, lying to your attorney, or hoping that nobody will find out the weaknesses in your history, your character, and your case can be fatal (but almost certainly damaging) to your case. Failing or refusing to read what your attorney needs you to read and to provide the documents your lawyer needs to prepare for your case will risk leaving holes in your case that the opposition and/or the court can exploit to your detriment.

Your trial will likely be both a physically and emotionally exhausting experience in the best of situations, so you need to prepare for trial as best you reasonably can. Do the needed work. A prepared litigant is a confident one. You need to have your exhibits, witnesses, and your testimony prepared for trial as best you reasonably can. A prepared attorney is a confident one as well.

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


[1] shrewdly doesn’t mean “dishonestly”; it means that you testify truthfully without testifying in a manner that can inaccurately, misleadingly, deceptively, and unfairly be twisted and used against you.

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If Your Husband Files for Divorce, Can He Ask You to Leave the House Immediately?

I can’t speak for the law in all jurisdictions, but I can tell you what the law is where I practice divorce law (Utah).

Can your spouse ask you to leave the house upon filing for divorce or upon announcing that he or she intends to file for divorce? Sure. Anyone can ask. Can your spouse force you out of the house? That’s a different question.

If the couple acquired their house while married, but unless they structured the purchase in a very unusual and very specific and clear way, so as to ensure that both spouses do not jointly own the property, property acquired by either spouse in his or her own name during the marriage is nevertheless considered marital property, with the exception of property that is acquired by a spouse by gift or by inheritance.

Most married couples by their house together, having it titled jointly in their collective names. If a spouse files for divorce and then turns to the other and says, “Get out of my house,” such a command or demand has no legally enforceable basis.

It gets a little trickier if you’re confronted with the situation when, say, a woman owns a house before she marries, and then after she marries, she and her husband move into her house together. If the husband does not contribute to the mortgage payment, or to the maintenance or improvement of the wife’s house, in the event of divorce she might very well have the legal authority to tell him to “get out of my house,” after all it is her house (the scenario would be no different if the husband owned the house before he married the wife, in case you were curious and unsure). The husband has not acquired any ownership interest in it merely by being married to the owner of the house.

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

https://motherinlawmysteriesandconflicts.quora.com/If-your-husband-files-for-divorce-can-he-ask-you-to-leave-the-house-immediately-3

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People Who Are Getting an Extremely-Contested Divorce W/O Paying for Lawyers, Need Step-By-Step Directions in Their State! If There Were Uncontested Divorces, There Would Be No Divorces at All, Because Both Partners Would Be Getting Along Perfectly?

Sure, they need that. It is a great idea.

Where there is a demand to be filled, markets arise to fill them.

It would be a great benefit to people going through an highly contested divorce to have free step-by-step directions, so that they would not have to pay for a lawyer’s help and representation as they navigate the divorce process, but for such things to exist requires someone to do an incredible amount of work (more than you’d think), and few people can or want to do that much work free of charge. Which is why such a thing does not really exist.

Cheesy/sleazy divorce lawyers will put this quotation attributed to Willie Nelson on their office walls and websites, but that makes it no less true for most people: “You know why divorces are so expensive? They are worth it.”

There are many self-help resources for people who want to go through the divorce process pro se (that means unrepresented by an attorney; also known as pro per), but none of them (at least none that I know of) can produce results of the same accuracy, completeness, and high quality that a good (a good) lawyer can. That is the hard truth.

Frankly, some people can file for and obtain a fair decree of divorce without an attorney’s help, but few have that ability (few have the guts, the time, the smarts, the physical, mental, and emotional stamina, and the patience to represent themselves successfully), and the more complex the case is, the harder it is for one to process such a case to a successful completion.  That is the hard truth too.

It is not that getting a divorce is all that hard procedurally, it is just that to those who do not know what they are doing, it can be intimidating at best and prone to committing ignorant errors that can be irreparable. If one has time on one’s hands and a cooperative spouse, they could pull off a reasonable and fair DIY divorce, but such circumstances in divorce are extraordinarily rare.

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

https://www.quora.com/People-who-are-getting-an-extremely-contested-divorce-w-o-paying-for-lawyers-need-step-by-step-directions-in-their-state-If-there-were-uncontested-divorces-there-would-be-no-divorces-at-all-because-both-partners/answer/Eric-Johnson-311

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Holding Marital Property Hostage During a Divorce Just Makes You Look Petty By Braxton Mounteer, Legal Assistant

You may have the idea that you can leverage his or her favorite or most valued things to get a more favorable outcome in your divorce. Holding property that rightfully belongs to the other party (like her jewelry or his tools) makes you look bad any way that you spin it. You may see the situation as a delicate hostage negotiation in order to get what you believe that you deserve, but in reality, if you behave this way, it reveals you as the petty and vengeful spouse you are.
During your divorce, you will be required to divide the marital property between your spouse and yourself and it cannot be avoided. Property division is a major and often, though not always, contentious issue between divorcing parties, getting only more complex the longer the marriage has lasted and the more affluent parties are the. Purposely delaying the division of marital property only makes you look bad and drags out your already expensive divorce.
Every time that you do something just to “get a jab in” on your former spouse, you only look petty and childish. You and your spouse end up making more work (and more profit) for your attorneys and slow the irritating, painful, and angst-inducing process of divorce down.
Be as equitable as possible. Do you really need that specific item of personal property, or are you just trying to be spiteful? If you cannot agree on who should get an item of significant value, or there are not enough items of or there are not enough items (such as a house or a car), or if there are not enough items of property to divide value equally, then sell the item(s) and split the profit.
Take a cool headed and business like approach to the division of property.
Utah Family Law, LC | divorceutah.com | 801-466-9277
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On What Basis Should the Couple Share Half of Property in Divorce if One Contributes Significantly More Than the Other? How Is It Fair?

It’s fair. It’s not fair. Frankly, reasonable minds can differ on this question.

The governing principle in the USA is still (though it’s subtly and slowly changing) in most jurisdictions in the USA that I know of (if not all jurisdictions in the USA) is that property acquired during the marriage by the couple should be divided equally is because a marriage is an “e pluribus unum”-style principle: out of two, one. A married couple is considered to be one when it comes to the ownership of property the couple acquired during the marriage, even if that means that each spouse did not contribute an equal amount of money or effort to the purchase/acquisition of the property.

If the property was purchased with money earned or otherwise acquired by one or primarily by one of the spouses or in exchange for “sweat equity” that one spouse contributed more than the other, the idea is that “what’s mine is yours and what’s yours is mine—it’s all ours.”

Equitable distribution and community property are two different approaches to dividing marital property between spouses in divorce.

Community property states treat all property acquired during the marriage to be owned equally owned by the spouses, and so they, unless exceptional circumstances dictate otherwise, divide the marital property equally between the spouses. Equitable distribution states generally presume that an equal division of marital property is equitable, but an equitable division of property is not necessarily an equal division. In Utah (where I practice divorce and family law), for example the rule of equitable distribution is articulated this way:

Labon v. Labon, 517 P.3d 407, 2022 UT App 103, ¶¶25 – 27 (Utah Court of Appeals 2022; I removed the references to caselaw for the sake of making it easier to read and understand the principles articulated):

In making this division [i.e., and equitable division of property and debts and obligations] the court should engage in a four-step process: (1) distinguish between separate and marital property, (2) consider whether there are exceptional circumstances that overcome the general presumption that marital property should be divided equally between the parties, (3) assign values to each item of marital property, and (4) distribute the property in a manner consistent with its findings and with a view toward allowing each party to go forward with his or her separate life.

And in making the equitable distribution, the court should generally consider the amount and kind of property to be divided. As concerns the type of property, in situations where the marital estate consists primarily of a single large asset, such as a business or stock, a common acceptable approach for the court to take is to award the asset to one party and make a cash award to the other party. Doing so avoids the obviously undesirable situation that forces former spouses to be in a close economic relationship which has every potential for further contention, friction, and litigation, especially when third parties having nothing to do with the divorce will also necessarily be involved.

Moreover, a court should consider the tax consequences associated with the division of marital property if one of the parties will be required to liquidate assets to pay marital debts. But the court is under no obligation to speculate about hypothetical future tax consequences. Thus, when settling property matters, the trial court may decline to consider the speculative future effect of tax consequences associated with sale, transfer, or disbursement of marital property. In other words, there is no abuse of discretion if a court refuses to speculate about hypothetical future tax consequences of a property division made pursuant to a divorce.

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

https://www.quora.com/On-what-basis-should-the-couple-share-half-of-property-in-divorce-if-one-contributes-significantly-more-than-the-other-How-is-it-fair/answer/Eric-Johnson-311?prompt_topic_bio=1

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Should You Stay Friends with Your Former Spouse? By Braxton Mounteer

Whether you should be or try to be friends with your spouse after a divorce is a tough question to answer. Many divorced people continue to care about each other after divorce. Some even find their personal relationship between each other improves. Most maintain an icy distance from each other. I won’t say that being truly friendly can’t be accomplished after divorce, but the question really is: should it?

If you have children, at the very least you must maintain a respectful relationship with the children’s co-parent (even if you have to fake it, in my opinion). Just because you and your former spouse have differences does not mean that your children must share in those differences. Maintaining a co-parenting relationship that doesn’t burden the children is in their best interest. They deserve it. It’s the least you can do for them.

Side note here: I know there are those of you reading this who were innocent victims of a spiteful spouse in your divorce. That you were the class act all along and continue to be, while your ex-spouse remains antagonistic toward you. I know about those of you treat your ex-spouse by Golden Rule post-divorce, while your ex-spouse does not reciprocate. As a legal assistant, I see the ex-spouses who hypocritically hold you to a standard they themselves do not follow. This is not fair, not even close, but for the sake of your children’s well-being, you need to know that sinking to the same level as your petty, spiteful, even malicious ex-spouse would benefit no one and only make life harder for the kids. Doing the right thing matters most when doing the right thing is hard.

Sometimes it may be unavoidable to have some kind of continuing relationship with your ex-spouse. Are you coworkers? Do you have mutual friends or engage in the same activities that neither of you is willing to give up? If so, you must determine mutual friends and activities are worth making the effort to get along with your ex-spouse. If they aren’t, you can’t complain about having to give those things up for the sake of achieving your goal of having nothing to do with your ex-spouse post-divorce.

We have all heard a story of an “ ugly divorce”. Most people burn whatever bridge that they had or may have had with their spouses over the course of that process.

The fact is that the right thing to do, if only for your own sake and without consideration for your ex-spouse, is to recognize your own failings that contributed to the failed marriage (and don’t misunderstand me; if you’re not at fault, you’re under no obligation to apologize falsely) and to forgive your ex for his or her faults and the hurt he or she caused you, so that you can put your troubled past behind you as best you can as you move on with life after divorce. “Hate is a poison more deadly to the hater than the hated.” If all you can do is make peace with the pre-divorce past, that’s invaluable. If you can do one better and bury the hatchet, becoming friends, though no longer spouses, don’t let your pride stand in the way of that. If you do, you’ll regret it.

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

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Second-Hand Testimony Is and Never Will Be Better Than the Witness’s Own Testimony in His/Her Own Voice

For lawyers and parents (and perhaps even commissioners and judges) who hate child custody determinations (temporary or otherwise) based upon proffer, I share this with you:

This court has previously expressed concern about determining custody based upon proffers given the seriousness and magnitude of child custody decisions.

*****

In Fullmer v. Fullmer, 761 P.2d 942 (Utah.Ct.App.1988), this court reviewed a permanent custody award entered based upon a proffer of witness testimony and the stipulated receipt of two child custody reports. In a footnote, we observed:

Although the parties stipulated that the testimony could be presented by proffer, and appellant does not argue that she was entitled to an evidentiary hearing, we note that an evidentiary hearing with all witnesses testifying would have been preferable. In a child custody case, we are convinced that witness demeanor and credibility are critical in ascertaining whether there has been a change of circumstances and what is in the best interests of the child. Any award of physical custody based solely upon what an attorney states a witness would have said and documentary evidence not subject to cross-examination is tenuous at best and subject to close scrutiny on appeal. Such deficiencies undermine the vitality of the trial court’s determinations.

Id. at 945 n. 1 (citations omitted); see also Hamby v. Jacobson, 769 P.2d 273, 278 (Utah.Ct.App.1989) (“[I]n cases involving the best interests of a child and competing claims by parents of the child, demeanor and credibility of witnesses is particularly critical, and use of proffers should be discouraged.”).

*****

[W]e reiterate that the use of proffers as a basis for child custody determinations, whether permanent or temporary, is discouraged.

(Montano v. Third Dist. Court for County of Salt Lake, 934 P.2d 1156, 1157-1158 (Utah Ct.App.1997).

The presumption that second-hand testimony “from” a child through someone other than the witness is generally better than hearing from the witness himself/herself is rationally and factually bankrupt. The idea that a judge (a former lawyer) charged with adjudicating a child custody dispute shouldn’t interview a child who is the subject of a custody dispute but should appoint a lawyer to do it (and in secret) instead is rationally and factually bankrupt as well.

In light of the sentiments expressed in the Montano decision, I ask you: why appoint PGALs and/or custody evaluators who (a) refuse to record their interviews of the children and of collateral sources for the record and (b) refuse to allow children to testify and/or refuse to interview children on and for the record in child custody dispute cases; and (c) continue to insist that second-hand testimony is better than the witness’s own testimony in his/her own voice?

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

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What Could Be the Reasons for Someone to Return to an Abusive Partner After Filing for Divorce and Leaving Them Once Before? Why Would They Also Leave Their Children Behind?

Good reasons? Or any and all reasons?

In no particular order:

  • The abuse is not bad enough (or perceived as not bad enough) to justify terminating the relationship. Otherwise stated, the detriments of terminating the relationship outweigh the loss of the benefits of the relationship.
    • Fear of being unable to provide for the physical needs of the children if one has to be the sole breadwinner
      • This is why some abuse victims “abandon” their children when they leave/escape an abusive relationship—because they know or believe they can’t take care of the kids by themselves. Sometimes they truly abandon the kids, meaning that they take an “every man for himself” approach. Sometimes, however, it’s more pragmatic; “He/she only abuses me, not the kids, so I’m leaving my abuser. The kids will be better off with him/her because they aren’t abused and my abuser is actually a good/acceptable parent and can provide the necessities of life for them better than I can.”
  • He/she claims to be abused to seek attention when in fact he/she is not abused.
  • The “He/she is abusive, I know that, but I can’t do any better than him/her” belief.
  • He/she who is abused does not believe (or claims not to believe) he/she is abused.
  • Another reason: religious beliefs, moral beliefs, and/or social norms that it is wrong to terminate a marriage or a relationship that has resulted in children being born to the couple.
  • Threats made by the abuser that “If you try to leave me, I’ll hurt you and/or the kids.”
  • Mentally or emotionally unable to understand that one is not obligated to suffer abuse in a relationship.
  • Too weak and/or stupid to know or do any better.

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

https://motherinlawmysteriesandconflicts.quora.com/What-could-be-the-reasons-for-someone-to-return-to-an-abusive-partner-after-filing-for-divorce-and-leaving-them-once-bef?__nsrc__=4

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2024 UT App 54 – Tilleman v. Tilleman – custody factors, income, fees

2024 UT App 54 – Tilleman v. Tilleman

THE UTAH COURT OF APPEALS

MICHAEL ROBERT TILLEMAN, Appellant, v. MICHAL CHRISTINE TILLEMAN, Appellee.

Opinion No. 20210637-CA Filed April 11, 2024

Fourth District Court, Provo Department

The Honorable M. James Brady No. 164402522

Julie J. Nelson, Attorney for Appellant, Douglas B. Thayer, Andy V. Wright, and Jessica Griffin Anderson, Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

ORME, Judge:

¶1        Michael Robert Tilleman (Father) and Michal Christine Tilleman (Mother) were married and share one child (Child). Following rather contentious divorce proceedings, the trial court awarded sole legal custody of Child to Mother but awarded the parties joint physical custody. The court also imputed federal minimum wage income to Mother for child support purposes, and it awarded her attorney fees and costs.

¶2        On appeal, Father makes various arguments challenging the court’s legal custody award. He also contends that the court abused its discretion in imputing federal minimum wage income to Mother and in awarding her attorney fees and costs. Although we affirm several aspects of the court’s legal custody award, we nevertheless hold that the court abused its discretion in applying the wrong legal standard and accordingly reverse and remand for the court’s consideration of all the statutorily mandated custody factors. We also reverse the court’s imputation of Mother’s income and its attorney fee award and remand for further proceedings.

BACKGROUND[1]

¶3        Mother and Father married in 2013, and Child was born a little over a year later. In 2016, following a separation, Father filed a petition for divorce. This was soon followed by Mother’s counter-petition for divorce. The trial court characterized the ensuing litigation as “contentious” and the parties as “unusually accusatory, intransigent, and uncooperative.” We limit our recounting of the divorce proceedings to facts relevant to the issues raised on appeal.

¶4        In 2018, the court entered a stipulated, bifurcated decree of divorce reserving for trial, in relevant part, the issues of custody, parent-time, child support, and attorney fees. Although the parties each initially sought sole physical custody and joint legal custody of Child, by the time of trial they had each amended their pleadings to request sole physical and sole legal custody of Child.

¶5        In conjunction with her counter-petition for divorce, Mother also filed a motion asking that the court order Father to undergo a psychological examination under rule 35 of the Utah Rules of Civil Procedure “to properly address his ability to parent” Child.[2] The motion alleged that Father “has exhibited intense anger toward [Mother] and has engaged in mental and emotional abuse,” that “such anger has been exhibited toward” Child, and that he “may be suffering from mental health conditions.”

¶6        Father opposed Mother’s rule 35 motion and denied its allegations. In turn, he asked the court to order that Mother undergo a rule 35 evaluation, alleging that she “has been verbally and physically abusive towards” him, that she “is unable to control her anger and aggressions towards” him, and that “recent irrational and inappropriate actions, behaviors, and instability indicate that she may be suffering from some form of mental illness.”

¶7        In 2017, at a hearing on temporary orders, Mother’s counsel informed the trial court that the parties had stipulated, among other things, “that either party can request and . . . the other party will participate in a Rule 35 mental health exam as long as the requesting party pays the cost up front.” Accordingly, the court’s temporary order included a provision stating that “[e]ither party may request the other party to participate in [a] Rule 35 examination at the requesting party’s expense.”

¶8        Mother subsequently provided Father with a list of three potential rule 35 evaluators, of which Father selected one (First Expert) to conduct his exam. When First Expert requested that Father sign medical releases for his psychological health records, Father refused. In response, Mother filed a motion requesting that the court order Father “to sign and execute all necessary medical releases, upon presentation by [First Expert], so that [Father’s] Rule 35 mental examination can proceed as expeditiously as possible.” At a hearing before a commissioner on the matter, Father argued that he never agreed to sign medical releases and that his understanding of the stipulation was “that he was agreeing to an independent, objective, standardized psychological test.” He also argued that releasing his medical records “prejudices him down the road” because “it allows information that would not otherwise be admissible to become admissible.”

¶9        In ruling on the motion, the commissioner first stated that because the trial court—and not a jury—would be the finder of fact in this case, he did not consider prejudice “to be a significant issue.” Next, in addressing the scope of the rule 35 exam, the commissioner stated that based on his decades of experience interacting with mental health professionals, “the one thing that they all assure me is true [is that] the best predicter of future behavior is past behavior.” The commissioner also noted that the parties had not submitted affidavits from professionals indicating what their usual practice is for such evaluations. Thus, the commissioner recommended, “If it is the Rule 35 examiner’s professional opinion that certain information would assist him in completing his evaluation/report, then both parties shall cooperate in good faith and sign whatever releases for records or information the evaluator wants[.]” Father objected to the commissioner’s recommendation, but the trial court overruled his objection and ordered him to sign the requested medical releases.

¶10 Upon completion of the rule 35 evaluation, First Expert reached the following conclusions, as summarized by the trial court. First Expert noted that “Father was so guarded and defensive when he took the psychological testing that credible information from testing is not available.” First Expert did not observe Father with Child as part of the evaluation. Nevertheless, First Expert concluded, among other things, that Father exhibited “varying degrees” of several negative personality traits; that he “is a very persistent person,” which when “utilized to intimidate and control others” can cause substantial harm to himself and others; and that he “tends to place his own interests before those of others and is not invested in cooperative relationships.” See also infra note 5. First Expert also recommended against joint legal custody of Child.

¶11      In anticipation of trial, Father filed a motion in limine to exclude First Expert’s testimony, contending that his “report and his corresponding testimony have not been shown by [Mother] to be reliable, based on sufficient facts or data, and reliably applied to the facts as required by rule 702 of the Utah Rules of Evidence.” See Utah R. Evid. 702(b). In support of his motion, Father included a report from his own expert (Second Expert) who reviewed the rule 35 evaluation. Second Expert opined, among other things, that “the methodology employed” by First Expert “did not comport with generally accepted standards of practice.” He further stated that First Expert’s “recommendation against joint legal custody is concerning because there is no indication the purpose of the evaluation was to aid the Court in determining custody.”

¶12 Following a hearing, the court ruled that First Expert would be permitted to testify at trial because his “report and his . . . procedures, his methodology, and his data gathering and his qualifications meet that low threshold of showing an indicia of reliability.” But because First Expert’s “qualifications and methodology don’t meet the requirements for a custody evaluation,” the court limited his testimony by precluding him from offering his opinion on that subject at trial.

¶13 Toward the end of 2020, the court held a ten-day bench trial, after which it entered thirty-three pages of findings of fact and conclusions of law. In addressing custody, the court prefaced its findings by discussing Utah Code sections 30-3-10(2) and 30-3-10.2(2), which govern child custody determinations. Section 30-3-10(2) states, with our emphasis, that “[i]n determining any form of custody and parent-time . . . , the court shall consider the best interest of the child and may consider among other factors the court finds relevant, the following for each parent” and then lists various factors. The court interpreted that section to mean that it “is not required to make findings on all factors listed in” that section. Further, section 30-3-10.2(2) provides, again with our emphasis, that “[i]n 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 the custody factors in Section 30-3-10 and” additional factors listed in section 30-3-10.2(2). The court stated that it understood the interplay between the two sections to mean that when considering joint legal or physical custody of a child, it is “obligated to address the enumerated factors in” section 30-3-10.2(2), but that its consideration of each factor listed in section 30-3-10(2) is not mandatory.

¶14      The trial court then proceeded to make extensive findings pertaining to custody and parent-time, as summarized below. The court found that “[a] primary condition that permeated the marriage was Father’s underlying hostility,” which also “affected the first few years of [Child’s] life and [Father’s] early relationship with, and care for” Child. Throughout Child’s life, Mother has been Child’s primary caregiver. Although “Father rarely, if ever, held, fed, changed, or played with” Child during the marriage, since the separation he has cared for Child during his parent-time. Father and Mother have “demonstrated a strong desire for parent-time since their separation,” and Father “has rearranged work schedules and career goals to accommodate as much time as possible with” Child. His interactions with Child have “significantly improved,” and he “has bonded more with her.” But his “anger towards Mother occasionally interferes with his ability to see, understand, and meet the needs of” Child. Child “has a strong bond with Father” and “enjoys spending time with” him.

¶15 The court found that Mother consistently demonstrated the ability to meet Child’s developmental needs and that Father had demonstrated an improvement in his ability to do so, although the court was unsure whether this was a long-term change. Each parent was able to meet Child’s physical needs and to function as an effective parent, although Father’s “apparent lack of insight of how his anger towards Mother, and his efforts to embroil Mother in allegations of abuse,” see infra ¶ 17, “have physically impacted” Child and have interfered with his parenting abilities. The court determined that both parents have negatively impacted Child’s emotional wellbeing—albeit Mother to a lesser extent—through their poor responses and behaviors when in each other’s presence.

¶16      The court found that although “each parent has shown that they have the capacity and willingness to function as a parent to” Child, “[t]he difficulty lies in their inability to co-parent and properly interact with the other parent,” particularly during drop-off and pick-up, as well as when communicating about Child. Regarding drop-off and pick-up, the court stated that “[t]he difficulty comes about by actions of both parents, although Father more consistently causes [Child’s] transitions to be difficult” by not encouraging her to transition to Mother’s care and by saying things that “weigh negatively on [Child’s] emotions in a manipulative and passive aggressive manner.” Mother also occasionally expressed displeasure about Father’s behavior in Child’s presence. Concerning the parents’ communication, the court stated that in 2017, “[d]ue to the high level o[f] conflict,” it ordered Mother and Father to communicate through a third-party service that reviewed and, if necessary, edited and revised the messages they sent each other. The third-party service had to make substantial edits to many of Father’s messages and advised him that it would “not send emails that are threatening.” Because Father also became adversarial with the third-party service, it withdrew, and the parties had to find another communication intermediary. But in the months leading up to trial, communication between the parties had “been relatively civil.”

¶17 The court next expressed concern regarding Father’s “emotional and sometimes indirect physical abuse of” Child through his repeated claims, “without sufficient justification,” that Mother was physically abusive toward Child. Specifically, between 2017 and 2020, Father made multiple reports of abuse to various police departments, the Division of Child and Family Services (DCFS), and medical providers. This “exposed [Child] to unnecessary emotional trauma and invasive physical examinations” and never resulted in criminal charges being filed against Mother or in DCFS taking enforcement action against her. “When the agencies did not confirm his opinion, [F]ather became overly focused, argumentative, and belligerent” and “was unwilling to accept the many conclusions of DCFS.” The court found that “Father’s reports of abuse were vexatious and were calculated and designed to harm Mother,” and he either “was not aware of, or did not care about the emotional harm he was causing [Child] through the continuous filing of unsupported claims of abuse.”

¶18      The court then addressed Father’s rule 35 evaluation.[3] At trial, First Expert, Second Expert, and another expert (Third Expert) testified about the evaluation. The court noted that based on First Expert’s own testimony, it appeared that First Expert “primarily identified personality traits of [Father] from testing which [First Expert himself] considered invalid.” The court also agreed with many of Second Expert’s critiques of First Expert’s opinions, including that First Expert’s “opinions based on testing should not be considered” because First Expert “testified that the test results were unreliable due to Father’s high degree of defensiveness”; that First Expert “did not utilize many of the standard tests and methods for determining parenting capacity and therefore his opinions on parenting capacity are not helpful”; and that First Expert did not observe Father interact with Child. Accordingly, the court “found little value in much of [First Expert’s] diagnostic expert opinions,”[4] but it noted that, based on other trial testimony and on its own review of some of the records that First Expert examined that were also submitted into evidence, it agreed with his conclusions regarding Father’s negative characteristics and personality traits. Specifically, the court noted Father’s “historical demonstration of grandiosity, entitlement, interpersonal exploitativeness, lack of empathy, high levels of persistence, rigidity, lack of agreeableness, vexatious intimidation, along with a tendency to resort to arrogant and intimidating behaviors toward others, particularly when encountering others whom he believes stand in his way.” The court, however, rejected several of First Expert’s other opinions.[5]

¶19 The court also found Third Expert to be “qualified,” “credible,” and “an unbiased witness.” Third Expert testified that in counseling sessions, he “worked with Father to understand how to modify his behavior” and that Father had demonstrated improvement. Third Expert described Father’s current character traits as “[p]ersistent,” “[i]ntelligent,” “[e]ven keeled,” “[c]onstant in demeanor,” and “[a]ble to rise and process issues and disagreement more effectively.”

¶20      Turning to the question of legal custody, the court held that the presumption that joint legal custody is in the child’s best interest was rebutted in this case by the parties’ inability “to set aside their personal differences and focus on the needs of” Child, and it awarded sole legal custody to Mother. The court based this decision on several things: the difficulties the parties had in setting aside their personal differences to attend to Child’s needs, although it noted that Mother was better able to do so; Father’s emotional abuse of Child “by subjecting her to repeated interviews and physical examinations when he repeatedly raises allegations of abuse against Mother without sufficient cause”; “Father’s need to control and dominate Mother” and to disrespect her; Father’s “inability to recognize the value of input from others, including Mother”; Father’s history of being unable to effectively communicate with Mother; Father’s aggressive and passive-aggressive behavior during pick-up and drop-off and his failure to make it a less emotionally draining experience for Child; Father’s lack of encouragement that Child “equally share time, love and affection with Mother”; and Mother’s constant meaningful participation in raising Child, while Father did not do so for the first few years of Child’s life due to “his anger issues” and university studies.

¶21 Regarding physical custody, the court determined that it was in Child’s best interest “that Father be actively involved in her life” and that he “should have frequent and consistent time with” her so long as there were orders in place enforcing respectful communication between Mother and Father and reducing their interactions during pick-up and drop-off. Accordingly, the court awarded the parties joint physical custody, with Mother as the primary physical custodian and with Father having “frequent and expanded rights of parent time.”

¶22 The court then considered child support, the main issue of which was the income to be imputed to Mother. The court noted that Mother had left full-time employment when Child was born and that she was not employed at the time of trial, but she was attending university classes. The court found that Mother had the experience and skills to find employment in the fields of marketing and public relations with a likely starting income of between $2,500 and $2,800 per month. But the court also found that as a result, Mother would necessarily incur childcare costs and either have to terminate or significantly modify her studies. Ultimately, the court determined that Mother was voluntarily underemployed. But because there was insufficient evidence presented regarding childcare costs or whether current employment was “available in either of her experience categories, or what the current rate of pay would be,”[6] the court imputed to Mother “the federal minimum wage of $1,257 per month.” And based on Father’s actual income and Mother’s imputed income, the court ordered Father to make $666 monthly child support payments to Mother.

¶23      Finally, the court awarded Mother $161,066.94 in attorney fees and costs pursuant to Utah Code section 30-3-3, holding that Mother had substantially prevailed and finding, among other things, that Father had a greater ability to pay.[7]

¶24      Father appeals.

ISSUES AND STANDARDS OF REVIEW

¶25      Father raises five primary issues on appeal. First, Father argues that the trial court erred in awarding sole legal custody of Child to Mother.[8] Specifically, he contends that the “court’s analysis of Utah Code sections 30-3-10 and 30-3-10.2 does not comply with Utah law.” Generally, we review a trial court’s custody award for an abuse of discretion. See T.W. v. S.A., 2021 UT App 132, ¶ 15, 504 P.3d 163. “This discretion is broad; indeed, as long as the court exercises it within the confines of the legal standards we have set, and the facts and reasons for the decision are set forth fully in appropriate findings and conclusions, we will not disturb the resulting award.” Id. (quotation simplified). But whether the court correctly interpreted the legal standards set forth in sections 30-3-10 and 30-3-10.2 is a question of law that we review for correctness. See Ross v. Ross, 2019 UT App 104, ¶ 8, 447 P.3d 104. See also State v. De La Rosa, 2019 UT App 110, ¶ 4, 445 P.3d 955 (stating that because “trial courts do not have discretion to misapply the law,” “the abuse-of-discretion standard of review will at times necessarily include review to ensure that no mistakes of law affected a lower court’s use of its discretion”) (quotation simplified).

¶26 Second, Father contends that the court abused its discretion when it found that he had emotionally abused Child. We review the trial court’s findings of fact for clear error. See T.W., 2021 UT App 132, ¶ 15. Under this standard, “the factual findings of the district court will not be disturbed unless they are clearly erroneous by being in conflict with the clear weight of the evidence. But the existence of conflicting evidence is not sufficient to set aside a district court’s finding.” Hinds v. Hinds-Holm, 2022 UT App 13, ¶ 28 n.4, 505 P.3d 1136 (quotation simplified).

¶27      Third, Father argues that the trial court erred in allowing First Expert to testify at trial.[9] In reviewing the admissibility of evidence, we review the underlying legal questions for correctness and the “court’s decision to admit or exclude evidence and [its] determinations regarding the admissibility of expert testimony” for an abuse of discretion. Smith v. Volkswagen SouthTowne, Inc., 2022 UT 29, ¶ 41, 513 P.3d 729 (quotation simplified). “However, error in the district court’s evidentiary rulings will result in reversal only if the error is harmful.” Anderson v. Larry H. Miller Commc’ns Corp., 2015 UT App 134, ¶ 17, 351 P.3d 832.

¶28      Fourth, Father challenges the court’s imputation of federal minimum wage income to Mother for child support purposes. “We review the district court’s interpretation of statutory requirements for correctness” and “the court’s ultimate imputation of income . . . for abuse of discretion.” Burggraaf v. Burggraaf, 2019 UT App 195, ¶ 23, 455 P.3d 1071 (quotation simplified).

¶29      Fifth, Father takes issue with the court’s award of attorney fees and costs to Mother under section 30-3-3 of the Utah Code. “We review a district court’s decision to award attorney fees pursuant to this statute for an abuse of discretion,” Gardner v. Gardner, 2019 UT 61, ¶ 16, 452 P.3d 1134, but review its underlying legal conclusions for correctness, see De La Rosa, 2019 UT App 110, ¶ 4.

ANALYSIS

I. Legal Custody Factors

¶30      Utah law establishes “a rebuttable presumption that joint legal custody . . . is in the best interest of the child.”[10] Utah Code Ann. § 30-3-10(3) (LexisNexis Supp. 2023). This presumption “may be rebutted by a showing by a preponderance of the evidence that [joint legal custody] is not in the best interest of the child.” Id. § 30-3-10(4)(b). The Utah Code also provides several factors to aid in the best interest analysis. See id. §§ 30-3-10(2), -10.2(2) (2019).

¶31      In challenging the trial court’s award of sole legal custody to Mother, Father argues that (A) the court wrongly interpreted Utah Code sections 30-3-10(2) and 30-3-10.2(2) to mean that its consideration of the factors listed in section 10(2) was discretionary; (B) the court’s application of the wrong legal standard resulted in its failure to consider certain relevant factors in its custody analysis; and (C) the court “analyzed certain factors only as they related to Father but not to Mother.”[11] We address each argument in turn.

A.        Statutory Interpretation

¶32 At issue is the interplay between Utah Code sections 30-3-10(2) and 30-3-10.2(2). Section 10(2) provides that “[i]n determining any form of custody and parent-time . . . , the court shall consider the best interest of the child and may consider among other factors the court finds relevant, the following for each parent[.]” Utah Code Ann. § 30-3-10(2) (LexisNexis 2019) (emphasis added). There then follows a list of factors, (a) through (r), several of which have subparts. See id. Taken in isolation, section 10(2) suggests that while the trial court must consider the child’s best interest when determining custody, the court has discretion as to which specific factors are appropriate for consideration in making that key determination.

¶33      But when joint legal or physical custody is at issue, section 10.2(2) also comes into play. That section provides that “[i]n 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 the custody factors in Section 30-3-10, and the following factors[.]” Id. § 30-3-10.2(2) (emphasis added). And here again, a number of factors are then listed, (a) through (i), several of which include subparts. See id.

¶34      The parties are at odds on whether, when joint custody is at issue, the court’s consideration of the section 10(2) factors is discretionary or mandatory. We agree with Father that, in undertaking any joint custody determination, courts are required to consider, in some fashion, all the section 10(2) factors and all the section 10.2(2) factors.

¶35 “Our primary goal when interpreting a statute is to ascertain the legislature’s intent,” the best evidence of which “is the plain language of the statute itself.” McKitrick v. Gibson, 2024 UT 1, ¶ 31, 541 P.3d 949 (quotation simplified). In this pursuit, “where the statute’s language marks its reach in clear and unambiguous terms, it is our role to enforce a legislative purpose that matches those terms, not to supplant it with a narrower or broader one.” Id. (quotation simplified). See Brindley v. Logan City, 2023 UT App 46, ¶ 22, 530 P.3d 557 (“When the meaning of a statute can be discerned from its language, no other interpretive tools are needed.”) (quotation simplified). Furthermore, to determine legislative intent “when two statutory provisions conflict in their operation, the provision more specific in application governs over the more general provision.” Taghipour v. Jerez, 2002 UT 74, ¶ 11, 52 P.3d 1252 (quotation simplified). With this charge, we look to the directives our Legislature mandated regarding determinations of joint custody.

¶36      Section 10(2) provides that when “determining any form of custody,” the court may consider, among other things, the factors listed in that section. Utah Code Ann. § 30-3-10(2) (emphasis added). Section 10.2(2), on the other hand, applies when the court is tasked with “determining whether the best interest of a child will be served by ordering joint legal custody or joint physical custody or both.” Id. § 30-3-10.2(2) (emphasis added). Thus, although both section 10(2) and section 10.2(2) purport to govern custody determinations, because section 10(2) applies more generally to “any form of custody,” id. § 30-3-10(2), and because section 10.2(2) “is tailored precisely” to address joint custody—the type of custody at issue here—section 10.2(2) is the more specific of the two provisions and thus governs, see Taghipour, 2002 UT 74, ¶ 14.

¶37 Therefore, based on the plain language of section 10.2(2) that “the court shall consider the custody factors in Section 30-3-10 and” additional factors listed in section 10.2(2), see Utah Code Ann. § 30-3-10.2(2) (emphasis added), our Legislature has deemed it necessary to impose additional requirements and heightened sensitivities regarding a court’s decision to order joint custody. In simple terms, this means that in cases where joint custody is under consideration, trial courts lose much of their discretion about which factors to consider. In other words, when considering the best interest of the child under section 10.2(2), the court is required to consider all the custody factors identified by both section 10(2) and section 10.2(2). Cf. Martinez v. Sanchez-Garcia, 2023 UT App 60, ¶ 21, 532 P.3d 105 (stating that under Utah Code section 30-3-10.4(2), which similarly states that when considering whether modifying a custody order is in the child’s best interest, the trial court shall consider the factors listed in section 10(2) and section 10.2(2), courts “are statutorily required to consider, at least in some form, twenty-five enumerated factors, as well as any other relevant factor”) (quotation simplified).

¶38 We note, however, that “not all [the section 10(2) and section 10.2(2)] 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.” Id. ¶ 22 (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.” Id. For example, among the other custody factors, section 10(2) indicates that the court must consider “the relative benefit of keeping siblings together.” Utah Code Ann. § 30-3-10(2)(o). But in some cases, such as the one currently before us, the child does not have any siblings. In such circumstances, it is obviously unnecessary to analyze this factor because it is inapplicable to the court’s ultimate decision, although best practice suggests that the court should at least make a note of the factors it considers inapplicable in a given case. See Martinez, 2023 UT App 60, ¶ 22 n.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 considered them.”) (quotation simplified).

¶39 In sum, the trial court erred when it interpreted the relevant statutes to mean that its consideration of the section 10.2(2) factors was mandatory, while its consideration of the section 10(2) factors was discretionary. The court was required to consider, at least to some degree, all factors listed under both sections, and its failure to do so constituted an abuse of discretion. But “unless an appellant demonstrates that an error is prejudicial, it will be deemed harmless and no appellate relief is available.” See Huish v. Munro, 2008 UT App 283, ¶ 8, 191 P.3d 1242 (quotation simplified). We consider this question in conjunction with Father’s argument addressed in the next section of this opinion.

B.        Consideration of All Relevant Factors

¶40      Father argues that the trial court’s misinterpretation of the governing statutes resulted in its failure to consider a number of relevant factors. Specifically, he asserts that the court abused its discretion when it did not consider the parent’s “ability to provide personal care rather than surrogate care”; “the past conduct and demonstrated moral character of the parent”; and “previous parenting arrangements in which the child has been happy and well-adjusted in the home, school, and community,” Utah Code Ann. § 30-3-10(2)(c)(iii), (d), (n) (LexisNexis Supp. 2023), even though he presented evidence at trial relevant to each of these factors.

¶41 As an initial matter, we commend the trial court for providing thirty-three pages of detailed findings in this matter, in which it addressed the majority of the section 10(2) and section 10.2(2) factors. But even given these extensive findings, the court expressly stated that it did not consider certain statutorily mandated factors in making its legal custody determination. Instead, it stated that it would consider the 10(2) factors “if it elects to do so.” Furthermore, because at least one of the three factors Father identifies, i.e., each parent’s “past conduct and demonstrated moral character,” id. § 30-3-10(2)(d), carries some weight in the legal custody determination,[12] we cannot say that the court’s failure to consider all the section 10(2) factors was harmless.

¶42 We therefore vacate the trial court’s legal custody determination and remand the case for consideration of all section 10(2) factors, and for such adjustment in the court’s legal custody determination, if any, as may then become appropriate. See Twitchell v. Twitchell, 2022 UT App 49, ¶ 25, 509 P.3d 806.

C.        Comparative Findings

¶43 A best-interest determination is “based on a number of factors that compare the parenting skills, character, and abilities of both parents in light of a realistic and objective appraisal of the needs of a child.” Woodward v. LaFranca, 2013 UT App 147, ¶ 22, 305 P.3d 181 (quotation simplified), cert. denied, 312 P.3d 619 (Utah 2013), abrogated on other grounds by Zavala v. Zavala, 2016 UT App 6, 366 P.3d 422. See Twitchell, 2022 UT App 49, ¶ 23 n.4 (noting that a trial court’s findings should compare both parents’ “relative character, skills, and abilities” and not just that of one parent in particular). In other words, the court is required to undertake a comparative analysis whereby the court must consider the evidence relating to each parent.[13]

¶44 Father argues that the court’s comparative analysis and subsequent findings on a number of factors addressed only him and did not adequately compare the evidence as it related to Mother. Specifically, Father asserts that the court failed to make findings relating to Mother’s emotional stability, Child’s bond with her, her maturity and willingness to protect Child from parental conflict, and her ability to cooperate with Father. See Utah Code Ann. § 30-3-10(2)(e), (q) (LexisNexis Supp. 2023); id. § 30-3-10.2(2)(g), (h) (2019). Although Father acknowledges that the court made certain findings relating to these factors, he contends that the findings did not account for specific pieces of evidence he identifies on appeal.[14] But the trial court is not required to recite all evidence presented at trial in its findings of fact; just the evidence that is key to its custody decision. See Twitchell, 2022 UT App 49, ¶ 21 (highlighting 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” and instead must present sufficiently detailed findings and “include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached”) (quotation simplified).

¶45      We address each of the factors Father challenges on appeal and ultimately reject his suggestion that a court’s comparative analysis must proceed in a point-by-point, side-by-side comparison of each piece of evidence presented at trial in the context of each custody factor. Overall, the court’s comparative analysis in this case was sufficient.

¶46 Emotional Stability. Father contends that the court included specific findings regarding his emotional stability but did not include similar findings related to Mother despite evidence he presented at trial reflecting negatively on her in that respect. But Father misinterprets the trial court’s charge. The court is required to make only sufficient findings to support its decision. And the trial court is in the best position to weigh the evidence.

¶47      The court found that each parent had shown “the capacity and willingness to function as a parent” but that they both demonstrated an “inability to co-parent and properly interact with the other parent” and that they had “shown [a] limited ability to communicate effectively about [Child] over the years.” The court also found Third Expert to be credible and made findings consistent with his opinion that Father had improved his character traits since the parties’ separation. But despite Father’s improvement, the court also found that Father “says things to [Child] which weigh negatively on her emotions in a manipulative and passive aggressive manner.” Comparatively, the court found that “Mother occasionally expresses her displeasure of Father’s behavior openly in front of [Child] either by word or by her actions.” Based on its charge to make sufficient findings necessary to support its decision, the trial court’s findings are sufficiently comparative as concerns the parties’ emotional stability, particularly as concerns the issue of legal custody.

¶48 Child’s Bond with Parent. Father argues that the court specifically found that Child “has a strong bond with” and “enjoys spending time with” him but made no comparative findings regarding Mother’s bond with Child. He further asserts that the court did not consider evidence he presented that Mother and Child have a weak bond. But the court’s findings demonstrate that the court at least implicitly considered the strong bond between Child and Mother. The court found that “Mother has been the primary caregiver of [Child] from the time she was born, both during the marriage and after separation” and that although Father seemed uninterested in Child during the marriage, since the separation Father’s bond with Child had improved through his beginning to care for her during his parent-time. With the court’s recognition that Child’s bond with Father had improved and became “strong” as he began to show interest in and to care for Child, which Mother has done from the very beginning of Child’s life, the court sufficiently compared Child’s bonds with each parent.

¶49 Maturity and Willingness to Protect Child. Father next contends that the court made findings relating to his maturity and willingness to protect Child from parental conflict but did not make such findings relating to Mother. We disagree. The court specifically found that each parent showed an “inability to co-parent and properly interact with the other parent,” resulting in difficulty surrounding parenting decisions and custody handoffs. The court also found that Mother “occasionally expresses her displeasure of Father’s behavior openly in front of [Child] either by word or by her actions.” Similarly, the court found that Father displayed “inappropriate interactions with [Child] and Mother during pickup and drop off,” demonstrated an “insistence on addressing speculative and false allegations of abuse at the expense of [Child’s] emotional well-being,” did not encourage Child to look forward to being with Mother, and “is either unaware of the emotional upset his behavior causes [Child] or he is aware but prefers to upset her.” Thus, because the court addressed both parents’ interactions on custody handoffs and the like, the court’s findings are sufficiently comparative as to the parties’ maturity and willingness to protect Child from parental conflict.

¶50      Ability to Cooperate. Lastly, Father challenges the court’s findings regarding his inability to cooperate with Mother. He does not assert that the court did not make comparative findings regarding Mother’s ability to cooperate with him. Instead, Father’s argument is limited to asserting that the court’s findings on this point did not reflect evidence he presented at trial regarding his cooperation with Mother and her lack of cooperation with him. But, as discussed above, the trial court is not required or expected to make a finding on every bit of evidence presented. The litigation in this matter comprised numerous motion hearings and a ten-day trial with multiple witnesses, resulting in an appellate record in excess of 6,000 pages. The court made thirty-three pages of specific findings and those findings sufficiently show how the court arrived at its decision.

¶51 For these reasons, while the court did not undertake granular comparisons of each piece of evidence deemed problematic by Father, the court did adequately consider Child’s best interest by making appropriate comparisons. From the court’s extensive findings, it appears that the court made the difficult decision concerning the best interest of Child, who obviously has two very loving parents. See Tucker v. Tucker, 910 P.2d 1209, 1215 (Utah 1996) (“A trial court need not find one parent inadequate before awarding custody to the other.”).

¶52      In conclusion, because the court abused its discretion in not considering every factor it was statutorily required to, we remand this matter with instructions that the court reconsider its joint legal custody award in light of all the factors listed in section 10(2) and section 10.2(2), and in particular each parent’s “past conduct and demonstrated moral character,” Utah Code Ann. § 30-3-10(2)(d), as explained in Part I.B.

II. Emotional Abuse

¶53      Father argues that the court’s finding of his “substantial emotional abuse of [Child] through false allegations” was against the clear weight of the evidence. He primarily asserts that the court did not address the evidence of Child’s repeated injuries (cuts, bruises, and welts) that prompted him to alert authorities, and that “Mother presented little to no evidence that Child was [harmed], or even affected by the reports.”

¶54      As discussed above, under section 30-3-10.2(2) of the Utah Code, the court must address all the factors included in section 30-3-10(2) and make comparative findings for those factors. This includes consideration of “evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent.” Utah Code Ann. § 30-3-10(2)(a) (LexisNexis Supp. 2023). Here, the trial court expressed concern about “Father’s use of emotional and sometimes indirect physical abuse of [Child] by claiming [Mother] has harmed [Child] without sufficient justification” that “exposed [Child] to unnecessary emotional trauma and invasive physical examinations.” The court then provided three pages of findings concerning this factor, including a list of some, but not all, of the reports of physical abuse Father made to the authorities about Mother and their outcomes.[15] But because neither party presented expert testimony at trial to establish or rebut whether Father’s many reports amounted to emotional abuse in a diagnostic sense, the court’s reference to emotional abuse is properly understood as usage in a more colloquial sense with a rather limited purpose.

¶55 The court limited its findings relating to emotional abuse to its legal custody award. Although emotional abuse resulting in harm to Child would absolutely play a significant role in a physical custody determination, the court made no mention of it when it awarded the parties joint physical custody of Child. Instead, the court concluded that it was in Child’s best interest that “Father be actively involved in her life” and “have frequent and consistent time with” her.

¶56 And in addressing legal custody, the court discussed its emotional abuse findings in the limited context of discussing the issue of Mother and Father being unable “to set aside their personal differences and focus on the needs of” Child, which formed the basis for the court’s determination that the presumption in favor of joint legal custody had been rebutted. The court awarded Mother sole legal custody because she was better able to set aside her differences, while “Father is not able to set aside his differences with Mother to give first priority to the welfare of [Child] and reach shared decisions in [Child’s] best interests.” Father’s “subjecting [Child] to repeated interviews and physical examinations when he repeatedly raises allegations of abuse against Mother without sufficient cause” was one such example of this.

¶57 Also notable is that the trial court applied the statutory presumption in favor of joint custody in its analysis (holding that it had been rebutted) when such a presumption does not apply in cases involving emotional abuse. See id. § 30-3-10(3)(a) (stating that the presumption in favor of joint legal custody does not apply in cases involving, among other things, “emotional abuse”). This further illustrates the very limited purpose for which the court applied its findings on “emotional abuse,” focusing on how it reflected that Father’s hostility toward Mother was paramount even if it entailed exposing Child to repeated interviews and physical exams—and not on any harm Child actually suffered as a result.

¶58 With this limited view in mind, we conclude that the court’s findings were sufficiently supported by the evidence. Even in light of all the evidence Father presented at trial supporting the various cuts, bumps, and bruises that prompted him to alert authorities, the court’s finding that his “reports of abuse were vexatious and were calculated and designed to harm Mother” is supported by the sheer number of reports Father made that never resulted in criminal charges being filed against Mother or in DCFS taking enforcement action against her. Several different agencies all investigated Mother and each investigation produced the same result. Although, as Father points out, they could not conclusively rule out the possibility that Mother abused Child, the many investigations did not produce sufficient evidence of abuse to cause intervention by the authorities. After multiple reports of such injuries to various authorities and medical professionals did not produce the desired intervention, it was not unreasonable for the court to find that Father’s primary motivation in continuing to file such reports was his desire to harm Mother.[16]

¶59 For these reasons, and given the limited role the court’s findings related to “emotional abuse” served in the legal custody analysis, we do not disturb those findings.

III. First Expert’s Testimony

¶60      Father argues that the trial court abused its discretion in not excluding First Expert’s testimony as unreliable under rule 702 of the Utah Rules of Evidence. In support of this argument, he points to the court’s ultimate agreement with Second Expert’s testimony that, among other things, First Expert’s “opinions based on testing should not be considered” and that First Expert “did not utilize many of the standard tests and methods for determining parenting capacity and therefore his opinions on parenting capacity are not helpful.” But even assuming, without deciding, that the court’s decision to allow First Expert to testify amounted to an abuse of discretion, such error was harmless here.

¶61      “Not every trial error requires reversal.” State v. Leech, 2020 UT App 116, ¶ 42, 473 P.3d 218 (quotation simplified), cert. denied, 481 P.3d 1039 (Utah 2021). “Unless an appellant demonstrates that an error is prejudicial, it will be deemed harmless and no appellate relief is available.” Huish v. Munro, 2008 UT App 283, ¶ 8, 191 P.3d 1242 (quotation simplified). “An error is harmless and does not require reversal if it is sufficiently inconsequential that we conclude there is no reasonable likelihood that the error affected the outcome of the proceedings.” State v. Reece, 2015 UT 45, ¶ 33, 349 P.3d 712 (quotation simplified).

¶62 Here, after agreeing with several of Second Expert’s concerns and critiques of First Expert’s rule 35 evaluation of Father, the court stated that it ultimately “found little value in much of his diagnostic expert opinion” and that it agreed with only some of his “conclusions regarding characteristics and personality traits” of Father. But even here, the court stated that First Expert’s opinions with which it agreed “are consistent with other evidence presented to the Court regarding Father’s historical demonstration of” certain negative personality traits, specifically records submitted into evidence and other trial testimony. Thus, First Expert’s testimony did not serve as the sole basis for the court’s findings regarding some of Father’s characteristics and personality traits. Indeed, the court seemed to emphasize that its agreement with First Expert in that regard was based on the corroboration furnished by the court’s own review of some of the records First Expert examined and on other trial testimony.

¶63 For these reasons, Father has not demonstrated a reasonable likelihood that First Expert’s testimony affected the outcome of the trial, and this argument therefore fails.

IV. Mother’s Imputed Income

¶64 Father contends that the court abused its discretion by imputing Mother’s income at only the federal minimum wage, when a higher income was in order given the evidence before the court. Because the trial court misapplied the controlling legal standard, we agree.

¶65      “Because income imputation itself is primarily focused on a spouse’s ability to produce income, 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 (quotation simplified). “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).

¶66 Section 78B-12-203 of the Utah Code establishes the guidelines by which income may be imputed. It provides that in contested cases, a trial court may not impute income to a party without first holding a hearing on the matter and entering “findings of fact as to the evidentiary basis for the imputation.” Utah Code Ann. § 78B-12-203(8)(a) (LexisNexis 2022). The statute further provides that the court’s imputation of income “shall” be based on the following ten factors, “to the extent known”: “(i) employment opportunities; (ii) work history; (iii) occupation qualifications; (iv) educational attainment; (v) literacy; (vi) age; (vii) health; (viii) criminal record; (ix) other employment barriers and background factors; and (x) prevailing earnings and job availability for persons of similar backgrounds in the community.”[17] Id. § 78B-12-203(8)(b).

¶67 Here, the trial court deemed Mother voluntarily underemployed and found that she “has experience and skills in the workforce that would enable her to find employment in marketing and public relations work.” The court further found that “[i]f Mother were able to find employment as either a PR Specialist or in Advertising Sales her likely income would start around $2,500 to $2,800” per month. But the court opined that to become employed full-time, “Mother would necessarily incur childcare costs for a six (6) year old with transportation to and from school and would need to terminate or significantly modify her current study program” and that the evidence presented at trial “does not provide a calculation of the costs of day care expense necessary for Mother to become full time employed.” The court further stated that “the evidence provided is insufficient for the Court to determine that there is current employment available in either of her experience categories, or what the current rate of pay would be,” presumably given the impact of the COVID-19 pandemic. Based on those considerations, the court imputed to Mother “the federal minimum wage of $1,257 per month.”

¶68      The court’s reasons for reducing Mother’s imputed income from between $2,500 and $2,800 per month to the federal minimum wage go against the legal standard set forth in section 78B-12-203. As an initial matter, the reasoning that Mother would need to make adjustments to her schooling in order to pursue full-time employment has no legal basis. “[T]he pursuit of a higher education simply does not preclude employment.” Mancil v. Smith, 2000 UT App 378, ¶ 17, 18 P.3d 509. Although section 78B-12-203 provides that a trial court may not impute an income to a parent who “is engaged in career or occupational training to establish basic job skills” when such training “is not of a temporary nature,” Utah Code Ann. § 78B-12-203(8)(d)(iii), this is not the case here. Mother already had a bachelor’s degree and was pursuing a graduate program. Moreover, the court already found that she possessed skills and experience in the field of marketing and public relations. See Fish v. Fish, 2010 UT App 292, ¶ 18, 242 P.3d 787 (“The basic job skills training envisioned by the statute is training which can aid a person in achieving an income beyond the minimum wage job which can be had with no training at all, i.e., training for the starting point on a consecutive progressive career track.”) (quotation simplified). Thus, the court incorrectly based its reduction in Mother’s imputed income on her pursuit of higher education.

¶69 As for daycare expenses, at age six, Child would begin school soon, thus drastically reducing childcare costs as well. In any event, Utah law provides that “[t]he child support order shall require that each parent share equally the reasonable work-related child care expenses of the parents.” See Utah Code Ann. § 78B-12-214(1) (LexisNexis 2022). Accordingly, the child support order—and not Mother’s imputed income—was the appropriate means by which to address childcare costs.

¶70      Lastly, section 78B-12-203(8) mandates that the trial court base its imputation of income on “employment potential and probable earnings” by evaluating the ten enumerated factors, “to the extent known.” Id. § 78B-12-203(8)(b) (emphasis added). The statute thus expressly provides for possible uncertainty regarding the factors. Here, the vocational expert, whom the trial court found to be “qualified and credible,” provided a projection of future job openings in the field and stated that the unemployment rate in the area had doubled from the previous year due to the COVID-19 pandemic. Insofar as the court felt that additional information regarding current employment opportunities in the area was necessary, the uncertainty regarding this factor did not support a reduction of the already determined likely beginning wage of between $2,500 and $2,800 per month to the federal minimum wage. To be sure, the trial court has discretion when weighing the statutory factors, but because the statute expressly allows for uncertainty regarding the factors, that uncertainty cannot rationalize the court’s somewhat speculative decision.

¶71      For these reasons, the trial court abused its discretion by applying the wrong legal standard when imputing Mother’s income. See T.W. v. S.A., 2021 UT App 132, ¶ 15, 504 P.3d 163. We therefore reverse the trial court’s imputation of federal minimum wage income to Mother and remand for recalculation of her imputed income consistent with this opinion.

V. Attorney Fees and Costs

¶72      Finally, Father contends that in awarding attorney fees and costs to Mother, the trial court misapplied Utah law by incorrectly applying the “substantially prevailed” standard and by basing its decision, in part, on Father’s greater ability to pay. We agree.

¶73      A trial court may award attorney fees in a divorce action pursuant to section 30-3-3 of the Utah Code. “Both the decision to award attorney fees and the amount of such fees are within the district court’s sound discretion.” Lobenduhn v. Lobenduhn, 2023 UT App 137, ¶ 44, 540 P.3d 727 (quotation simplified). But the court must still “make detailed findings of fact supporting its determination.” Connell v. Connell, 2010 UT App 139, ¶ 27, 233 P.3d 836.

¶74      Section 30-3-3 “creates two classes of attorney fees—those incurred in establishing court orders and those incurred in enforcing court orders.” Id. ¶ 28 (emphasis in original). Subsection (1) provides,

In any action . . . to establish an order of custody, parent-time, child support, alimony, or division of property in a domestic case, the court may order a party to pay the costs, attorney fees, and witness fees, including expert witness fees, of the other party to enable the other party to prosecute or defend the action. The order may include provision for costs of the action.

Utah Code Ann. § 30-3-3(1) (LexisNexis Supp. 2023) (emphasis added). “[T]he party to be awarded attorney fees under this [subsection] has the burden to prove (1) that the payee spouse has a financial need, (2) that the payor spouse has the ability to pay, and (3) that the fees requested are reasonable.” Lobendahn, 2023 UT App 137, ¶ 44.

¶75      Subsection (2) provides,

In any action to enforce an order of custody, parent-time, child support, alimony, or division of property in a domestic case, the court may award costs and attorney fees upon determining that the party substantially prevailed upon the claim or defense. The court, in its discretion, may award no fees or limited fees against a party if the court finds the party is impecunious or enters in the record the reason for not awarding fees.

Utah Code Ann. § 30-3-3(2) (emphasis added). In contrast to subsection (1), when “awarding fees under subsection (2), the court may disregard the financial need of the moving party” using the “substantially prevailed” standard as “the guiding factor.” Connell, 2010 UT App 139, ¶ 28 (quotation simplified).

¶76 The differing standards of the two subsections are attributed to the different purposes each subsection serves. See id. ¶ 29. “Attorney fees are granted under subsection (1) to enable a party to prosecute or defend the action.” Id. (quotation simplified). Otherwise, “a spouse lacking a separate income would be unable to meaningfully participate in divorce proceedings.” Id. “Consequently, the moving spouse’s need is a sine qua non of a subsection (1) award.” Id. Conversely, “fee awards under subsection (2) serve no equalizing function but allow the moving party to collect fees unnecessarily incurred due to the other party’s recalcitrance.” Id. ¶ 30.

¶77      Here, in addressing the question of attorney fees and costs, the trial court prefaced its findings with the observation that the litigation in this matter “was contentious and relied on a significant amount of documents, which caused a significant amount of fees to be incurred by the parties.” The court first denied Father’s request for attorney fees “as a sanction for [Mother’s] unreasonableness in requiring these proceedings to go to trial,” ruling that “[a]ttorney’s fees as sanctions are not applied because a party has been unreasonable in requiring disputes to go to trial.” The court then turned to Mother’s competing request premised on her “having ‘substantially prevailed.’” The court stated that Mother “did substantially prevail, not only at trial, but at interim hearings on motions prior to trial.”

¶78 Following this preface, the court entered findings regarding the parties’ need and ability to pay. The court found that Mother “has limited income, if any, at this time,” and it noted Father’s annual salary. The court then proceeded to make findings on the parties’ expenses and disposable income, prefacing its findings by stating that it “has limited information regarding each party’s monthly expenses.” The court found that Father has “approximately $44,500 in disposable funds annually.” Turning to Mother next, the court first noted that neither party provided any evidence of her expenses, leaving the court “with no basis to find Mother has any expenses beyond those which are covered by her need for child support.”[18] The court thus found that Mother “has no income and no evidence of expenses.” The court also noted that “it received no evidence that Mother can pay for her costs and attorney fees.” Based on this, the court found that “[a]s between Father and Mother, Father has the greater ability to pay attorney’s fees” and held that “Mother should be awarded her reasonable costs and attorney fees.”

¶79      The court then addressed the reasonableness of Mother’s attorney fees. It again prefaced its findings by stating that “[a]lthough the issues of custody, parent time, and child support are routinely dealt with in our courts, this case is not a ‘usual’ case” because “[t]he parties have been unusually accusatory, intransigent, and uncooperative which has significantly raised the costs of this litigation to both parties.” The court noted that “Father’s decisions caused Mother to successfully bring multiple orders to show cause, motions to compel, and statements of discovery issues,” and have “forced Mother to incur otherwise unnecessary legal costs.” Against this backdrop, the court found that not all Mother’s requested costs and fees, totaling almost $410,000, were “reasonable and necessary,” and it ultimately awarded her $161,066.94 in attorney fees and costs. The court largely based this reduction on Mother’s “duplication of legal services, unnecessary review and consultation between multiple attorneys, and inefficiencies in presenting evidence at trial,” which the court deemed to be unreasonable.

¶80      There are two problems with the trial court’s award. First, the court conflated the two distinct bases for awarding fees under section 30-3-3, resulting in an undifferentiated attorney fees award. See Connell, 2010 UT App 139, ¶ 31. The court began its analysis by stating that Mother “substantially prevail[ed], not only at trial, but at interim hearings on motions prior to trial.”[19] This statement in and of itself is concerning as the purpose of the ten-day bench trial was largely “to establish an order of custody, parent-time, [and] child support,” thereby implicating subsection (1). See Utah Code Ann. § 30-3-3(1). But subsection (1) does not apply a “substantially prevailed” standard. See Lobendahn, 2023 UT App 137, ¶ 44; Connell, 2010 UT App 139, ¶ 29.

¶81      Although some pre-trial motions dealt with enforcing the court’s temporary orders regarding “custody, parent-time, child support, alimony, or division of property,” thereby falling under the ambit of subsection (2), see Utah Code Ann. § 30-3-3(2), the court did not distinguish between the two distinct statutory bases for awarding attorney fees. Rather, the court took the total amount of attorney fees Mother sought and reduced the amount to the sum it considered reasonable based on multiple inefficiencies on Mother’s part.

¶82 The second problem is that in awarding attorney fees under subsection (1), the court did not expressly find that Father “has the ability to pay” the requested attorney fees. Lobendahn, 2023 UT App 137, ¶ 44. Instead, the court found that between the two, “Father has the greater ability to pay attorney’s fees.” Whether Father is in a better position than Mother to pay attorney fees and whether Father has an actual ability to pay both his and Mother’s attorney fees are two different inquiries. Although the answer to both questions may, on remand, end up being the same, the court nonetheless did not make the required finding when awarding Mother attorney fees. See Connell, 2010 UT App 139, ¶ 27 (stating that as part of its attorney fees award, the court “must make detailed findings of fact supporting its determination”).

¶83      In sum, we reverse the trial court’s award of attorney fees and costs and remand with instructions that the court distinguish the fees that fall under subsection (1) and subsection (2) of section 30-3-3, and that it apply the corresponding legal standard to each group of fees. In the course of this effort, the court also needs to make a specific finding regarding Father’s ability to pay Mother’s attorney fees as to any fees awarded under subsection (1).

CONCLUSION

¶84      There remain issues that require additional attention and must be revisited on remand. Although we affirm certain of the trial court’s findings of fact and evidentiary rulings relating to its award of sole legal custody of Child to Mother, we reverse and remand with instructions that the court reevaluate its legal custody award by considering all the statutorily mandated custody factors, in particular the one focused on past conduct and moral character. We likewise reverse and remand for further consideration of Mother’s imputed income and the award of attorney fees and costs in Mother’s favor.[20]

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


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

[2] As relevant here, rule 35(a) of the Utah Rules of Civil Procedure states, When the mental or physical condition or attribute of a party or of a person in the custody or control of a party is in controversy, the court may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party’s custody or control. The order may be made only on motion for good cause shown.

[3] Mother also underwent a rule 35 examination, but it does not appear that those results were admitted into evidence at trial.

[4] The trial court initially found First Expert “to be credible although not entirely unbiased.” But following Father’s post-trial motion, the court did not include that statement in the amended findings of fact and conclusions of law that it later issued.

[5] Specifically, the court rejected First Expert’s opinion that Father “is prone to bouts of depression”; that he “appears to have a disconnect between his emotions and his cognitive abilities, which impedes his ability to utilize constructive feedback and an inability to learn from his experience and mistakes”; and that “[i]t is likely that Father has not emotionally separated, or moved on from his relationship with Mother.”

[6] A vocational expert, whom the court found to be “qualified and credible,” opined at trial that Mother could earn “approximately $2,800 to $3,750 gross per month” as a public relations specialist. But the court stated that the expert’s calculations did not take the COVID-19 pandemic’s impact on the job market into consideration, and although the expert provided a projection of future job openings in the field, he did not identify any current job openings or pay rates.

[7] We recount the relevant details of the trial court’s attorney fees award in Part V.

[8] Father does not challenge the trial court’s physical custody award on appeal.

[9] Father also contends that the trial court erred in ordering him to sign medical releases for his mental health records without first undertaking the analysis set forth in Debry v. Goates, 2000 UT App 58, 999 P.2d 582, cert. denied, 9 P.3d 170 (Utah 2000). See id. ¶ 26. But because Father did not raise this issue below, and instead opposed the release of the records only on prejudice and scope-of-the-stipulation grounds, this argument is not preserved, and we do not address it further.

[10] The presumption in favor of joint legal custody does not apply in cases that include, among other things, “emotional abuse.” Utah Code Ann. § 30-3-10(3)(a) (LexisNexis Supp. 2023). Although the trial court in this case did make several findings regarding emotional abuse, the court nonetheless applied the presumption but found that it was rebutted by the parties’ inability “to set aside their personal differences and focus on the needs of” Child.

[11] Father also argues that the trial court made unsupported findings concerning Mother’s financial stability, Father’s involvement in Child’s life, and the parties’ communications. But because Father has not marshaled the evidence in support of these findings, he has not carried his burden of persuasion. See Pankhurst v. Pankhurst, 2022 UT App 36, ¶ 15, 508 P.3d 612 (“A party will almost certainly fail to carry its burden of persuasion on appeal if it fails to marshal the evidence sufficient to overcome the healthy dose of deference owed to factual findings.”) (quotation simplified).

[12] The other two factors, the “ability to provide personal care rather than surrogate care” and the “previous parenting arrangements in which the child has been happy and well-adjusted in the home, school, and community,” Utah Code Ann. § 30-3-10(2)(c)(iii), (n) (LexisNexis Supp. 2023), are more germane to a physical custody rather than to a legal custody determination, and Father conceded as much during oral argument before this court.

[13] The case of Allen v. Allen, 2014 UT App 27, 319 P.3d 770, provides a good example of how appropriate comparison between the parents works in practice. After considering the applicable factors and concluding that “both parents appeared nearly equally capable of caring for” their child, the district court in that case determined that, with respect to two factors where the parents were not equally strong, “the stability offered by [the father] outweighed the apparent empathy of [the mother].” Id. ¶ 5 (quotation simplified). See id. ¶ 12 (holding that given the district court’s observation that the parties were “nearly equally capable of caring for” the child and its findings of fact supporting that determination, the court had adequately considered the “character and quality of [the child’s] bonds with both parents”). The deciding factors in the district court’s view were the father’s stability and the mother’s immaturity, “with a tendency to put her needs above those of others, including” the child. Id. ¶ 10. On appeal, this court concluded that the district court’s “discussion of the parties’ relative maturity, stability, and ability to care for [the child] constitutes adequate consideration of both parties’ ‘past conduct and demonstrated moral standards.’” Id. ¶ 11 (quoting Utah Code Ann. § 30-3-10(2)(d) (LexisNexis 2013)).

[14] On this point, Father contends that our decision in Twitchell v. Twitchell, 2022 UT App 49, 509 P.3d 806, requires a trial court to make a finding on all evidence presented by either party. Father misinterprets that decision. In Twitchell, we determined that “to ensure that the trial court’s custody determination, discretionary as it is, is rationally based, it is essential that the court set forth in its findings of fact not only that it finds one parent to be the better person to care for the child, but also the basic facts which show why that ultimate conclusion is justified.” Id. ¶ 24 (quotation simplified). The premise of Twitchell is not that a court must make a specific finding regarding each piece of evidence, but simply that a court must make findings on the “basic facts” that support its ultimate conclusion.

[15] The trial court acknowledged that its list was not a comprehensive one. Mother asserts that she presented evidence at trial that Father instigated a total of 28 investigations against her.

[16] In any event, although Father argues that the trial court’s findings are against the clear weight of the evidence given the evidence of Child’s various injuries presented at trial, he has not marshaled the evidence supporting the court’s findings. To successfully challenge a finding, it is not enough to focus only on “evidence that points to an alternate finding or a finding contrary to the trial court’s finding of fact.” Taft v. Taft, 2016 UT App 135, ¶ 19, 379 P.3d 890 (quotation simplified). Accordingly, Father has also not carried his burden of persuasion on appeal. See Pankhurst v. Pankhurst, 2022 UT App 36, ¶ 15, 508 P.3d 612 (“A party will almost certainly fail to carry its burden of persuasion on appeal if it fails to marshal the evidence sufficient to overcome the healthy dose of deference owed to factual findings.”) (quotation simplified).

[17] The statute further provides that in cases where “a parent has no recent work history,” a court may impute “an income at the federal minimum wage for a 40-hour work week,” and that “[t]o impute a greater or lesser income, the judge in a judicial proceeding . . . shall enter specific findings of fact as to the evidentiary basis for the imputation.” Utah Code Ann. § 78B-12-203(8)(c) (LexisNexis 2022). Although Mother was not working at the time of trial, this did not form the basis for the trial court’s decision to impute the federal minimum wage to her. Rather, it found that she had the potential of earning between $2,500 and $2,800 per month but reduced this amount based on other factors as explained in paragraph 67.

[18] Father argues that Mother bore the burden of establishing her expenses and that the court incorrectly faulted him for not providing evidence of her expenses. But the inability to establish Mother’s expenses only benefitted Father—admittedly to a very limited degree—as the court ultimately did not attribute any expenses to Mother apart from those that are covered by her need for child support in its calculation of disposable funds available to her.

[19] The court awarded some attorney fees to Mother for her success in pre-trial motions along the way. The court also reserved for later determination the issue of attorney fees on certain other pre-trial motions.

[20] Father recently asked that we take judicial notice of developments in legal proceedings involving other parties that he believes are germane to this case. Mother opposes Father’s motion. We are not persuaded that the matters we are asked to take notice of bear on the issues presented in this appeal and so deny the motion. If relevant to the issues the trial court will address on remand, Father may renew his request in that forum.

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2024 UT App 52 – In re A.S. – child neglect, photographing genitals

2024 UT App 52 – In re A.S.

 

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF A.S. AND J.S.,

PERSONS UNDER EIGHTEEN YEARS OF AGE. V.S., Appellant, v. STATE OF UTAH, Appellee.

Opinion No. 20230338-CA Filed April 11, 2024 Third District Juvenile Court, Summit Department

The Honorable Elizabeth M. Knight No. 1214949

Julie J. Nelson and Alexandra Mareschal, Attorneys for Appellant

Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES DAVID N. MORTENSEN and JOHN D. LUTHY concurred.

TENNEY, Judge:

¶1        On the basis of a set of stipulated facts, the juvenile court adjudicated A.S. and J.S. as being neglected as to V.S. (Mother). Mother now challenges that adjudication on appeal, arguing that the stipulated facts did not support the neglect adjudication. For the reasons set forth below, we affirm.

BACKGROUND
Initial Proceedings

¶2        This is a child welfare case concerning two children: A.S., who was 16 years old at the time of this appeal, and J.S., who was 9 years old. A.S. and J.S. (collectively, the Children) are the biological children of Mother and J.S. (Father).[1] Mother and Father divorced in March 2018, and they’ve had an “ongoing” and “contentious” custody dispute in district court ever since.

¶3        In August 2022, the Department of Child and Family Services (DCFS) filed a petition for protective supervision services, alleging that the Children were “abused, neglected, or dependent children” pursuant to Utah Code section 80-1-102. The petition alleged a range of conduct to support this—most of it by Mother, though with one allegation relating to Father. This appeal is brought by Mother, so we’ll focus on the allegations, proceedings, and rulings relating to her.[2]

¶4        On March 10, 2023, DCFS filed an amended petition relating to Mother, and the amended petition realleged some (but not all) of the allegations from the original petition. Based on the amended set of allegations, DCFS again alleged that the Children were abused, neglected, or dependent. That same day, the juvenile court held a “merged pretrial and adjudication hearing” relating to Mother, and Mother was represented by counsel at that hearing. Mother acknowledged under oath that she understood that she had a right to a trial, that DCFS bore the burden of proving the allegations against her by clear and convincing evidence, and that she had the right to present evidence in her defense. Mother then waived her right to a trial, affirmatively admitted to a specified list of the allegations from the amended petition, and, pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure, “neither admitted nor denied” certain other specified allegations from the amended petition.

¶5        On the basis of Mother’s affirmative admissions and the allegations deemed to be true by virtue of her rule 34(e) response, the juvenile court later issued a ruling that found a list of facts to be “true by clear and convincing evidence.” We now recount those facts here, with any quotations being drawn directly from the court’s precise verbiage.[3]

The Stipulated Facts

¶6        Since filing for divorce, Mother has sought four protective orders against Father: one in 2016, one in 2020, and two in 2022. Also, Child Protective Services (CPS) has received twelve reports accusing Father of neglect, physical abuse, sexual abuse, domestic violence-related child abuse, and other miscellaneous complaints which were not child welfare related. “All but one of these reports were either unaccepted because they did not meet CPS minimum requirements for investigation or unsupported because there was inadequate evidence to support the allegation after the matter was investigated.” Only two of the twelve reports affirmatively identified Mother as the person who made the report, and though a touch unclear, a third suggested that she was likely the reporter.

¶7        Sometime in 2020, certain pictures were taken of J.S. at Wasatch Pediatrics. These pictures showed “mild inflammation” of J.S.’s “inner labia,” “mild peri-anal erythema,” and a “superficial linear abrasion in the crease of [her] right thigh and perineum.” In August 2020 and again in April 2022, Mother shared medical records with DCFS that included those photographs, and she did so in both instances “as part of an abuse investigation.” In April 2022, Mother “forwarded all communications with DCFS to the Ombudsmen’s office at [its] request,” again including these photographs.

¶8        In June 2022, Mother also “began documenting pictures of [J.S.’s] stool under the medical advice of” a gastroenterology specialist (Specialist) who was treating J.S. “for a chronic gastrointestinal issue.”

¶9        On June 28, 2022, Mother took photographs of “bruises on [J.S.’s] knee, leg, and abdomen.” One of these photographs was “taken in the bathtub when [J.S.] was naked,” but J.S.’s “genitalia were not visible in the picture,” and the other photographs taken on this occasion “were taken when [J.S.] was clothed.”

¶10      Based on Mother’s concerns about these bruises and about “additional vaginal redness,” Mother took J.S. to the Redstone Clinic on June 30, 2022. A medical professional at the clinic “took pictures of the bruises and vaginal and anal redness” and then instructed Mother to take J.S. to the Emergency Department at Primary Children’s Hospital. In an effort to avoid a further genital exam, a doctor at the hospital accessed and viewed the photographs that had been taken at the Redstone Clinic. While at the hospital, Mother also spoke to the Safe and Healthy Families Clinic over the phone. Mother was advised to call the clinic back during normal clinic hours.

¶11 The next day, a doctor (Doctor) at the Safe and Healthy Families Clinic “indicated that the pattern of bruising [was] unusual and that in the absence of a history of accidental injury, inflicted injury, or physical abuse, the bruises would be a reasonable concern,” but Doctor further opined “that sexual abuse of a child is most often recognized when a child makes a disclosure.” Doctor also said that “constipation . . . is a common manifestation of childhood stress and only rarely associated with sexual abuse.” As to the vaginal redness in question, Doctor said that it was “not an indicator of sexual contact,” “particularly with swimming and warm weather.” Doctor saw “no reason to have specific concern for sexual abuse in this case,” and Doctor did not believe that J.S.’s symptoms met “the threshold for suspected abuse or neglect.” Doctor therefore “did not make a report to either DCFS or law enforcement,” and she saw “no need for follow up in the Safe and Healthy Families Clinic based on” the information that had been provided to her.

¶12 That same day, Mother spoke with an officer from the Summit County Sheriff’s Office, again “reporting the bruises and vaginal and anal redness.” When the officer offered to come to the home and take “pictures of the bruising,” Mother declined. Instead, she sent him the pictures that she had taken of the bruising on J.S.’s knee, leg, and abdomen.

¶13 Sometime later that day, Mother called the Safe and Healthy Families Clinic. A nurse (Nurse) received a page regarding the call. Before calling Mother back, Nurse contacted DCFS and was informed “that there had been several calls over the last few years, but all of them were closed unsupported.” DCFS also informed Nurse that Mother had texted photos to DCFS and a detective. After receiving this information, Nurse called Mother. During that conversation, Mother “requested that Safe and Healthy Families conduct a forensic examination and take photographs of [J.S.’s] genitals due to a request from law enforcement.” The juvenile court’s subsequent finding recounts the following about what happened next:

According to [Nurse], the mother told her that she had taken photographs of [J.S.’s] genitals before and after she went to see her father on the advice of a pelvic floor physical therapist. [Nurse] asked the mother three times for the name of the physician that advised her to take photographs and the mother refused to provide it. [Nurse] states that the mother eventually reported that she was documenting what [J.S.’s] genitals looked like before and after parent-time with her father. The mother indicates that she felt pressured and interrogated and was unable to provide the name of [Specialist] to [Nurse]. Mother states that she had trouble communicating with [Nurse] and was unable to explain everything.

The court’s findings also note that “[n]o one has received” the “before and after” photographs described in the conversation Mother had with Nurse.

¶14      Doctor later shared her professional opinion that “she would have substantial concerns about repeated photography” of a child’s genitals. In Doctor’s view, children are “told repeatedly that these are private parts of our body,” but because children would understand that photographs are “usually show[n] to all sorts of people,” repeated photographing of genitals would undermine this messaging. Doctor also expressed her view that subjecting a child to “multiple forensic exams” would improperly “normalize[] certain amounts of touching and manipulation of the genital region.”

¶15 With respect to Mother, “[m]ultiple police reports and DCFS records indicate that [Mother] may be difficult to understand.” It is “documented” that Mother has “POTS (post orthostatic tachycardia syndrome) which causes forgetfulness and trouble focusing (brain fog) making it difficult for [Mother] to think and speak clearly under stress.”[4]

The Neglect Adjudication

¶16      Based on the stipulated facts, the juvenile court found that the Children “are neglected as to [Mother], as it is lack of proper parental care to subject a child to having her genitals photographed before and after visits with [Father], as well as sending other photographs to various agencies.” The juvenile court then ordered that “[c]ustody and guardianship shall continue with the parents with protective supervision services with DCFS,” and Mother was also ordered to “comply with the requirements of the DCFS service plan.” Mother now appeals that ruling.

ISSUES AND STANDARDS OF REVIEW

¶17 The juvenile court ruled that Mother neglected the Children by (i) taking “before and after” photographs of J.S.’s genitals, as well as (ii) “sending other photographs” to various agencies. As explained below, we need consider only the court’s conclusions relating to the “before and after” photographs. With respect to those, Mother raises two challenges: first, Mother challenges the finding that she actually took the photographs; and second, Mother argues that even if she did, this did not constitute neglect. Although Mother’s first challenge is to a factual finding, that finding was based on stipulated facts. When “the facts are stipulated, we review the conclusions drawn by the juvenile court for correctness.” In re K.T., 2023 UT App 5, ¶ 7, 524 P.3d 1003 (quotation simplified), cert. denied, 528 P.3d 327 (Utah 2023). We also review the court’s interpretation of the neglect statute for correctness. See In re M.S., 2023 UT App 74, ¶ 23, 533 P.3d 859 (holding that the determination of “whether the statutory criteria for neglect have been met” is “primarily a law-like endeavor” that is accordingly reviewed for correctness) (quotation simplified).

ANALYSIS

¶18      The juvenile court concluded the Children are neglected as to Mother because “it is a lack of proper parental care to subject a child to having her genitals photographed before and after visits with [Father], as well as sending other photographs to various agencies.” Because we determine that the “before and after” photographs alone are enough to support the neglect adjudication, we need not consider whether Mother also neglected the Children by sending the photographs to “various agencies.”[5]

¶19      Mother makes two arguments relating to the “before and after” photographs: first, she argues that there was not clear and convincing evidence that she actually took them; and second, she argues that even if she did take the photographs, this did not constitute neglect.

I. There Was Sufficient Evidence to Support the Court’s
Conclusion that Mother Took These Photographs.

¶20 Mother first argues that there was not “clear and convincing evidence that Mother took photos of [J.S.’s] genitals before and after visits with Father.” We disagree.[6]

¶21 At an adjudication trial, the juvenile court must determine whether “the allegations contained in the abuse, neglect, or dependency petition are true” by “clear and convincing evidence.” Utah Code § 80-3-402(1). “Clear and convincing evidence is an intermediate standard of proof that implies something more than the usual requirement” of a preponderance of the evidence and “something less than proof beyond a reasonable doubt.” In re K.K., 2023 UT App 13, ¶ 22, 525 P.3d 519 (quotation simplified), cert. denied, 531 P.3d 731 (Utah 2023). As noted, because the juvenile court made this finding on the basis of stipulated facts, we afford no deference to its conclusion that DCFS had satisfied the clear and convincing evidence standard. But even so, we conclude that this standard was satisfied.

¶22      The clearest indication that Mother took these photographs is the stipulated finding that Mother told Nurse that she took these photographs. The law has of course long recognized that admissions from a party can carry substantial evidentiary weight. As a result, once Mother told Nurse that she took these photographs, the court had a solid evidentiary basis for concluding that she had indeed taken them.

¶23      In a footnote of her brief, Mother nevertheless argues that the court should not have credited this admission. As an initial matter, Mother points out that “[n]o one has received” these particular photographs. And this seems to be true. But again, Mother told Nurse that she had taken them. From this, even without the actual photographs, the juvenile court could take Mother at her word and find that she had taken them.

¶24 More significantly, Mother suggests that her seeming admission was actually the product of a misunderstanding. As noted, the stipulated facts include that “Mother state[d] that she had trouble communicating with [Nurse] and was unable to explain everything.” They also include that “[m]ultiple police reports and DCFS records indicate that [Mother] may be difficult to understand,” and that it is “documented” that Mother has “POTS (post orthostatic tachycardia syndrome),” a condition that “causes forgetfulness and trouble focusing (brain fog) making it difficult for [Mother] to think and speak clearly under stress.” But even accounting for these facts, the juvenile court could still take Mother’s admissions to Nurse at face value. This is so for several reasons.

¶25      The first is the specificity of Nurse’s account. Nurse didn’t say that Mother had made a passing or unclear comment to this effect. Rather, Nurse recalled Mother telling her that “she had taken photographs of [J.S.’s] genitals before and after she went to see [Father] on the advice of a pelvic floor physical therapist.” On its own, the specificity of Nurse’s account belies the suggestion that Nurse had simply misunderstood Mother.

¶26 Second, Mother seems to have reiterated her initial admission as the conversation with Nurse continued. According to Nurse, after Mother made her initial comment about taking these photographs, Nurse “asked [Mother] three times for the name of the physician” who had recommended taking them, but Mother “refused to provide it.” If Mother had not meant to say that she was taking “before and after” photographs of J.S.’s genitals (or, instead, if she hadn’t said it at all and Nurse had misheard her), Nurse’s repeated questioning about which doctor had asked for the photographs would have given Mother the opportunity to clarify that she had misspoken (or that she had been misunderstood) and that she hadn’t actually taken these photographs. But this wasn’t Mother’s response.

¶27      Instead, Nurse claimed that as the conversation continued, Mother “eventually reported that she was documenting what [J.S.’s] genitals looked like before and after parent-time with [Father].” Nurse’s statement that Mother “eventually” told Nurse that she was “documenting” the condition of her daughter’s genitals indicates that Mother reiterated that she had indeed taken them. And the fact that Mother then added the detail that she was “documenting” the “before and after” look of her daughter’s genitals functioned as her explanation for why she thought this was appropriate to do.

¶28      Finally, there’s no place in either the court’s ruling or even in the record as a whole where Mother has ever denied taking these photographs. Even when confronted with a specific allegation from DCFS about an instance in which a witness said that Mother admitted to taking them, Mother chose to respond with a non-admission/non-denial pursuant to rule 34(e).

¶29 Thus, the evidence before the juvenile court was that Mother had told Nurse that she had taken these photographs, that even with the benefits of further conversation and even subsequent litigation, Mother never retracted that admission, and that Mother had instead chosen to justify taking them. In light of all this, we see no basis for overturning the court’s implicit finding that Mother personally took these photographs.

II. The “Before and After” Photographs Were Enough to Establish Neglect.

¶30      “Neglect is statutorily defined,” and it “can be proved in any one of several ways.” In re G.H., 2023 UT App 132, ¶ 28, 540 P.3d 631; see also Utah Code § 80-1-102(58)(a). The juvenile court here concluded that Mother’s actions constituted neglect because “it is a lack of proper parental care to subject a child to having her genitals photographed before and after visits with [Father].” This was an apparent reference to Utah Code section 80-1-102(58)(a)(ii), which defines neglect as “action or inaction causing . . . lack of proper parental care of a child by reason of the fault or habits of the parent.”

¶31      In her brief, Mother points out that the legislature has not further defined the phrase “lack of proper parental care.” Drawing on various textual, structural, and even constitutional sources, Mother now asks us to take the opportunity to fill in the gap and provide further definition of what this phrase means. While we need not create a definitive one-size-fits all definition, we do agree with Mother on a few broad points that inform our analysis below.

¶32      First, the word “proper” is commonly understood to refer to something that is “marked by suitability, rightness, or appropriateness.”[7] Second and similarly, we think the phrase “proper parental care” would naturally incorporate notions of reasonableness. (After all, conduct that’s appropriate would likely be reasonable, and the converse would also be true.) In this vein, we note that Black’s Law Dictionary links the term “proper care” to notions of “reasonable care” that are commonly used in negligence cases, and Black’s defines “reasonable care” as “the degree of care that a prudent and competent person engaged in the same line of business or endeavor would exercise under similar circumstances.” Care, Black’s Law Dictionary (11th ed. 2019). Third, because the statutory phrase at issue turns on notions of “proper parental care,” the relevant inquiry is appropriately focused on what would be proper (with all that the word entails) “under similar circumstances”—meaning, in the particular parenting circumstance at issue. And finally, we agree with Mother that, in light of the fundamental and constitutional rights that are associated with parenting, the neglect standard should not be applied to conduct that falls within an ordinary range of permissible parenting.

¶33      With those principles in mind, we think the contours of this phrase can then capably be fleshed out in the same way that most other phrases from constitutions or statutes are fleshed out— through the ordinary process of common law development. And while there doesn’t appear to be a Utah case that has comprehensively defined this phrase, the parameters of what constitutes neglect have been explored and applied in a number of cases. Among others, we note the following:

·         In In re G.H., we held that the neglect standard was satisfied where the mother “did not attend to the children’s basic health and welfare needs, such as feeding and bathing them, changing their diapers regularly, and obtaining medical care for them when they were sick,” where the mother “did not behave in a manner consistent with parenting a child,” and where the mother “would refuse to care for them when asked by the family members with whom she was living.” 2023 UT App 132, ¶¶ 29–31, 540 P.3d 631 (quotation simplified).

·         In In re K.K., we held that the neglect standard was satisfied based on the mother’s “inaction in failing to protect the children from exposure to domestic violence and prioritizing her toxic relationship” with the father. 2023 UT App 14, ¶ 12, 525 P.3d 526 (quotation simplified).

·         In In re K.D.N., we upheld a neglect determination that was based on “the lack of food,” the “profound lack of parenting skills,” and the presence of “violence” and “chaos” within the home. 2013 UT App 298, ¶ 11, 318 P.3d 768 (quotation simplified).

·         In In re D.T., we held that the neglect standard was satisfied based on the mother’s “admitted relapse” on illegal drugs, “her frequent absences, inconsistent housing, lack of stability, and other behaviors.” 2013 UT App 169, ¶ 5, 309 P.3d 248 (quotation simplified).

·         And in In re N.M., we held that “sufficient evidence support[ed] the juvenile court’s determination that the father “neglected [his child] by engaging in domestic violence.” 2013 UT App 151, ¶ 3, 305 P.3d 194.

In these and other cases, we held that the neglect standard was satisfied, not because of a failure of best-practices parenting, but instead because the behavior in question fell outside acceptable norms of proper parenting. To again use the phrase that we recently used in In re G.H., such cases involve a parent who simply “did not behave in a manner consistent with parenting a child.” 2023 UT App 132, ¶ 30.

¶34      So viewed, we agree with the juvenile court’s conclusion here that Mother’s behavior likewise reflected a “lack of proper parental care.” Utah Code § 80-1-102(58)(a)(ii). Again, while DCFS alleged that Mother had neglected the Children based on a number of things (including her excessive reporting of abuse, as well as her decision to submit the photographs taken by doctors to law enforcement and medical professionals), the conduct at issue in the court’s ruling was Mother taking photographs of a minor’s genitals “before and after parent-time” with Father, as well as Mother’s explanation that she was doing so to “document[] what” J.S.’s “genitals looked like before and after parent-time with” him.

¶35      The juvenile court had before it a statement from Doctor that she had “substantial concerns” about the “repeated photography” of a child’s genitals. Doctor opined that such behavior can be damaging to a child, in part, because it can undermine the messaging that children receive about the privacy relating to their genitals. Doctor’s concerns seem well-founded.

¶36 Moreover, we also note that the photographs in question here were taken by a parent who was in the midst of an “ongoing” and “contentious” custody dispute. By taking photographs of her young child’s genitals “before and after” that child’s visits with her father, Mother wasn’t just potentially desensitizing her daughter to photography of her genitals, but Mother was also communicating to her daughter that she should be concerned that Father was sexually abusing her or at least was likely to do so. This, too, carries obvious potential for harm, both to the child and to her relationship with Father.

¶37      We recognize, of course, that contextual questions such as the ones presented here can and often do turn on even small factual differences. And to be very clear, we don’t mean to suggest that a parent (even one who is involved in a contentious custody dispute) must sit idly by if the parent has a good-faith basis for suspecting that a child is being abused. As illustrated by our survey of the relevant cases above, children should always be protected, and on that front, their parents are indeed the first line of defense.

¶38 If a parent has suspicions that a child is being sexually abused, the parent should of course do something to protect the child, and as indicated, a failure to do anything may well constitute neglect in its own right. Among other things, a parent might respond by reaching out to medical, law enforcement, or other trained professionals, and such professionals may well be involved in documenting any observed abuse. But unlike some of the other photographs at issue in this case, the particular photographs in question here weren’t taken by professionals or in response to their recommendation, nor were they taken by Mother to document visible genital trauma.[8] Rather, according to the explanation that Mother “eventually” gave to Nurse during their conversation, Mother was trying to “document[] what [J.S.’s] genitals looked like before and after parent-time with her father.” It was on this basis that the juvenile court concluded that the neglect standard had been satisfied.

¶39      We have no need to determine whether it would ever be within the bounds of “proper parental care” for a parent to take photographs of a young child’s genitals without first involving trained professionals. And we note here too that, in addition to the suspected abuse scenario, there may be situations where such photography is in response to something more benign (such as diaper rash on an infant), and such contextual differences would likely place such photographs on different analytical footing. For purposes of this appeal, however, we simply conclude that it falls outside the realm of “proper parental care” for a parent to take photographs of a child’s genitals “before and after” visits with the other parent for “documentation” purposes. On this basis, we affirm the juvenile court’s conclusion that Mother neglected the Children.[9]

CONCLUSION

¶40      We agree with the juvenile court’s conclusion that, without something more, it constitutes a “lack of proper parental care,” Utah Code § 80-1-102(58)(a)(ii), for a parent to take photographs of a child’s genitals “before and after” visits with the other parent for “documentation” purposes. We affirm the adjudication of the juvenile court on that basis.

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


[1] Mother and Father also have another child who was not a minor during the proceedings in question.

[2] For background purposes only, we note that the juvenile court held a “merged pretrial, adjudication, and partial disposition hearing” relating to the one allegation made against Father. At the close of that hearing, the court concluded that the Children were “dependent children . . . in that they were without proper care through no fault of [Father].” Father was ordered to comply with protective supervision services through DCFS as a result. Father has not appealed that ruling.

[3] The parties in this case have all referred to these facts as “stipulated facts.” As indicated, however, Mother affirmatively admitted to certain facts, but for others, she invoked rule 34(e) of the Utah Rules of Juvenile Procedure and neither admitted nor denied them. Under that rule, when a party “declin[es] to admit or deny the allegations,” the “[a]llegations not specifically denied . . . shall be deemed true.” Id. Thus, in a technical sense, the facts the court relied on pursuant to rule 34(e) might not actually be “stipulated” (because Mother didn’t affirmatively agree to all of them), but by force of law, they might as well be. For ease of reference, we’ll follow the lead of the parties and refer to the court’s findings collectively as “stipulated facts.”

[4] Though the findings at issue don’t specifically draw the link, DCFS’s original petition in this case alleged that Mother has a “traumatic brain injury because a car hit her in December 2020,” and the juvenile court also included this finding in an order that it entered with respect to Father elsewhere in this litigation.

[5] The court found that Mother took photographs of J.S.’s genitals, but there’s no finding that she took similar photographs of A.S.’s genitals. Even so, the court found that both the Children are neglected. On appeal, Mother has not argued that this potential distinction provides a basis for reversing the adjudication as to A.S., and we therefore do not consider whether this is so.

[6] The juvenile court did not explicitly find that Mother personally took these photographs. Rather, in this portion of the ruling, the court stated that it is a “lack of proper parental care to subject a child to having her genitals photographed before and after visits with [Father].” “Unstated findings can be implied,” however, “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 v. Fish, 2016 UT App 125, ¶ 22, 379 P.3d 882 (quotation simplified). Here, we conclude that the juvenile court did make an unstated finding that Mother took these photographs. As discussed in more detail below, Nurse claimed that Mother admitted to taking them. And of note, no one has claimed that anyone else took these particular photographs. Thus, when the court ruled that Mother had “subject[ed] a child to having her genitals photographed before and after visits with [Father],” the clear (and, indeed, only) implication that can be reasonably drawn from this record and the court’s ruling is that the court implicitly found that Mother took these photographs.

[7] Proper, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/proper [https://perma.cc/YGY2-MJXP].

[8] In contrast, the juvenile court noted that the photographs taken in 2020 showed “inflammation” of the labia and a small “abrasion” near the groin, while the 2022 photographs showed “vaginal and anal redness.”

[9] Mother also makes some allusion to the stipulated facts relating to certain photographs that she was taking on the advice of Specialist. It’s unclear from the briefing whether Mother means to assert this as something of an “advice of doctor” defense to this neglect allegation. See Utah Code § 80-1-102(58)(b)(ii) (stating that 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”). In any event, those stipulated findings reflect that Specialist worked at a gastroenterology clinic, that Specialist was treating J.S. for “a chronic gastrointestinal issue,” and that Mother had been “documenting pictures of [J.S.’s] stool” in conjunction with that treatment. Mother has not specifically asserted that, in conjunction with this gastroenterology treatment, Specialist also told her to take photographs of her daughter’s genitals, much less that Specialist instructed her to “document[] what [J.S.’s] genitals looked like before and after parent-time with [Father].” We accordingly see no basis from this record to overturn the neglect finding on this potential ground.

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2024 UT App 51 – Bailey v. Bailey – evidence, sanctions

2024 UT App 51 – Bailey v. Bailey

THE UTAH COURT OF APPEALS

AMY L. BAILEY, Appellee, v. DANNY RAY BAILEY, Appellant.

Opinion No. 20220534-CA Filed April 11, 2024

Second District Court, Farmington Department

The Honorable Michael D. DiReda No. 094701582

Julie J. Nelson, Attorney for Appellant Brian E. Arnold, Attorney for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which

JUDGES RYAN D. TENNEY and AMY J. OLIVER concurred.

HARRIS, Judge:

¶1        In 2019, nine years after her divorce, Amy L. Bailey (Amy) filed a petition to modify the child support provisions of the divorce decree, asserting that her ex-husband Danny Ray Bailey’s (Danny[1] income had significantly increased. The matter proceeded to trial, where the district court sanctioned Danny for noncompliance with pretrial disclosure obligations. Among other sanctions, the court prohibited Danny from presenting any evidence, and from refuting any evidence Amy presented, regarding his income. At the conclusion of this rather one-sided trial, the court made findings and conclusions regarding Danny’s income that Danny believes are inaccurate.

¶2        Danny now appeals those findings and conclusions, as well as the court’s underlying sanctions order. Danny asserts that the sanctions order was inappropriate and that he is entitled to a new trial at which he may present evidence regarding his income. We agree with Danny, and therefore vacate the court’s modification order and remand the case for a new trial.

BACKGROUND
The Petition to Modify

¶3        Amy and Danny divorced in 2010; at that time, the parties were able to reach a negotiated settlement which was later incorporated into a decree of divorce (the Decree). The parties have three children together, all of whom were minors at the time of their divorce; only one of the children was a minor at the time of trial. Under the terms of the Decree, Amy was awarded primary physical custody of the children, and Danny was awarded certain parent-time. Danny is self-employed, and his income for child support purposes was determined to be $8,837 per month. Amy’s earnings at that time were determined to be $4,071 per month. Using these income figures, Danny’s child support obligation was calculated to be $1,485 per month.

¶4        In 2019, nine years after entry of the Decree, Amy filed a petition to modify, seeking, among other things, a modification of Danny’s child support obligation. Discovery and disclosure deadlines were set, with fact discovery scheduled to close in November 2019 and expert discovery scheduled to close in March 2020. The expert discovery deadline passed, and neither party designated any expert witnesses. But in September 2020, Amy filed a statement of discovery issues, asserting that Danny had not disclosed certain financial documents, including his 2019 tax return, and asking that Danny be ordered to do so. Amy further requested that she be allowed “to designate an expert to opine on the limited issue of [Danny’s] expenses versus business expenses.” Danny objected to this request, arguing that expert discovery deadlines were “far past” and that Amy “should not be allowed to re-open expert discovery and further extend this matter.” After a hearing, the court ordered both parties to disclose their 2018 and 2019 tax returns and associated financial documents to the other, but the court agreed with Danny on the expert disclosure issue, denying Amy’s request and stating that it was “not inclined to extend discovery deadlines.”

¶5        Eventually, after some delays due to matters not relevant here, the court scheduled a one-day trial regarding the child-support-related issues to occur on November 10, 2021. In its pretrial order, the court ordered that, “at least 28 days before” trial, the parties were to “provide . . . pre-trial disclosures,” including “[t]he name . . . of each witness who will be called at trial,” “an updated financial declaration,” and “copies of their federal income tax returns for the two most recent tax years.”

¶6        On November 2, eight days before trial, Danny filed a motion to continue, asserting that he had “been unable to complete his 2020 tax return due to problems with his accounting software,” and requesting that the trial be continued so that the parties could “proceed with current and accurate income information.” Additionally, Danny brought to the court’s attention that, on October 20, just twenty-one days before trial— and notwithstanding the court’s previous reticence to extend discovery deadlines—Amy had, “for the first time,” identified two expert witnesses that she intended to call at trial. Danny asserted that these disclosures should have been made “within 14 days after the close of fact discovery,” which, in this case, was some two years earlier in November 2019. Danny asked the court to bar Amy from calling these witnesses at trial and, alternatively, stated that if the court was inclined to allow Amy to call these experts, he should be afforded “the appropriate disclosures and discovery opportunities set forth” in rule 26 of the Utah Rules of Civil Procedure. As an added precaution, Danny filed a notice indicating that—contingent on the court’s ruling as to their admissibility—he would like “to receive written reports” from Amy’s newly-disclosed expert witnesses.

¶7        On the same day Danny filed his request for a continuance, Amy filed an objection. While pressing the court to move forward with the trial as scheduled, Amy simultaneously defended the timing of her expert disclosures. On this point, Amy argued that she was attempting to follow the court’s pretrial order, which stated that the list of witnesses that would be called to testify only needed to be provided twenty-eight days before the trial. And, according to Amy, she was doing just that by identifying in her pretrial disclosures the two expert witnesses she intended to call at trial. She argued that these two witnesses were “absolutely necessary” because she intended to rely on “their expert opinion” to demonstrate Danny’s “true income and the expenses being reported on his personal and business income taxes.”

¶8        Three days later, the court held a hearing on Danny’s motion. At the conclusion of the hearing, the court granted Danny’s request for a continuance of the trial date and rescheduled the trial to occur on March 1, 2022. The court also indicated that it would allow Amy to call the expert witnesses and it further observed that the continuance would give Danny time to consider whether he wanted to call a rebuttal expert witness of his own. At the conclusion of the hearing, the court noted that the main reason for continuing the trial was so that Danny could complete his 2020 tax return and disclose it to Amy, and it asked the parties whether they wanted to “set a deadline on the tax return.” Danny’s attorney stated that he’d rather not set a specific deadline, and Amy’s attorney didn’t argue for one either, stating that he and Danny’s attorney had “worked well together on that kind of stuff” and that he didn’t think any specific deadline for disclosure of the tax return would be necessary. The court pushed back a bit, asking, “Not a deadline? You’re okay just leaving it out there?” Amy’s attorney responded by stating that he was “fine with that.” In accordance with the parties’ wishes, the court set no specific deadline for Danny’s production of his 2020 tax return. The court’s previous pretrial order remained in place, however; as noted, it specified that all pretrial disclosures—including recent tax returns—were due “at least 28 days before” trial, which given the scheduled trial date would be February 1, 2022.

¶9        Not long after the November hearing on the motion to continue, Danny’s attorney withdrew. Danny then elected to proceed to trial pro se.

¶10      On February 3, less than four weeks before the trial date, the court held a status conference. At the conference, Amy’s attorney indicated that he had recently received Danny’s newly-completed 2020 tax return—specifically stating that he “just got those the other day”—but that he was still waiting to receive certain bank statements from Danny. In response, Danny—now representing himself—raised certain issues with Amy’s disclosures, indicating that he had not received all of her bank account information. After hearing from both parties, the court ordered Danny to provide Amy with the requested bank statements and ordered Amy “to do the same.”

¶11      During the status conference, the court also discussed the expert witness issue, and it asked Danny if he “had a chance to speak with or read the report from” Amy’s experts. Danny indicated that he had not received any such report. Amy’s attorney stated that he believed the report had been provided either to Danny or his previous counsel, but he offered to “resend” the report to Danny just in case.

The Trial

¶12      On March 1, the trial proceeded as scheduled, with Danny representing himself and Amy represented by counsel. At the start of the proceeding, before any evidence had been presented, Danny brought to the court’s attention that, two weeks earlier, he had filed an objection to Amy’s experts, asking that they be excluded from testifying because he still had not received any reports from them. At this, the court turned to Amy’s attorney for an explanation. Amy’s attorney this time did not claim that any expert report had ever been disclosed to Danny; instead, Amy’s attorney explained that Amy had been unable to “supplement[]” her earlier disclosures with the new experts’ reports because Danny had failed to timely provide Amy with financial information—including, most significantly, the 2020 tax return— that the court “had ordered [Danny] numerous times” to disclose. Amy’s attorney proposed that if the court was disinclined to allow these witnesses to testify as experts, they could, instead, be allowed to testify as “factual witness[es]” just to “tell [the court] what a line means on a tax return.”

¶13 Concerned about possible disclosure failings on both sides, the court asked Amy’s attorney whether it was “still the case” that Danny had failed to deliver “the documents, the returns, the information that [the court] ordered be delivered.” To this, Amy’s attorney responded, “Not timely.” Seemingly dismayed at the lack of cooperation between the parties, the court reminded them that the reason it had continued the trial was so that the parties could “exchange documents,” yet they had apparently still failed to “timely” comply with its instructions. Addressing Danny, the court stated, “So if you’re going to come to me and ask . . . that I exclude a witness, you’ve got to come in with clean hands. If your hands are soiled because you yourself have not complied with the rule and you’ve not told me that, that’s a problem, because I’m not going to apply the rules unevenly.” The court—without Amy making any specific request for a negative-inference sanction[2]—then told Danny that his apparent untimely disclosure of the 2020 tax return was “a problem that leads [the court] to think that perhaps a negative inference should be drawn against you . . . because why wouldn’t you just turn over the information that is critical to the [c]ourt’s determination on income since this is an income case?”

¶14      Before ruling on the matter, the court wanted to know how much time had elapsed between the completion of Danny’s 2020 tax return and Danny’s disclosure of that return to Amy. Danny indicated that “[p]robably two months” had elapsed between completion and disclosure. The court then asked, “Why wouldn’t you have just disclosed [the return] immediately once you had them done? Why did you wait two months to disclose [it]?” Danny explained that he was looking for new counsel at that time and that his understanding was that his “obligation was to supply” those documents with his pretrial disclosures, twenty-eight days before trial, which he did. Danny also reminded the court—twice—that, at the conclusion of the November hearing, no specific deadline for disclosure of the tax return had been set. The court then, without prompting from Amy’s attorney, began to read from rule 26 of the Utah Rules of Civil Procedure, stating to Danny that, as soon as he learned that his disclosure was “incomplete,” he was required to “timely serve on the other parties the additional or correct information.”

¶15 After allowing both sides to argue the matter, the court determined that “at the end of the day,” Danny was the one who “didn’t disclose timely.” The court therefore told Danny that Amy “couldn’t have given you a full expert report, because you hadn’t given them the predicate information that was needed so the expert could do his or her job.”

¶16      After a recess to allow the parties one last opportunity to negotiate, the court considered what, if any, sanction should be imposed on Danny for his apparent untimely disclosure of his 2020 tax return. The court believed that it could impose any of the sanctions set forth in rule 37(b) of the Utah Rules of Civil Procedure. After argument, the court determined it would be “inequitable” to allow Danny “to go forward and argue” what he thought his income should be when he “deprived the other side of [the] complete and accurate financial information that their [experts] needed in order to present a complete picture” of Danny’s finances. It therefore ordered that, during the trial, Danny would be prohibited from refuting any evidence that Amy introduced about Danny’s income, and he would not be allowed “to introduce [his] own evidence in support of what [he] believe[d]” his income should be. Basically, the only thing that Danny would be able to do at trial would be to present or challenge evidence presented related to Amy’s income.

¶17      Concerning Amy’s experts, the court determined it would be appropriate to allow them to testify as fact witnesses. Amy ended up calling only one of the two expert witnesses she listed in her pretrial disclosures, a forensic accountant (Accountant). At the beginning of his testimony, Accountant was reminded that he was not permitted to give “expert opinion” because he would, as Amy’s counsel described it, be a “factual witness.”

¶18      During his direct examination, Accountant was presented with exhibits containing Danny’s tax returns—including his 2020 tax return—and other financial documents and was asked questions concerning those documents. For example, Accountant was asked about the purpose of lines “28 A and B” on one of the forms, and he responded, “Those are there to present to the IRS sources of income from businesses that the taxpayer owns.” At another point in the trial, Accountant was also asked whether the W-2 wage on another form was for Danny or if it was “a qualified deduction” from Danny’s company. Accountant responded it was “neither,” and that “the income from the business” would be different from the amount represented on the form “because [it] specifically calculates adjusted income for [that] specific tax deduction.” Direct examination of Accountant continued in this fashion, with him testifying about several line items contained in Danny’s tax returns and what information should or should not be contained therein.

¶19 Amy was the only other witness to testify at trial. After submission of the evidence, Amy’s attorney made a closing argument. The court then went back and forth with Amy’s attorney, discussing the various figures that had been presented and what implications they might have on the calculation of child support arrearages going back to the date Amy filed her petition. After completing the calculation, the court made an oral ruling that, for child support purposes, Danny’s monthly income was $42,555 (as opposed to $8,837 under the original Decree) and that Amy’s monthly income was $6,265 (as opposed to $4,071 under the original Decree). Based on those figures, the court then calculated Danny’s ongoing child support obligation, as well as arrearages owed dating back to the month after Amy filed her petition to modify. Specifically, the court determined that Danny owed Amy $108,027 in back child support. Because of the “sizable back child support due and owing,” the court declined Amy’s request for attorney fees. A few weeks later, the court entered a written order memorializing its oral ruling.

ISSUES AND STANDARDS OF REVIEW

¶20 Danny now appeals the court’s modification order. In particular, Danny challenges the court’s findings and conclusions regarding his own monthly income, and he asserts that the court’s determinations in that regard are infirm because it improperly sanctioned him and did not allow him to present evidence supporting his position or refuting Amy’s position on that issue. Thus, Danny’s appeal centers on the court’s application of Utah rules regarding discovery, disclosure, and sanctions.

¶21      A district court’s interpretation of the Utah Rules of Civil Procedure is reviewed for correctness. Hansen v. Kurry Jensen Props. LLC, 2021 UT App 54, ¶ 19, 493 P.3d 1131. For this reason, a court’s decision regarding the adequacy of a party’s disclosures is reviewed for correctness. See Butler v. Mediaport Ent. Inc., 2022 UT App 37, ¶ 17, 508 P.3d 619 (stating that “we review for correctness the district court’s conclusion that [a party’s] disclosures were inadequate, because that determination is at root a question of interpretation of” the applicable rules).

¶22      But when a district court’s interpretation of the applicable rules is correct, we extend “a great deal of deference” to the court’s decisions regarding its choice of sanctions, and we will only disturb such rulings “if abuse of discretion is clearly shown.” Raass Bros. Inc. v. Raass, 2019 UT App 183, ¶ 11, 454 P.3d 83 (quotation simplified). Similarly, we review deferentially a “district court’s decision to admit or exclude evidence,” including its “determination regarding the admissibility of expert testimony” for an abuse of discretion. Northgate Village Dev., LC v. City of Orem, 2019 UT 59, ¶ 14, 450 P.3d 1117 (quotation simplified). A court’s determination that a witness’s testimony is “not expert testimony” is similarly reviewed for an abuse of discretion. State v. Rothlisberger, 2006 UT 49, ¶ 8, 147 P.3d 1176.

ANALYSIS

¶23      Danny’s primary challenge on appeal concerns the district court’s imposition of sanctions, which he contends were unwarranted. For the reasons discussed herein, we find merit in Danny’s position, and agree that the court erred by imposing rule 37 sanctions on Danny.

¶24 There are two different rules of civil procedure that concern discovery sanctions: rule 26 and rule 37. These two rules, “although couched in different terms,” are both “aimed at encouraging good faith compliance with the discovery obligations imposed under the rules of civil procedure and both provide the court with the authority to sanction those who fail to live up to the requirements of those rules.” PC Crane Service, LLC v. McQueen Masonry, Inc., 2012 UT App 61, ¶ 34, 273 P.3d 396. But despite certain commonalities, the sanctions available pursuant to these rules are different and have distinct prerequisites.

¶25 The sanctions that a court may impose pursuant to rule 26(d) are narrow, but they are also “automatic and mandatory” when the prerequisites are met. See Eskamani v. Auto-Owners Ins. Co., 2020 UT App 137, ¶ 48, 476 P.3d 542. That rule provides, in relevant part, as follows:

(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.

(5)   If a party learns that a disclosure or response is incomplete or incorrect in some important way, the party must timely serve on the other parties the additional or correct information if it has not been made known to the other parties. The supplemental disclosure or response must state why the additional or correct information was not previously provided.

Utah R. Civ. P. 26(d)(4), (5).[3] Thus, when a party fails to comply with rule-based disclosure requirements, that party is “presumptively barred” from relying on that witness, document, or material at trial. See Dierl v. Birkin, 2023 UT App 6, ¶ 31, 525 P.3d 127, cert. denied, 527 P.3d 1107 (Utah 2023). A party seeking sanctions under rule 26(d)—usually a party whose litigation opponent has failed to timely disclose a required item—does not need to file a motion for sanctions and obtain a court order beforehand; rather, sanctions under this rule are “automatic and mandatory” and do “not require a predicate discovery order.” Eskamani, 2020 UT App 137, ¶¶ 47–48. Courts should, upon request, presumptively impose sanctions for noncompliance unless “the party seeking relief from disclosure requirements” can demonstrate that its noncompliance was harmless or excused by good cause. Keystone Ins. Agency, LLC v. Inside Ins., LLC, 2019 UT 20, ¶ 18 & n.7, 445 P.3d 434; see also Utah R. Civ. P. 26 advisory committee notes (stating that sanctions are “the usual and expected result” of noncompliance).

¶26        But the sanctions available under rule 26(d) are narrow and specific: a party who fails to comply with rule-based disclosure obligations, and who cannot show harmlessness or good cause, “may not use the undisclosed witness, document, or material at any hearing or trial.” See Utah R. Civ. P. 26(d)(4). Rule 26, by itself, does not speak of or authorize any other sanction.

¶27        Rule 37, by contrast, is not self-executing: a party wishing to take advantage of its more expansive sanctions menu must first obtain a discovery order from the court. Subsection (a) of that rule allows a party to “request that the judge enter an order regarding any discovery issue.” Id. R. 37(a)(1). And subsection (b) allows a “court, upon motion, [to] impose appropriate sanctions for the failure to follow its orders.” Id. R. 37(b) (emphasis added). Interpreting the language of this rule, we have recently held that imposition of sanctions under rule 37 is available only for violation of a specific court order. See Eskamani, 2020 UT App 137, ¶ 49 (“Unlike rule 26, rule 37 conditions the availability of discovery sanctions upon the failure of a party to follow a discovery order.”).

¶28      But rule 37 offers a wide variety of sanctions options, and it allows for sanctions that can be more severe than the sanction authorized under rule 26. Where the violation in question is disobedience of a court order (as opposed to noncompliance with a rule-based disclosure requirement), rule 37 authorizes a court to (among other things) “deem [a] matter . . . to be established,” give an “adverse inference” instruction, order attorney fees, hold a party in contempt, or even dismiss a party’s claim or defense. See Utah R. Civ. P. 37(b)(1), (4)–(7). As relevant here, a court may also opt to “prohibit the disobedient party from supporting or opposing designated claims or defenses or from introducing designated matters into evidence.” Id. R. 37(b)(2).

¶29      In imposing sanctions on Danny, the district court applied rule 37. It read subsection (b) of that rule to Danny, and then walked the parties through the sanctions options provided by rule 37(b). After discussion, and after a brief break to allow additional negotiations, the court told Danny that he would not be “permitted to refute” any evidence Amy presented regarding his income, and that he would not “be permitted to introduce [his] own evidence in support of what [he] believe[s his own] income should be.” This is one of the sanctions listed in rule 37(b). See id.

¶30      But under these circumstances, this sanction was improper. Rule 37 is properly invoked only for violation of a court order, see id. R. 37(b); Eskamani, 2020 UT App 137, ¶ 49, and Danny was not in violation of any court order. The only potentially applicable order is the pretrial order that commanded the parties to disclose their trial exhibits—including, significantly, their latest tax returns and other updated financial information—at least twenty-eight days prior to trial.[4] Danny complied with this order when he submitted his 2020 tax return on or before February 1, 2022—which was at least twenty-eight days prior to the scheduled March 1 trial date.[5] And on appeal, at least, Amy makes no argument to the contrary.[6] In the absence of any evidence that Danny was in violation of a court order, the court was not permitted to impose sanctions on Danny pursuant to rule 37.

¶31        Danny’s sin, as perceived by the district court, was not the violation of any specific court order. Instead, the court was apparently upset with Danny for waiting some two months after the belated completion of his 2020 tax return to provide a copy of that return to Amy. This action was arguably a violation of rule 26(d)(5), which commands parties to “timely” supplement their initial disclosures. See Utah R. Civ. P. 26(d)(5).[7] Courts certainly have authority to punish untimely supplementations. But such punishment must be imposed pursuant to rule 26(d) and not—in the absence of a violation of a court order—pursuant to rule 37(b).

¶32        Under rule 26(d), the court could have penalized Danny for his two-month disclosure delay, but any such penalty should have been limited to preventing Danny from “us[ing]” the 2020 tax return “at any hearing or trial.” See id. R. 26(d)(4). Even if we were to assume, for purposes of the discussion, that under rule 26(d) the court properly barred Danny from introducing that document on his own account, we are aware of no rule or authority that would allow the court to bar him from introducing other properly disclosed evidence about his income, or from attempting to rebut evidence about his income that Amy introduced at trial. In this vein, we note that, during her evidentiary presentation at trial, Amy introduced Danny’s 2020 tax return into evidence; Danny should not have been barred from engaging with that evidence once Amy voluntarily elected to introduce it. Thus, under the circumstances, the district court’s sanctions order was improper and unduly punitive.

¶33      And in this situation, the court’s improper sanctions order prejudiced Danny. Prejudice is demonstrated when a party shows that the court’s error “impacted the outcome of the dispute.” In re Western Ins. Co., 2022 UT 38, ¶ 55, 521 P.3d 851. In other words, a party is prejudiced if “there is a reasonable likelihood that, absent the error, the result would have been different.” Id. (quotation simplified). Danny asserts that his income is actually less than half of what the court found it to be after the one-sided evidentiary presentation, and he argues that, had he been able to present evidence as to his income, the court would not have made the same determination in that regard. Danny asserts that, if he had not been sanctioned, he would have presented (among other things) his earlier tax returns and evidence regarding his “necessary business expenses,” and would have been able to demonstrate that certain income had been improperly attributed to him. Danny plausibly contends that this would have likely made a difference, and here on appeal, Amy makes no argument to the contrary. And it appears that the district court more or less agreed with this notion, at one point stating that the sanctions imposed were “almost the equivalent of a default.”

¶34 In sum, then, the court entered an improper and unduly punitive sanctions order against Danny. That order prejudiced Danny because it prevented him from meaningfully engaging with the court and with Amy on the subject of his own income; absent the sanctions order, we think the court likely would have reached a different conclusion regarding Danny’s income. Accordingly, we vacate not only the court’s sanctions order but also its modification order (the order containing its findings regarding Danny’s income), and we remand this case to the district court for a new trial on Amy’s petition to modify.

¶35 Our opinion could end here. But we elect to address one of Danny’s other criticisms of the court’s handling of Amy’s petition to modify, in the hope that our guidance on this issue might prove useful on remand. See State v. Ogden, 2018 UT 8, ¶ 49, 416 P.3d 1132 (“Although it is unnecessary to our decision, we retain the authority to reach issues when we believe our analysis could prove helpful on remand.”); see also Young H2ORE LLC v. J&M Transmission LLC, 2024 UT App 10, ¶ 48, 543 P.3d 1264 (electing to “offer some guidance that we hope will prove useful” on remand where the issues in question “are certain to arise again”).

¶36 Danny asserts that the court acted improperly when it allowed Accountant to testify at trial as a “factual witness.”[8] We agree with Danny that Accountant’s testimony was improper.

¶37 After Amy made a late designation of expert witnesses (which the court eventually authorized Amy to do), Danny asked for a report from those witnesses, including Accountant, in lieu of taking their depositions. But despite certain initial incorrect representations from Amy’s attorney to the contrary, Amy never provided Danny with any report from Accountant.

¶38      Expert witnesses from whom reports have been requested should not be allowed—absent a showing of good cause or harmlessness—to testify about matters not “fairly disclosed in” the requested reports. See Utah R. Civ. P. 26(a)(4)(B) (stating that expert witnesses “may not testify in a party’s case-in-chief concerning any matter not fairly disclosed in the report”); id. R. 26(d)(4); see also R.O.A. Gen., Inc. v. Chung Ji Dai, 2014 UT App 124, ¶ 11, 327 P.3d 1233 (stating that, “where it is undisputed that an expert witness report has been untimely filed, the proper inquiry is whether” the party’s failure to timely submit the report was “harmless” or excused by “good cause” (quotation simplified)), cert. denied, 337 P.3d 295 (Utah 2014). It follows, then, that an expert from whom a report has been requested but who has not provided one should not be allowed to testify at all, absent a finding of good cause or harmlessness, since nothing was “fairly disclosed” in any report. See Utah R. Civ. P. 26(a)(4)(B).

¶39        In this case, the district court allowed Accountant to testify, despite the fact that Accountant never provided an expert report to Danny. The court allowed this, at Amy’s request, on the ground that Accountant would not be asked to offer any expert opinion as to Danny’s income but, instead, would merely be “a factual witness” who would offer testimony about “what a line means on a tax return.” But the court never engaged in any analysis of whether Amy’s failure to provide an expert report from Accountant should be excused for “good cause.” See id. R. 26(d)(4). While Danny’s two-month delay in supplementing his initial disclosures with his 2020 tax return may have provided some cause for Accountant’s inability to timely form opinions regarding Danny’s post-2019 income, neither Amy nor the court ever offered an explanation as to why Danny’s delay in disclosing his 2020 tax return provided any cause for Accountant’s failure to provide a report containing opinions about what line items on a tax return mean.

¶40      And we are not persuaded by Amy’s effort to characterize this kind of testimony as “fact testimony.” As an initial matter, even fact witnesses have to be disclosed in a timely manner, and— although Amy did obtain permission to make a late expert designation of Accountant—Amy did not disclose Accountant as a fact witness in a timely manner. Any such disclosure should have been made in Amy’s initial disclosures, in order to give Danny the opportunity to depose (or seek other discovery from) the witness. It is not proper, absent specific leave of court, for a party to disclose a fact witness for the first time in connection with its final pretrial disclosures. After all, witnesses and exhibits disclosed in final pretrial disclosures are intended to be merely a subset of the witnesses and exhibits already disclosed earlier in the case. See Ader v. SimonMed Imaging Inc., No. CV-17­02085, 2020 WL 13442907, at *2 (D. Ariz. Sept. 22, 2020) (stating that, “[t]ogether, initial and supplemental disclosures reveal the full universe of potentially relevant evidence for every claim or defense,” and that in preparation for making final pretrial disclosures, the parties must then “sift through” that earlier-disclosed evidence to arrive at a “narrowed universe” of evidence “aimed at trial preparation”). Allowing a party to use its pretrial disclosures to introduce new evidence and new witnesses would therefore be contrary to the very purposes of rule 26. See Johansen v. Johansen, 2021 UT App 130, ¶ 18, 504 P.3d 152 (stating that where a party’s pretrial disclosures, submitted only “28 days before trial,” identified for the first time the witnesses that the party intended to rely on at trial, that disclosure was contrary to “the purpose of rule 26, which is to preclude parties from trying to gain an advantage by offering ‘surprise’ testimony at trial that has not been properly disclosed” (quotation simplified)); see also In re Morrissey, No. AP 20-2045, 2022 WL 666803, at *5 (Bankr. D. Utah Mar. 4, 2022) (noting that if a party “were permitted to treat the [pretrial disclosure] deadline as though it were the [initial disclosure] deadline, it would completely undermine the purposes of” the rule governing initial disclosures).

¶41 But more to the point, the testimony that Accountant ended up giving at trial was not fact testimony; it was expert testimony. A “fact witness” is someone “who has firsthand knowledge of something based on the witness’s perceptions through one [or] more of the five senses.” Fact Witness, Black’s Law Dictionary (11th ed. 2019). “Lay fact testimony”—which is the type of testimony that the district court and Amy assert that Accountant provided—is “factual testimony not based on scientific, technical, or other specialized knowledge.” State v. Rothlisberger, 2006 UT 49, ¶ 11, 147 P.3d 1176; see also Warenski v. Advanced RV Supply, 2011 UT App 197, ¶ 8, 257 P.3d 1096 (stating that testimony that is “clearly based on scientific, technical, or other specialized knowledge” should be considered as “expert testimony rather than fact testimony” (quotation simplified)), cert denied, 268 P.3d 192 (Utah 2011). A fact witness is thus only allowed to “testify in the form of fact or opinion” if the testimony “is helpful to the finder of fact” and is within the witness’s “personal knowledge or perception.” State v. Sellers, 2011 UT App 38, ¶ 26, 248 P.3d 70; see also Utah R. Evid. 701.

¶42        Here, Accountant had no firsthand knowledge concerning the family in general or about Danny’s income in particular, yet he was presented with various financial exhibits, including Danny’s tax returns, and was allowed to offer testimony about them. Amy’s attorney then questioned Accountant about certain line items in those documents. At one point, for instance, Accountant explained how a wage on a W-2 form was neither for Danny nor was it “a qualified deduction” from Danny’s company, because “the income from [Danny’s] business” would be different from the amount represented in the form which “specifically calculates adjusted income for [that] specific tax deduction.” We have no difficulty concluding that this sort of testimony was expert testimony, not fact testimony, because it was based not on Accountant’s own personal observations but, instead, on his “technical” and “specialized knowledge.” See Utah R. Evid. 701.

¶43      Accountant should not have been allowed to provide this sort of testimony under these circumstances. Despite the court’s stated intention not to “apply the [discovery] rules unevenly,” in our view that is exactly what happened here. The court imposed an inappropriately severe sanction on Danny, while at the same time allowing Amy to offer undisclosed expert testimony. We trust that, on remand, these errors will be corrected.

CONCLUSION

¶44      Because Danny did not violate any discovery or disclosure order, the court’s effort to sanction him pursuant to rule 37 was improper. In addition, the court erred by allowing Accountant to offer expert testimony without having provided a requested expert report. We therefore reverse the imposition of sanctions on Danny, vacate the court’s order modifying the Decree, and remand the matter to the district court for a new trial.

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


[1] Because the parties share the same last name, we refer to them by their first names for ease of reference, with no disrespect intended by the apparent informality.

[2] Prior to the trial, Amy had filed a document stating a general objection to Danny’s pretrial disclosures, asserting that some of Danny’s exhibits had not been disclosed “in a timely manner” and asking the court to enter an order barring Danny from using such exhibits at trial. Neither in that document nor at trial did Amy ask for a negative-inference sanction (at least not until after the court brought it up on its own).

[3] An earlier version of rule 37 contained a provision similar to rule 26(d)(4). See Utah R. Civ. P. 37(h) (2013). That provision was deleted in 2015, apparently because the drafters considered it redundant. See id. R. 37 advisory committee notes to 2015 amendment (“Former paragraph (h), which prohibited a party from using at a hearing information not disclosed as required, was deleted because the effect of non-disclosure is adequately governed by Rule 26(d).”). In the rules’ current iteration, this language appears only in rule 26(d)(4).

[4] Recall that the court itself—at the hearing at which it ordered a continuance of the November trial date—had been inclined to order a specific deadline for Danny’s disclosure of the belatedly prepared 2020 tax return, but ended up not doing so after both attorneys asked the court not to impose any deadline.

[5] This pretrial order was also in place in advance of the scheduled November 2021 trial date, and Danny was—at least temporarily— out of compliance with that order when he failed to hand over his 2020 tax return within twenty-eight days of the November trial date. He explained, however, that he was unable to generate the tax return because of software issues, and on that basis the court continued the November trial date, rescheduling the trial for March 2022. This continuance had the effect of curing Danny’s temporary noncompliance with the court’s pretrial order; as noted, Danny fully complied with it as it relates to the March 2022 rescheduled trial date.

[6] At trial, Amy’s attorney represented to the court that Danny’s disclosure of the 2020 tax return had been “[n]ot timely.” As discussed below, we generously interpret this as an allusion to Danny’s obligation to timely supplement his rule 26 disclosures. See Utah R. Civ. P. 26(d)(5). To the extent that this comment represented an assertion that Danny’s disclosure violated a court order, that assertion was inaccurate. Indeed, on appeal, Amy concedes that Danny produced his 2020 tax return to her “twenty-nine (29) days before trial.”

[7] 7. Conduct similar to Danny’s might, under some circumstances, also be a violation of rule 26.1(f), which provides that a party’s “[f]ailure to disclose all assets and income in the Financial Declaration and attachments” in a domestic relations action “may subject the non-disclosing party to sanctions under Rule 37.” See Utah R. Civ. P. 26.1(f). Indeed, Amy invites us to affirm the court’s sanctions order on this basis. We decline this invitation because, in our view, this alternative ground for affirmance is not apparent on the record. See Pentalon Constr., Inc. v. Rymark Props., LLC, 2015 UT App 29, ¶ 25, 344 P.3d 180 (“We will not affirm a judgment if the alternate ground or theory is not apparent on the record.” (quotation simplified)). As an initial matter, this argument is unpreserved; at trial, there was no discussion of rule 26.1 from any party or from the court, and there is no indication in the record that the court intended to base its sanction on rule 26.1(f). Moreover, it is far from apparent to us that the language of rule 26.1(f) authorizes rule 37 sanctions in the absence of a court order; certainly, Amy has not persuaded us that this is the case, especially given the plain language of rule 37(b) and our case law. See, e.g.Eskamani v. Auto-Owners Ins. Co., 2020 UT App 137, ¶ 49, 476 P.3d 542.

[8] Danny also complains that Amy never submitted initial disclosures, and that—despite a court order—she did not produce any documentation about a second source of income (rental properties). As near as we can tell from the record, Danny’s complaints are accurate. We see no need for further discussion of them here, however; Danny remains free to seek relief from the district court regarding these issues on remand.

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What Are My Chances of Gaining Full or Primary Custody of My Child as a Father?

First, you need ask a different question before you get to the question of a father’s chances of winning full or primary custody of children in divorce. The question should not be “what are my chances,” but instead, “What custody arrangement is best for our children?”

It is my view that as long as both parents are fit (not perfect, and not equally fit, but each parent meets minimal requirements of parental fitness), both parents love their children and want to be as involved as they can be with their children while the children are still minors, and both parents live within very close proximity to each other so that the children have the same friends and activities in the same neighborhood regardless of which parent they are with at a given time, then the parents should be awarded joint custody. Joint custody does not necessarily mean 50/50 custody, by the way. For example, in Utah, where I practice divorce and family law, joint physical custody* is defined in the Utah Code as “the child stays with each parent overnight for more than 30% of the year”; so that means that if Dad has the children in his custody 111 overnights out of 365, he’s considered a “joint physical custodian”.

With that stated, I’ll address your question: What are my chances of gaining full or primary custody of my child as a father? Generally speaking, in contemporary culture? Not great. Heck, not even good, but still better than it was a generation ago.

I’m a divorce lawyer. I’m 55 years old. When I was still a child (a teenager) in the 1980s, the way joint child custody for fathers was discussed would lead you to conclude that the authors had never even contemplated it before. One article I found treats the subject of a law passed in 1981 “authorizing joint custody of children after separation or divorce”. Really? Joint custody wasn’t even an option until 1981? And this paragraph is from article published in 1984:

A small revolution has begun in child custody law, and as yet its dimensions and ultimate direction are uncertain. Joint custody, the sharing of legal authority by divorced or separated parents over their children, is gaining acceptance as the best arrangement for most children when their parents divorce.

We’ve come a long way since then, but there is still an undeniable bias that takes two forms: 1) bias in favor of mothers (and thus, consequently against fathers) and 2) a specific bias against fathers in the child custody analysis.

Judges, whether they be men or women, generally (not all judges, but most still) believe that mothers are superior caregivers, that children are generally more closely bonded with their mother than with their fathers, and that men who say they want to exercise joint custody do so to a) gain leverage in divorce negotiations over issues that have little or nothing to do with child custody and/or b) reduce the amount of child support they pay. It’s pretty sexists thinking, and you’re rarely going to find a judge who’s dumb enough to express his/her views so starkly, but the bias is there. It doesn’t matter if you’re a male or female lawyer; we all see it.

If you’re clearly an absentee father, then your hope of being awarded joint custody rests largely on whether you are lucky enough to live in a jurisdiction that awards joint custody more or less by default. I’ve heard that such jurisdictions exist, but I don’t live in one now.

But if you are a good, loving, fit father, what can you do to improve their chances of the court making a joint physical and legal custody award? In no particular order: 1) call out the bias (do it diplomatically, if possible). 2) gather and present ludicrously overwhelming evidence of your parental fitness. The bias against fathers results in mothers essentially being presumed fit parents and father being presumed unfit. It’s disgustingly unfair, but crying about it isn’t enough to overcome it. Fathers must work much, much harder and provide much, much more objectively verifiable evidence of parental fitness than do mothers. Prove beyond any reasonable doubt that you clearly meet all of the criteria in your jurisdiction for qualifying for a joint custody award. 3) Be prepared for a long, expensive, unfair fight. Don’t give up. You’ll want to, perhaps even several times over the course of the court case. 4) Do not fall for the “well, we’ll start with minimum visitation/parent-time and see about working our way up to joint” settlement offer scam—that’s usually structured (whether intentionally or not) to keep you at minimum time.

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


*There are two kinds of child custody: physical and legal. Physical custody is the right to have the child live with the person awarded custody by the court (Black’s Law Dictionary 11th ed. 2019). Legal custody is the authority to make significant decisions on a child’s behalf, including decisions about education, religious training, and healthcare. (Id.) Make sure you seek both joint physical AND joint legal custody. And unless you don’t want equal (i.e., 50/50, no parent has more than the other) custody, make sure you specifically request an award of equal legal and physical custody. It’s not a given.

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What Is the Benefit of a Legal Separation (Separate Maintenance) or a Temporary Separation Order in Utah?

Many people ask what the benefits of a legal separation are. Aside from the obvious “it gives us the option of staying together, if we want to,” are there other reasons the average person might want to separate but not divorce immediately?

I have the same conversation with potential clients who ask whether they “need” or “should get” a legal separation or temporary separation order instead of/before seeking a divorce. I tend to agree with you, i.e., that I see no benefits to legal separations for the majority of people. I’m sure that there is the occasional couple who might benefit from a legal separation or temporary separation order, but I have yet to encounter one. With two (maybe three) exceptions (and one of those ended in suicide), everyone I know who has separated ended up divorcing.

Sometimes separation makes sense if a spouse needs insurance coverage and can’t afford his/her own separate policy (note: some insurance policies require that spouses reside together, so in a situation like that, separation wouldn’t avail a spouse of insurance benefits).

Attorneys who sell separate maintenance or separation orders are, in my experience, doing so to make money, not to solve anyone’s or any couple’s problems.

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

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Do Many Women Lie About DV in Divorce and Child Custody Court Cases?

Yes. Many women (not all, but many more than we’d like to believe unquestionably lie and make outright false or grossly exaggerated domestic violence claims. The temptation to tell such lies is just too great for many women when they see the leverage and advantage it gives them in divorce and child custody cases, the immediate “temporary” custody of the children and associated child and spousal support and possession of the marital home, and the money to be had by being awarded sole or primary child custody and/or alimony in part due to making claims that the husband/father is a spouse and/or child abuser.

Do men do the same? Of course some men do. But rarely are they believed. So, that keeps the liars in check to some extent, at the expense of actual male domestic violence victims.

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

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