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Tag: 2019

2019 UT App 208 – In re E.R. – termination of parental rights

2019 UT App 208 – THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF E.R., A PERSON UNDER EIGHTEEN YEARS OF AGE.
J.R., Appellant,
v.
STATE OF UTAH,Appellee.

Opinion
No. 20190184-CA
Filed December 19, 2019

Fourth District Juvenile Court, Provo Department
The Honorable F. Richards Smith
No. 1012098

Margaret P. Lindsay, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES GREGORY K. ORME and KATE APPLEBY concurred.

CHRISTIANSEN FORSTER, Judge:

¶1            J.R. (Mother) appeals the juvenile court’s termination of her parental rights to E.R. We affirm.

BACKGROUND

¶2            The Division of Child and Family Services (DCFS) has been involved with Mother and her family on and off since 2008. Between 2008 and Mother’s termination trial in 2018, DCFS made multiple supported findings of environmental neglect against both Mother and her husband (Father) with respect to their three children, as well as findings of emotional maltreatment, emotional abuse, domestic-violence abuse, and physical abuse against Father.

¶3            E.R. is the youngest of Mother’s three children and was eleven years old at the time of Mother’s termination trial. E.R. “has been diagnosed with behavioral and emotional dysregulation, secondary post-traumatic stress disorder (PTSD), mood disorder and Asperger’s.” E.R. has severe behavioral problems, including aggression and suicidal ideation.

¶4            Mother and Father divorced in 2013. “The current case was initiated in January 2016 when DCFS supported a finding of dependency against the parents as to” E.R. after he was hospitalized twice in the course of a month. The Utah State Hospital accepted E.R. for admission but eventually withdrew its placement offer after Father refused to consent to his hospitalization. Subsequently, DCFS sought and obtained a warrant to take E.R. into protective custody. The juvenile court awarded legal custody and guardianship of E.R. to DCFS and set concurrent goals for E.R. of reunification with Mother or permanent custody and guardianship with a relative.[1] DCFS first placed E.R. at the Utah State Hospital and later placed him with a foster family. On November 30, 2016, the court terminated reunification services after finding that neither parent was in substantial compliance with the reunification plan. The court then “set a primary goal of adoption with a concurrent goal of permanent custody and guardianship.” On September 28, 2017, the State filed a petition to terminate Mother’s and Father’s parental rights, which was later bifurcated. The court terminated Father’s parental rights following a trial in March 2018.

¶5            Mother’s termination trial was held in August and November 2018, following which the court terminated Mother’s parental rights. The court found that Mother had made “some progress” in therapy but that she “continues to minimize her own issues and the role she played in the difficulties in her home.” The court attributed her progress “partly to her years of treatment, and partly to the fact that she has not been parenting [E.R.] for the last three years.” It further found that although E.R. and Mother are bonded and have had appropriate contact in their bi-weekly visits, Mother “does not possess the skills needed to effectively parent [E.R.] over time.” The court found grounds for termination based on its determination that Mother is “an unfit or incompetent parent,” that there had “been a failure of parental adjustment,” and that Mother had not remedied the circumstances causing E.R. to be in an out-of-home placement and was unlikely to be capable of exercising proper parental care in the future. See Utah Code Ann. § 78A-6-507(1)(c)–(e) (LexisNexis 2018).

¶6            The court found that E.R. had made “significant progress” through the “intense treatment he received at the State Hospital,” “ongoing treatment,” and the skills and efforts of his foster family. It found that E.R. was “bonded with his mother, and desires to have ongoing contact with her,” and that the “foster parents are supportive of appropriate ongoing contact between [E.R.] and his now-adult siblings, and between [E.R.] and his mother, and have encouraged such contact.” The court believed that “[i]f the foster parents were to adopt [E.R.,] they would continue to support that contact as long as it is healthy for [E.R.] and in his best interest.”

¶7            The court found that it was in E.R.’s best interest to be adopted by the foster parents. It observed that E.R. “has a particular aversion to anything court related” and that court proceedings cause him significant distress. For this reason, the court determined that E.R. “has a significant need for stability in his placement” and that awarding permanent custody and guardianship to the foster parents, rather than terminating Mother’s rights and permitting him to be adopted, “would be detrimental to [him], and deny him the sense of permanency and stability that he so desperately needs.” The court therefore determined that terminating Mother’s parental rights was strictly necessary to further E.R.’s best interest. Mother now appeals the court’s termination decision.

ISSUE AND STANDARD OF REVIEW

¶8            “The ultimate decision about whether to terminate a parent’s rights presents a mixed question of law and fact.” In re B.T.B., 2018 UT App 157, ¶ 8, 436 P.3d 206 (quotation simplified), cert. granted, 440 P.3d 692 (Utah 2019). We review the court’s factual findings for clear error and its legal conclusions for correctness, “affording the court some discretion in applying the law to the facts.” Id. (quotation simplified). Ultimately, due to “the factually intense nature” of a termination decision, “the juvenile court’s decision should be afforded a high degree of deference,” and we should overturn it only if the result is “against the clear weight of the evidence” or leaves us “with a firm and definite conviction that a mistake has been made.”[2] In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435 (quotation simplified).

ANALYSIS

¶9            Mother argues that the juvenile court exceeded its discretion in terminating her parental rights. In assessing whether termination of parental rights is appropriate, a court must engage in a “two-part test.” In re B.T.B., 2018 UT App 157, ¶ 13, 436 P.3d 206, cert. granted, 440 P.3d 692 (Utah 2019). “First, a trial court must find that one or more of the statutory grounds for termination are present,” and second, “a trial court must find that termination of the parent’s rights is in the best interests of the child.” Id. (quotation simplified). Mother does not contest the juvenile court’s determination that grounds existed to support termination, but she maintains that termination was not in E.R.’s best interest.

¶10 “[A] parent’s right to raise her child is a fundamental right, and although courts must view the ‘best interest’ element from the perspective of the child, in so doing courts should not forget the constitutional dimension of the parental rights on the other side of the ledger.” Id. ¶ 55. “[A]s part of the ‘best interest’ analysis required by the second element of the two-part test, along with all of the other facts and circumstances relevant to the case, trial courts should analyze whether termination of a child’s parent’s rights is ‘strictly necessary.’” Id. ¶ 50; see also Utah Code Ann. § 78A-6-507 (LexisNexis 2018) (“Subject to the protections and requirements of Section 78A-6-503, and if the court finds strictly necessary, the court may terminate all parental rights with respect to a parent if the court finds any one of the following [statutory factors] . . . .” (emphasis added)). An assessment of whether termination is strictly necessary “requires courts to explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights.” In re B.T.B., 2018 UT App 157, ¶ 55. “[I]f there is a practical way to keep parents involved in the children’s lives that is not contrary to the children’s best interests, a court should seriously consider such an option.” Id. “After this consideration, if a juvenile court determines that no such alternatives are available or articulates supported reasons for rejecting alternatives that do exist, such findings are entitled to deference on appeal.” In re C.T., 2018 UT App 233, ¶ 16, 438 P.3d 100.

¶11 Mother asserts that the court did not adequately explore the feasibility of granting permanent custody and guardianship to the foster parents while permitting her to continue having visitation rights. First, she points to the court’s observation that “the only issue before the Court in this matter is whether parental rights should be terminated” and that “[q]uestions of . . . potential permanent custody and guardianship . . . are not even before the Court at this time.” Mother contends that this statement demonstrates that the juvenile court misunderstood its duty to examine the feasibility of alternatives to termination. However, in context, it is clear that the court was merely explaining its inability to make a final ruling on other options at the time of the termination trial. The court further clarified, “[C]ertainly if parental rights are not terminated, it does not mean an automatic change in status. In fact, all it means is status quo until further decision by the Court. . . . I just didn’t want anyone to have false expectations regarding the outcome of this trial either way.” And the court’s written findings ultimately did address the feasibility of alternatives in the context of its best interest analysis.

¶12 The court found that E.R. is an autistic child with significant behavioral issues. He “has been diagnosed with behavioral and emotional dysregulation, secondary post-traumatic stress disorder (PTSD), mood disorder and Asperger’s.” His behavioral issues require his foster parents to “respond to [his] emotional dysregulation . . . , sometimes multiple times a day, and help him work through it, get back to rational thinking, and avoid escalation.” The court found that E.R. was “weary” of “DCFS and court involvement” and that “[p]articipation in court proceedings of any kind causes him distress, to the point that he doesn’t even want to be aware of when court hearings will occur.” The court found that E.R. “needs the stability and peace that would come with closure of the DCFS case and a permanent end to court involvement.” In light of E.R.’s specific needs and his aversion to court involvement, the court concluded, “[E.R.] has a significant need for stability in his placement. He needs to know where he’s going to stay, and who will be his permanent caretaker.” The court further concluded that “[a]warding permanent custody and guardianship of [E.R.] to his foster parents . . . would leave open the specter of repeated court involvement in the form of orders to show cause, motions, hearings, and so forth, related to visitation compliance issues, visitation modification requests, etc.” and that this would be “detrimental to [E.R.], and deny him the sense of permanency and stability that he so desperately needs.”

¶13 Mother challenges these findings, asserting that E.R. would not need to be told about future court proceedings and that it was by no means certain that further court proceedings would actually occur once an order of guardianship and visitation was entered. But Mother’s challenges do not demonstrate that the juvenile court’s findings were against the clear weight of the evidence. Having examined the specific circumstances of this case and the individual needs of E.R., the court concluded that even the “specter” of future court involvement was detrimental to E.R. And even if a concerted effort were made to shield E.R. from knowledge about court dates, there is no guarantee that such efforts would be successful, especially if a contentious order to show cause or petition to modify were filed in the future. See In re J.P., 921 P.2d 1012, 1019 (Utah Ct. App. 1996) (discussing the nature of permanent guardianship and its lack of finality).

¶14 Although we have previously made it clear that the need for permanency “does not, by itself, establish that termination is in a particular child’s best interest,” In re D.R.A., 2011 UT App 397, ¶ 14, 266 P.3d 844, the court’s emphasis of E.R.’s need for permanency in this case was reasonable. The court did not rely on the general desirability of permanency but on E.R.’s personal need for permanency in light of his significant psychological issues and his particular aversion to anything court-related. These articulated reasons for rejecting the feasibility of permanent guardianship were supported by the evidence and are entitled to deference. See In re C.T., 2018 UT App 233, ¶ 16. Thus, we decline to disturb the juvenile court’s finding that termination of Mother’s parental rights was in E.R.’s best interest.

CONCLUSION

¶15 The juvenile court adequately examined the feasibility of alternatives to terminating Mother’s parental rights in assessing E.R.’s best interest, and its finding that termination was strictly necessary was not against the clear weight of the evidence. Accordingly, we affirm the juvenile court’s termination of Mother’s parental rights.

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

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[1] E.R.’s two older siblings continued to reside with Mother until they were removed in October 2016 as a result of several incidents of abuse and neglect by Mother.

[2] 2. Mother challenges this standard of review, asserting that appellate courts should take a more active role in examining the correctness of a juvenile court’s decision regarding termination of parental rights in light of the important constitutional rights involved. She asserts that the “standard of review that has developed over time in termination of parental rights cases is so
deferential to the decision of the juvenile courts that . . . no longer do these decisions concern mixed questions” and that the standard of review “takes any responsibility and power in these mixed questions of law and fact away from the appellate court and affords total power and discretion to the individual juvenile courts around the State.” Mother urges us to reexamine the correct “spectrum of deference” for parental termination cases in light of the factors outlined by our supreme court in State v. Levin, 2006 UT 50, 144 P.3d 1096. Id. ¶¶ 25, 28.

However, we are not in a position to overturn the supreme court’s articulated standard of review, see State v. Tenorio, 2007 UT App 92, ¶ 9, 156 P.3d 854 (“Vertical stare decisis compels a court to follow strictly the decisions rendered by a higher court.” (quotation simplified)), which instructs us to afford the juvenile court’s termination decision “a high degree of deference,” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. Moreover, we have previously rejected the assertion that due process requires a more stringent standard of review in termination cases, In re S.Y.T., 2011 UT App 407, ¶¶ 31–37, 267 P.3d 930, reaffirming the principle that the juvenile court’s superior opportunity to make witness-credibility determinations entitles it to a high degree of deference and that we should overturn termination decisions only “if the clear weight of that evidence is against the juvenile court’s determination,” id. ¶¶ 36–37.

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2019 UT App 204 – In re H.F. incorrect analysis terminating parental rights

2019 UT App 204 – THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF H.F., A PERSON UNDER EIGHTEEN YEARS OF AGE.
J.F., Appellant,
v.
E.F., Appellee.

Opinion
No. 20180348-CA
Filed December 12, 2019

Third District Juvenile Court, Salt Lake Department
The Honorable Julie V. Lund
No. 1100472

Scott L. Wiggins and Lisa Lokken, Attorneys for Appellant
Joshua P. Eldredge, Attorney for Appellee
Martha Pierce, Guardian ad Litem

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.

CHRISTIANSEN FORSTER, Judge:

¶1           J.F. (Mother) appeals from the juvenile court’s termination of her parental rights to H.F. (Child). We reverse and remand for further proceedings.

BACKGROUND

¶2           Child was born in December 2012. Soon after Child’s birth, Mother discovered that her husband, E.F. (Father), had been using drugs. Suffering from postpartum depression, Mother also began using drugs with Father as a means of self-medicating.

¶3           In March 2014, the Division of Child and Family Services (DCFS) removed Child from Mother and Father’s home as a result of their drug use. Upon removal, DCFS placed Child with Mother’s parents (Grandparents). During this time, Grandparents facilitated visitation between Child and Father, as well as Father’s extended family.

¶4           Soon after Child was removed from the parents’ home, Mother began a relationship with “a really bad guy.” She left Utah with him, and they began committing crimes together. Eventually, the pair were arrested, convicted of multiple crimes, and incarcerated.

¶5           Conversely, Father began participating in drug treatment in June 2014. After completing treatment, he became involved in various peer support groups to help others with drug addiction and even obtained a full-time job as a peer recovery coach for a nonprofit addiction-recovery agency. In March 2015, Father filed for divorce from Mother and was granted a default divorce awarding him full legal and physical custody of Child. In May 2015, upon the State’s motion, the juvenile court terminated its jurisdiction and DCFS involvement. After Father regained custody of Child, Grandparents continued to provide regular daycare for Child.

¶6           In July 2016, Father moved the juvenile court to terminate Mother’s parental rights. Father was engaged to be married, and his fiancée (Fiancée) wanted to adopt Child, but they had not yet set a wedding date and were not yet living together.[1] Grandparents “had a heated conversation with” Father about his termination petition, and subsequently, he put Child in full-time daycare and did not permit Grandparents to see Child as often.

¶7           At Mother’s termination trial in December 2017, her former criminal attorney expressed his belief that Mother’s criminal actions had been “very much influenced by” her co­defendant but that she “was a model defendant”; continually showed concern for her family and a desire to take care of her children;[2] had come to understand, through participation in counseling, her responsibilities and the detrimental effects of her co-dependent relationship with her co-defendant; and ultimately told the truth about the criminal incidents even though her co­defendant was damaged by her admissions. Mother was still incarcerated at the time of the termination trial but was due to be released in April 2019. She had been participating in a voluntary drug-treatment program. She testified that prior to Child’s removal, she was his “sole care provider.” She testified that she has a bond with Child, that she has had regular telephone and video calls with him since losing custody and sends him letters, that Child had expressed his desire to be reunited with Mother, and that she wants to have “visitation as much as possible” and to “be in [Child’s] life as much as [she] can.” She testified that she regrets her past decisions and their effect on her children, but she also could not rule out the possibility of a relationship with her co-defendant when he is released from prison in eight or nine years.

¶8        Father testified that he was willing to support a continuing relationship between Child and Mother following termination of her rights so long as it was “safe” for Child. Although Father did not discourage Child’s contact with Mother, he did not directly facilitate Mother and Child’s contact; rather, this contact took place when Child visited Grandparents. Both Father and Fiancée testified that Child has a very good relationship with Fiancée, that she treats him like her own child, and that Child sees her as his mom. Father testified that he believed Child’s relationship with Mother’s family was “beneficial.” He claimed that Child’s relationship with Mother’s family would not change if Mother’s rights were terminated. He admitted that he “could make a better effort in . . . communicating to set” up time between Child and Mother’s extended family but explained that he had felt a need to set “boundaries” because the termination petition had “put a strain” on his relationship with Mother’s family.

¶9        Grandparents expressed fear that termination would “have a very negative impact on [their] relationship with [Child]” and that Father “would move on” and “find a way to take [Child] away from” Grandparents. Mother’s brother, who also had a close relationship with Father, expressed his belief that Father had become uninterested in Mother’s side of the family and that Father would not let Mother’s family see Child anymore if Mother’s rights were terminated. Another of Mother’s brothers likewise testified that the family’s contact with Child had been less frequent during the preceding year and that he believed Father would cut off contact between Child and Mother’s family if the court terminated Mother’s rights.

¶10 Following trial, the juvenile court found two grounds for termination: (1) that Mother was an unfit parent because she was unable to care for Child as a result of her incarceration and (2) that she had neglected child through her habitual and excessive use of controlled substances. See Utah Code Ann. § 78A-6-507(1)(b), (c) (LexisNexis 2018); id. § 78A-6-508(2)(c), (e) (Supp. 2019). The court further found that termination was in Child’s best interest.

¶11 In reaching its conclusion regarding Child’s best interest, the juvenile court limited its analysis to three factors—Child’s “bond with his caregivers,” his “need for permanence and stability,” and “the potential risk of harm if returned to [Mother’s] care.” The court found that there was not an intact parental relationship between Mother and Child because she had not acted as his caregiver for an extended period of time. It observed that although Child recognizes that Mother is his mom, he has developed a mother–child bond with Fiancée as well. The court also found that Fiancée intended “to adopt [Child] should he be legally free.” The court concluded that “[t]hese facts support the need for permanence and stability and that [Child] does have a bond with his caregivers.” The court further found that there was “a potential risk of harm to” Child from Mother because she could not rule out the possibility of a future relationship with her co-defendant, who had been described as a “really bad guy.” Finally, the court found that termination of Mother’s rights was “strictly necessary for [Child] to achieve permanency and stability.” Based on these findings, the court determined that it was in Child’s best interest that Mother’s parental rights be terminated. Mother now appeals.

ISSUE AND STANDARD OF REVIEW

¶12 Mother argues that the juvenile court exceeded its discretion in terminating her parental rights. “The ultimate decision about whether to terminate a parent’s rights presents a mixed question of law and fact.” In re B.T.B., 2018 UT App 157, ¶ 8, 436 P.3d 206 (quotation simplified), cert. granted, 440 P.3d 692 (Utah 2019). We review the court’s factual findings for clear error and its legal conclusions for correctness, “affording the court some discretion in applying the law to the facts.” Id. (quotation simplified). Nevertheless, “the proper interpretation and application of a statute is a question of law which we review for correctness.” In re A.M., 2009 UT App 118, ¶ 6, 208 P.3d 1058 (quotation simplified).

ANALYSIS

¶13 In assessing whether termination of parental rights is appropriate, a court must employ a “two-part test.” In re B.T.B., 2018 UT App 157, ¶ 13, 436 P.3d 206, cert. granted, 440 P.3d 692 (Utah 2019). “First, a trial court must find that one or more of the statutory grounds for termination are present,” and second, “a trial court must find that termination of the parent’s rights is in the best interests of the child.” Id. (quotation simplified). Mother does not contest the juvenile court’s determination that grounds existed to support termination, but she maintains that termination was not in Child’s best interest and that the court did not adequately consider all factors relevant to that determination.

¶14 “The ‘best interest’ test is broad, and is intended as a holistic examination of all the relevant circumstances that might affect a child’s situation.” Id. ¶ 47; see also In re G.J.C, 2016 UT App 147, ¶ 24, 379 P.3d 58 (“Determining a child’s best interest in termination of parental rights proceedings is a subjective assessment based on the totality of the circumstances.”). Utah courts have identified numerous factors that may be relevant to this determination. For example, a court may consider “the physical, mental, or emotional condition and needs of the child”; “the effort the parent has made to adjust their circumstances, conduct, or conditions to make restoring the parent–child relationship in the child’s best interest”; “the child’s bond with caregivers”; the child’s “need for permanency and stability”; and “the potential risk of harm if returned to the parents’ care.” See In re G.J.C., 2016 UT App 147, ¶ 24 (quotation simplified). It may consider the parent’s “demeanor,” “attitude toward his or her child,” and “attitude in fulfilling parental obligations,” see In re T.E., 2011 UT 51, ¶ 44, 266 P.3d 739, and it may weigh the benefits of the child continuing a relationship with an unfit parent even where reunification is not an option, examine the child’s prospects for adoption, and even consider the child’s preferences in some circumstances, In re D.R.A., 2011 UT App 397, ¶¶ 19, 21, 266 P.3d 844; see also In re B.T.B., 2018 UT App 157, ¶ 56. Moreover, as part of the best interest analysis, Utah law requires courts to “analyze whether termination of a child’s parent’s rights is ‘strictly necessary,’” that is, the court must “explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights.” In re B.T.B., 2018 UT App 157, ¶¶ 50, 55; see also Utah Code Ann. § 78A-6-507(1) (LexisNexis 2018) (“Subject to the protections and requirements of Section 78A-6-503, and if the court finds strictly necessary, the court may terminate all parental rights with respect to a parent if the court finds any one of the following [statutory factors] . . . .” (emphasis added)).

¶15 In conducting its best interest analysis, the juvenile court did not take the holistic approach that has been prescribed by this court. Rather than examining the totality of all circumstances affecting Child’s best interest, the court erroneously interpreted In re G.J.C., 2016 UT App 147, 379 P.3d 58, as articulating a best interest test composed of only three specific factors: (1) “bond with caregivers,” (2) “need for permanence and stability,” and (3) “the potential risk of harm if returned to the parent’s care.” See id. ¶ 24. Further, the court’s finding that termination was “strictly necessary” was conclusory and did not include an examination of feasible alternatives to termination, as required by In re B.T.B., 2018 UT App 157, 436 P.3d 206.[3]

¶16 The court’s reliance on only the three specific factors gleaned from In re G.J.C. unduly narrowed the “broad,” “holistic” best interest test, see In re B.T.B., 2018 UT App 157, ¶ 47, and its order did not accurately represent the direction given by this court in In re G.J.C.[4] The three factors identified in In re G.J.C. were not given as a definitive list of factors; rather the court stated that those three factors were “proper” factors to consider “in the context of a best-interest determination.” 2016 UT App 147, ¶ 24. Indeed, the court explicitly instructed that a best interest determination must be “based on the totality of the circumstances.” Id. This court reaffirmed and elaborated on this “holistic” approach in In re B.T.B., when it instructed “courts to examine all of the relevant facts and circumstances surrounding the child’s situation” and, in particular, “to explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights,” in order to satisfy the legislature’s requirement that termination be limited to circumstances where it is “strictly necessary.” 2018 UT App 157, ¶¶ 47, 54–55.

¶17 Because of the court’s narrow focus on only three factors pertaining to the best interest analysis, its findings do not reveal whether the court considered a number of additional factors relevant to determining if termination of Mother’s rights was in Child’s best interest, including the fact that Child’s prospects for adoption by Fiancée were speculative, Child’s bond with Mother and any benefits of him continuing a relationship with Mother, and the effect of termination on Child’s relationship with his extended family, including his half-sister.[5] Further, while the court’s analysis emphasized Child’s need for stability, it is unclear how terminating Mother’s parental rights would achieve that goal. Child was not in DCFS custody or a short-term placement with a foster family with an unsettled future. Rather, Father had permanent sole legal and physical custody of Child. Child would continue to be raised primarily by Father and Fiancée, regardless of whether Mother’s parental rights were terminated. And while termination would free Child for adoption by Fiancée, Fiancée was not in an immediate position to adopt Child, and it was not certain that she would ever be in such a position, as she and Father were not actually married. Even the danger anticipated by the juvenile court if Mother eventually resumed her relationship with her co-defendant was mostly speculative, as the co-defendant would not be released from prison for many years. See In re D.R.A., 2011 UT App 397, ¶ 21 (determining that the State had failed to establish that termination was in a child’s best interest in part because “the benefits of severing” the parent–child relationship were “too speculative”). Finally, the court’s determination that termination was strictly necessary was not supported by an appropriate exploration of feasible alternatives to termination. See In re B.T.B., 2018 UT App 157, ¶ 55. Therefore, the juvenile court’s findings do not support its determination that termination was in Child’s best interest.

CONCLUSION

¶18 Because the juvenile court did not employ the correct holistic analysis in assessing whether termination of Mother’s parental rights was in Child’s best interest and its findings do not support such a determination, we vacate the court’s order terminating Mother’s parental rights and remand for further proceedings consistent with this opinion.[6]

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

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[1] Utah law requires a prospective adoptive stepparent to be married to the child’s custodial parent and to have lived with the custodial parent and the stepchild for at least one year prior to entry of the final decree of adoption. Utah Code Ann. § 78B-6¬ 117(2)(a) (LexisNexis Supp. 2019); id. § 78B-6-136.5(2)(a) (2018). Thus, as of the termination trial, Fiancée was at least one year away from being able to adopt Child.

[2] Mother has another child who was not included in the termination proceedings.

[3] Father argues that the juvenile court was not required to engage in the “strictly necessary” analysis prescribed by In re B.T.B. because that case was decided after the court issued its oral ruling in this case. However, Father makes no effort to explain why we should not apply this analysis. The “strictly necessary” language has been part of the statute since 2012, Act of March 7, 2012, ch. 281, § 6, 2012 Utah Laws 1331, 1334; In re B.T.B. merely interpreted that statutory language. And upon interpreting the language, the In re B.T.B. court sent that case back to the trial court for reconsideration: “Because we clarify and partially reformulate the test for termination of parental rights, we remand this case to the juvenile court for reconsideration in light of this opinion.” 2018 UT App 157, ¶ 2, 436 P.3d 206, cert. granted, 440 P.3d 692 (Utah 2019). Father also fails to acknowledge that the juvenile court’s final written order was actually signed one month after In re B.T.B. was issued. We therefore reject Father’s assertion that the court’s failure to engage in a more thorough “strictly necessary” analysis should be ignored on appeal.

[4] In re G.J.C. has limited utility in any event because it employed the now-disavowed principle that “where grounds for termination are established, the conclusion that termination will be in a child’s best interest follows almost automatically.” 2016 UT App 147, ¶ 25, 379 P.3d 58 (quotation simplified); see also In re B.T.B., 2018 UT App 157, ¶¶ 22–44 (disavowing the “almost automatically” line of cases).

[5] Our analysis should not be construed as prohibiting courts from focusing on those factors that it finds to be most probative in a particular case; not every factor will be relevant in every case, and even where evidence of a particular factor is present, a court may reasonably discount the factor and decline to discuss it in detail in its findings. The court’s ruling in this case is problematic not because it focused on limited relevant factors but because it misconstrued the best interest test as being limited to those factors and because it did not examine the feasibility of less-drastic alternatives to termination.

[6] Our decision should not be read as dictating any particular result on remand. Indeed, any number of circumstances may have changed since trial, and the court should take such changes into account in reconsidering its decision. On remand, the court should expand its analysis of best interest to consider the totality of the circumstances, examine the feasibility of alternatives to termination, supplement its findings, and assess whether termination is in Child’s best interest in light of any such supplemental findings.

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2019 UT App 206 – State v. Alires – ineffective assistance of counsel

2019 UT App 206 – THE UTAH COURT OF APPEALS

STATE OF UTAH, Appellee,
v.
PHILBERT EUGENE ALIRES, Appellant.

Opinion
No. 20181033-CA
Filed December 19, 2019

Third District Court, Salt Lake Department
The Honorable Adam T. Mow
No. 171908080

Ann M. Taliaferro and Staci Visser, Attorneys for Appellant

Sean D. Reyes and William M. Hains, Attorneys for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN concurred.

HAGEN, Judge:

¶1        Philbert Eugene Alires was charged with six counts of aggravated sexual abuse of a child—two counts for conduct toward his youngest daughter and four counts for conduct toward one of his daughter’s friends (the friend). A jury convicted Alires on two counts, one for each alleged victim, and acquitted him of the remaining four counts. We agree with Alires that his trial counsel was constitutionally ineffective in failing to request an instruction requiring the jury to reach a unanimous verdict with respect to each act for which he was convicted. Accordingly, we vacate his convictions and remand for further proceedings.

BACKGROUND[1]

¶2           One afternoon, Alires and his wife (the mother) hosted a party for their youngest daughter’s eleventh birthday. The daughter invited two of her guests—the friend and another friend (the other friend)—to a sleepover that night. As the evening progressed, the daughter, the friend, and the other friend joined others in the living room to play a video game called “Just Dance.”

¶3           Later that night, after everyone else had left, Alires and the mother got into a loud argument that the daughter, the friend, and the other friend overheard. The daughter appeared visibly upset and “started tearing up because her parents were fighting.” Both Alires and the mother could tell that the girls overheard and were affected by the argument.

¶4           Alires and the mother went to their bedroom and discussed how they could “try and make [the daughter] happy.” They decided that Alires would join the girls in the living room and “try to lighten the mood.” Alires testified that he can generally make the daughter happy by “wrestling” with her and her friends or other family members because it “usually ends up being a dog pile” on Alires and it “usually brings the kids together and usually changes the mood.” While Alires went to the living room, the mother stayed behind to change into her pajamas.

¶5           According to the friend, Alires went into the living room after the argument and “started trying to dance with [them]” and “lighten the mood” because “the fight wasn’t very fun for anybody.” While they were dancing, Alires “put his hand on [the friend’s] waist and kind of like slid it down, so [she] just sat down because [she] felt really uncomfortable.” Alires then “tried dancing with [her] again and he . . . touched around [her] butt,” though he “was kind of sneaky about it” as if he was “trying to make it look like it wasn’t happening.” On direct examination, the State asked the friend, “[H]ow does that get accomplished?” She responded, “I’m not sure. He just did it.”

¶6           Feeling uncomfortable, the friend sat down on the couch next to the daughter. Alires sat down between the two and “started tickling [the daughter].” The friend testified that, while Alires tickled the daughter, “it looked like he was touching like in her inner thigh, and like moved up to her crotch area.” According to the friend, “it was really not tickling, it was more like grabbing and grosping [sic].” This lasted “probably 15 to 30 seconds.” Then, Alires turned to the friend and said, “I’m going to tickle you now.” The friend told Alires she did not feel well and said, “[P]lease don’t.” But Alires started tickling near her “ribcage and then touched [her] breast area” and then he “started tickling [her] inner thighs and did the same thing that he did to [the daughter].” The friend testified, “[H]e slid his hand up to my vagina and started like grabbing, and like grosping [sic], I guess” for “[p]robably about seven to 10 seconds.”

¶7           According to the friend, when Alires got up from the couch, the daughter asked, “[D]id he touch you?” The friend said, “[Y]eah. And he touched you, because I kind of saw it.” The daughter “was like, yeah, can we just go to my room?”

¶8           According to the mother, she entered the living room about sixty seconds after Alires and told everyone that it was time to go to bed. The friend testified that it had been “probably about three minutes,” during which time Alires touched her buttocks “twice,” her breasts “twice,” and her vagina “[a]bout four times,” in addition to touching the daughter’s thigh and vagina.

¶9           Both the daughter and the other friend testified at trial that Alires did not touch anyone inappropriately and that they were only wrestling and tickling.

¶10 A few days after the birthday party, the daughter decided to report the friend’s claim to a school counselor. The daughter went to the counselor’s office in tears and when the counselor asked her if “something happen[ed] over the weekend” she “nodded her head yes.” The daughter “wouldn’t speak to [the counselor]” but told him that she was “going to go get a friend.” The daughter then left and returned to the counselor’s office with the friend. According to the counselor, the friend told him that Alires had touched both the daughter and the friend on “[t]he lower area and the breasts,” although “they first described it as tickling . . . whatever that means.” He also testified that the daughter “agreed to where the touching happened.” At trial, the daughter testified that she told the counselor only what the friend had told her.

¶11 The State charged Alires with six counts of aggravated sexual abuse of a child without distinguishing the counts. At trial, the jury was instructed that four of those counts were for conduct perpetrated against the friend and two of those counts were for conduct perpetrated against the daughter. During closing argument, the prosecutor explained that, based on the friend’s testimony, the jury could “ascertain six counts of touching of [the friend]” and that the State was “charging four” of those touches. The prosecutor also cited the friend’s testimony that she saw Alires touch the daughter on her “inner thigh” and “on her vagina.” The prosecutor further explained that “any one of those touchings qualifies for each of the counts. One for one. One touch for one count. And . . . it has to be just on the vagina, just on the butt, or just on the breast. It can be any combination.”

¶12 Although both parties submitted proposed jury instructions, neither side asked the court to instruct the jury that it must be unanimous as to the specific act underlying each count of conviction. During its deliberations, the jury sent a question to the court asking, “Can we please have a clarification on how the counts work? We don’t understand how to weigh each count when they are all the same. Not sure what they mean.” Alires’s trial counsel still did not request a specific unanimity instruction. Instead, with consent from both parties, the court referred the jury to instructions it had already received. The jury convicted Alires on one count of aggravated sexual abuse of a child involving the friend and one count involving the daughter.

¶13 After the jury returned its verdict and prior to sentencing, Alires filed a motion to arrest judgment and for a new trial due to, among other things, “fatal errors in the jury instructions and verdict forms.” Trial counsel argued that the jury instructions were “fatally erroneous in failing to require the jury to find a unanimous verdict.” The district court denied the motion and imposed two indeterminate terms of six-years-to-life in prison to run concurrently.

¶14 Alires appeals.

ISSUE AND STANDARD OF REVIEW

¶15 Alires argues that his trial counsel was constitutionally ineffective for failing to request a jury instruction that required the jurors to unanimously agree to the specific act at issue for each count of aggravated sexual abuse of a child.[2] Alires further argues that, due to the lack of such an instruction, we “cannot be assured the jury was unanimous” as to which specific acts formed the basis for his conviction. “When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” State v. Bonds, 2019 UT App 156, ¶ 20, 450 P.3d 120 (cleaned up).[3]

ANALYSIS

¶16 Alires argues that his trial counsel was ineffective for failing to request an instruction requiring the jury to unanimously agree on the specific act committed for each count of conviction. “To demonstrate ineffective assistance of counsel, [a defendant] must show that his counsel’s performance was deficient and that the deficient performance prejudiced the defense.” State v. Squires, 2019 UT App 113, ¶ 25, 446 P.3d 581 (cleaned up); see also Strickland v. Washington, 466 U.S. 668, 687 (1984). We agree with Alires that his trial counsel performed deficiently and that counsel’s deficient performance prejudiced his defense.

A. Deficient Performance

¶17 To overcome the high level of deference we give to trial counsel’s performance, Alires “must show that counsel’s representation fell below an objective standard of reasonableness when measured against prevailing professional norms.” See State v. Popp, 2019 UT App 173, ¶ 26 (cleaned up); see also Strickland, 466 U.S. at 687–88. Under the circumstances of this case, it was objectively unreasonable for trial counsel to propose instructions that did not require the jury to be unanimous as to the specific acts supporting each count of conviction.

¶18 The right to a unanimous verdict in criminal cases is guaranteed by Article 1, Section 10 of the Utah Constitution (the Unanimous Verdict Clause). “The Article I, section 10 requirement that a jury be unanimous is not met if a jury unanimously finds only that a defendant is guilty of a crime.” State v. Saunders, 1999 UT 59, ¶ 60, 992 P.2d 951. Instead, “[t]he Unanimous Verdict Clause requires unanimity as to each count of each distinct crime charged by the prosecution and submitted to the jury for decision.” State v. Hummel, 2017 UT 19, ¶ 26, 393 P.3d 314 (emphasis in original). For example, a verdict would not be valid “if some jurors found a defendant guilty of a robbery committed on December 25, 1990, in Salt Lake City, but other jurors found him guilty of a robbery committed January 15, 1991, in Denver, Colorado, even though all jurors found him guilty of the elements of the crime of robbery and all the jurors together agreed that he was guilty of some robbery.” Saunders, 1999 UT 59, ¶ 60. “These are distinct counts or separate instances of the crime of robbery, which would have to be charged as such.” Hummel, 2017 UT 19, ¶ 26.

¶19 The constitutional requirement that a jury must be unanimous as to distinct counts or separate instances of a particular crime “is well-established in our law.” Id. ¶ 30. Indeed, this requirement was applied in the closely analogous Saunders case in 1999. In Saunders, the Utah Supreme Court considered whether jurors must be unanimous as to the particular act or acts that form the basis for a sexual abuse conviction. 1999 UT 59, ¶¶ 9–11. The jury had been instructed that there was “no requirement that the jurors be unanimous about precisely which act occurred or when or where the act or acts occurred.” Id. ¶ 58 (cleaned up). The court held that, “notwithstanding a clear constitutional command and applicable case law, the instruction does not set out any unanimity requirement at all.” Id. ¶ 62. The alleged child victim had testified that at least fifteen different acts of touching occurred—some in which the defendant had been applying Desitin ointment to her buttocks and vaginal area and some in which he had not. Id. ¶ 5. Without a proper unanimity instruction, “some jurors could have found touchings without the use of Desitin to have been criminal; others could have found the touchings with Desitin to have been criminal; and the jurors could have completely disagreed on when the acts occurred that they found to have been illegal.”[4] Id. ¶ 65. Because the “jury could have returned a guilty verdict with each juror deciding guilt on the basis of a different act by [the] defendant,” the court held that “it was manifest error under Article I, section 10 of the Utah Constitution not to give a unanimity instruction.” Id. ¶ 62.

¶20 Our supreme court recently reinforced these principles in Hummel. In that case, the court distinguished between alternative factual theories (or methods or modes) of committing a crime for which a jury need not be unanimous and alternative elements of a crime for which unanimity is required. Hummel, 2017 UT 19, ¶ 53. Hummel was charged with the crime of theft. Id. ¶ 1. Under Utah law, a person commits theft if he “obtains or exercises unauthorized control over the property of another with a purpose to deprive him thereof.” Utah Code Ann. § 76-6-404 (LexisNexis 2017). Subsequent sections of the Utah Code explain that a person is guilty of theft if he obtains or exercises control over the property “by deception,” id. § 76-6-405, or “by extortion,” id. § 76-6-406. But the Utah Supreme Court explained that “[t]heft by deception and theft by extortion are not and cannot logically be separate offenses.” Hummel, 2017 UT 19, ¶ 21. “If they were, Hummel could be charged in separate counts and be convicted on both.” Id. Because the method of obtaining or exercising control over the property is not an alternative actus reus element of the crime, jury unanimity at that level is not required. Id. ¶ 61.

¶21 In contrast to Hummel, where deception and extortion are merely “exemplary means” of satisfying the obtaining or exercising control element of the single crime of theft, id., each unlawful touch of an enumerated body part (or each unlawful taking of indecent liberties) constitutes a separate offense of sexual abuse of a child under Utah Code section 76-5­ 404.1(2). This is illustrated by the fact that a defendant can be charged in separate counts and be convicted for each act that violates the statute. See State v. Suarez, 736 P.2d 1040, 1042 (Utah Ct. App. 1987) (holding that the defendant’s acts of placing his mouth on the victim’s breasts and then placing his hand on her vagina were “separate acts requiring proof of different elements and constitute separate offenses”). Unlike the theft statute in Hummel, the sexual abuse of a child statute “contains alternative actus reus elements by which a person could be found” guilty of sexual abuse. See Hummel, 2017 UT 19, ¶ 61. Those alternative elements are touching “the anus, buttocks, pubic area, or genitalia of any child, the breast of a female child, or otherwise tak[ing] indecent liberties with a child,” Utah Code Ann. § 76-5-404.1(2), each of which constitutes a distinct criminal offense.

¶22 Here, Alires was charged with six counts of aggravated sexual abuse of a child based on distinct touches prohibited by the statute. The information charged Alires with six identically-worded counts of aggravated sexual abuse of a child without distinguishing the counts by act or alleged victim. At trial, the friend testified that Alires unlawfully touched her at least six times and unlawfully touched the daughter twice. In closing, the State argued that the jury could convict Alires on four counts based on any of the six alleged touches of the friend in “any combination.” Similarly, the State did not identify which alleged touch of the daughter related to which count. Once the State failed to elect which act supported each charge, the jury should have been instructed to agree on a specific criminal act for each charge in order to convict. See State v. Santos-Vega, 321 P.3d 1, 18 (Kan. 2014) (holding that “either the State must have informed the jury which act to rely upon for each charge during its deliberations or the district court must have instructed the jury to agree on the specific criminal act for each charge in order to convict”); see also State v. Vander Houwen, 177 P.3d 93, 99 (Wash. 2008) (en banc) (noting that “[t]o ensure jury unanimity in multiple acts cases, we require that either the State elect the particular criminal act upon which it will rely for conviction, or that the trial court instruct the jury that all of them must agree that the same underlying criminal act has been proved beyond a reasonable doubt” (cleaned up)).

¶23 Despite the State’s failure to elect which acts it relied upon for each charge, trial counsel failed to request a proper instruction. As a result, the jury was never instructed that it must unanimously agree that Alires committed the same unlawful act to convict on any given count. Without such an instruction, some jurors might have found that Alires touched the friend’s buttocks when dancing, while others might have found that he touched the friend’s breast while tickling. Or the jury might have unanimously agreed that all of the touches occurred, but some might have found that Alires had the required intent to gratify or arouse sexual desires only while trying to dance with the friend, while others might have found that he only had sexual intent when he tickled the friend. In other words, the jurors could have completely disagreed on which acts occurred or which acts were illegal. See Saunders, 1999 UT 59, ¶ 65. Where neither the charges nor the elements instructions link each count to a particular act, instructing the jury that it must agree as to which criminal acts occurred is critical to ensuring unanimity on each element of each crime.[5]

¶24 It was objectively unreasonable for Alires’s trial counsel to propose jury instructions that did not require unanimity as to the specific act that formed the basis of each count resulting in conviction. Although no prior Utah appellate decisions have applied the Unanimous Verdict Clause to a case where a defendant is charged with multiple counts of the same crime, trial counsel is not “categorically excused from failure to raise an argument not supported by existing legal precedent.” State v. Silva, 2019 UT 36, ¶ 19. In any event, it should have been readily apparent that, although Saunders involved a prosecution in which the defendant was charged with and convicted of a single count of sexual abuse that could have been based on any one of a number of separate acts, its holding applies with equal force to a case such as this where a defendant is charged with multiple counts of sexual abuse, each of which could have been based on any one of a number of separate acts.

¶25 The State suggests that a reasonable trial counsel may have had strategic reasons for not requesting a proper unanimity instruction. While it is true that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable,” Strickland v. Washington, 466 U.S. 668, 690 (1984), here trial counsel candidly admitted that the failure to request a proper unanimity instruction was “not due to tactical reasons, but mistaken oversight.” Had trial counsel properly investigated the governing law, it would have been apparent that Saunders required the court to instruct the jury that it must agree on the specific criminal act for each charge in order to convict. Moreover, we disagree with the State’s theory that a reasonable defense attorney could have concluded that “further clarification would have increased the likelihood of conviction.” By failing to require juror unanimity as to each underlying act, the instructions—coupled with the prosecutor’s closing argument—effectively lowered the State’s burden of proof. See State v. Grunwald, 2018 UT App 46, J[ 42, 424 P.3d 990, (holding that “no reasonable trial strategy would justify trial counsel’s failure to object to instructions misstating the elements of accomplice liability in a way that reduced the State’s burden of proof”), cert. granted, 429 P.3d 460 (Utah 2018). Under these circumstances, failure to request such an instruction fell below an objective standard of reasonableness.

B. Prejudice

¶26 Having established that trial counsel performed deficiently by failing to request a proper unanimity instruction, Alires must show that he was prejudiced by that deficient performance. Strickland, 466 U.S. at 687. To establish prejudice, a “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Therefore, we consider whether Alires has shown a reasonable likelihood that a juror unanimity instruction would have led to a more favorable result.[6] See State v. Evans, 2001 UT 22, ¶ 16, 20 P.3d 888 (reviewing for plain error a defendant’s challenge to the trial court’s failure to provide a juror unanimity instruction and explaining that a “defendant must demonstrate . . . that the error should have been obvious to the trial court, and that the error was of such a magnitude that there is a reasonable likelihood of a more favorable outcome for the defendant”); State v. Saunders, 1999 UT 59, ¶¶ 57, 65, 992 P.2d 951 (same); see also State v. McNeil, 2016 UT 3, ¶ 29, 365 P.3d 699 (explaining that “the prejudice test is the same whether under the claim of ineffective assistance or plain error”).

¶27 To determine whether the defendant has shown a reasonable probability of a more favorable outcome, “a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.” Strickland, 466 U.S. 668, 695. “[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” Id.; see also Saunders, 1999 UT 59, ¶¶ 5, 13, 57, 65 (holding that “factual issues in the case”— including the “conflicting, confused,” and “obviously . . . coached” testimony of the alleged victim and the absence of other witnesses—created a reasonable likelihood that a proper unanimity instruction would have resulted in “a more favorable outcome for the defendant”).

¶28 Here, the evidence supporting Alires’s guilt was not overwhelming. The evidence was conflicting both as to which acts occurred and as to Alires’s intent. The friend testified to eight separate touchings that allegedly occurred during a sixty-second to three-minute period in full view of all three girls in the room. The friend was the only person to testify that Alires unlawfully touched her and the daughter. Both the daughter and the other friend testified that no inappropriate touching occurred. Given the conflicting evidence, there is a reasonable probability that the jury did not unanimously agree that the same two acts occurred.

¶29 In addition, even if the jury fully accepted the friend’s testimony that all eight touches occurred, the surrounding circumstances were sufficiently ambiguous that members of the jury could have easily reached different conclusions as to which acts were done with the required sexual intent. Although direct evidence of the intent to gratify or arouse a sexual desire is not required, see In re G.D.B., 2019 UT App 29, ¶ 21, 440 P.3d 706, Alires, the mother, and even the friend testified that Alires went to the living room to “tickle” and “wrestle” with the girls with the intent to “lighten the mood.” Given this evidence, some jurors may have found that the touches while tickling were innocent or inadvertent and that Alires had the intent to gratify or arouse sexual desires only when he slid his hand down to the friend’s buttocks in a “sneaky” way while dancing. Others may have concluded touching one particular body part while tickling the friend or the daughter evidenced sexual intent, although they may have disagreed as to which body part that was. Where the evidence is so readily subject to different interpretations, “we are not persuaded that the jury would have unanimously convicted had the error not existed.” See Saunders, 1999 UT 59, ¶ 65.

¶30 This is particularly true given the prosecutor’s statements in closing argument and the jury’s note expressing confusion over how to treat the various counts. The State told the jury in closing argument that any of the alleged acts against a particular victim could support any of the charges relating to that victim. Further, the elements instructions were identical for each of the six counts, with the exception of substituting the friend’s initials for counts one through four and the daughter’s initials for counts five and six. And during its deliberations, the jury expressed confusion over how to deal with the various counts, asking the court, “Can we please have a clarification on how the counts work? We don’t understand how to weigh each count when they are all the same. Not sure what they mean.” The jury’s question shows that the absence of a proper unanimity instruction had a palpable impact on the jury deliberations and undermines our confidence in the jury’s verdict. McNeil, 2016 UT 3, ¶ 30. We therefore conclude that Alires was prejudiced by trial counsel’s failure to request a juror unanimity instruction.

CONCLUSION

¶31 We conclude that trial counsel performed deficiently when he did not request an instruction regarding juror unanimity and that this deficient performance was prejudicial to Alires’s defense. Accordingly, we vacate Alires’s convictions and remand for further proceedings.[7]

[1] “On appeal, we review the record facts in a light most favorable to the jury’s verdict and recite the facts accordingly. We present conflicting evidence only as necessary to understand issues raised on appeal.” State v. Reigelsperger, 2017 UT App 101, ¶ 2 n.1, 400 P.3d 1127 (cleaned up).

[2] Alires did not preserve the underlying jury instruction issue for appeal, because he raised it for the first time in a post-trial motion. State v. Fullerton, 2018 UT 49, ¶ 49 n.15, 428 P.3d 1052 (reaffirming that “an objection that could have been raised at trial cannot be preserved in a post-trial motion”). Therefore, he must establish one of the three exceptions to the preservation requirement: plain error, ineffective assistance of counsel, or exceptional circumstances. See State v. Johnson, 2017 UT 76, ¶ 19, 416 P.3d 443. In addition to arguing ineffective assistance of counsel, Alires also asks us to review this issue under plain error. But because Alires’s trial counsel proposed jury instructions that contained the same alleged infirmity, trial counsel invited the error and we are precluded from reviewing it under the plain error exception to the preservation requirement. State v. Moa, 2012 UT 28, ¶¶ 23–27, 282 P.3d 985 (explaining that the invited error doctrine precludes plain error review).

[3] Alires also raises issues concerning the sufficiency of the evidence of sexual intent and the absence of a jury instruction defining “indecent liberties.” Because we vacate Alires’s convictions on other grounds and it is uncertain whether these issues will arise again on remand, see infra note 7, we do not “exercise our discretion to address those issues for purposes of providing guidance on remand.” State v. Low, 2008 UT 58, ¶ 61, 192 P.3d 867; see also State v. Barela, 2015 UT 22, ¶ 35, 349 P.3d 676 (concluding that “[w]e need not and do not reach the factual question of the sufficiency of the evidence” when reversing on the basis of ineffective assistance of counsel relating to the jury instructions).

[4] “[B]ecause time itself is not an element of an offense, it is not necessary that the jurors unanimously agree as to just when the criminal act occurred.” State v. Saunders, 1999 UT 59, ¶ 60, 992 P.2d 951. “Thus, a jury can unanimously agree that a defendant was guilty of a particular act or acts that constituted a crime even though some jurors believed the crime occurred on one day while the other jurors believed it occurred on another day.” Id. In other words, if all jurors agree that a defendant committed a particular act, it is immaterial if some jurors think that the act occurred on a Saturday and others believe it occurred on a Monday.

[5] The instructions informed the jury that, “[b]ecause this is a criminal case, every single juror must agree with the verdict before the defendant can be found ‘guilty’ or ‘not guilty.’” This instruction is plainly insufficient. The constitutional requirement of unanimity “is not met if a jury unanimously finds only that the defendant is guilty of a crime.” Saunders, 1999 UT 59, ¶ 60.

[6] Citing State v. Hummel, 2017 UT 19, 393 P.3d 314, the State argues that “defendants challenging a verdict under the Unanimous Verdict Clause must affirmatively prove that the jury was not unanimous.” In Hummel, the court stated that “a lack of certainty in the record does not lead to a reversal and new trial; it leads to an affirmance on the ground that the appellant cannot carry his burden of proof.” Id. ¶ 82. But the Hummel court was addressing how to assess the prejudicial effect of “a superfluous jury instruction,” that is, a jury instruction that includes an alternative theory that was not supported by sufficient evidence at trial. Id. ¶¶ 81–84. It does not speak to the standard for showing prejudice where the jury is not properly instructed on the unanimity requirement.

[7] Ordinarily, a defendant who prevails on an ineffective assistance of counsel claim is entitled to a new trial. See State v. Hales, 2007 UT 14, ¶ 68, 152 P.3d 321. But where the counts of conviction cannot be distinguished from the counts on which the defendant was acquitted, a retrial may be prohibited by the Double Jeopardy Clause. See, e.g., Dunn v. Maze, 485 S.W.3d 735, 748–49 (Ky. 2016) (collecting state and federal cases holding that a mixed verdict on identically-worded counts forecloses a retrial). We express no opinion on the merits of the double-jeopardy issue, which will not be ripe unless and until the State seeks a retrial.

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2019 UT App 205, Utah Court of Appeals, State v. Wall – ex-wife murdered

2019 UT App 205 – THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JOHNNY BRICKMAN WALL,
Appellant.

Opinion
No. 20151017-CA
Filed December 12, 2019

Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 131903972

Troy L. Booher, Freyja Johnson, and Beth Kennedy, Attorneys for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES GREGORY K. ORME and JILL M. POHLMAN concurred.
HAGEN, Judge:

¶1           A jury convicted Johnny Brickman Wall of murdering his ex-wife, Uta von Schwedler.[1] Wall appeals his conviction, arguing that there was insufficient evidence to convict him, that the district court erred in admitting certain DNA evidence, and that his trial counsel was ineffective in failing to object to the State’s closing argument involving the DNA evidence. We conclude that Wall has not carried his burden on appeal to show there was insufficient evidence to support his murder conviction. Further, the district court did not exceed its discretion in admitting certain DNA evidence, and Wall’s trial counsel did not perform deficiently in failing to object to the prosecutor’s characterization of that evidence in closing argument. Accordingly, we affirm Wall’s conviction.

BACKGROUND

Marriage and Divorce

¶2           In 1988, a mutual friend introduced Uta to Wall while they were each completing doctorate programs on the west coast. Wall and Uta married in 1990, and Wall graduated from medical school four years later. After medical school, Uta, Wall, and their newborn son moved to Utah for Wall’s residency program. Over the next few years, they had three more children together.

¶3           By 2005, the marriage had failed and Uta moved out of the family home, leaving the four children to live primarily with Wall. The couple divorced in 2006.

¶4           Wall and Uta responded differently to the divorce. According to their children, Wall was “very, very sad” and depressed after the divorce, but over time his mood changed from sadness to “anger, even hatred” toward Uta. Wall frequently complained to the children about Uta, saying that she was “a bad parent,” that she was “selfish,” and that she made his “life difficult.” The children said that Wall never treated Uta “nicely or kindly” after the divorce. At one point, Wall “physically removed” Uta from his property when she “tried to come in the front yard” to pick up the children for her parent time.

¶5 Most people who knew Wall knew that he “despised” Uta. He asked his friends, “Would it be bad if Uta wasn’t here anymore?” and “How would my life be if she weren’t around?” He sent emails to Uta accusing her of immoral acts and threatening to “move away” with the children “or continue towards obtaining full custody.” He blamed Uta for his unhappiness and accused her of “hurt[ing] people that matter deeply” to him. When she reached out to him regarding requests from the children’s friends for weekend trips, he asked her to “please stop inserting [herself] in [his] parent time.”

¶6           It was clear that Wall did not want Uta in the children’s lives. The summer before her death, Wall took the children to California but refused to tell them when they were returning to Utah because he did not want them to tell Uta. If the children attempted to communicate with Uta while they were with Wall, “he would become very upset” and would sometimes take their phones away from them. He was uncooperative with Uta regarding parent-time exchanges and adjustments to the custody arrangement. Wall frequently ignored Uta’s messages, and she had to organize parent-time schedules through her older children.

¶7           Uta’s response to the divorce was quite different. Her friends, family, coworkers, and other acquaintances who testified at trial knew Uta to be “very outgoing, very friendly, very cheerful,” and “full of life.” Those witnesses said her positive attitude continued after the divorce, and some people “certainly thought she was happier” after the divorce. She was welcoming to newcomers and frequently brought homemade treats to work or to social gatherings. She regularly engaged in physical activities such as swimming, running, hiking, skiing, and camping. Uta was in a “very happy” relationship with a man (the boyfriend) whom the children liked, and the two eldest children told family members that they “were so happy that Uta had [the boyfriend]” because he was “a really, really good match for Uta.” No witness testified that Uta was unhappy or suicidal, except for Wall.

¶8           Uta was very involved in her children’s lives. Although she “had a great love and passion for science,” she arranged with her supervisor to work a “30-hour work week” because “it was important to her to be available for [her children] after [school] hours.” “Uta’s greatest pleasure in life was the love of her four children,” and she wanted to spend more time with them. She attended their sporting events and musical performances and created photo albums for each of them.

¶9           One of the few things that upset Uta was attempting to work with Wall regarding the children. A few years after the divorce, Uta hired an attorney to file a petition to modify the divorce decree regarding parent time, and the court ordered mediation. Although Wall and Uta reached an agreement during mediation, Wall later refused to sign the proposed order. Thus, for years following the divorce, the custody arrangement was never sorted out and remained a “constant battle.”

¶10 Early in September 2011, after years of unsuccessfully attempting to work out a better custody arrangement outside of court, Uta reached out to her attorney to discuss filing a new petition to modify the divorce decree and to consider moving to appoint a custody evaluator. Wall ignored Uta’s inquiries related to the children, including whether he would either agree to sign the custody evaluation request or agree to the proposed parent-time schedule for the upcoming school year. He also frequently ignored his own attorney’s communications related to these requests. The week before Uta’s death, in an apparent change of course, Wall agreed to sign the custody evaluation request the following week. But after he left the children in Uta’s care for the weekend, Wall “excited[ly]” told a new acquaintance that “he was getting his kids back.”

Uta’s Final Days

¶11 The week before her death, Uta had made a discovery in her research that could advance a new treatment for childhood leukemia. According to her supervisor, the “long-term implications of that discovery” were “very exciting on a professional level, on a career level, both for Uta and . . . the lab, because [it would] lead[] to new peer-reviewed publications, grants, [and] presentations.” This was a “milestone” in Uta’s career that would have had “positive implications” for her.

¶12 On September 26, 2011, the day before her body was discovered, Uta had a meeting with her supervisor and another coworker related to this new discovery, and they were all “quite enthusiastic” because “[t]his was one of the biggest discoveries [they] had had thus far in the laboratory.” Later that evening, Uta attended one of the children’s soccer games and was “in a great mood.” She spread out a blanket and shared treats with other parents. Uta told a fellow parent that she “had been camping that weekend with her kids and [her boyfriend]” and was looking forward to her upcoming trip to California with her two youngest children later that week while Wall took the two eldest children to visit universities back east.

¶13 After the soccer game, Wall arrived at Uta’s house to take the children back home. When he arrived, Uta tried to talk with him to finalize the details for the California trip, but Wall “rolled up his window and ignored her.” According to the children, Wall appeared annoyed on the drive home.

¶14 With the children out of the house, Uta went about her usual Monday evening routine of “deep cleaning” the house. Uta called her boyfriend and made plans with him for the following night. At around 10:45 p.m., Uta spoke with a friend over the phone about potential plans for the next day. That was the last time anyone heard from Uta.

September 27, 2011

¶15 The following morning, on September 27, 2011, Uta’s neighbors did not see her at her kitchen table drinking coffee and reading her newspaper, as she did all other mornings. Instead, the newspaper remained in the driveway, and the garbage cans Uta put out for collection the night before remained on the street.

¶16 That same morning, Uta’s eldest daughter awoke at around 6:00 a.m. and got ready for school. She searched the house for Wall, who usually drove her to the light rail station, but she could not find him anywhere. The eldest daughter testified that if Wall had to leave for the hospital in the middle of the night, he would “generally . . . text [her] or call [her]” to let her know, but he had not left her any messages that morning. After calling him twice with no answer, the eldest daughter walked to the station to go to school. Wall was spotted by the eldest daughter’s schoolmate and her mother at 7:05 a.m., driving some distance away from and in the opposite direction of his house, and Wall still had not returned home to get the youngest children ready for school by the time the eldest son left for school around 7:30 a.m. But the two youngest children remembered speaking with Wall at some point before leaving for school. Specifically, they remembered seeing an injury to Wall’s eye. Wall told them that he had slept outside on the porch and had been scratched by their dog, but the youngest daughter thought Wall was acting “weird, almost paranoid.” Just after 8:00 a.m., a carwash facility photographed Wall dropping off his car. Wall took his car there to “detail the inside” and asked the carwash attendant to focus “extra heavy” in the trunk cargo area and on a spot on the driver’s side back seat.

¶17 After leaving his car to be detailed, Wall arrived late for appointments with patients. He “looked disheveled and anxious,” appeared not to have bathed, and wore the same clothes as the previous day. A medical assistant noticed that he had a scratch on the left side of his face and that his left eye was “reddened and bloodshot.” Although two people who worked in Wall’s office said that this scratch looked like it was caused by a fingernail, “Wall volunteered an explanation for the scratch, saying that his dog jumped on him and scratched his face while he was sleeping outside.” One of the assistants “thought [this] explanation was odd because [Wall] had his dog for a long time and she had never seen it scratch him before.” When Wall noticed that his assistant was looking at additional scratches on his arms, he “quickly” rolled down his sleeves. After seeing one patient, Wall left to see an eye doctor and did not return to work.

¶18 When the eldest children returned home, they too noticed the scratch to Wall’s face and eye. Wall told them that he had been sleeping outside occasionally over the past few months and that their dog had scratched him the night before while he slept outside on the porch. None of the children had ever seen Wall sleep outside on the porch, and none of them knew their dog to scratch anyone.

The Crime Scene

¶19 At around 7:45 p.m. on September 27, 2011, Uta’s boyfriend went to visit her as they had planned the night before. Uta’s garbage cans were still on the street, and her newspaper was still in the driveway. The boyfriend walked into her house through her unlocked door, which Uta normally locked before going to bed. He noticed that her bathroom door was slightly ajar and that the light was on. On his way to the bathroom, he walked past her bedroom and noticed that the blinds, which were always open, had been pulled shut. The boyfriend reached the bathroom, announced his presence, opened the door, and found Uta dead in her bathtub with the cold water running but not overflowing. She wore only her pajama shorts, and her bloodied tank top was folded at the edge of the bathtub. The boyfriend called the police, who quickly arrived on the scene.

¶20 Upon entering the house, the first responders noted that there were pills strewn across the bedroom floor, a lamp had toppled over on the bed, and a vase and books from the nightstand had been knocked onto the floor. The comforter on the bed had been balled up in a way that appeared to conceal several dried bloodstains. The fitted bed sheet contained one large pool of blood and two smaller pools of blood that “show[ed] motion in three different directions,” indicating “a sign of a real struggle.” There was also a bloodstain on the pillowcase. In the bathroom, there was blood smeared on the sink and below the windowsill located above the bathtub, but there was no blood smeared on the walls between Uta’s bedroom and bathroom or on any of the light switches. There was a shampoo bottle standing upright in the middle of the bathroom floor, which was usually kept in the windowsill above the bathtub. Under Uta’s body, the first responders found a large kitchen knife. Also in the bathwater was a magazine, the sports section of the newspaper (which Uta never read), and the youngest daughter’s photo album. There were dried bloodstains that looked like shoeprints on the kitchen floor.

¶21 Some of the officers testified that the scene appeared “suspicious,” as if “there could have been a struggle,” and that it “did not appear consistent with an overdose or accidental death.” After leaving the scene, one of the officers contacted detectives to conduct an investigation.

Wall’s First Version of the Events of September 26 and 27

¶22 Later that night, the detectives arrived at Wall’s house to ask him “if he was willing to come down to [the] police station to talk.” The officers did not tell Wall what they wanted to talk about, and he did not ask them.

¶23 While Wall waited to be interviewed, the detectives first interviewed the boyfriend. The boyfriend was “compliant” and “helpful.” He did not “have any trouble time-lining himself, explaining what he had been doing the weekend before, [or what happened] the day before. He seemed to be honest in all of his answers.”

¶24 In contrast, Wall’s responses to the detectives’ questions were vague and he spoke in generalities rather than directly answering questions about what occurred the previous night. When the detectives asked where he went the night before after picking up the children from Uta’s house, Wall said, “I don’t know . . . I don’t rem . . . I mean, I don’t usually remember every . . . what I do, but . . . ah . . . usually what we do.” (Omissions in original.) He went on tangents about what usually happened when he retrieved the children from Uta’s house at the conclusion of her parent time. The officers kept redirecting Wall, stating, “So what happened last night, though, [Wall]? This was just last night.” But Wall continued to respond to inquiries about the previous night with things the family “usually” did on Monday evenings or what the children “sometimes” did when they got back to Wall’s house. Wall could not say if he had been home the entire night or if he had gone back to Uta’s house after picking up the children. Wall evaded direct answers about the last time he had seen Uta, and he could not remember if he had recently touched Uta or the last time he had been inside Uta’s house. When directly asked if he had been inside Uta’s house on September 26 or 27, Wall responded, “I don’t think so.” When asked if there was “any reason, whatsoever, that [his] DNA . . . would be under [Uta’s] fingernails,” Wall responded, “I don’t know.” When he was asked if he killed Uta, he said, “I don’t think I did it,” “I don’t think I was there,” and, “If I did it, I did make a mistake, and I am sorry. But I don’t think I did it.”

¶25 Eventually, over the span of three hours, Wall gave an account of the things he did on September 27, 2011. He told the detectives that he went to a gas station near his house to purchase eggs between 6:45 a.m. and 7:00 a.m. He said he returned to the house and had breakfast with his two youngest children before taking them to school. Wall then went to a carwash facility because he had “extra time” that morning and there were “burritos spilled all over” the front passenger seat. He talked about going to his office, seeing the eye doctor regarding the scratch on his eye—which he again said his dog caused—and returning to the carwash to get his car before driving to his office at the hospital. At the hospital, Wall apparently parked his car and left his windows rolled down with his cell phone still inside the vehicle. He claimed that his cell phone had been stolen by the time he returned.

¶26 Wall could not tell the officers what he had done between 8:00 p.m. on September 26, 2011, and 6:45 a.m. the following day.

¶27 After interviewing Wall, the detectives had photographs taken of Wall’s injuries and had a technician take his fingerprints. Wall was not arrested, and a detective arranged a ride home for him. One of the detectives testified at trial that Wall was “surprised” that he was being released and asked, “[S]o I’m not going to jail?” When the detective said he was not, Wall responded, “[B]ut I’m a monster.”

Wall’s Conduct Following Uta’s Death

¶28 When Wall returned home from his interview with the detectives at around 2:30 a.m., he bluntly told the children, “Uta’s dead and they think I did it.” He told the youngest daughter “not to leave him alone because he was scared he would do something he would regret.” Wall curled up “in the fetal position” and cried. He started “babbling and rambling” and “saying things along the line of: ‘Am I a monster? Only a monster could have done this. How do I know what I do when I’m asleep? What if I did it and I don’t remember?’” The children and family friends testified that Wall repeatedly referred to himself as a monster in the days following Uta’s death. The eldest son explained that Wall’s ramblings made him “question[] [Wall’s] involvement in [his] mother’s death.”

¶29 One of the children called a family friend to help Wall. Wall told this friend, “Uta is dead and they think I did it . . . .” When she asked him, “[D]id you do these things that—that the police said you did?” Wall responded, “If I did them, I don’t remember.” When this friend started looking for some of Wall’s medications, he told her that he had been “sleeping outside recently” and that “the dog scratched him on his face.” She asked him, “Why are you telling me this?” And then he showed her his eye. The friend noticed other scratches and “gouges” on Wall’s body, which he quickly covered up. Because Wall was so “distraught,” the friend wanted to offer him a sedative and asked him if he was familiar with Xanax. Even though he was a medical doctor and had twice prescribed himself Xanax after his divorce from Uta, Wall claimed not to know what it was. After the friend explained Xanax’s purpose, Wall claimed to remember recently prescribing his mother Xanax “because she’s afraid to fly.” Wall then started telling the friend that “[a]ll he wanted was for Uta to be happy . . . and that’s all he ever wanted,” which the friend found to be “unusual because [she] felt like he was very angry at Uta” and did not believe that Wall really wanted her to be happy.

¶30 That same morning, Wall checked himself into a psychiatric facility where he stayed for about a week. While he was receiving treatment, the eldest son and a family friend visited him and asked him questions about Uta’s death. During this conversation, Wall asked his son, “If the police found my phone there [at Uta’s house,] what could I say to refute that?”

¶31 After Wall’s release from psychiatric treatment, the children resumed living with him, but his behavior changed. Over time, Wall restricted the children’s communication with Uta’s family and the boyfriend. Wall told the children that the boyfriend should have “come to him and comforted him in his time of need,” and therefore the boyfriend should not be allowed to communicate with the children. (Emphasis added.) Wall also began telling his children that Uta committed suicide and told the youngest son, “[M]aybe it’s better that she’s dead.” He became more “confrontational,” “aggressive and intimidating” toward the children regarding Uta’s death. The eldest son moved out of Wall’s house the day after an “uncomfortable incident” in January 2012, in which Wall asked him “what [he] knew about [his] mom’s death” and “what attorneys [he] had contacted.” By May of that year, the three other children were also no longer living with Wall.

¶32 After Uta’s death, the eldest son went to Uta’s house to collect the children’s photo albums to send them to Uta’s family in Germany. He could not enter the house on his own because the spare key that was normally left outside for the children was missing and never found. After receiving help from the boyfriend to gain access to the house, the eldest son retrieved the albums and sent them to Germany. The eldest son informed Wall that he had sent the photo albums to Germany and that Wall would receive copies of the albums. In November 2012, Wall sued the eldest son for conversion and demanded to have the photo albums returned to him. In response, the eldest son filed a counterclaim against Wall for Uta’s wrongful death.

Wall’s Second Version of the Events of September 26 and 27

¶33 At a hearing on the wrongful death claim, at which Wall was present, the lead detective testified that he was actively investigating Uta’s death as a homicide and that Wall was the primary suspect. He further testified that “DNA samples had been submitted to [a] lab for testing” and that those results were still pending.

¶34 After this hearing, Wall was deposed and asked about his whereabouts between September 26 and 27. During his deposition, Wall offered new details to account for how his or Uta’s DNA might have transferred to the areas tested by police. For instance, police took a swatch of fabric from the driver’s side back seat where Wall had pointed out a spot at the carwash. Wall volunteered that, when he picked up the children from Uta’s house the night before her death, Uta had opened the driver’s side rear passenger door to hug the youngest daughter. Wall also claimed, for the first time, that he had caught Uta walking out of his garage later that night. Wall said he pursued Uta and “[s]he turned around and hit [him] in the face” and might have scratched him. He claimed that Uta had broken into his basement “multiple times in the previous months,” but that he never reported it to the police.

¶35 Although the DNA results were still pending, counsel deposing Wall asked him, “Why is your DNA in Uta’s bedroom?” He said he did not know if his DNA was there, but that Uta had invited him into her bedroom before “to seduce [him],” although he declined her advances. He could not remember when she last invited him into her bedroom but said that it could have been one or two months before her death.

¶36 Wall also testified in his deposition that Uta attempted suicide once on their honeymoon in 1991 and again while she was pregnant with their youngest son. But Wall said that he never reported either suicide attempt[2] or helped Uta seek counseling or treatment.

¶37 Finally, Wall gave a different version of events regarding his whereabouts on September 27, 2011, than what he told the detectives. This time, Wall explained that after allegedly chasing Uta away and being hit by her in the face, he went back inside his house to sleep. He woke up around 5:00 a.m. and decided to go to the hospital to work on his patients’ charts but realized that he forgot his identification and could not enter the hospital. Wall said he decided to go for a hike up a nearby canyon before the sun rose and before going to the carwash facility and then to work. Unlike the story he told at his police interview, this version of events did not include Wall being at home that morning with the two youngest children and the newly purchased eggs before school, even though the youngest children testified to that effect.

The Investigation

¶38 While Wall was getting psychiatric treatment in September 2011, Uta’s body was sent to a medical examiner to perform an autopsy. Although some of the officers believed there could have been foul play and that her death appeared suspicious, an investigator’s report provided to the medical examiner said her death was “a probable suicide overdose.” The medical examiner later testified that, had the “case been presented . . . as a suspicious death or homicide,” he would have taken more photographs of the body and conducted a more thorough examination. The medical examiner noted “sharp force injuries on her left wrist . . . in three separate locations,” a bruise on her lip, an abrasion on her cheek, and a laceration to her lower leg. Uta also had internal hemorrhages in her neck, which could have been sustained by a “broad and/or soft blunt object being applied in that location,” and petechiae (burst capillaries) in her right eye, each of which were consistent with strangulation. Uta had a near-lethal dose of Xanax in her system, but there were no pill remnants in her stomach. The medical examiner was “not looking specifically for an injection site anywhere,” because the case was brought to him as a probable suicide, but he testified that any of the injuries on Uta’s body “could potentially obscure an injection site” if that was how the Xanax got into her system. The medical examiner explained that the nature of Uta’s wounds was “not like anything [he] had ever seen in a suicide,” because they appeared to be defensive rather than self-inflicted, and that he had concerns that the police were “dealing with a homicide.”

¶39 After conducting the autopsy, the medical examiner concluded that Uta’s cause of death was drowning but could not determine the manner of death. Based on his concerns that the manner of death may have been homicide, the medical examiner asked the officers to meet with him to discuss his findings. Because he could not determine how the Xanax got into her system, he asked the officers if they were conducting further investigation. The sergeant in charge of the case at that time “basically [said] that we think this is a suicide, period.” The medical examiner told the officers that he was “not going to call this a suicide,” and that the manner of death was “undetermined” based on what he knew. The medical examiner explained that the scene of the crime was “suspicious,” that it appeared “more consistent with homicide than anything else,” and that “but for the Xanax” in Uta’s system, he “would have certified the death as a homicide.”

¶40 A few weeks after the medical examiner performed the autopsy, the investigation stalled. Between November 2011 and November 2012, the boyfriend, an ex-boyfriend, the eldest son, and some of Uta’s other family members kept pressing the police to investigate the case as a homicide. Finally, in November 2012, the investigation resumed in earnest.

¶41 A crime scene reconstructionist reviewed the photographs taken by the investigators the night Uta’s body was found, visited Uta’s house after it had been cleaned, and reviewed the items collected from the scene. The reconstructionist determined that Uta had been murdered and that the murderer had staged the scene to look like a suicide. The reconstructionist, who had special training and expertise in “blood pattern interpretation,” analyzed the blood patterns on Uta’s comforter and fitted sheet and concluded that a “violent struggle” occurred and that Uta struggled “under a restraint.” The reconstructionist also analyzed Uta’s bloodied tank top that had been folded and laid over the side of the bathtub. Although there was one saturated spot on the chest where it appeared Uta had held her bleeding wrist against her body, there was “no hand transfer” of blood onto the tank top where one would expect to see it if Uta had removed the tank top herself. The reconstructionist opined that the bloodstains in the bathroom under the windowsill and on the sink appeared to have occurred while Uta was being pushed into the bathroom. The bloodstains were not consistent with Uta being “intoxicated and stumbling around her house on her own” because there were no apparent patterns on the walls of someone staggering or touching surfaces to get from the bedroom to the bathroom.

¶42 Forensic testing also revealed that there were bloody shoeprints in the bathroom and the bedroom and that there was a bloody spot above Uta’s headboard. These blood stains initially went undetected because they had been cleaned up before the boyfriend discovered Uta’s body and first responders arrived at the scene. A crime scene technician discovered these bloodstains using a special chemical that changes color when it comes into contact with blood protein, which helped to make the “partially visible” or “faint” bloodstains in the bedroom and on the bathroom floor more visible.

¶43 Unlike the faint bloodstains that were overlooked by the first responders, dried-blood shoeprints had been immediately apparent in Uta’s kitchen. The crime scene reconstructionist explained that those stains would not have come from “rehydrated blood” because if the blood had dried and a person with a wet shoe stepped into the blood and started walking, that person “might get flakes . . . [or] portions” of blood, but it would not make a full bloody shoeprint. The reconstructionist concluded that the evidence showed another person had been present and attacked Uta and that “this scene was a homicide that was staged to look like a suicide.”

¶44 Investigators searched to find where the Xanax may have come from. Uta was never prescribed Xanax, she had never told anyone she had taken it, and no prescription bottle for it was found at her house. Even though Uta sometimes stored her medication in film canisters, those canisters were always labeled. Further, Uta kept a yearly “medicine calendar” in which she dutifully documented the medications she took, the amount she took, and her “level of wellness” related to those medications. Nowhere on these calendars did Uta document taking Xanax.

¶45 On the other hand, Wall had twice prescribed himself .5 milligrams of Xanax following the divorce. And, just four months before Uta’s death, Wall wrote a prescription for the highest dosage of immediate release Xanax, which is 2 milligrams, and filled that prescription at a pharmacy that he had never used before or since. Wall claimed that he filled this prescription for his mother who lived in California, but in their initial interviews with investigators, Wall’s parents could not confirm whether they ever received such a medication.

¶46 At the crime scene, the investigators collected, among other things, a pillowcase and scrapings from underneath Uta’s fingernails to be tested for DNA evidence. Using different techniques, investigators extracted DNA samples from each of these items. The forensic analysis revealed that Wall was a possible contributor to the DNA located on the pillowcase, but Wall could not be included or excluded as a possible contributor to the male DNA located under Uta’s fingernails. Uta’s ex-boyfriend, the boyfriend, and the first responders were all excluded as possible contributors to the DNA located under Uta’s fingernails.

¶47 More than two years after Uta’s death, the State charged Wall with murder. During the four-week jury trial, the State presented the evidence detailed above. The jury also heard, among other things, from two forensic pathologists who were given Uta’s autopsy report with photographs, police reports, crime scene photographs, crime laboratory reports, photographs of Wall’s face taken on September 27, 2011, the report from Wall’s eye doctor, the preliminary hearing testimony of the medical examiner, and Uta’s healthcare reports. Both agreed that Uta’s wounds to her wrists and leg were not self-inflicted and were instead defensive wounds. They both determined that, although there was a near-lethal dose of Xanax in her system, the low level of Xanax in Uta’s stomach was consistent with either the drug being injected into her body or swallowed as a slurry­ meaning that the pills had been crushed and mixed with a liquid. Both of the forensic pathologists concluded that Uta’s manner of death was homicide.

¶48 The jury convicted Wall of murder. Wall now appeals.

ISSUES AND STANDARDS OF REVIEW

¶49 Wall argues that the evidence of guilt was insufficient to support the jury’s verdict “because the inference that [Wall] killed [Uta] is less likely than the inference that [Uta] killed herself, whether accidentally or intentionally.” “In considering an insufficiency-of-evidence claim, we review the evidence and all reasonable inferences drawn therefrom in a light most favorable to the verdict.” State v. Jones, 2015 UT 19, ¶ 15, 345 P.3d 1195 (cleaned up). “We will reverse only when the evidence, so viewed, is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he or she was convicted.” Id. (cleaned up).

¶50 Wall next argues that the district court erroneously admitted certain DNA evidence through expert testimony. We review the district court’s decision to admit expert testimony under an abuse-of-discretion standard, and “we will not reverse a decision to admit or exclude expert testimony unless the decision exceeds the limits of reasonability.” Walker v. Hansen, 2003 UT App 237, ¶ 12, 74 P.3d 635 (cleaned up).

¶51 Wall also argues that his trial counsel “was ineffective for failing to object when the State mischaracterized the DNA results” in closing argument. “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law. In such a situation, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” State v. Archuleta, 2019 UT App 136, ¶ 17, 449 P.3d 223 (cleaned up).

ANALYSIS

I. Sufficiency of the Evidence

¶52 Wall argues that “the evidence is insufficient to exclude reasonable doubt.” Specifically, he argues that “the State’s construal of circumstantial evidence . . . that [Uta] was attacked, restrained, and injected with Xanax, all without leaving restraint marks on her body or any DNA evidence . . . was physically possible,” but “it [was] not the most reasonable explanation.” Instead, he claims that the most reasonable explanation is that Uta’s death was an accident or a suicide.

¶53 To succeed on a sufficiency of the evidence challenge, the appellant “has the burden to marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict.” State v. Jones, 2015 UT 19, ¶ 68, 345 P.3d 1195 (cleaned up). On appeal, we do not reweigh the evidence presented to the jury. “When the evidence presented is conflicting or disputed, the jury serves as the exclusive judge of both the credibility of witnesses and the weight to be given particular evidence.” State v. Workman, 852 P.2d 981, 984 (Utah 1993). “Ordinarily, a reviewing court may not reassess credibility or reweigh the evidence, but must resolve conflicts in the evidence in favor of the jury verdict.” Id. We are thus restricted to “evaluat[ing] whether the evidence is so inconclusive or inherently improbable that it could not support a finding of guilt beyond a reasonable doubt.” Id.

¶54 Wall concedes throughout his brief that “suicide and homicide are at least equally probable.” He says that all of the evidence is “consistent with homicide” but that the same evidence is at least “equally consistent” with suicide and that some evidence is “more consistent” with suicide. In making this argument, Wall relies on language from State v. Cristobal, 2010 UT App 228, 238 P.3d 1096. In that case, we suggested that “[w]hen the evidence supports more than one possible conclusion, none more likely than the other, the choice of one possibility over another can be no more than speculation.” Id. ¶ 16. But as our supreme court has since clarified, “the fact that we can identify an ‘equally’ plausible alternative inference is not nearly enough to set [a] verdict aside.” State v. Ashcraft, 2015 UT 5, ¶ 25, 349 P.3d 664. On appeal, “[t]he question presented is not whether some other (innocent) inference might have been reasonable,” but “simply whether the inference adopted by the jury was sustainable.” Id. ¶ 27.

¶55 Wall argues that the jury’s verdict was not based on reasonable inferences, but on speculation. He posits that the “distinction [between reasonable inferences and speculation] turns on whether there are equally likely interpretations of the evidence.” Here, because “the evidence and inferences did not preclude the reasonable alternative hypothesis presented by the defense,” he contends that the jury’s verdict was based on speculation, which does not constitute proof beyond a reasonable doubt. (Quoting State v. Cardona-Gueton, 2012 UT App 336, ¶ 11, 291 P.3d 847 (cleaned up).) Despite the broad language used in some of our past opinions, “the law is well established that the existence of one or more alternate reasonable hypotheses does not necessarily prevent the jury from concluding that a defendant is guilty beyond a reasonable doubt.” Cardona-Gueton, 2012 UT App 336, ¶ 11 (cleaned up). “It is the exclusive province of the jury to weigh the competing theories of the case, in light of the evidence presented and the reasonable inferences drawn therefrom, and to conclude which one they believe.” Id. (cleaned up). Therefore, “despite the existence of theoretically ‘reasonable’ hypotheses, it is within the province of the jury to judge the credibility of the testimony, assign weight to the evidence, and reject these alternate hypotheses.” State v. Blubaugh, 904 P.2d 688, 694–95 (Utah Ct. App. 1995). Indeed, “a finding that a defendant is guilty beyond a reasonable doubt is necessarily a finding that any alternative hypothesis of innocence presented at trial was not reasonable under the jury’s view of the evidence.” Cardona-Gueton, 2012 UT App 336, ¶ 12.

¶56 Consequently, it is not enough for Wall to show that the evidence would have permitted a reasonable juror to accept the defense’s theory that Uta’s death was an accident or suicide. “These are fair arguments for counsel to present to the jury in closing.” Ashcraft, 2015 UT 5, ¶ 24. But once the jury has rejected the alternative explanation offered by the defense, “an appellate court will reverse such a finding only where no reasonable juror could have taken that view of the evidence.” Cardona-Gueton, 2012 UT App 336, ¶ 12. “The question presented is not whether we can conceive of alternative (innocent) inferences to draw from individual pieces of evidence, or even whether we would have reached the verdict embraced by the jury.” Ashcraft, 2015 UT 5, ¶ 24. Instead, it is “simply whether the jury’s verdict is reasonable in light of all of the evidence taken cumulatively, under a standard of review that yields deference to all reasonable inferences supporting the jury’s verdict.” Id.

¶57 The jury’s determination that Uta was murdered is well supported by the evidence admitted at trial. As to the crime scene, multiple witnesses testified that there was evidence of a “violent struggle.” Items throughout Uta’s bedroom were knocked over onto the floor and the bed, even though there was no blood pattern on the walls to suggest that Uta might have caused the disarray by stumbling around the room on her own. The blood patterns on Uta’s comforter and sheet showed that Uta struggled “under a restraint.” The bloodstains under the bathroom windowsill and sink were consistent with Uta being pushed into the bathroom with blood on her hands. The lack of hand-transfer bloodstains on Uta’s tank top suggested that she had not removed it herself. And although the defense expert drew different conclusions from this same evidence, the weight to be given to such conflicting expert opinions is solely the province of the jury. See State v. Berchtold, 357 P.2d 183, 186 (Utah 1960).

¶58 As to Uta’s injuries, she sustained defensive wounds on her arms and on the back of one of her legs, suggesting that she tried to defend herself from an attacker. She had hemorrhaging in her neck and petechiae in her eye, each of which is consistent with strangulation. She also had male DNA under her fingernails, which is consistent with scratching an attacker.

¶59 Additional evidence supported the prosecution’s theory that a second person left the home shortly after Uta had been subdued. The blinds in Uta’s bathroom and bedroom—which were normally open—had been shut, and bloody shoeprints in those rooms had been wiped clean, as well as a bloody spot above Uta’s headboard. In the kitchen, which had no blinds, no effort had been made to clean up dried-blood shoeprints. The prints did not match any of the first responders’ or the boyfriend’s shoes. In any event, the reconstructionist testified that Uta’s blood would have dried in the hours between her death and the discovery of her body and that the prints were inconsistent with the later transfer of rehydrated blood. Evidence that someone had tracked fresh blood through the kitchen around the time of Uta’s death and had tried to clean up blood in those rooms where the activity could take place behind closed blinds was strong evidence supporting the jury’s conclusion that Uta was murdered.

¶60 Other evidence further undercut the defense’s theory that Uta’s death was a suicide or accidental overdose. Without exception, the witnesses who knew Uta testified that she was not suicidal. To the contrary, she was excited about a breakthrough at work, was looking forward to an upcoming trip with the younger children, and was making plans up until the night before her death. And although there was a near-lethal dose of Xanax found in Uta’s system, there was no evidence that Uta had ever been prescribed or taken Xanax, and no prescription bottles or labeled film canisters for the drug were found at Uta’s house. In addition, there were no pill remnants in her stomach that would account for the concentration of Xanax in her system, supporting the prosecution’s theory that Uta was either injected with or forced to swallow a slurry containing a high concentration of Xanax.

¶61 Two forensic pathologists reviewed all of the relevant reports from the police, medical practitioners, and the autopsy and testified that the cause of death was homicide. Even the medical examiner, who had been told that Uta’s death was “a probable suicide overdose,” found the evidence to be “more consistent with homicide than anything else,” refused “to call this a suicide,” and “would have certified the death as a homicide” had it not been for the ambiguity created by the Xanax in Uta’s system. The medical examiner’s uncertainty was understandable because, as the crime scene reconstructionist explained, “this scene was a homicide that was staged to look like a suicide.” Based on all of this evidence, a reasonable jury could find beyond a reasonable doubt that Uta was murdered.

¶62 There was also sufficient evidence to support the jury’s determination that Wall was the murderer. Wall had a well-established motive to kill Uta. They were involved in an acrimonious ongoing custody dispute, and those familiar with him knew that Wall “despised” Uta. He often complained that she made his “life difficult” and blamed her for his unhappiness. Mere days before Uta’s body was discovered, Wall informed a new acquaintance that he was “getting his kids back.” And after her death, Wall told their youngest son that “maybe it’s better that she’s dead.”

¶63 Wall also had the opportunity to commit the murder. He could not account for his whereabouts around the time of Uta’s death. In his first police interview, Wall told the detectives that he had gone to a gas station near his house to purchase eggs between 6:45 a.m. and 7:00 a.m. and then returned home to make breakfast. But his older children indicated that he was already gone when they awoke for school around 6:00 a.m. and had not returned by the time the eldest son left for school at 7:30 a.m. In a deposition more than a year later, he claimed that he woke up early and went to the hospital to work on charts, even though a hospital witness testified that doctors know that they cannot access the medical records office before 8:00 a.m. Wall claimed that he could not access the hospital because he had forgotten his identification and then decided to go on a pre-dawn hike, despite having left no word for his children, as had been his practice. No one could corroborate his whereabouts between the time the children went to bed the night before and 7:05 a.m. the next morning when he was spotted driving his car some distance from his house.[3] He later appeared for work disheveled and wearing the same clothes as the day before as if he had not been home to sleep or get ready for work. Not only did Wall have the time and opportunity to commit the murder, the jury had ample reason to find his evolving story incredible.

¶64 The lack of forced entry at Uta’s home also supported the conclusion that the crime was not committed by a stranger. When Uta’s body was discovered, the door to her house was unlocked, even though Uta always locked it before bed. The eldest son testified that Uta kept a spare key hidden outside the house for the children and that the key was missing after Uta’s death. The jury could reasonably infer that Wall knew of the spare key and used it to enter the house on the night of the murder.

¶65 Wall also had access to the drug used to subdue Uta. In fact, he had recently written a prescription for the highest dose of Xanax, purportedly for his mother who lived in California, although she could not confirm receiving it. The jury could reasonably conclude that Wall filled the prescription at a pharmacy that he had not used before or since (and later feigned ignorance of the drug) to make it harder to link him to the drug he used in the course of killing Uta.

¶66 The jury could also reasonably conclude that Wall’s behavior and statements showed consciousness of guilt. When the police asked him if he killed Uta, he responded with equivocal statements such as, “I don’t know, I don’t think I did it,” “I don’t think I was there,” and “If I did it, I made a mistake, and I am sorry. But I don’t think I did it.” When Wall was released after the police interview, he was surprised and said, “[B]ut I’m a monster.” When he returned home, Wall announced to the children, “Uta’s dead and they think I did it.” Rather than comfort the children, Wall acted “distraught,” curled into the fetal position and cried, and forced the children to take care of him because “he was scared he would do something he would regret.” He kept calling himself a monster and repeatedly asked the children, “What if I did it and I don’t remember?”

¶67 Furthermore, Wall volunteered implausible explanations for physical evidence that might connect him to the crime. Even before Uta’s body was discovered, Wall tried to explain the scratch on his eye by telling everyone that he had recently started sleeping on his porch and that his dog scratched him while he slept. No one ever saw him sleep on the porch, and no one had ever seen the dog scratch anyone. And to those who testified, the scratch to Wall’s eye looked like it was caused by a fingernail. Wall also had scratches on his arms and legs that he quickly covered up when people noticed. When interviewed by police, he was vague about the last time he had seen or touched Uta and whether he might have been in her house around the time of her death. He told the police that his cell phone was stolen from his unsecured car that same day but later asked his eldest son, “If the police found my phone [at Uta’s house] what could I say to refute that?”

¶68 Significantly, Wall offered new explanations when he knew that DNA test results were pending. When he was deposed in the wrongful death lawsuit, Wall offered a new story that would explain why his DNA might be found under Uta’s fingernails. For the first time, Wall claimed that he had not only seen Uta again after picking up the children on the night of her death, but that the two of them had gotten into an altercation and that she had struck him in the face. He also claimed that she had once tried to seduce him in her bedroom, which could explain why his DNA might be found at the crime scene. And Wall took care to mention that Uta had leaned into the back seat of his car the night before her death to give their daughter a hug, touching the part of the seat that the investigators collected to search for DNA evidence, although her DNA ultimately was not found in that sample. The jury could reasonably infer that Wall offered these explanations because he knew that the results of the DNA testing could link him to the crime.

¶69 While this summary is by no means an exhaustive review of all of the evidence supporting Wall’s guilt, it is more than sufficient to demonstrate that the jury’s verdict was supported by substantial evidence. This is not a case in which the evidence was so inconclusive or inherently improbable that it could not support a finding of guilt beyond a reasonable doubt. The State presented sufficient evidence to support the jury’s conclusion that Uta was murdered and that Wall was her murderer.

II. Admissibility of DNA Evidence

¶70 Wall next argues that the district court should have excluded the DNA evidence that was extracted from Uta’s pillowcase because “the State failed to make the threshold showing that [the forensic laboratory’s] methodology was reliable or reliably applied” under rule 702(b) of the Utah Rules of Evidence. Rule 702(b) provides that “[s]cientific, technical or other specialized knowledge may serve as the basis for expert testimony only if there is a threshold showing that the principles or methods that are underlying the testimony” are “reliable,” “based upon sufficient facts or data,” and “have been reliably applied to the facts.” Utah R. Evid. 702(b).

¶71 In applying rule 702(b), the district court “performs an important gatekeeping function, intended to ensure that only reliable expert testimony will be presented to the jury.” Gunn Hill Dairy Props., LLC v. Los Angeles Dep’t of Water & Power, 2012 UT App 20, ¶ 31, 269 P.3d 980. But this function is “limited” to “ensuring a minimal ‘threshold’ of reliability for the knowledge that serves as the basis of an expert’s opinion” and must not “displace the province of the factfinder to weigh the evidence.” State v. Jones, 2015 UT 19, ¶ 26, 345 P.3d 1195 (cleaned up). Although “the line between assessing reliability and weighing evidence can be elusive,” appellate courts “must be mindful of this important distinction because the factfinder bears the ultimate responsibility for evaluating the accuracy, reliability, and weight of the testimony.” Id. (cleaned up). “When performing their gatekeeping function, judges should approach expert testimony with rational skepticism. But the degree of scrutiny that should be applied to expert testimony by trial judges is not so rigorous as to be satisfied only by scientific or other specialized principles or methods that are free of controversy or that meet any fixed set of criteria fashioned to test reliability.” Gunn Hill Dairy Props., 2012 UT App 20, ¶ 32 (cleaned up).

¶72 Before trial, Wall moved to exclude, among other things, the DNA results from the pillowcase, arguing that he “should be excluded as a possible contributor” because some alleles were missing from the sample and because the “statistical probability” calculated by the forensic laboratory was unreliable. The district court held an evidentiary hearing to determine whether the evidence and expert testimony met the minimum threshold of reliability necessary for its admission.

¶73 At that hearing, the court heard testimony from two experts from the forensic laboratory that conducted the DNA tests and one expert for the defense. All of the experts testified to DNA composition in general and forensic DNA testing. DNA is made up of twenty-three pairs of chromosomes and is found in most cells of the human body. Twenty-two of the chromosomal pairs control non-sex traits (autosomal) and the twenty-third chromosome is sex determining—either male or female. Except for identical twins, no person has the same DNA as another person. But only one percent of human DNA differs from person to person based on short tandem repeats (STRs), which are patterns of alleles at a certain locus within human DNA. “At each given locus, you would expect to see two alleles because you get one from your mother and one from your father.” But sometimes there is only one allele at a given locus, which occurs “when you get the same [allele] from both your mother and your father.” Forensic DNA analysts focus on these patterns to discover the identity of the source of the DNA.

¶74 When conducting an autosomal STR analysis, as was done in this case, the forensic analyst targets sixteen of the individualized STR locations along the twenty-two autosomal chromosomes. There are five steps to the test: extraction, quantification (determining how much DNA was isolated at the targeted sixteen loci), amplification (creating copies of the DNA sample by splitting the DNA “ladder” down the middle and re-bonding the DNA to create a sufficient number of copies of the sample for testing), the actual testing (using florescent dye and an electrophoresis machine), and analysis.

¶75 The experts further explained that, during the testing stage, the analyst injects the DNA with fluorescent dye and runs it through an electrophoresis machine, which measures the alleles’ fluorescence in “relative fluorescence units” (RFUs). Then, a software program creates a graph of this data and shows the “peaks” of each allele (i.e., the strength of the fluorescence) at the sixteen tested loci. The peaks will appear taller or shorter depending on how much DNA is present at that allele and a taller peak means it “has more DNA.” If an allele reaches a peak of fifty RFUs, then it has reached the “analytical threshold” and the analyst can rely on that as a match of alleles on that locus between the crime-scene sample and the possible-contributor sample. If an allele’s peak is below fifty RFUs, it is unclear whether the allele represents DNA or “background noise.”

¶76 After providing this background, the analysts from the forensic laboratory (the State’s experts) then testified directly to the DNA samples and comparisons in this case. Relevant to the sample collected from the pillowcase using the M-Vac process,[4] the State’s experts found that Wall’s entire autosomal STR profile was present in that sample, but that three of the alleles were detected below the analytical threshold. Because three alleles did not meet the analytical threshold, the State’s experts followed the laboratory’s policy to conduct a second amplification test to see if the results were reproduced. The second test produced the same results,[5] and the analysts determined that Wall could not be excluded as a possible contributor because a “repeat” event “gives more credence or reliability to that event.” The State’s experts explained that a finding that a person cannot be excluded as a possible contributor does not mean that the person is an “actual” contributor. The defense’s expert disagreed with the laboratory’s policy to retest the sample and concluded that any DNA sample with an allele that does not reach the analytical threshold should amount to an exclusion of the individual as a possible contributor to the sample.

¶77 Following the hearing, the court issued a detailed written order denying Wall’s motion to exclude the evidence. The court explained that although the director of the forensic laboratory determined that there was “questionable activity” with respect to alleles on three loci within the DNA sample, it is the laboratory’s policy “not to disregard it.” Instead, the director determined that these results showed that Wall could not be excluded as a possible contributor to the DNA sample because the three loci where the alleles were recorded “below the analytic threshold at the points where [Wall’s] alleles should have been” showed that “it is possible these loci could contain” Wall’s alleles based on the results of the repeat amplification. The court found that many laboratories have similar policies and that this particular laboratory’s “policy has been subjected to third party assessment and has been approved by auditing companies and at least one previous director of the lab.” The court explained that although there was conflicting expert testimony from the State and the defense regarding the reliability of the results of this DNA sample, it was “not the court’s role to decide which expert is correct,” and the court determined that Wall’s “objection to this evidence is a matter of weight rather than reliability.” The court concluded that the State “made a threshold showing of reliability” and admitted the evidence.

¶78 On appeal, Wall asserts that the forensic laboratory’s “director . . . testified that the [laboratory’s] method of including [Wall] as a possible contributor was unreliable.” But as articulated above, the director testified that data below the analytical threshold is “not reliable” with respect to conclusively including or excluding an individual for statistical purposes, but that the laboratory is “not going to put blinders on and just completely ignore it.” This is because the presence of “some activity” or “amplification” at these loci shows that something is “detected.” The director explained that ignoring the below-threshold information with respect to certain alleles and excluding an individual as a possible contributor can make “exclusion inaccurate.”

¶79 Wall also asserts that the “State did not demonstrate that . . . [the laboratory’s] methods were reliable and reliably applied to include [Wall] as a possible contributor.” But the district court made specific findings that the laboratory’s policy against excluding a person where a possible match is detected below analytical thresholds is consistent with the practice of other laboratories and that recent audits and third-party assessments have approved this policy. The district court acted well within its discretion in relying on this evidence to conclude that the laboratory’s methods met the minimum threshold of reliability.

¶80 We therefore conclude that Wall has not shown that the district court exceeded its discretion when it admitted the DNA evidence and expert testimony under rule 702(b) of the Utah Rules of Evidence.

III. Ineffective Assistance of Counsel

¶81 Finally, Wall argues that his trial counsel was ineffective in failing to object to the prosecutors’ statements in closing argument that he asserts misconstrued the DNA evidence.[6] To prove that trial counsel was ineffective, Wall must show that trial “counsel’s performance was deficient, in that it fell below an objective standard of reasonable professional judgment,” and “that counsel’s deficient performance was prejudicial.” State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92; see also Strickland v. Washington, 466 U.S. 668, 687–88 (1984). The “failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim.” State v. Torres, 2018 UT App 113, ¶ 14, 427 P.3d 550 (cleaned up). Consequently, “there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697. Here, Wall has not shown that his counsel performed deficiently.

¶82 When we review a claim of deficient performance, we “presume[] that counsel has rendered adequate assistance,” and “if the challenged act or omission might be considered sound trial strategy, we will not find that it demonstrates inadequacy of counsel.” State v. Kingston, 2002 UT App 103, ¶ 8, 46 P.3d 761 (cleaned up). “When we review an attorney’s failure to object to a prosecutor’s statements during closing argument, the question is not whether the prosecutor’s comments were proper, but whether they were so improper that counsel’s only defensible choice was to interrupt those comments with an objection.” State v. Houston, 2015 UT 40, ¶ 76, 353 P.3d 55 (cleaned up). This is because “counsel for both sides have considerable latitude in their closing arguments. They have the right to fully discuss from their perspectives the evidence and all inferences and deductions it supports.” Id. (cleaned up). “Moreover, a prosecutor has the duty and right to argue the case based on the total picture shown by the evidence.” Id. (cleaned up). Through this lens, we review the three points in the State’s closing arguments to which Wall claims any reasonably competent trial counsel would have lodged an objection.

¶83 First, Wall challenges a statement made by the prosecutor in the first part of the State’s closing arguments. The prosecutor stated, “We have male DNA being found under [Uta’s] right-hand fingernail clippings. I would submit to you it was as if [Uta] was standing in this courtroom and pointing to [Wall] as her killer.” Wall argues that this statement violated the court’s order related to DNA evidence, which informed the parties that they could not use the DNA evidence to show conclusively that he was the contributor to the DNA, and therefore trial counsel was deficient in failing to object to it. The prosecutor correctly noted that male DNA was found under Uta’s fingernail, not that Wall’s DNA was underneath her fingernail, but essentially told the jury that the reasonable inference was that Wall’s DNA was under Uta’s fingernail. Assuming without deciding that this statement was improper, trial counsel may have based his decision to forgo an objection on sound trial strategy, choosing instead to undermine the State’s characterization of the fingernail-DNA evidence in his own closing argument.[7] This is exactly what trial counsel did. Trial counsel argued that the DNA evidence was “just meaningless,” it “doesn’t prove anything” because Wall was excluded as a possible contributor to some of the DNA samples, the DNA test results were “unreliable,” and the DNA evidence “doesn’t put [Wall] in [Uta’s] house.” We therefore conclude counsel was not deficient in failing to object to the State’s characterization of the fingernail-DNA evidence. See State v. King, 2012 UT App 203, ¶ 14, 283 P.3d 980 (explaining that counsel performs deficiently only where there is no “conceivable tactical basis for counsel’s actions” (cleaned up)).

¶84 Next, Wall argues that in the State’s rebuttal closing argument, the prosecutor improperly told the jury that it was in a better position to determine Uta’s cause of death because the medical examiner who wrote the report “didn’t know about all the DNA work” and that counsel should have objected to that statement. The challenged statement was a direct response to statements made by Wall’s trial counsel in his closing argument. Specifically, Wall’s counsel made the following argument:

Here’s the part you guys have been waiting for, the conclusion. There’s been a lot of evidence introduced here. And we’ve heard a lot of evidence about the relationship of two people, about their lives, their mental states, their problems. You’ve heard a lot of evidence about forensics, about shoe identification, blood stains and pathology. But the most critical testimony in this case, the most critical input came from the state medical examiner.

He went on to explain that the medical examiner’s testimony was key because it “indicated that [Uta’s death] was either a homicide or suicide” and that the medical examiner’s “opinions were affected by the presence of Xanax in [Uta’s] body.” The defense theory was that the medical examiner’s inability to conclude one way or the other “establishe[d] reasonable doubt.”

¶85 In rebuttal, the prosecutor opened with the following response:

I’d like to start first with the last thing that was said [in trial counsel’s closing argument], the critical piece of evidence was the medical examiner. And I want you to remember what the medical examiner said because you all have a better position than he did when he wrote that report. He said he didn’t have [Uta’s] medical and mental health records. He didn’t know about all the DNA work. He didn’t know about all the witnesses that [testified]. You, ladies and gentlemen, know more about this case than he did when he wrote his report . . . . You know everything. You know all the witnesses who said she was not suicidal, that she didn’t do this. And so you can confidently find this individual guilty.

¶86 The prosecutor’s statement that the medical examiner “didn’t know about all the DNA work” is an accurate characterization of the evidence. The medical examiner testified that he did not have all of Uta’s medical records, all of the police reports or witness statements, the crime scene reconstructionist’s report, the bloodstain expert reports, or “any of the DNA reports that had been done.” Moreover, the prosecutor’s statement did not suggest, as Wall claims, that the DNA evidence alone conclusively established that Uta had been murdered. Instead, the prosecutor pointed to “everything” the jury heard during the trial that the medical examiner did not know, including not just the DNA evidence, but also information about Uta’s medical and mental health records and the testimony of numerous witnesses offered during the four-week trial. In context, the prosecutor’s argument neither misstated the evidence nor overemphasized the importance of the admittedly inconclusive DNA evidence. As a result, any objection made by trial counsel to this statement would have been futile and did not constitute deficient performance. See State v. Perez-Avila, 2006 UT App 71, ¶ 7, 131 P.3d 864 (“It is well settled that counsel’s performance at trial is not deficient if counsel refrains from making futile objections, motions, or requests.”).

¶87 Wall also argues that trial counsel should have objected to the prosecutor’s statements about DNA found on Uta’s comforter. One of the forensic laboratory’s analysts testified that the laboratory collected DNA using different methods on five areas of Uta’s comforter and submitted them for testing. Four of the test results either excluded Wall or were inconclusive for male DNA. The fifth test included Wall as possible contributor. The analyst also conceded on cross-examination that, based on the results of the test, all four children’s alleles are accounted for [and Wall’s] alleles are accounted for” in that sample. Wall contends that the prosecutor erroneously “insisted the DNA must be from [Wall] rather than the Wall children” because the State mischaracterized how the DNA samples were collected from the comforter when it said that the DNA came from “pinpoint location[s].”

¶88 As an initial matter, we note that trial counsel moved to exclude all of the DNA evidence prior to trial based on “inaccurate statistical evidence for DNA mixtures” but later withdrew that motion with respect to the DNA collected from Uta’s comforter. Trial counsel chose instead to advance the theory at trial—through the defense’s own expert testimony and through cross-examination of the State’s experts—that there was a “possibility of all of the children being [contributors]” to some of the DNA samples, including the comforter, and therefore “it’s impossible to determine if [Wall’s] DNA is in that sample.” Trial counsel reiterated this point in closing argument:

Now [the State] is probably going to talk to you about if [Wall’s] and [Uta’s] allele charts are both present, if their genetic patterns are both there, then all the kids are going to be there too. Use your common sense. You have four kids living in the house and [Uta] living in the house . . . . Whose DNA is going to be on the comforter? The people living in the house.

. . . .

And if you remember the hypothetical that I gave to [the State’s expert] that if all the children used the towel when they’d been out hiking or sweating and had DNA placed in the towel . . . to a sufficient degree that it could be tested, that even if [Wall] was in Australia, . . . he would be found to be a possible contributor.

¶89 In the State’s rebuttal closing argument, the prosecutor reminded the jury that the two eldest children testified they had “never been on [Uta’s] bed for a long time . . . [s]o their DNA won’t be there.” He also said that the DNA was not “all over the comforter” and was instead at “a very pinpoint location.” He further explained:

That’s where you are going to find [Wall’s] DNA. And it’s not going to be because the children were there, because you need to have all four children to be on that same spot. And you’re going to tell me that at these particular locations all four children went and equally touched that spot to make that combination? That’s ridiculous. The more likely and the real reasonable is that one person touched it, and it’s [Wall].

¶90 It is unclear why trial counsel would be deficient for failing to object to the very argument that he forecasted for the jury in his own closing argument. Trial counsel had already presented a counterargument to the State’s theory by providing the jury an alternative explanation for why certain DNA samples could have included Wall’s DNA without Wall having ever touched the relevant items. And trial counsel reiterated at many points throughout trial and in closing argument that the DNA evidence was “meaningless” because Wall was excluded as a possible contributor to some of the DNA samples and that he should have been excluded as a possible contributor to other DNA samples because the laboratory’s methods were “unreliable.” Trial counsel’s strategy related to this DNA evidence was clear, and his strategic decision not to object to the State’s alternative characterization of this same evidence was not deficient.

¶91 Further, any objection to the prosecutor’s statement would have been futile. See Perez-Avila, 2006 UT App 71, ¶ 7. Just as trial counsel was free to argue that it was more reasonable that the children’s DNA had combined on the comforter to create a sample that happened to be consistent with Wall’s DNA, the State was free to argue that it was more likely that a single person, Wall, was the contributor. See Houston, 2015 UT 40, ¶ 76 (recognizing that “counsel for both sides have considerable latitude in their closing arguments,” that “they have the right to fully discuss from their perspectives the evidence and all inferences and deductions it supports,” and that the State has “the duty and right to argue the case based on the total picture shown by the evidence” (cleaned up)).

¶92 Relatedly, Wall has not persuaded us that trial counsel was deficient in failing to object to the prosecutor’s statement that the DNA was extracted at a “pinpoint location” and that all of the children would have had to touch that exact spot. The State’s expert testified that the DNA was collected via M-Vac only on the locations where there were bloodstains. Thus, the samples were not drawn from the entire comforter, as Wall suggests. And trial counsel could have reasonably determined that objecting would have been futile and would have drawn greater attention to that evidence. See Perez-Avila, 2006 UT App 71, ¶ 7; see also State v. Ott, 2010 UT 1, ¶ 39, 247 P.3d 344 (noting “that avoidance of drawing the jury’s attention to certain facts or over-emphasizing aspects of the facts is a well recognized trial strategy”).

¶93 “The object of an ineffectiveness claim is not to grade counsel’s performance.” Strickland v. Washington, 466 U.S. 668, 697 (1984). Instead, we “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689. In this case, Wall has not shown “that the challenged actions cannot be considered sound strategy under the circumstances.” See State v. Torres, 2018 UT App 113, ¶ 16, 427 P.3d 550 (cleaned up).

CONCLUSION

¶94 We conclude that there was sufficient evidence to support Wall’s murder conviction. We further conclude that the district court did not exceed its discretion in admitting certain DNA evidence because the State made the threshold showing that the forensic laboratory’s methods and policies were reliable. Finally, Wall has not persuaded us that his trial counsel performed deficiently in failing to object to certain parts of the State’s closing arguments because the State did not mischaracterize the evidence and the arguments fairly responded to the theories argued by the defense.

¶95 Affirmed.

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

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[1] “This court typically does not include the names of crime victims, witnesses, or other innocent parties in its decisions. We make an exception in this case due to the considerable notoriety this criminal episode has attracted. The [victim’s] identity is well known, and obscuring her identity in this decision would serve no purpose.” State v. Chavez-Reyes, 2015 UT App 202, ¶ 2 n.2, 357 P.3d 1012. Additionally, although we generally refer to relevant parties by their last names, we will refer to the victim in this case as Uta because that is how all of the witnesses referred to her at trial.

[2] Wall claimed to have told Uta’s father, but Uta’s father had died before Uta and therefore could not corroborate this claim.

[3] On appeal, Wall makes much of the fact that the autopsy report did not document any changes to Uta’s skin, known as “washerwoman syndrome,” from having been immersed in water for a long period of time. Wall argues that the absence of such evidence conclusively proves that Uta’s death occurred shortly before her body was found in the evening rather than during the early morning hours when Wall had no alibi. But the medical examiner testified that, although he did not note washerwoman changes in his report, he had not been looking for them because the death had not been presented as a possible homicide. And there was conflicting testimony from defense and State experts about whether washerwoman changes could be seen in the autopsy photographs. The jury could reasonably conclude that the apparent absence of washerwoman syndrome was entitled to less weight than the defense believed it deserved.

[4] According to expert testimony, “[a]n M-Vac is basically like a DNA wet vac[uum]” that has a “buffer” in it that will not degrade or harm the DNA sample. The M-Vac soaks the targeted area and then “sucks up the liquid.” The liquid is “run through a series of filters” to extract the DNA from the targeted area for forensic analysis.

[5] One of the alleles that was above the analytical threshold in the first test was below the threshold in the second test. But the State’s experts explained in great detail why this could occur and why it did not undermine their confidence in that allele.

[6] In his opening brief, Wall argued that trial counsel was also ineffective for failing to object to certain statements elicited on direct examination of the State’s expert witnesses. But at oral argument, appellate counsel conceded that “the issue about the DNA is all about closing argument and closing argument only.” This court asked the clarifying question, “Your [ineffective assistance of counsel claim] is failure to object during closing arguments, not the failure to object during the expert testimony?” And appellate counsel responded, “That’s right.” We therefore do not address whether trial counsel was ineffective for failing to object during direct examination of the State’s expert witnesses.

[7] At oral argument, this court asked, “Why wouldn’t it be reasonable to wait and rebut the prosecutor’s statements during the defense’s closing argument rather than object?” And appellate counsel responded, “So far I’m with you,” apparently conceding that failing to object to this statement alone was not sufficient to establish deficient performance.

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2019 UT App 202 – State v. Baize – protective order challenge

2019 UT App 202 – THE UTAH COURT OF APPEALS

STATE OF UTAH, Appellee,
v.
NATHAN DAVID BAIZE, Appellant.

Opinion
No. 20180326-CA
Filed December 12, 2019

Fourth District Court, American Fork Department
The Honorable Roger W. Griffin
No. 161100835

Douglas J. Thompson, Attorney for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES KATE APPLEBY and JILL M. POHLMAN concurred.

CHRISTIANSEN FORSTER, Judge:

¶1           Nathan David Baize appeals his convictions for violating a protective order. We affirm.

BACKGROUND[1]

¶2           Baize and his former wife (Victim) were married in 2010 and divorced in 2014. Victim had sole physical custody of their child and shared joint legal custody with Baize. After enduring several instances of verbal and physical abuse, Victim sought a protective order against Baize. The court issued a protective order after a hearing, at which Baize was present, directing Baize not to “commit, try to commit or threaten to commit any form of violence” against Victim, including “stalking, harassing, threatening, physically hurting, or causing any other form of abuse.” Baize was also ordered, “Do not contact, phone, mail, e-mail, or communicate in any way with [Victim], either directly or indirectly,” with the exception that Baize could email Victim about their child, provided his communications were “civil in nature.”

¶3           After the entry of the protective order, Baize sent numerous emails to Victim that were not about their child, not civil in nature, and arguably abusive. Much of the content of the emails was directed toward Victim’s qualities and character. Baize sent emails to Victim telling her that she was a “spoiled brat,” “lazy,” “irresponsible,” “vindictive,” “selfish,” “uncooperative,” “incapable,” “fake,” and lacking “integrity.” Baize also sent emails to Victim telling her to “[u]se your brain blondie,” to “[k]eep it simple stupid, [Victim’s name],” and that he was “sick and tired . . . of [Victim’s] blonde, lazy, messed up approach to cooperation.” Additionally, on several occasions, Baize threatened to call the police for “custodial interference charges.”

¶4           On another occasion, Baize emailed Victim—with a copy also sent to Victim’s new husband—complaining about Victim and alleging that Victim engaged in certain improprieties during their marriage. Victim’s husband spoke to Baize at length and told him that he “need[ed] to stop the belligerent, degrading emails to [Victim].” Baize responded that his emails “will never stop.” Furthermore, Baize told Victim that she was “a weak, weak person” because she would “construe [his email comments] as personal attacks.”

 

¶5        The content of Baize’s emails to Victim prompted the State to charge him with four counts of violating a protective order. See Utah Code Ann. § 76-5-108 (LexisNexis Supp. 2018). These charges were enhanced from misdemeanors to third degree felonies because Baize already had a prior conviction for violating the same protective order. See id. § 77-36-1.1(2)(c) (Supp. 2019) (describing enhanced penalties for violating a protective order). Baize moved to dismiss the charges, arguing that the protective order was an unconstitutional prior restraint of speech and that requiring his emails to be “civil in nature” was unconstitutionally vague. Baize also asked the court to give the jury an instruction defining the terms “harassing,” “threatening,” and “abuse” in the protective order as “forms of violence or threats of violence.” The court denied both motions.

¶6        At trial, Baize stated that while the tone in his emails might indicate that he was “[f]rustrated,” “feeling dejected,” “[h]elpless, hopeless, [and] concerned,” the emails were never uncivil. Rather, Baize asserted that he was just being “honest” and “clear.” However, Baize also testified that he suspected Victim would be offended by the emails and that Victim was “weak” for reading his emails as insults. Baize also admitted that his emails were similar in tone and content to emails he had sent previously to Victim, which formed the basis of his prior conviction for violating the same protective order. The jury found Baize guilty of three counts of violating a protective order. Baize appeals.

ISSUES AND STANDARDS OF REVIEW

¶7        The first issue on appeal is whether the restriction in the protective order requiring that Baize’s communication with Victim be “civil in nature” rendered the order unconstitutionally vague or acted as a prior restraint on speech. “Whether [an order] is constitutional is a question of law that we review for correctness, giving no deference to the trial court.” State v. MacGuire, 2004 UT 4, ¶ 8, 84 P.3d 1171 (quotation simplified).

 

¶8           Baize’s second challenge on appeal is that the trial court erred in denying his request to instruct the jury on the “legal definitions” of terms in the protective order. This issue presents a question of law, and both parties agree that we review the trial court’s decision on this point for correctness. See State v. Dozah, 2016 UT App 13, ¶ 12, 368 P.3d 863 (“We review a district court’s refusal to give a requested jury instruction for correctness.”).

ANALYSIS

I. Constitutional Challenges to the Protective Order

¶9           At the outset, we must determine whether Baize is permitted, “in this criminal proceeding, [to] collaterally attack the protective order entered in the prior civil proceeding.” See State v. Hegbloom, 2014 UT App 213, ¶ 10, 362 P.3d 921. The State contends that as “a threshold matter, this Court should not address either constitutional claim because the collateral bar rule precludes Baize from challenging the validity of the protective order in a prosecution for violating that order.”

¶10 A collateral attack is “where a judgment is attacked in other ways than by proceedings in the original action to have it vacated or revised or modified or by a proceeding in equity to prevent its enforcement.” Olsen v. Board of Educ. of Granite School Dist., 571 P.2d 1336, 1338 (Utah 1977) (quotation simplified). “Under the collateral bar doctrine, a party may not challenge a district court’s order by violating it. Instead, [the party] must move to vacate or modify the order, or seek relief in an appellate court.” Iota LLC v. Davco Mgmt. Co., 2016 UT App 231, ¶ 13, 391 P.3d 239 (quotation simplified). “With rare exception, when a court with proper jurisdiction enters a final judgment, . . . that judgment can only be attacked on direct appeal.” State v. Hamilton, 2003 UT 22, ¶ 25, 70 P.3d 111.

¶11 The proper forum for a defendant to challenge a protective order’s terms is in the original action, not in a subsequent criminal case resulting from its violation. This court has already addressed this issue in Hegbloom, where we stated that a civil protective order is not subject to collateral attack and that there is “nothing fundamentally unfair in not allowing a litigant to challenge collaterally a judgment he could have challenged directly had he chosen to do so.” 2014 UT App 213, ¶¶ 15, 22; see also Olsen, 571 P.2d at 1338 (explaining that when an issue is erroneously decided, the proper remedy is to directly, rather than collaterally, attack it); Iota, 2016 UT App 231, ¶ 18 (“The proper method for contesting an adverse ruling is to appeal it, not to violate it.” (quotation simplified)). Courts in other jurisdictions are in accord.[2]

¶12 Thus, our precedent and that of other jurisdictions make clear that the collateral bar rule applies to situations in which a defendant seeks to attack the validity of a protective order in a criminal proceeding for addressing a violation of that same protective order. See State v. Winter, 979 A.2d 608, 615 (Conn. App. Ct. 2009) (“The collateral bar rule has been extended to apply to situations in which . . . the defendant seeks to attack the validity of a court order in a criminal proceeding, and the rule is justified on the ground that it advances important societal interests in an orderly system of government, respect for the judicial process and the rule of law, and the preservation of civil order.” (quotation simplified)).

¶13 Here, Baize was ordered not to “commit, try to commit or threaten to commit any form of violence” against Victim, including “stalking, harassing, threatening, physically hurting, or causing any other form of abuse.” The relevant portion of the protective order also provided the following prohibition: “Do not contact, phone, mail, e-mail or communicate in any way with [Victim], either directly or indirectly,” the only exception being that Baize could contact Victim “via email about Child,” provided the emails were “civil in nature.” Not only did Baize sign the protective order as a whole, but he initialed each provision of the order, including those he now challenges on constitutional grounds. Thus, at the outset and even before he signed it, Baize had the opportunity to seek clarification of any provision in the order that he believed was too restrictive or vague. And after the protective order was entered by the court, Baize still could have challenged the order on direct appeal. But he never did so. Instead, Baize raised his prior restraint and vagueness challenges to the protective order only after he was criminally charged a second time with violating the order.

¶14 Precedent—both that of Utah and other jurisdictions­ states that a defendant cannot attack the validity of a protective order in a prosecution for violating the order. And that is exactly what Baize attempts to do here. Thus, we conclude that Baize cannot collaterally attack a protective order arising from a civil proceeding in this criminal proceeding. Put simply, this is not the proper forum to address constitutional challenges to the protective order’s terms.[3]

II. Legal Definitions in the Protective Order

¶15 The protective order prohibited Baize from “stalking, harassing, threatening, physically hurting, or causing any other form of abuse” to Victim. Baize argues that the trial court erred when it denied his request to define for the jury certain “legal terms” contained in the protective order.

¶16 Jury instructions require no specific form as long as they accurately convey the law. “To determine if jury instructions correctly state the law, we look at the jury instructions in their entirety and will affirm when the instructions taken as a whole fairly instruct the jury on the law applicable to the case.” State v. Painter, 2014 UT App 272, ¶ 6, 339 P.3d 107 (quotation simplified); see also State v. Hobbs, 2003 UT App 27, ¶ 31, 64 P.3d 1218 (stating that jury instructions will be upheld when they “fairly tender the case to the jury even where one or more of the instructions, standing alone, are not as full or accurate as they might have been” (quotation simplified)).

¶17 Baize was charged with violating a protective order. See Utah Code Ann. § 76-5-108 (LexisNexis Supp. 2018) (stating that any person who is “subject to a protective order” and “who intentionally or knowingly violates that order after having been properly served” is guilty of a misdemeanor or felony, depending on the circumstances). The court instructed the jury that to find Baize guilty of violating the protective order, it would need to find beyond a reasonable doubt the following elements:

  1. Nathan David Baize;
  2. While subject to a protective order issued by a Utah Court;
  3. After having been properly served with the protective order;
  4. Intentionally or knowingly violated the protective order; and
  5. Is or was a cohabitant of the alleged victim.

¶18 Baize contends that the court erred when it denied his motion requesting a jury instruction that defined the terms “stalking, harassing, threatening, physically hurting, or causing any other form of abuse” as forms of violence or the threat of violence. Baize argues that “because the protective order only prohibits stalking, harassing, threats, and abuse insofar as these terms could mean violence or a threat of violence,” the definitions of those terms should be “limited . . . to that realm.” (Quotation simplified.) Specifically, Baize requested that the court instruct the jury on the definitions of harassment and physical harm as those terms are defined in Utah’s criminal code or in the Cohabitant Abuse Procedures Act. See Utah Code Ann. § 76-5-106(1) (LexisNexis 2017) (defining harassment as intentionally frightening or harassing another by communicating “a written or recorded threat to commit any violent felony”); id. § 77-36-1(4) (Supp. 2019) (defining domestic violence as “any criminal offense involving violence or physical harm or threat of violence or physical harm”).[4]

¶19 The violence-based definitional language Baize requested is not found in the protective order or in the statute he was accused of violating. But Baize asserts that because Utah Code section 76-5-108 does not define the terms in the protective order (namely, harassing and threatening), the court should have given the jury the statutory meanings of those terms pulled from other provisions of the criminal code instead of allowing the jury to rely on the general understanding of the terms. Baize’s argument misses the mark. He was not charged with harassing or any other violent behavior pursuant to a separate statute. Rather, he was charged pursuant to Utah Code section 76-5-108 with four counts of violating the protective order, and the jury instructions on those four counts closely tracked the language of that section. Moreover, Baize presents no evidence that the protective order adopted the specific violence-based statutory definitions he proposed.

¶20 We conclude that the trial court did not err when it denied Baize’s request that the jury be instructed using Baize’s restrictive definitions of certain terms and allowed the jury to determine whether Baize violated the protective order based on common definitions of the terms contained in the protective order.[5]

CONCLUSION

¶21 We hold that the proper forum for Baize to challenge the protective order was the original civil proceeding pursuant to which the order was entered. Because Baize had notice and the opportunity to appeal the protective order, he is barred from collaterally challenging it in the subsequent criminal proceeding resulting from its violation. We also conclude that the trial court did not err in denying Baize’s request to define for the jury certain terms contained in the protective order. Accordingly, the judgment of the trial court is affirmed.

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

———————–

[1] “On appeal, we recite the facts from the record in the light most favorable to the jury’s verdict and present conflicting evidence only as necessary to understand issues raised on appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.

[2] 2. Other jurisdictions also explicitly bar collateral attack in this context. See, e.g., State v. Grindling, 31 P.3d 915, 918–19 (Haw. 2001) (stating that a domestic restraining order is not subject to collateral attack in the criminal proceeding for its violation and collecting cases stating the same); Wood v. Commonwealth, 178 S.W.3d 500, 513 (Ky. 2005) (stating that a party “may not launch a collateral attack on the validity of an emergency protective order in a subsequent prosecution for violation of that order”); Truesdell v. State, 304 P.3d 396, 399 (Nev. 2013) (“[A] party may not collaterally attack the validity of a [protective order] in a subsequent criminal proceeding based on violation of the [protective order].”); Best v. Marino, 2017-NMCA-073, ¶ 18, 404 P.3d 450 (“The collateral bar rule precludes a restrained party from challenging the merits of [a protective order] after a finding of contempt.”); City of Seattle v. May, 256 P.3d 1161, 1165 (Wash. 2011) (en banc) (“The collateral bar rule precludes challenges to the validity . . . of a court order in a proceeding for violation of such an order except for challenges to the issuing court’s jurisdiction to issue the type of order in question.”).

[3] 3. Even if we were to conclude that Baize could attack the validity of the civil protective order here and agree with him that the “civil in nature” language in the protective order is unconstitutionally vague, Baize ignores the alternative restriction imposed on him by the protective order, namely that his communication with Victim must pertain to their child. Baize’s emails to Victim appear to have violated this provision.

Baize’s communications variously described Victim in unflattering terms and accused her of indiscretions. Indeed, our review of the record reveals that Baize’s emails to Victim are replete with examples of Baize directing his comments to Victim’s alleged attributes rather than a discussion of co-parenting needs or the needs of the child.

We find the argument that Baize’s comments took place in the context of communication about their child unpersuasive. Baize’s concerns regarding their child’s well-being or Victim’s parenting could have been effectively communicated without personal commentary about Victim. In fact, Baize admitted at trial that he was “[g]ambling on” Victim construing the comments he made in his emails as “personal attacks.”

[4] Baize also argues on appeal that the jury should have been instructed on the definition of stalking. But at trial, the State stipulated that the court would consider instructing the jury on the definition of stalking only “[i]f the State [brought] in evidence of stalking.” The State did not attempt to introduce evidence of stalking, and Baize did not again request that the trial court instruct the jury on the issue of stalking. Consequently, Baize waived this aspect of his argument below and cannot raise it on appeal. See State v. Johnson, 2017 UT 76, ¶ 16 n.4, 416 P.3d 443 (“Waiver, in the context of raising an issue before a court, is generally the relinquishment or abandonment of an issue before a trial or appellate court. . . . If an issue has been waived in the trial court, that issue is not preserved for appeal.”).

[5] 5. We resolve this aspect of Baize’s appeal by declining to apply strict statutory definitions, but we note that the language of the relevant provisions of the protective order was written broadly and did not suggest that Baize was prohibited from engaging in only physically violent behavior or in making threats of violence. Baize’s violence-based reading of the protective order’s terms conflicts with the public policy underlying the entire domestic violence statutory scheme:

Because of the serious, unique, and highly traumatic nature of domestic violence crimes, the high recidivism rate of violent offenders, and the demonstrated increased risk of continued acts of violence subsequent to the release of a perpetrator who is convicted of domestic violence, it is the finding of the Legislature that domestic violence crimes warrant the issuance of continuous protective orders . . . because of the need to provide ongoing protection for the victim . . . . [T]he court shall issue a continuous protective order at the time of the conviction or sentencing limiting the contact between the perpetrator and the victim unless the court determines by clear and convincing evidence that the victim does not . . . have a reasonable fear of future harm or abuse.

Utah Code Ann. § 77-36-5.1(6)(a)–(b) (LexisNexis Supp. 2019); see also State v. Hardy, 2002 UT App 244, ¶ 17, 54 P.3d 645 (“The state has an inarguably significant interest in protecting the health and well-being of its citizens. In furtherance of this goal, the state has created a mechanism whereby the victims of domestic violence may obtain civil orders of protection against their abusers. As part of this protection, the court may prohibit the abuser from having any contact, direct or indirect, with the victim or the victim’s family.”). Thus, the statute’s purpose is to protect domestic abuse victims from further abusive behavior in the broad sense, including psychological abuse and other forms of controlling behavior. Baize’s violence-based interpretation of the protective order’s terms appears to run contrary to the significant interest the State has in protecting the overall health and emotional well-being of its citizens.

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2019 UT 73 – Olguin v. Anderton – UUPA standing

This opinion is subject to revision before final publication in the Pacific Reporter

2019 UT 73 UTAH SUPREME COURT

JIMMY OLGUIN, Appellee,
v.
MARIE ANDERTON and CHRISTOPHER ANDERTON,Appellants.

No. 20180098
Heard February 22, 2019
Filed December 19, 2019
On Certification from the Court of Appeals

Eighth District, Duchesne
The Honorable Samuel P. Chiara
No. 164000077

Attorneys:[1]

Michael D. Harrington, Jarell A. Dillman, Vernal, Troy L. Booher, Julie J. Nelson, Salt Lake City, for appellee
John D. Hancock, Roosevelt, for appellants

JUSTICE PETERSEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PEARCE joined.

JUSTICE PETERSEN, opinion of the Court:

INTRODUCTION

¶1 Jimmy Olguin conceived a child with Marie Anderton (Mother) while she was married to Christopher Anderton (Husband), who is presumed to be the child’s father under Utah law. Olguin filed a petition in the district court to adjudicate his paternity of the child. Mother filed a motion to dismiss, arguing that Olguin lacked standing under the Utah Uniform Parentage Act (UUPA) because the child was born within a marriage. The district court noted that the court of appeals has interpreted the UUPA to deny standing to an alleged father[2] in Olguin’s circumstances, but it observed that the court of appeals has not yet addressed the constitutional implications of its holding. Ultimately, the district court denied the motion to dismiss, concluding that to deny Olguin standing would violate his right to procedural due process under the federal constitution. In pretrial briefing, the parties again raised the issue of standing. The district court reaffirmed its procedural due process ruling but declined to conclude that Olguin had a substantive due process right at stake.

¶2 The court of appeals certified this case to us to address the constitutional issues raised by the parties and ruled upon by the district court. However, in a companion case that also issues today, we hold that the UUPA does grant standing to an alleged father, even when the child was conceived or born during a marriage with a presumed father. See Castro v. Lemus, 2019 UT 71, ¶¶ 3, 12, 51, 61, — P.3d —. Accordingly, Olguin’s constitutional claims are moot.

¶3 We affirm the denial of the motion to dismiss on alternative grounds and remand to the district court.

BACKGROUND

¶4 Mother has been married to Husband since 2010.[3] Over the course of their marriage, Mother and Husband have separated several times. On one such occasion, Mother had a romantic relationship with Jimmy Olguin, and they conceived a child.

¶5 Mother and Husband subsequently reconciled, and the child was born in September 2012. Husband was listed as the child’s father on the birth certificate. Despite this, Mother contacted Olguin that December to tell him that she believed he was the child’s biological father. Subsequent genetic testing established a 99.99 percent probability that Olguin was indeed the biological father.

¶6 From December 2012 until March 2016, Mother and Husband allowed Olguin to have parent-time with the child. But Mother terminated contact between the two after the child was injured during a visit with Olguin.

¶7 Soon after, Olguin filed a petition to formally adjudicate the child’s paternity. Mother moved to dismiss that petition, contending that subsection 78B-15-607(1) of the UUPA denied standing to Olguin in this situation. In support, Mother cited to the court of appeals’ decision in R.P. v. K.S.W., which held that subsection 607(1) limits standing to rebut the presumption of paternity to only the mother and the presumed father when the child is born during their marriage.[4] 2014 UT App 38, ¶¶ 26, 44, 320 P.3d 1084.

¶8 In his opposition to the motion to dismiss, Olguin conceded the correctness of the statutory interpretation based on the court of appeals’ decision in R.P. But he argued that subsection 607(1) of the UUPA violates his constitutional right to procedural due process.

¶9 The district court denied Mother’s motion to dismiss in an order dated December 16, 2016. The district court reasoned that because R.P. was resolved on statutory grounds, it had no bearing on Olguin’s constitutional claims. The court then concluded that dismissing Olguin’s paternity petition for lack of standing under subsection 607(1) would violate Olguin’s right to procedural due process under the Fourteenth Amendment to the United States Constitution.

¶10 In preparation for trial, Mother and Olguin submitted trial briefs. In her brief, Mother reasserted that Olguin lacked standing to challenge the presumption of paternity under the court of appeals’ decision in R.P. She also argued that the constitutional issues presented in this case had already been decided by the United States Supreme Court. See generally Michael H. v. Gerald D., 491 U.S. 110 (1989) (plurality opinion) (addressing both procedural and substantive due process issues in the context of a California statute denying standing to natural fathers to rebut the presumption of paternity under certain circumstances).

¶11 In an order dated August 24, 2017, the district court recognized the “unusual procedural posture” of this case, noting that it had previously ruled on the standing and procedural due process issues. Nevertheless, because the parties had not previously briefed Michael H., the district court reconsidered its prior ruling. The court acknowledged that it may have misdirected the parties when, in the December 16, 2016 order, it relied on substantive due process case law for the proposition that parents have a fundamental liberty interest in rearing their children. The court thus addressed the parties’ new substantive due process arguments, ultimately declining to conclude that Olguin has a substantive due process right at issue in this matter.

¶12 The district court reaffirmed its previous denial of Mother’s motion to dismiss on procedural due process grounds. The court concluded that under the facts of this case, Olguin has a protectable liberty interest in rearing the child. Accordingly, the court determined that interpreting subsection 607(1) to bar Olguin from challenging Husband’s presumed paternity would deny Olguin the procedural safeguards of notice and a meaningful opportunity to be heard.[5]

¶13 The parties later stipulated that the case presented significant constitutional questions that should be resolved before trial. In a January 12, 2018 order, the district court certified that order and its December 16, 2016 and August 24, 2017 orders for appeal pursuant to rule 54(b) of the Utah Rules of Civil Procedure. Mother and Husband appealed.

¶14 The court of appeals determined that the district court erred in certifying the case under rule 54(b). But it acknowledged that rule 5(a) of the Utah Rules of Appellate Procedure allows appellate courts to treat a timely filed notice of appeal from an order improperly certified under rule 54(b) as a petition for interlocutory appeal. It therefore construed the notice of appeal as a petition for interlocutory appeal and granted that petition.

¶15 The court of appeals then certified the interlocutory appeal to us for original review, reasoning that the appeal presents important questions of constitutional law that have yet to be decided.

¶16 We exercise jurisdiction pursuant to Utah Code section 78A-3-102(3)(b).

STANDARD OF REVIEW

¶17 “The interpretation and constitutionality of a statute are questions of law that we review for correctness.” Waite v. Utah Labor Comm’n, 2017 UT 86, ¶ 5, 416 P.3d 635.

ANALYSIS

¶18 The court of appeals certified this case to us to determine “whether Utah Code section 78B-15-607(1) violates the procedural due process requirements of the Fourteenth Amendment of the United States Constitution insofar as the statute limits standing to challenge the paternity of a child born during a marriage to the presumed father and mother of the child.” We note that Olguin also raises a substantive due process claim. And alleged fathers in companion cases, in which we also issue opinions today, raise these due process and equal protection challenges to subsection 607(1). See Castro v. Lemus, 2019 UT 71, ¶¶ 53, 57, — P.3d — (arguing the UUPA violates alleged fathers’ state and federal procedural and substantive due process rights as well as principles of equal protection); Mackley v. Openshaw, 2019 UT 74, ¶ 2 n.2, — P.3d — (same); Hinkle v. Jacobsen, 2019 UT 72, ¶ 19, — P.3d — (arguing the UUPA violates the due process and equal protection clauses of the federal constitution).

¶19 However, we hold in one companion case, Castro, that the UUPA does grant standing to an alleged father under subsection 602(3), and subsection 607(1) does not alter this when the child was conceived or born during a marriage with a presumed father. 2019 UT 71, ¶¶ 3, 12, 51, 61. Therefore, we need not consider whether the contrary interpretation of subsection 607(1) would be unconstitutional. Accordingly, we affirm the district court’s denial of the motion to dismiss on alternative grounds. Specifically, we affirm the district court’s ruling that Olguin has standing to rebut the presumption of paternity.

¶20 It is within our discretion “to affirm [a] judgment on an alternative ground if it is apparent in the record.” Madsen v. Wash. Mut. Bank fsb, 2008 UT 69, ¶ 26, 199 P.3d 898; see also Bailey v. Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158 (“[A]n appellate court may affirm the judgment appealed from ‘if it is sustainable on any legal ground or theory apparent on the record, even though such ground or theory differs from that stated by the trial court to be the basis of its ruling or action, and this is true even though such ground or theory is not urged or argued on appeal by appellee, was not raised in the lower court, and was not considered or passed on by the lower court.’” (citation omitted)). For a legal theory “[t]o be ‘apparent on the record,’ ‘[t]he record must contain sufficient and uncontroverted evidence supporting the ground or theory to place a person of ordinary intelligence on notice that the prevailing party may rely thereon on appeal.’” Francis v. State, Utah Div. of Wildlife Res., 2010 UT 62, ¶ 10, 248 P.3d 44 (second alteration in original) (citation omitted). When the record contains this evidence, we may affirm on alternative grounds. We opt to do so here.

¶21 Mother and Husband have raised two additional arguments in this interlocutory appeal that we briefly address. First, they argue that granting Olguin standing to rebut Husband’s presumption of paternity in effect terminates Husband’s parental rights and violates his fundamental liberty interests in his marriage and rearing children born into that marriage.

¶22 We note that our decision today holds only that the UUPA grants standing to Olguin; it should not be construed to hold that Olguin has rebutted Husband’s presumed paternity. And this opinion does not impact the district court’s ability to make any other determinations it deems relevant under the UUPA. Accordingly, any argument that Husband’s parental rights have been terminated is premature.

¶23 Second, Mother and Husband argue that the district court erred in limiting which issues would be considered at trial on remand. They reference a paragraph of the January 12, 2018 order. But the record and briefing before us is inadequate to review pretrial evidentiary rulings made by the district court. Additionally, that is not the type of issue this court would generally address before trial in an interlocutory proceeding. See UTAH R. APP. P. 5(g) (“An appeal from an interlocutory order may be granted only if it appears that the order involves substantial rights and may materially affect the final decision or that a determination of the correctness of the order before final judgment will better serve the administration and interests of justice.”). Accordingly, we decline to address the district court’s pretrial evidentiary decisions.

CONCLUSION

¶24 We conclude that the UUPA grants standing to Olguin to adjudicate his paternity of the child. Accordingly, we affirm the district court’s denial of Mother’s motion to dismiss. And we remand to the district court for further proceedings consistent with this opinion and our holding in Castro v. Lemus, 2019 UT 71, — P.3d —.

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

[1] Amicus Curiae attorneys are:

Sean D. Reyes, Att’y Gen., Tyler R. Green, Solic. Gen., Andrew Dymek, Asst. Att’y Gen., Stanford E. Purser, Deputy Solic. Gen., Salt Lake City, for State of Utah.

[2] The UUPA defines “[a]lleged father” as “a man who alleges himself to be, or is alleged to be, the genetic father or a possible genetic father of a child, but whose paternity has not been determined.” UTAH CODE § 78B-15-102(2).

[3] “When reviewing a rule 12(b)(6) motion to dismiss, we accept the factual allegations in the complaint as true and interpret those facts, and all reasonable inferences drawn therefrom, in a light most favorable to the plaintiff as the nonmoving party.” Russell Packard Dev., Inc. v. Carson, 2005 UT 14, ¶ 34, 108 P.3d 741. We recite the facts accordingly.

[4] In 2017, after R.P. v. K.S.W., 2014 UT App 38, 320 P.3d 1084, issued, the Utah Legislature amended Utah Code section 78B-15-607 to also include “a support enforcement agency” as one of the parties allowed to challenge a child’s paternity “at any time before filing an action for divorce or in the pleadings at the time of the divorce of the parents.” See 2017 Utah Laws 632. So in 2014, the court of appeals’ interpretation of subsection 607(1) limited standing to only the mother and the presumed father. Now, Mother’s similar interpretation of subsection 607(1) limits standing to only the mother, the presumed father, and a support enforcement agency.

[5] At this time, the district court also granted Olguin’s motion to join Husband as a necessary party.

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2019 UT App 201 – Bradshaw v. Pelley-Whelan – UCCJEA

2019 UT App 201 – Bradshaw v. Pelley-Whelan

THE UTAH COURT OF APPEALS
CAIRO BRADSHAW, Appellant,
v.
CHRISTOPHER PELLEY-WHELAN, Appellee.

Opinion
No. 20181003-CA
Filed December 12, 2019

Third District Court, Salt Lake Department
The Honorable Royal I. Hansen
No. 174906242

Theodore R. Weckel, Attorney for Appellant
Jennifer L. Falk, Cassie J. Medura, Jarrod H. Jennings,
and Adrienne Nash Wiseman, Attorneys for Appellee

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

MORTENSEN, Judge:

¶1        “Facts are stubborn things.”[1] In this appeal, Cairo Bradshaw asks us to reverse the district court’s legal conclusion that it lacked subject matter jurisdiction to make an initial custody determination concerning her minor child (Child) under the Utah Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The crux of Bradshaw’s argument is that the district court erroneously determined that Child’s home state is California. Specifically, Bradshaw argues that the court’s error lies in its conclusion that Child was only temporarily absent from California during the relevant six-month period leading up to when Bradshaw filed her parentage petition in Utah. However, Bradshaw assumes facts that were not adopted by the district court. And what’s more, Bradshaw does not challenge the court’s actual findings of fact. Accordingly, Bradshaw falls short of showing that the district court’s legal conclusion concerning subject matter jurisdiction was erroneous as a matter of law. Therefore, we affirm.

BACKGROUND

¶2           Bradshaw and Christopher Pelley-Whelan are the parents of Child, who was born in California on July 2, 2016. On October 10, 2017, Bradshaw filed a parentage petition in Utah requesting that the court make an initial custody determination of Child. Pelley-Whelan filed a motion to dismiss Bradshaw’s petition for lack of subject matter jurisdiction under the UCCJEA on the ground that Child’s home state was California, not Utah.[2]

¶3           On March 13, 2018, after reviewing the pleadings and conducting a hearing, a commissioner deemed Child’s home state to be California and recommended that the Utah court dismiss Bradshaw’s petition for lack of jurisdiction. Bradshaw objected to the commissioner’s recommendation as authorized by rule 108(a) of the Utah Rules of Civil Procedure.

¶4           After the commissioner recommended that the district court deny her parentage petition, Bradshaw, in a separate case, filed a petition for a protective order against Pelley-Whelan, alleging two incidents of abuse which had taken place several months earlier in Massachusetts and two weeks earlier in California. On June 13, 2018, a commissioner recommended that Bradshaw’s petition for a protective order be denied. Bradshaw objected to the recommendation and requested that the objections to the parentage petition and the protective order be consolidated.

¶5           On June 20, 2018, the parties presented oral argument on jurisdiction and the protective order. Bradshaw primarily argued the district court should exercise jurisdiction under the UCCJEA because Utah, not California, was Child’s home state. In the alternative, Bradshaw argued that Child had no home state. Finally, she argued the court should exercise emergency jurisdiction under the UCCJEA because the allegations of abuse in the protective order illustrated a risk of danger for Child. Pelley-Whelan argued that Child’s home state was California because Child was born in California and had lived there ever since. The court set an evidentiary hearing to determine Child’s home state for the six-month period leading up to the time Bradshaw filed her parentage petition in Utah—April 9 through October 9, 2017.

¶6 At the evidentiary hearing, Bradshaw offered the following evidence in support of her petition: (1) documents showing that Bradshaw purchased a home in Utah in January 2016, and paid $1,000 in expenses to move personal possessions from Pelley-Whelan and Bradshaw’s home in Huntington Beach, California; (2) tax documents showing that Bradshaw filed state income tax returns in Utah for the years 2016 and 2017; (3) credentials showing that Bradshaw maintained a Utah driver license and voter registration certificate; (4) a table showing Bradshaw’s credit card transactions in Utah; (5) a table showing Bradshaw’s flights to Utah; and (6) pictures showing Child and Child’s belongings in Utah or at Bradshaw’s Utah house.

¶7           Pelley-Whelan offered rebuttal evidence in support of his position that Child’s home state for the relevant period was California. Specifically, Pelley-Whelan offered evidence that (1) Child was born in California and remained there for at least six to eight weeks; (2) Child’s doctor is in California; (3) Child was enrolled in ballet class in California; (4) although Bradshaw had purchased a home in Utah, she continued to own and live in the Huntington Beach, California home, which Pelley-Whelan had spent $90,000 renovating in anticipation of Child’s birth; (5) Bradshaw and Pelley-Whelan jointly owned a second property in Big Bear, California; (6) Bradshaw’s phone records indicate that she was in Utah for only fifty-five days during the entire 2017 year; and (7) the majority of Child’s belongings remained in California.

¶8           Bradshaw also raised the protective order at the evidentiary hearing, but only to point out that it was “relevant in terms of whether Utah should invoke jurisdiction” over the custody dispute. While the court did allow some testimony on the protective order—such as the location of the alleged instances of abuse—it limited many questions and indeed barred one of Bradshaw’s witnesses from discussing specific details of the alleged abuse that occurred in Massachusetts. At the close of the evidentiary hearing, the district court asked the parties to submit additional briefing on both the jurisdictional issue and the protective order.

¶9           The district court entered a written order denying Bradshaw’s objections on November 15, 2018. Therein, the court made the following findings: (1) in light of the fact that Bradshaw maintained two homes in California, and the fact that she purchased a home in Utah and spent $1,000 to move personal possessions from California to Utah, did not indicate that she intended to, or did, relocate to Utah; (2) although Bradshaw offered evidence that she periodically worked from her Utah home, that evidence was incomplete as to when or how often she actually did; (3) competing evidence demonstrated that the majority of Child’s belongings are in California; (4) evidence that Pelley-Whelan spent $90,000 to remodel the Huntington Beach house in anticipation of Child and Bradshaw residing in California was credible; (5) Bradshaw’s tax return evidence did not demonstrate that she had relocated to Utah because although Bradshaw filed Utah income tax returns for the years 2016 and 2017, both of those returns were prepared by a California accountant, the 2016 return showed that Bradshaw received a credit because she claimed to be a resident of another state, and Bradshaw used her California driver license when she filed the 2017 return; (6) Bradshaw’s Utah driver license and voter registration credentials were issued after October 9, 2017, and therefore did not show that Bradshaw had relocated to Utah during the relevant time period; (7) Bradshaw redacted and/or omitted large sections of her flight history and credit card information, and therefore this evidence was not credible to show that Bradshaw had relocated to Utah; and (8) Pelley­-Whelan’s phone record analysis was credible and showed that Bradshaw was in Utah for only fifty-five days in all of 2017, and thus was not in Utah for the majority of the relevant six-month period.

¶10 The district court found that “[Bradshaw] has presented insufficient evidence to establish that either California is no longer [Child’s] home state or that Utah is now [Child’s] home state.” Citing Garba v. Ndiaye, 132 A.3d 908 (Md. Ct. Spec. App. 2016), the court also concluded that Child was only ever temporarily absent from California and that California was therefore Child’s home state for the relevant six-month period. Thus, the court concluded that it lacked jurisdiction under the UCCJEA and dismissed Bradshaw’s parentage petition. The court also denied Bradshaw’s petition for a protective order, stating that “the evidence does not support the entry of a protective order.”

¶11 Bradshaw appeals.[3]

ISSUE AND STANDARD OF REVIEW

¶12 Bradshaw contends that the district court erred in concluding that Child’s home state was California and in turn concluding that it lacked subject matter jurisdiction under the UCCJEA. “Both jurisdictional questions and questions of statutory interpretation are questions of law that we review for correctness,” Meyeres v. Meyeres, 2008 UT App 364, ¶ 3, 196 P.3d 604 (cleaned up), “though we will review the [district] court’s underlying findings of fact using the clearly erroneous standard,” In re W.A., 2002 UT 127, ¶ 8, 63 P.3d 607 (cleaned up).[4]

ANALYSIS

¶13 Bradshaw challenges the district court’s conclusion that Child’s home state is California and that any time Child spent outside of California was only a “temporary absence.” The UCCJEA provides: “Except as otherwise provided in Section 78B-13-204, a court of this state has jurisdiction to make an initial child custody determination only if: (a) this state is the home state of the child on the date of the commencement of the proceeding . . . .” Utah Code Ann. § 78B-13-201(1) (LexisNexis 2018). The UCCJEA defines “home state” as the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.

Id. § 78B-13-102(7).

¶14 Here, the district court correctly concluded that Child’s home state is California under the UCCJEA. First, the court correctly found—and Bradshaw does not challenge—that “[Child’s] home state was California for the two months following her birth.” See Nevares v. Adoptive Couple, 2016 UT 39, ¶ 16, 384 P.3d 213 (explaining that Utah was arguably the child’s home state for the first eight days of his life under the UCCJEA when he was born in Utah and remained for eight days before moving out of state). Although this conclusion is not determinative of the issue before us, it is helpful to give context in this case.

¶15 Second, the court made a factual finding that “[Bradshaw] has presented insufficient evidence to establish that either California is no longer [Child’s] home state or that Utah is now [Child’s] home state.” In fact, the majority of the district court’s written order is dedicated to explaining why it found Bradshaw’s evidence to be unpersuasive, incomplete, irrelevant, or lacking credibility. See supra ¶ 9. Accordingly, the court adopted findings of fact consistent with Pelley-Whelan’s evidence that Child lived in California for six consecutive months leading up to the time Bradshaw filed her parentage petition in Utah. Although Bradshaw dedicates the majority of her brief to reciting the evidence and making arguments criticizing how the court weighed the evidence in this case,[5] she adamantly maintains that she is not challenging the court’s factual findings.[6]

¶16 Third, the court correctly determined that any time Child allegedly spent away from California during the relevant six-month period was only a temporary absence. See Utah Code Ann. § 78B-13-102(7) (stating that temporary absences are credited toward the consecutive six-month period required for a home state determination). The court first made two crucial factual findings—which Bradshaw does not challenge­ (1) “[Bradshaw] spent only 55 days in Utah in 2017” and thus she “spent the majority of her time during the relevant period in California,” and (2) “[Bradshaw’s] decision to purchase a home in Utah does not establish [her] intent to relocate [from California to Utah].”

¶17 Citing Garba v. Ndiaye, 132 A.3d 908 (Md. Ct. Spec. App. 2016), the district court next applied a totality of the circumstances approach to determine that any time that Child was allegedly away from California counted only as a temporary absence. Id. at 914 (adopting and applying a totality of the circumstances test, which is “an analysis that encompasses these considerations: the duration of the absence and whether the parties intended the absence to be permanent or temporary, as well as additional circumstances that may be presented in the multiplicity of factual settings in which child custody jurisdictional issues may arise” (cleaned up)).[7] In Garba, a Maryland court concluded that when a child spent four out of six of the relevant months in Maryland, id. at 913, and the mother failed to evidence her intent to permanently relocate out of Maryland, id. at 915, the child’s absences from Maryland were only temporary, id. at 915–16.

¶18 Applying this sound approach to its factual findings­ that Bradshaw had not evidenced her intent to relocate from California to Utah and that she and Child indeed spent the majority of their time in California—the district court correctly determined that any time Child spent outside of California was only a temporary absence. Therefore, the district court properly concluded that California was Child’s home state for purposes of the UCCJEA. As a result, the court lacked subject matter jurisdiction and properly dismissed the parentage petition.

CONCLUSION

¶19 Bradshaw does not challenge the district court’s findings flowing from these stubborn facts. Bradshaw failed to present evidence sufficient to demonstrate that California ceased to be Child’s home State. And she has failed to demonstrate that the court’s ultimate conclusion—that it lacked jurisdiction under the UCCJEA—was in error. Therefore, we affirm.

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

[1] Many attribute this quote to John Adams, see Quote Details: John Adams: Facts are stubborn things, http://www.quotationspage. com/quote/3235.html [https://perma.cc/TF5W-FLJH]. However The Yale Book of Quotations credits this saying to Bernard Mandeville. The Yale Book of Quotations 612 (Fred R. Shapiro Ed., Yale Univ. Press 2006) (discussing Bernard Mandeville, An Enquiry into the Origin of Honor, and the Usefulness of Christianity in War (1732)).

[2] Pelley-Whelan filed a parentage petition in California after Bradshaw filed her petition in Utah. Because we conclude that Child’s home state is California, and that California therefore has jurisdiction under the UCCJEA, the California case is relevant to our review to note only that the California court did not decline jurisdiction.

[3] Bradshaw does not appeal the denial of her petition for a protective order.

[4] Bradshaw also argues that the court erred in declining to exercise emergency jurisdiction under the UCCJEA. The UCCJEA states, “A court of this state has temporary emergency jurisdiction if the child is present in this state and . . . it is necessary in an emergency to protect the child because . . . [a] parent of the child, is subjected to or threatened with mistreatment or abuse.” Utah Code Ann. § 78B-13-204(1) (LexisNexis 2018). Under the plain language of the statute, Child must have been present in Utah for emergency jurisdiction to obtain. Id. But Bradshaw did not demonstrate that Child was in Utah when the petition was filed or that there was an emergency requiring invocation of the court’s jurisdiction to protect Child. Therefore, a Utah court could not exercise emergency jurisdiction.

Bradshaw also argues that Pelley-Whelan consented to the court exercising personal jurisdiction over him by using the district court’s subpoena power during the proceedings. But even if this were true, Bradshaw has not demonstrated that the district court had subject matter jurisdiction under the UCCJEA to make an initial custody determination. Accordingly, we decline to address this argument further.

[5] For example, Bradshaw argues, “In focusing primarily on the evidence regarding the amount of time that [Bradshaw] could prove that she was living in Utah, the Court failed to weigh the fact that [Bradshaw] testified that she didn’t use her credit card every day that she was in Utah.” She also argues, “The Court failed to consider and weigh the testimony of [Bradshaw’s] two corroborating witnesses . . . who testified that they saw [Bradshaw] in Utah for much larger periods of time than [Bradshaw’s] personal phone records and [Bradshaw’s] bank account statements showed.”

[6] Bradshaw confirmed at oral argument that she is not challenging any factual findings. Where Bradshaw has expressly declined to challenge the court’s factual findings, and where these unchallenged findings could lead only to a conclusion that Child’s home state never ceased to be California, we are hard-pressed to see how a conclusion that Child’s home state is anyplace but California could follow.

[7] Utah’s version of the UCCJEA does not define temporary absence for purposes of a home-state analysis, but at least three different tests have been used in other jurisdictions to determine whether absences from a home state are temporary or permanent: “duration, intent, and totality of the circumstances.” Garba v. Ndiaye, 132 A.3d 908, 914 (Md. Ct. Spec. App. 2016); see also Andrea Charlow, There’s No Place Like Home: Temporary Absences in the UCCJEA Home State, 28 J. Am. Acad. Matrim. Law. 25, 30–37 (2015) (summarizing the “duration,” “intent,” and “totality of the circumstances” tests). We conclude not only that the totality of the circumstances test was appropriate in this case, but that it was properly applied by the district court.

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2019 UT 72 – Utah Supreme Court – Hinkle v. Jacobsen – standing to establish paternity

This opinion is subject to revision before final publication in the Pacific Reporter
2019 UT 72 – Utah Supreme Court – Hinkle v. Jacobsen
THERESA I. HINKLE, Appellee,
v.
KOREY D. JACOBSEN, Appellee,
and
JODY RHORER, Intervenor and Appellant.

No. 20180124
Heard February 22, 2019
Filed December 19, 2019

On Certification from the Court of Appeals

Third District, Salt Lake
The Honorable Andrew H. Stone
No. 124906297

Attorneys:
Theresa I. Hinkle, Salt Lake City, pro se
Colleen K. Coebergh, Salt Lake City, for appellee Korey D. Jacobsen
David Pedrazas, Wade Taylor, Salt Lake City,
for intervenor and appellant

JUSTICE PETERSEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PEARCE joined.

JUSTICE PETERSEN, opinion of the Court:

INTRODUCTION

¶1 Jody Rhorer appeals the district court’s determination that he does not have standing to establish paternity of his biological daughter under the Utah Uniform Parentage Act (UUPA). But the district court also concluded that Rhorer had abandoned his paternity claim entirely, and Rhorer did not challenge this ruling in his opening brief. He has consequently waived the issue, and we dismiss his appeal.

BACKGROUND

¶2 Theresa Hinkle (Mother) and Korey Jacobsen (Husband) married in 2002 and then separated in 2005. In 2005, Mother and Rhorer engaged in a relationship during which a child was conceived and born. Because Mother and Husband were still married at the time the child was born, Husband is the child’s presumed father under the UUPA. See UTAH CODE § 78B-15-204(1)(a).

¶3 Mother and Husband began divorce proceedings in 2012. Rhorer intervened in the divorce proceedings, alleging that he is the biological father of the child. He filed multiple motions including one to establish himself as the child’s biological father and another for a determination of parentage. He asserted that he could establish his paternity with genetic test results.

¶4 After briefing and proceedings before the commissioner, the commissioner concluded that under the court of appeals’ interpretation of the UUPA in R.P. v. K.S.W., 2014 UT App 38, 320 P.3d 1084, Rhorer did not have statutory standing to assert his paternity because the child had a presumed father—Husband—and, under such a circumstance, only the mother and presumed father had standing to challenge paternity under the UUPA.

¶5 However, the commissioner noted the court of appeals’ statement in R.P. that

[a]lthough constitutional considerations might require further analysis in cases such as this—where the alleged father has an established relationship with the child—R.P. has not raised a constitutional challenge in the district court or on appeal. Accordingly, we leave for another day the issue of the constitutional implications of the UUPA’s standing limitations where the alleged father has an established relationship with the child.

Id. ¶ 7. In light of this language, the commissioner gave Rhorer the opportunity through a custody evaluation to develop facts relevant to whether the UUPA was unconstitutional as applied to him. The district court adopted the recommendation as a court order. The court order provided that Rhorer had no statutory standing to assert his paternity. Therefore, unless he could show “constitutional standing,” he could not move forward with his petition.

¶6 Rhorer proceeded with the custody evaluation in an attempt to establish “constitutional standing.” However, he never analyzed the results of the evaluation to make a legal argument that the UUPA was unconstitutional as applied to him. Rather, he filed a motion in which he asked the court to grant him “standing to pursue a claim for time-sharing with the minor child at time of trial.”

¶7 At a hearing before the commissioner on the custody evaluation and Rhorer’s motion, the commissioner directly requested briefing from Rhorer on any constitutional issues he sought to assert. The commissioner stated, “[I]t’s already the law of this case . . . that [Rhorer] wouldn’t have standing under the statute were it not for concerns about . . . protecting his constitutional rights, and so I’d like to have something that actually states the parties’ positions in writing . . . referring to any facts that are in the file.”

¶8 But Rhorer did not do this. Instead, he filed a reply brief in which he asserted he had already addressed the constitutional issues in other pleadings. But while Rhorer did make reference to the due process clause in some of his pleadings, he did not provide any analysis or argument as to why it required he have standing here.

¶9 The commissioner ultimately concluded that

[i]nasmuch as the issue before the Court . . . is whether the strict application of the [UUPA] is unconstitutional as applied to the facts of this case . . . the Commissioner cannot conclude that there exists a compelling reason to grant standing to [Rhorer] to assert his claim of parentage contrary to the provisions of Utah Code Ann. § 78B-15-607.

¶10 In light of the commissioner’s recommendation, in a December 21, 2016 order, the district court concluded that Rhorer “lacks standing to assert his parentage claim.”

¶11 Rhorer filed a belated objection to the commissioner’s recommendation and also moved to set aside the December 21, 2016 order. At a hearing on the objection before the district court, Rhorer’s counsel stated that Rhorer was not trying to take “this little girl away from [Husband],” but that he was “asking this Court to give him a relationship with the child.” Counsel added, “I’m asking this Court to admittedly break new ground . . . to say ‘[N]o, why can’t you have two fathers?’”

¶12 In a June 1, 2017 memorandum decision denying the motion to set aside, the district court found that Rhorer “asked th[e] Court to craft a remedy whereby he is ultimately granted limited parent-time with [the child], while not actually seeking custody of the child or challenging [Husband’s] status as [the child]’s presumed father.” The district court explained,

Ultimately, while Mr. Rhorer may have had a right at the time the biological mother and [Husband] sought a divorce to assert standing to challenge the child’s paternity and to rebut [Husband’s] paternity (assuming that Mr. Rhorer could mount a constitutional challenge to [Utah Code section 78B-15-607] as applied to him), he has plainly abandoned such a claim at this point.

The court noted that Rhorer had failed to “brief his theories of why Section 607 is unconstitutional as applied to him with adequate specificity to permit intelligent analysis.” Finally, the court concluded that Rhorer had not met his burden to demonstrate the statute’s unconstitutionality and that Rhorer “[did] not seek to rebut [Husband’s] paternity and [did] not seek to establish himself as the legal father” of the child, so he had no standing to challenge Husband’s status as presumed father.

¶13 Rhorer responded to the June 1, 2017 memorandum decision by filing a motion for amended findings and a new trial. At a hearing on the motion, Rhorer’s counsel walked back the request for dual fatherhood and explained that Rhorer still sought to establish paternity and rebut Husband’s status as the child’s presumed father.

¶14 The district court denied the motion in a November 14, 2017 memorandum decision. The court outlined the procedural history of the case and explained that “the only issue” was the “conclusion regarding the constitutional implications of the UUPA’s standing limitations.” The court noted again that “neither Mr. Rhorer’s written briefing nor his counsel’s oral argument focused on th[e] constitutional challenge” and that Rhorer’s counsel at the time “did not mount a constitutional challenge.” The district court then concluded that Rhorer had “accepted [Husband’s] parental rights” and “was merely asking this Court to take judicial notice of the bond he had formed with [the child] and find it sufficient to enter into a ‘multiple relationship’ of fathering.”

¶15 Rhorer then moved to set aside the November 14, 2017 memorandum decision under rule 60(b) of the Utah Rules of Civil Procedure. In this motion, for the first time, he briefed a constitutional argument asserting that section 78B-15-607 of the UUPA violates the Equal Protection Clause of the United States Constitution.

¶16 In a January 25, 2018 minute entry, the district court denied Rhorer’s motion. The district court reasoned that it seemed as if “Rhorer [wa]s seeking Rule 60(b)(6) relief simply to advance an entirely new legal argument, one that could have been raised and preserved during the multiple instances when this Court and the Commissioners considered the issue of who has standing to challenge a presumed father’s paternity under the [UUPA].”

¶17 Rhorer appeals these four district court orders.[1] We exercise jurisdiction pursuant to Utah Code section 78A-3-102(3)(j).

STANDARD OF REVIEW

¶18 Standing is generally a mixed question of fact and law “because it involves the application of a legal standard to a particularized set of facts.” Alpine Homes, Inc. v. City of West Jordan, 2017 UT 45, ¶ 10, 424 P.3d 95 (citation omitted). However, “the question of whether a given individual or association has standing to request a particular relief is primarily a question of law.” Kearns— Tribune Corp. v. Wilkinson, 946 P.2d 372, 373 (Utah 1997). We review the district court’s “factual determinations” with deference. Id. at 373–74. But we give “minimal discretion” to the district court on “determinations of whether a given set of facts fits the legal requirements for standing.” Id. at 374.

ANALYSIS

¶19 Rhorer’s primary argument on appeal is that the UUPA is unconstitutional under the Equal Protection and Due Process Clauses of the United States Constitution. Husband argues that Rhorer did not preserve these arguments in the district court. As the procedural history above makes clear, Husband is correct.

¶20 But in a companion case issued today, Castro v. Lemus, we interpret the UUPA to grant standing to “a man whose paternity of the child is to be adjudicated.” 2019 UT 71, ¶ 51, — P.3d —. This statutory interpretation does not implicate Rhorer’s equal protection or due process concerns. Accordingly, Rhorer’s failure to preserve his constitutional arguments is moot because the constitutionality of the UUPA is no longer at issue.

¶21 However, we do need to determine whether Rhorer can benefit from any favorable change in the law as articulated in Castro. This hinges upon whether he waived any challenge to the district court’s determination that he abandoned his paternity claim.

¶22 In its June 1, 2017 memorandum decision, the district court noted that Rhorer had asked it “to craft a remedy whereby he is ultimately granted limited parent-time with [the child], while not actually seeking custody of the child or challenging [Husband’s] status as [the child’s] presumed father.” The court concluded that the “law clearly does not recognize the hybrid role proposed by Mr. Rhorer,” and determined that Rhorer no longer sought to rebut Husband’s paternity or to establish himself as the child’s legal father.

¶23 Further, in its November 14, 2017 memorandum decision, the district court concluded that Rhorer had “accepted [Husband’s] parental rights” and “was merely asking [the] Court to take judicial notice of the bond he had formed with [the child] and find it sufficient to enter into a ‘multiple relationship’ of fathering.”

¶24 In these rulings, the district court concluded that Rhorer had abandoned his pursuit of his constitutional standing argument by never briefing it. Further, the court found that Rhorer had abandoned his paternity claim altogether by instead pursuing dual fatherhood and shared parent-time and stating that he did not want to disrupt the relationship between the child and Husband.

¶25 Rhorer does not address these rulings in his briefing to us, other than making a conclusory statement that he did not abandon his paternity claim.[2] He did respond to [Husband’s] argument regarding waiver in his reply brief. But that is insufficient. “When a party . . . raises [an issue] for the first time in a reply brief, that issue is waived and will typically not be addressed by the appellate court.” State v. Johnson, 2017 UT 76, ¶ 16, 416 P.3d 443; see also Allen v. Friel, 2008 UT 56, ¶ 7, 194 P.3d 903 (“If an appellant fails to allege specific errors of the lower court, the appellate court will not seek out errors in the lower court’s decision.”); Webster v. JP Morgan Chase Bank, NA, 2012 UT App 321, ¶ 21, 290 P.3d 930 (“The reply brief, however, is reserved for ‘answering any new matter set forth in the opposing brief,’ not for making an argument in the first instance.”).

¶26 Accordingly, we can only hold that Rhorer waived any challenge to the district court’s conclusion that he had abandoned his paternity petition.

CONCLUSION

¶27 The district court found that Rhorer abandoned his paternity claim, and Rhorer did not challenge that finding on appeal. We therefore conclude that Rhorer waived any claim to challenge Husband’s presumed paternity. Accordingly, we dismiss his appeal.

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

[1] Specifically, Rhorer challenges (1) the December 21, 2016 order; (2) the June 1, 2017 memorandum decision; (3) the November 14, 2017 memorandum decision; and (4) the January 25, 2018 minute entry.

[2] Specifically, Rhorer stated in his opening brief that he “never abandoned his claim to rebut [Husband’s] paternity in this matter and to seek custody of the minor child.” But this conclusory statement does not constitute a challenge to the district court’s repeated, specific conclusion that he had abandoned his paternity claim.

Rhorer did “technically appeal[]” the orders containing the district court’s conclusions about abandonment, but “technical compliance is not enough.” Utah Physicians for a Healthy Env’t v. Exec. Dir. of the Utah Dep’t of Envtl. Quality, 2016 UT 49, ¶ 18, 391 P.3d 148.

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2019 UT App 207 – Peeples v. Peeples – modification of child custody

2019 UT App 207 – THE UTAH COURT OF APPEALS

ADAM LEGRANDE PEEPLES, Appellee,
v.
ANNALEISE T. PEEPLES, Appellant.

Opinion
No. 20180713-CA
Filed December 19, 2019

Third District Court, Salt Lake Department
The Honorable Andrew H. Stone
No. 044901980

Brian Boggess, Attorney for Appellant
Adam L. Peeples, Appellee Pro Se

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES GREGORY K. ORME and KATE APPLEBY concurred.

HARRIS, Judge:

¶1           Annaleise T. Peeples (Mother) asked the district court to modify her divorce decree to give her sole custody of her two teenage daughters, but the district court refused, determining that Mother had failed to demonstrate any substantial change in the circumstances underlying the original decree. Mother now appeals the district court’s order dismissing her petition to modify, and we affirm.

BACKGROUND

¶2           In 2004, after about three-and-a-half years of marriage, Adam Legrande Peeples (Father) filed for divorce from Mother, citing irreconcilable differences. Around the same time, Father also sought and obtained a protective order against Mother, asserting that Mother had been physically abusive to him; that protective order awarded temporary custody of the parties’ two young daughters to Father. The parties were each represented by counsel in both the divorce and the protective order proceedings, and because of the allegations of physical abuse, the court also appointed a guardian ad litem to represent the best interests of the two children. Early in the divorce case, all parties and counsel appeared before a domestic relations commissioner to discuss the parties’ motions for temporary orders. Following that hearing, the commissioner entered a temporary order, later countersigned by the assigned trial judge, awarding temporary custody of the children to Father, as the protective order did, with Mother receiving parent-time.

¶3           As the divorce proceedings progressed, the district court appointed a custody evaluator to make a recommendation to the court. While the custody evaluation was ongoing, the court entered a stipulated bifurcated decree of divorce in 2005, severing the parties’ marital union but reserving all other issues, including custody and parent-time, for further proceedings. In 2007, Mother filed her first motion for a change in custody, alleging that the temporary order giving custody to Father was unworkable because Mother lived in northern Utah County and Father lived in Salt Lake County, and because Father had “moved three times in three years and has not demonstrated stability.” Father objected, and after briefing and oral argument, the commissioner denied Mother’s motion.

¶4           In October 2007, soon after the commissioner denied Mother’s motion for a change in temporary custody, the parties and counsel participated in a settlement conference with the custody evaluator, at which the evaluator orally shared with the parties his recommendation: that primary physical custody remain with Father. At a hearing in December 2007, the guardian ad litem informed the court that he agreed with the custody evaluator’s recommendation. At that same hearing, the district court set a date for a bench trial to resolve all remaining issues.

¶5           Following the commissioner’s ruling on Mother’s motion and the court’s decision to set a trial date, as well as the revelation of the recommendations made by the custody evaluator and the guardian ad litem, the parties and their counsel entered into negotiations, and were able to resolve the remaining issues by stipulation. On April 28, 2008, after more than four years of divorce litigation, the court entered a stipulated amended decree of divorce, awarding the parties “joint legal custody” of the children, but awarding Father “primary physical custody.” Mother was to have “liberal parenting time” amounting to five out of every fourteen overnights during the school year, with the schedule to be “reversed” during the summertime.

¶6           Perhaps not surprisingly, given the nature and tone of the four years of pre-decree litigation, entry of the final divorce decree did not end the divisiveness and discord between these parties. About a year-and-a-half after the amended decree was entered, Mother filed a petition to modify, seeking amendments to the parent-time provisions of the decree. Mother alleged that circumstances had changed substantially since the entry of the decree because Father had enrolled the children in year-round school, rendering certain of the decree’s provisions unworkable, and because Father had violated the decree in numerous particulars. Father responded by filing a cross-petition to modify, seeking sole legal and physical custody. After further proceedings, the district court declined to modify the original divorce decree, and denied the parties’ dueling petitions.

¶7           A few years later, in 2013, Mother filed the instant petition to modify, this time seeking sole physical custody of the children. Mother asserted that circumstances had changed in three specific ways. First, she contended that Father had been “unable to provide a stable home environment” and find “stable employment.” Second, she contended that Father had “denied [her] physical visitation” to which she was entitled pursuant to the decree. Third, she contended that Father had “become violent with other people” and that “the children [had] been emotionally abused.”

¶8           Soon after the filing of Mother’s 2013 petition to modify, the parties agreed to have another custody evaluation done. After some procedural wrangling about the identity of the evaluator, the court finally appointed one, and the new evaluator interviewed the parties and the children in the fall of 2015. In January 2016, the evaluator shared her recommendation with the parties’ attorneys: that Mother be awarded sole physical custody, with Father to receive “standard minimum parent time.” Soon thereafter, the court appointed a different guardian ad litem (GAL) to represent the best interests of the children during the proceedings on the petition to modify.

¶9           From there, it took over a year to get to trial on the petition to modify; trial eventually took place over two days in December 2017. Just a few days before trial was to begin, the GAL issued a report containing his recommendations. Unlike the custody evaluator, the GAL recommended that the custody arrangement remain unchanged, with Father retaining primary physical custody. He explained that, while he understood the evaluator’s “rationale for recommending a change in custody at the time [the] evaluation was performed, over two years [had] passed” since the evaluator conducted her interviews, and he expressed his view that the information on which the evaluator based her conclusions was outdated.

¶10         At trial, Mother (as the petitioner on the petition to modify) presented her case first, and called three witnesses over the first day-and-a-half of trial: herself, Father, and the custody evaluator. At the conclusion of Mother’s case-in-chief, Father made an oral motion to dismiss the petition to modify, arguing that Mother failed to “meet her burden to prove that a significant change in circumstances has taken place.” After hearing argument from both sides, as well as from the GAL, the court granted Father’s motion. The court explained that Father’s relative instability had been constant since before the decree was entered, and therefore was not a change in circumstances; that any violations by Father of the terms of the decree could be resolved in contempt proceedings, and—especially in a case in which “[t]he parties have been in constant conflict since their separation and likely before”—that those violations did not rise to the level of unworkability that would constitute a change in circumstances; and found that there had not been any violence or emotional abuse. The court noted that the parties had been fighting over custody for some thirteen years, and that the fighting had been fairly constant. The court stated that, in such a “high-conflict” case, “if anything, the need to show a change in circumstances [is] even stronger,” and “the need for a permanent decree . . . that people can rely on . . . is that much greater.” A few weeks later, the court entered a written order, drafted by Father’s counsel, dismissing Mother’s petition to modify; that order contained a provision stating that, “[i]n a high conflict divorce such as this one, the need for finality is even greater and therefore the burden to show a material and significant change in circumstances should be higher than normal.”

ISSUE AND STANDARDS OF REVIEW

¶11         Mother now appeals from the district court’s order dismissing her petition to modify. When reviewing such a decision, we review the district court’s underlying findings of fact, if any, for clear error, see Vaughan v. Romander, 2015 UT App 244, ¶ 7, 360 P.3d 761, and we review for abuse of discretion its ultimate determination regarding the presence or absence of a substantial change in circumstances, see Doyle v. Doyle, 2009 UT App 306, ¶ 7, 221 P.3d 888, aff’d, 2011 UT 42, 258 P.3d 553. The district court’s choice of legal standard, however, presents an issue of law that we review for correctness. See id. ¶ 6.

ANALYSIS

¶12         Mother challenges the district court’s dismissal of her petition to modify on two general grounds. First, she contends that the district court employed an incorrect (and overly strict) legal standard in determining whether circumstances had changed sufficiently to justify reopening the governing custody order. Specifically, she asserts that the court did not properly take into account the fact that the decree at issue was stipulated rather than adjudicated, and she takes issue with the statement in the court’s written order that, in “high conflict” cases, the burden of demonstrating a change in circumstances is “higher than normal.” Second, Mother contends that the district court abused its discretion in determining, on the facts of this case, that no substantial and material change in circumstances existed. We address each of these contentions in turn.

A

¶13         Under Utah law, petitions to modify custody orders are governed by a two-part test:

A court order modifying . . . an existing joint legal custody or joint physical custody order shall contain written findings that: (i) a material and substantial change of circumstance has occurred; and (ii) a modification . . . would be an improvement for and in the best interest of the child.

Utah Code Ann. § 30-3-10.4(2)(b) (LexisNexis Supp. 2019). Because “[t]he required finding of a material and substantial change of circumstances is statutory, . . . [n]either this court nor the supreme court has purported to—or could—alter that requirement.” Zavala v. Zavala, 2016 UT App 6, ¶ 16, 366 P.3d 422; see also Doyle v. Doyle, 2011 UT 42, ¶ 38, 258 P.3d 553 (“Even an overwhelming case for the best interest of the child could not compensate for a lack of proof of a change in circumstances.”). Thus, “only if a substantial change of circumstances is found should the [district] court consider whether a change of custody is appropriate given the child’s best interests.” Wright v. Wright, 941 P.2d 646, 651 (Utah Ct. App. 1997) (quotation simplified).

¶14         This statutory requirement that a substantial change in circumstances be present before a court may modify a custody order serves two important ends. “First, the emotional, intellectual, and moral development of a child depends upon a reasonable degree of stability.” Elmer v. Elmer, 776 P.2d 599, 602 (Utah 1989). We have previously noted the “deleterious effects of ‘ping-pong’ custody awards” that subject children to ever-changing custody arrangements. See Taylor v. Elison, 2011 UT App 272, ¶ 13, 263 P.3d 448 (quotation simplified). Second, the requirement “is based in the principles of res judicata,” as “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.” Id. (quotation simplified); see also Zavala, 2016 UT App 6, ¶ 16 (stating that the statutory change-in­circumstances requirement is “a legislative expression of the principle of res judicata”).

¶15         The change-in-circumstances requirement is itself comprised of two parts. In order to satisfy it, “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). In this context, however, our case law has drawn something of a distinction between adjudicated custody decrees and stipulated custody decrees, recognizing that “an unadjudicated custody decree” is not necessarily “based on an objective, impartial determination of the best interests of the child,” and therefore the res judicata policies “underlying the changed-circumstances rule [are] at a particularly low ebb.” See Taylor, 2011 UT App 272, ¶ 14 (quotation simplified). In Zavala, we clarified that the change-in-circumstances requirement still applies even in cases involving stipulated (as opposed to adjudicated) custody orders, although we acknowledged that, in some cases, “a lesser showing” of changed circumstances may “support modifying a stipulated award than would be required to modify an adjudicated award.” See 2016 UT App 6, ¶ 17.

¶16         In this case, the court did not specifically discuss the distinction our case law has drawn between stipulated and adjudicated decrees, or the extent to which this decree should be considered stipulated or adjudicated. The court simply applied the change-in-circumstances requirement and found it not met on the facts of this case. In one recent case, we found no error under similar circumstances. See Erickson v. Erickson, 2018 UT App 184, ¶ 21, 437 P.3d 370 (declining to reverse a district court’s determination that no substantial and material change in circumstances had been shown, despite the fact that the district court did not specifically consider “the fact that the underlying custody award was based on a stipulated agreement”).

¶17         But more to the point, we think it unhelpful to view the adjudicated/stipulated dichotomy as entirely binary; instead, in assessing how much “lesser” a showing might be required to satisfy the change-in-circumstances requirement, see Zavala, 2016 UT App 6, ¶ 17, courts should examine the origin of the order in question and analyze the extent to which the order—even if stipulated—reflects the result of robustly contested litigation aimed at ascertaining the best interest of the child.

¶18         We discern no error here, even though the district court did not expressly discuss the origin of the custody decree at issue, because the decree—although entered as a result of a negotiated settlement—was more akin to an adjudicated decree than a non-adjudicated decree. Here, the decree was finalized in April 2008, after more than four years of litigation between the parties, during which both parties were represented by counsel the entire time. The parties had fully litigated not only motions for protective orders, which involved custody determinations made by a court, but also motions for temporary orders before the court commissioner and the district court wherein temporary custody determinations were made. Moreover, the court had appointed a guardian ad litem to represent the children, and in addition a full evaluation had been performed by a neutral court-appointed custody evaluator. The parties did not reach their negotiated settlement in this case until after they had received input from not only the custody evaluator and the guardian ad litem, but also from the commissioner and the court during the temporary orders process. By the time the settlement was reached, four years of litigation had passed and a trial date had been set. In the end, the decree encapsulated, for the most part, the recommendations made by the guardian ad litem and the custody evaluator, and memorialized an arrangement very similar to the one previously ordered by the court on a temporary basis.

¶19         We certainly recognize the potential for injustice with certain types of stipulated custody orders; indeed, this is part of the reason why courts, when considering petitions to modify, retain the flexibility to be less deferential to stipulated custody orders. See Taylor, 2011 UT App 272, ¶ 14 (stating that unadjudicated custody decrees “may in fact be at odds with the best interests of the child” (quotation simplified)). Depending on the situation, our confidence that a stipulated custody decree—at least one that is submitted to the court before receipt of input from judicial officers during the temporary orders process or from custody evaluators or guardians ad litem—will actually be in keeping with the best interest of the child may be comparatively low, especially where neither side is represented by counsel (or, potentially more concerning, when only one side is represented by counsel). Inequalities in negotiating power or financial resources can sometimes result in one parent agreeing to conditions by stipulation that may not be in the long-term best interest of the child.

¶20         But such concerns are not present in a case like this one, where the parties reached a negotiated agreement after fully and robustly participating in the litigation process, with lawyers, for more than four years. The terms of the negotiated custody decree in this case—entered on the eve of a scheduled trial—did not substantially deviate from the terms of the temporary custody order imposed by the court, and were heavily influenced by the recommendations of both the custody evaluator and the guardian ad litem. In this case, therefore, we have relatively high confidence that the custody order was in line with the best interests of the children. Accordingly, we discern no error in the district court’s decision to apply the change-in-circumstances requirement without watering it down to account for the fact that the custody order in question was, technically speaking, stipulated.

¶21         We are more concerned, however, with the district court’s statement in its written order that, in “high conflict” cases, “the burden to show a material and significant change in circumstances should be higher than normal.” The district court offered no citation to any authority supporting this principle in our case law, and we are aware of none. We take this opportunity to clarify that there is no separate standard that courts are to apply in high-conflict cases when considering whether a substantial change of circumstances is present in the context of a petition to modify. Nevertheless, we are not persuaded that the district court’s statement made a material difference to its analysis in this case. In context, especially after reviewing the court’s oral ruling, we view the court’s statement as simply acknowledging that, in high-conflict divorce cases, parties are perhaps more willing to seek modification more often, and that the danger of “ping-pong” custody awards in those cases is therefore proportionately higher.

¶22         In the end, we are convinced, after a review of the full record, that the district court applied the proper two-step analysis to determine whether a substantial and material change in circumstances occurred here. First, the court analyzed whether, “since the time of the previous decree, there have been changes in the circumstances upon which the previous award was based.” See Hogge, 649 P.2d at 54. Second, the court analyzed whether “those changes are sufficiently substantial and material to justify reopening the question of custody.” See id. Because we conclude that the court applied the proper test, we now proceed to analyze whether the court abused its discretion in its application of that test.

B

¶23         In her petition to modify, Mother pointed to three things that she believed led to a substantial and material change in circumstances. First, she contended that Father had been “unable to provide a stable home environment” and find “stable employment.” Second, she contended that Father had “denied [her] physical visitation” to which she was entitled pursuant to the decree. Third, she contended that Father had “become violent with other people” and that “the children have been emotionally abused.” After hearing evidence for a day-and-a-half, the district court concluded that these things did not constitute a substantial and material change in circumstances, finding either that they were occurring, at most, infrequently, or that they had been occurring throughout the litigation and therefore could not constitute a change in circumstances. We conclude that the court did not abuse its discretion in making that determination.

1

¶24         Mother’s first contention was that Father had “been unable to provide a stable home environment” for the children because he had “been evicted from several residences” resulting in the children having to change schools a number of times. In addition, Mother contended that Father had not “had stable employment for the last eight years.” The district court acknowledged that Mother had presented evidence that Father’s “income was questionable and [his] lifestyle was a little bit itinerant.” But the court noted in its oral ruling that this had been the case both “before and after the decree,” and that nothing had changed in this regard. In its written ruling, the court made a finding that it had “not received evidence that there has been a significant and material change in [Father’s] ability to provide the children with a stable home.”

¶25         It is unclear from Mother’s brief whether she even intends to challenge the district court’s factual findings, stating that her “appeal is primarily legal.” But in any event Mother has not carried her burden—if indeed she intended to shoulder that burden—of demonstrating that the court’s factual finding was clearly erroneous. As noted above, Mother alleged as early as 2007—in her pre-decree motion to alter the terms of the court’s temporary custody order—that Father had “moved three times in three years and has not demonstrated stability.” Despite Father’s itinerant nature, the first custody evaluator recommended that primary physical custody be awarded to Father, and the stipulated decree followed that recommendation. Presumably, all of that was taken into account during the litigation that preceded entry of the decree. Moreover, in her own petition to modify filed in 2013, Mother alleged that Father’s employment instability had been an issue “for the last eight years,” dating back to 2005, three years before entry of the decree. Issues that were present prior to the decree, and continue to be present in much the same way thereafter, do not represent a change in circumstances sufficient to justify the reopening of a custody decree. See Utah Code Ann. § 30-3­ 10.4(2)(b)(i) (LexisNexis Supp. 2019) (requiring a “change of circumstance” before reopening a custody decree); see also Becker v. Becker, 694 P.2d 608, 610 (Utah 1984) (stating that the rationale behind the change-in-circumstances requirement “is that custody placements, once made, should be as stable as possible unless the factual basis for them has completely changed”). In the end, Mother has not shown that the district court’s finding—that Father’s employment instability and itinerant nature had been present the whole time and therefore did not constitute a substantial change in circumstances—was clearly erroneous.

2

¶26         Mother’s next contention was that Father failed on numerous occasions to facilitate parent-time as required under the divorce decree. The district court found that, while Father may have committed occasional violations of the terms of the decree, “[t]he court has not received evidence that any denial of physical visitation on the part of [Father] was systemic, deliberate, or pathogenic enough to satisfy the requirements of the law in reopening” the decree.

¶27         Ordinarily, when one parent commits a violation of the terms of a divorce decree, the other parent’s remedy lies in contempt. See Utah Code Ann. §§ 78B-6-301(5), -310 (LexisNexis 2018) (categorizing “disobedience of any lawful judgment [or] order” as “contempt[] of the authority of the court,” and authorizing courts to sanction violators); see also, e.g., Clarke v. Clarke, 2012 UT App 328, ¶¶ 24–31, 292 P.3d 76 (resolving one parent’s request for contempt sanctions against the other for asserted violations of a custody order). In most cases, violations of a custody order by one party will not constitute the type of substantial and material change in circumstances that will justify reexamining the propriety of the order. But if the violations are so numerous and pervasive that it becomes evident that the custody arrangement is “not functioning,” then a change in circumstances may have occurred. See Moody v. Moody, 715 P.2d 507, 509 (Utah 1985) (“[T]he nonfunctioning of a joint custody arrangement is clearly a substantial change in circumstances which justifies reopening the custody issue.”); see also Huish v. Munro, 2008 UT App 283, ¶ 13, 191 P.3d 1242 (same).

¶28         In this case, the district court, after hearing Mother’s evidence, made a factual finding that the evidence of Father’s potentially contemptuous behavior was not so overwhelming as to render the decree unworkable. The court noted that the parties had been “in constant conflict since their separation and likely before,” and that they were “still at war” thirteen years after their separation. The court found that, while Father may have violated the decree with regard to parent-time on a few occasions, Father’s violations were not “systemic, deliberate, or pathogenic enough to satisfy the requirements of the law in reopening” the decree.

¶29         As noted above, it is unclear if Mother even intends to challenge the district court’s factual findings, but in any event she has not demonstrated clear error here. The district court’s finding that the decree had not been rendered unworkable as the result of Father’s violations was supported by, among other evidence, the recommendation of the court-appointed GAL, who expressed the view that the custody arrangement was working well enough and should remain unchanged, and that “the children have maintained throughout these proceedings that they are happy with the current arrangement.” Mother has not demonstrated that the district court’s determination about the decree’s workability was clearly erroneous.

3

¶30         Mother’s final contention was that Father had “become violent with other people and the children have been emotionally abused.” After hearing the evidence, the district court found insufficient evidence that Father had been violent or that he had emotionally abused anyone. In her brief, Mother makes no serious effort to challenge this factual finding, and therefore we are unable to find any error therein.

4

¶31         Given that Mother has not mounted a successful challenge to any of the district court’s factual findings, all that remains is for us to examine whether, given these findings, the court abused its discretion in determining that no material and substantial change in circumstances had occurred. See Doyle v. Doyle, 2009 UT App 306, ¶ 7, 221 P.3d 888, aff’d, 2011 UT 42, 258 P.3d 553. And on this record, we have no trouble concluding that the court did not abuse its discretion in making that determination. Many of the issues identified by Mother in her petition—such as Father’s unstable employment and frequent change of residence—had been present from the outset of this case, and were present before the decree was entered; such ever-present conditions cannot constitute a change in circumstances sufficient to reopen a custody decree. Any issues Father had with complying with the terms of the decree were apparently not egregious or pervasive enough to render the custody arrangement unworkable. And the district court, after listening to a day-and-a-half of evidence, did not hear any evidence that Father had acted violently or abusively toward anyone.

¶32         Under these circumstances, the district court did not abuse its discretion in concluding that Mother had not carried her burden of demonstrating a change in circumstances that was substantial and material enough to justify reexamining the parties’ longstanding custody arrangement. Because Mother did not satisfy the first part of the statutory test for obtaining a modification of a divorce decree, the district court did not err by dismissing her petition.

CONCLUSION

¶33         For all of the foregoing reasons, we affirm the district court’s dismissal of Mother’s petition to modify.

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

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In re N.S. – juvenile court – what constitutes appealable order

2019 UT App 151

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF N.S., A PERSON UNDER EIGHTEEN YEARS OF AGE.

C.S.,
Appellant,
v.
STATE OF UTAH,
Appellee.

Per Curiam Opinion
No. 20190555-CA
Filed September 12, 2019

Second District Juvenile Court, Farmington Department
The Honorable Sharon S. Sipes
No. 1172135

Jason B. Richards, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem

Before JUDGES MICHELE M. CHRISTIANSEN FORSTER, DAVID N. MORTENSEN, and RYAN M. HARRIS.

PER CURIAM:

¶1 C.S. (Father) appeals a disposition order that denied him reunification services and set a primary permanency goal of adoption. The Guardian ad Litem (GAL) moves to dismiss this child welfare appeal, arguing that it is not taken from a final appealable order. Father opposes dismissal. The State did not respond to the motion to dismiss, but it filed a response to the petition on appeal stating that it disagrees with the GAL’s position on jurisdiction.[1]

¶2        The juvenile court entered an adjudication order on June 19, 2019, which was based upon the Father’s admissions under rule 34(e) of the Utah Rules of Juvenile Procedure. The juvenile court placed N.S. in the custody and guardianship of the Division of Child and Family Services (DCFS) for appropriate placement, after finding that N.S. was a neglected child as provided in Utah Code section 78A-6-105(39karent)(a)(iv). See Utah Code Ann. § 78A-6-105(39)(a)(iv) (LexisNexis Supp. 2019) (defining “neglect” as “action or inaction causing. . . a child to be at risk of being neglected or abused because another child in the same home is neglected or abused”). DCFS prepared a proposed Child and Family Plan for consideration by the juvenile court because Father and the child’s mother (Mother) wanted to regain custody of N.S. and had advised the DCFS caseworker that they were willing to participate in services to get N.S. back. The proposed plan outlined possible services for a permanency goal of reunification and a concurrent goal of adoption.

¶3        At the dispositional hearing held on June 18, 2019, the juvenile court reviewed the proposed Child and Family Plan submitted by DCFS and issued a written disposition order that same day. In that order, the juvenile court found that Father’s repeated sexual abuse of A.S.—a sibling of N.S.—constituted “a threat of serious harm” to N.S., “who is a vulnerable female child residing in the same home.” The juvenile court considered whether services would be appropriate before ruling that the “Child and Family Plan is moot” regarding N.S., “in light of the Court’s order that reunification will not be offered.” On July 2, 2019, Father filed a notice of appeal from the disposition order, which he incorrectly characterized as terminating juvenile court jurisdiction over the child welfare case and placing custody of the child with a relative. On August 2, 2019, the State filed a petition to terminate Father’s parental rights as a prerequisite to effectuating the permanency goal of adoption.

¶4        The GAL moved to dismiss this appeal, arguing that a disposition order denying reunification services and setting a permanency goal of adoption was not final and appealable. The GAL notes that Father did not appeal the adjudication order, which was based upon his rule 34(e) admissions. See Utah R. Juv. P. 34(e) (providing that a respondent may answer a petition by neither admitting nor denying the allegations and that any allegations not specifically denied “shall be deemed true”). The GAL cites In re A.T., 2015 UT 41, 353 P.3d 131, for the proposition that a parent may object to the lack of reunification services at the termination hearing “because the earlier dispositional hearing was neither final nor appealable.” Id. ¶ 13.

¶5        Father and the State argue that this court has previously determined that dispositional orders such as the denial of reunification services for a parent are final and appealable as a matter of right, citing In re S.A.K., 2003 UT App 87, 67 P.3d 1037. In In re S.A.K., the juvenile court issued a memorandum decision finding the child to have been sexually abused. Id. ¶ 5. After a disposition hearing roughly one month later, the juvenile court entered an “Adjudication/Disposition Order,” which included findings that the child was abused and neglected and placed the child in the custody of relatives. Id. ¶ 6. Mother appealed, seeking to raise issues regarding the adjudication hearing. Id. ¶ 7. The GAL argued that this court lacked jurisdiction because Mother failed to timely appeal the earlier adjudication decision. Id. ¶ 10. This court compared the adjudication and the disposition in child welfare cases to the conviction and the sentencing in criminal cases. See id. ¶ 14. “Consequently, an appeal from a disposition order should be sufficient to allege errors occurring in the adjudication proceedings, just as an appeal after sentencing in a criminal case may allege errors in the trial as well as sentencing.” Id. Thus, this court concluded it had jurisdiction over Mother’s appeal of a ruling during the adjudication hearing because she timely filed a notice of appeal after the disposition hearing order. Id. ¶ 15.

¶6        In our view, this case is factually distinguishable from In re S.A.K. In In re S.A.K., this court allowed an appeal of the adjudication based upon a notice of appeal filed after what appears to have been a combined adjudication and disposition order. In contrast, Father in this appeal does not challenge the adjudication, which was based upon his rule 34(e) admissions, and instead he challenges the subsequent denial of reunification services and the setting of a permanency goal of adoption at the disposition hearing.

¶7        Furthermore, after this court’s 2003 decision in In re S.A.K., the Utah Supreme Court articulated a test for determining which orders in a child welfare case are final and appealable as a matter of right. See In re A.F., 2007 UT 69, ¶4, 167 P.3d 1070. An order in a child welfare case is final and appealable “only if it effects a change in the status of the child.” Id. An order that does not effect a change in a child’s permanent status and serves “only as an interim determination made in anticipation of additional proceedings” is not final and appealable. Id.; see also In re K.F., 2009 UT 4, ¶¶ 37–42, 201 P.3d 985 (applying test for finality); In re A.T., 2015 UT 41, ¶ 13, 353 P.3d 131 (same). “All other orders may be appealed at the discretion of the appellate court as interlocutory appeals.” In re K.F., 2009 UT 4, ¶ 35.

¶8        Applying the case law to the facts of this case, the disposition order denying reunification services and setting a permanency goal of adoption is not final and appealable because it does not effectuate “a permanent change in the child’s status,” id. ¶ 38, and further proceedings are necessary to effectuate the goal of adoption, see id. ¶ 39. Father can request reunification services or demonstrate parental fitness at any time before termination. See In re A.F., 2007 UT 69, ¶ 8. “A mere change in a permanency goal or the creation of a ‘final plan’ [does] not affect the Child’s status in the absence of further action taken to realize the goal or implement the plan.” Id. ¶ 9; see also In re A.T., 2015 UT 41, ¶ 13 (“In many cases, these hearings result in orders that merely set a direction for the remainder of the proceedings, and the parties are still able to regain custody by taking steps to show fitness and petitioning the court for custody at any time prior to termination of their parental rights.” (quotation simplified)).

¶9 Accordingly, we grant the motion to dismiss this appeal for lack of jurisdiction, without prejudice to a timely appeal taken from a final appealable order.

————————-

[1] This disagreement between the State and the GAL is also the subject of the State’s pending petition for certiorari in In re J.J., Case No. 20190571-SC.

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Gardner v. Gardner – 2019 UT 28 – alimony – infidelity – tax burden

This opinion is subject to revision before final publication in the Pacific Reporter
Gardner v. Gardner – 2019 UT 28
IN THE SUPREME COURT OF THE STATE OF UTAH

CHRISTINA L. GARDNER, Appellant,
v.
NELSON D. GARDNER, Appellee.

No. 20170598
Filed June 27, 2019
On Certification from the Court of Appeals
Third District, Salt Lake
The Honorable Matthew Bates
No. 164902102
Attorneys:
Robert W. Hughes, Julie J. Nelson, Erin B. Hull, Salt Lake City, for appellant
Jill L. Coil, Luke A. Shaw, Kyle O. Maynard, Sandy, David W. Read, Salt Lake City, for appellee
CHIEF JUSTICE DURRANT authored the opinion of the Court, in which ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS, JUSTICE PEARCE, and JUSTICE PETERSEN joined.

CHIEF JUSTICE DURRANT, opinion of the Court:

Introduction

¶ 1 After a twenty-two year marriage, Nelson Gardner and Christina Gardner divorced. Before the divorce trial, they settled issues related to child custody and the distribution of their marital property. But they could not agree on the proper terms of Mr. Gardner’s alimony obligation to Ms. Gardner. After a three-day bench trial, the district court determined that Ms. Gardner was entitled to alimony, but, because of her extramarital sexual affairs, the court reduced her alimony award in amount and duration.

¶ 2 Specifically, the court calculated the amount of the alimony award based on Ms. Gardner’s expected reasonable monthly expenses, rather than on the monthly expenses she had incurred while married to Mr. Gardner. The court also set the alimony award for a period of ten years rather than the maximum statutory length of twenty-two years. The court stated that it was making these reductions because it did not believe it would be fair, where Ms. Gardner’s conduct had substantially contributed to the demise of the marital relationship, to obligate Mr. Gardner to maintain Ms. Gardner at the standard of living she enjoyed during the marriage.

¶ 3    Ms. Gardner now appeals the terms of the alimony award, arguing the court erred in the following respects: (1) in determining that her infidelities substantially contributed to the end of the marriage; (2) in setting the specific terms of the alimony award; (3) in imputing income to her at an “arbitrary amount”; (4) in failing to consider the tax burden of the alimony award; and (5) in denying her request for attorney fees. Because none of the alleged errors constituted an abuse of the district court’s discretion or were plainly incorrect, we affirm the district court’s alimony determination on all counts.

Background

¶ 4    Nelson Gardner and Christina Gardner were married for twenty-two years before divorcing in 2017. During the course of the marriage, Mr. Gardner worked full-time, and Ms. Gardner stayed home with their five children.[1] Although the couple had agreed to this arrangement, after their youngest child turned five, Mr. Gardner frequently encouraged Ms. Gardner to work outside the home or to obtain additional education.

¶ 5    At the time of the divorce, Mr. Gardner worked as a “global director of business development,” making roughly $200,000 per year. Ms. Gardner, on the other hand, did not have consistent employment but “occasionally worked part-time, earning $11 or $12 per hour.” Ms. Gardner does not have a college degree or any professional license, but she has earned money teaching swimming, piano, sewing, and art classes. Also, she has earned sizeable commissions for her artwork, although not on a consistent basis.

¶ 6 The couple’s relationship had a lot of “ups and downs” throughout the marriage. Mr. Gardner testified that the key factor in the couple’s marital discord was Ms. Gardner’s “multiple episodes of infidelity.” In 2007 and 2009, Ms. Gardner had extramarital sexual affairs. Although the parties appeared to have “reconciled and moved on” following these affairs, the court found that Mr. Gardner had suspected Ms. Gardner of having another affair in 2013. And, according to Mr. Gardner, the “final nail” was in 2016 when he discovered that Ms. Gardner had developed an “inappropriate relationship” with another man. He made this discovery after Ms. Gardner was injured in an accident while allegedly spending time with that man.[2] Mr. Gardner filed for divorce shortly thereafter.

¶ 7 Although both parties also testified to the existence of other

marital problems, including “mutual verbal abuse” and one act of physical abuse by Ms. Gardner, as well as to arguments over finances and marital responsibilities, the district court found that it was Ms. Gardner’s “sexual relationships with persons other than [Mr. Gardner that] substantially caused the breakup of the marriage relationship.” The district court determined that this constituted “fault” under Utah Code section 30-3-5, and so could be considered as part of the court’s alimony determination.

¶ 8 The court factored fault into its alimony determination in two ways. First, it held that, due to Ms. Gardner’s fault, it need not pursue the typical goal of equalizing the standards of living between the parties.[3] Second, it determined that Ms. Gardner was not entitled to alimony “for the maximum allowed duration.” It reasoned that these reductions were warranted because it would be “unfair for one of the parties to cause the breakup of the marriage relationship but to continue to enjoy the temporal and material benefits of having the (ex-)spouse support an affluent life-style enjoyed by both during the marriage.”

¶ 9 The court departed from the goal of equalization by calculating Ms. Gardner’s alimony award based on “reasonable monthly expenses” rather than on the expected monthly expenses she incurred while living at the lifestyle she enjoyed before the divorce. This resulted in a $1,513 reduction in Ms. Gardner’s estimated “need”—from $6,950 to $5,437 per month.

¶ 10 The court arrived at this reduced number, in part, by reducing her expected housing expenses “from $2,455 [per] month to $1,600 [per] month.” It concluded that although $1,600 per month might not be enough to buy a home in her former neighborhood, it should be enough to rent “a three bedroom apartment . . . in that area” or to purchase “a modest home, probably on the west side of the freeway.” The court also reduced other anticipated living expenses, such as Ms. Gardner’s anticipated car payment and gas and utility expenses, to reflect more “reasonable” monthly expenses.

¶ 11 With Ms. Gardner’s adjusted monthly expenses in mind, the court set out to calculate an alimony payment amount that would meet her needs. As the first step in this calculation, the court imputed an income of $1,300 per month to Ms. Gardner.[4] Next, the court factored in the $2,137 per month in child support payments that Ms. Gardner would be receiving from Mr. Gardner until the two minor children turned eighteen or graduated from high school, whichever occurred later. Finally, the court awarded Ms. Gardner $2,000 per month in alimony payments. Adding the imputed income, child support, and alimony together, the court calculated that Ms. Gardner would have an income of $5,437 ($4,137 of which would come from Mr. Gardner) per month to match her expected reasonable needs of $5,437.

¶ 12 The court also determined that the alimony payment amount would increase to $2,368 per month once their second youngest son turned eighteen or graduated from high school. And it would increase again to $3,128 per month once their youngest son turned eighteen or graduated from high school. Thereafter, the alimony amount would decrease by $200 per year until the term for alimony expired or terminated for another reason. The court explained that this “step-down” arrangement was designed “to encourage [Ms. Gardner] to start working, get[] some education, or, if she is indeed disabled,[5] to seek income from a government or charitable disability program.”

¶ 13 Although the court acknowledged that under the adjusted monthly totals, Ms. Gardner would not be able to enjoy “the same affluent life-style that she had during the course of the marriage,” it explained that such a result was fair in light of its fault determination because to do otherwise would have the effect of “penaliz[ing] Mr. Gardner for something that really did not appear . . . was his fault.”

¶ 14 The court also factored fault into its alimony calculation by deciding that Ms. Gardner was “not entitled to receive alimony for the maximum allowed duration under the statute, which is the length of the marriage.” So the court ordered Mr. Gardner to pay alimony for a ten-year period, rather than the maximum allowed period of twenty-two years.[6]

¶ 15 Ms. Gardner now appeals the terms and the length of the alimony award. The appeal was initially filed in the court of appeals, but that court certified it to us. We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(b).

Standard of Review

¶ 16 Ms. Gardner raises a number of issues on appeal. First, she challenges the district court’s fault determination, as well as the terms of her alimony award. We review a district court’s alimony determination “for an abuse of discretion and ‘will not disturb [its] ruling on alimony as long as the court exercises its discretion within the bounds and under the standards we have set and has supported its decision with adequate findings and conclusions.’”[7] Second, she argues that the district court plainly erred when it failed to account for the tax burden imposed by the imputed income and by Ms. Gardner’s alimony award. This issue was not preserved, so we address it under the plain error doctrine.[8] Finally, Ms. Gardner argues that the court abused its discretion when it failed to award her attorney fees under Utah Code section 30-3-3(1). We review a district court’s decision to award attorney fees pursuant to this statute for an abuse of discretion.[9]

Analysis

¶ 17 Ms. Gardner challenges several aspects of the district court’s alimony determination. First, she argues the court abused its discretion when it determined that “statutorily-defined fault substantially contributed to the breakup of the marriage.” Second, she argues the court misapplied the law in determining the terms of the alimony award without achieving “the first two ‘primary aims of alimony.’” Third, she argues the court abused its discretion in imputing income to her. Fourth, she argues the court plainly erred by failing to consider her tax burden when determining the alimony amount. And finally, she argues the court abused its discretion when it declined to award her attorney fees under the divorce statute.

¶ 18 In divorce actions, a district court “is permitted considerable discretion in adjusting the financial and property interests of the parties, and its actions are entitled to a presumption of validity.”[10] Accordingly, we will reverse only if (1) “there was a misunderstanding or misapplication of the law resulting in substantial and prejudicial error”;[11] (2) the factual findings upon which the award was based are “clearly erroneous”;[12] or (3) the party challenging the award shows that “such a serious inequity has resulted as to manifest a clear abuse of discretion.”[13] Because “we can properly find abuse only if no reasonable person would take the view adopted by the trial court,” appellants have a “heavy burden” to show that an alleged error falls into any of these three categories.[14] After reviewing the district court’s alimony determination under this standard, we conclude that none of the errors Ms. Gardner alleges constitute reversible error. Accordingly, we affirm.

I. We Affirm the District Court’s Determination That Ms. Gardner’s Affairs Substantially Contributed to the Divorce

¶ 19 First, we consider whether the district court abused its discretion by determining, under Utah Code section 30-3-5(8)(c), that Ms. Gardner was at fault in causing the divorce. We hold that it did not.

¶ 20 The court found that Ms. Gardner had engaged in wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship. But in doing so, the court did not explain how it defined the term “substantially contributed”—a term that is not defined in statute or our caselaw. So, as part of our determination, we must clarify what constitutes conduct that “substantially contributes” to a divorce. Under this clarified standard, we conclude that the district court did not err in making its fault determination.

A. Under Utah Code section 30-3-5(8)(c), “substantially contributed” means conduct that was a significant cause of the divorce

¶ 21 Utah Code section 30-3-5(8)(b) authorizes courts to consider “the fault of the parties in determining whether to award alimony and the terms of the alimony.” And Section 30-3-5(8)(c) states that a spouse’s participation in an extramarital affair constitutes fault if it “substantially contributed” to the breakup of the marriage. No Utah appellate court has defined what constitutes conduct that “substantially contributed” to a divorce. Accordingly, we consider the meaning of the term as a matter of first impression.

¶ 22 Under the plain meaning of the term “substantially contributed,” the conduct at issue must be an important or significant factor in the divorce, but it does not have to be the first cause, or the only cause.[15] Merriam-Webster’s Collegiate Dictionary defines “substantial” variously as “not imaginary or illusory,” “considerable in quantity,” and “being largely but not wholly that which is specified.”[16] Although none of these definitions are a perfect fit with the use of “substantial” in section 30-3-5(8), each definition suggests that “substantial” means a considerable or important part of something, but not necessarily the entire part. Under these definitions, a substantial cause is one that is sufficient to lead to the breakup of the marriage, but is not necessarily the only identifiable cause. This is the same way in which “substantial” is used in other areas of law.

¶ 23 For example, in Utah we employ a “substantial factor” test when determining causation in negligence actions.[17] Black’s Law Dictionary defines the “substantial-cause test” as the “principle that causation exists when the defendant’s conduct is an important or significant contributor to the plaintiff’s injuries.”[18] So according to Black’s Law Dictionary, a substantial cause can be defined as an “important or significant contributor” to a particular harm.

¶ 24 And the Restatement (Second) of Torts defines “substantial” similarly:

The word “substantial” is used to denote the fact that the defendant’s conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility, rather than in the so-called “philosophic sense,” which includes every one of the great number of events without which any happening would not have occurred. Each of these events is a cause in the so-called “philosophic sense,” yet the effect of many of them is so insignificant that no ordinary mind would think of them as causes.[19]

¶ 25 So, like the Black’s Law Dictionary definition, the Restatement describes a substantial cause as a cause that a reasonable person would consider an important or significant factor in the bringing about of a specific event. This definition applies equally well in the divorce context.

¶ 26 As with harm in a negligence case, a “great number of events” may have contributed to a divorce. In fact, we have previously recognized “that it is seldom, perhaps never, that there is any wholly guilty or wholly innocent party to a divorce action.”[20] So in almost all divorce cases, it could be argued that each spouse contributed in some way to the breakup of the marriage.[21] But some causes are clearly more substantial, or significant, than others. So even though it may be impossible to state with certainty a sole, or even the first, cause leading to the breakup of the marriage, it will certainly be possible in many cases for a court to determine the significant or important causes of the divorce.

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

B. The district court did not abuse its discretion in determining that Ms. Gardners extramarital affairs substantially contributed to the divorce

¶ 28 In this case, the district court held that Ms. Gardner’s “infidelity substantially contributed to the breakup of the marriage relationship.” As Ms. Gardner herself acknowledges in her brief, fault in this case could be established only if the court found that Ms. Gardner (1) “engag[ed] in sexual relations with a person other than the party’s spouse” and by so doing she (2) “substantially contributed to the breakup of the marriage.”[22] Ms. Gardner claims that “no conduct meets both [of these] elements.” But the district court found otherwise. Because the court did not misapply the law, and its findings are not clearly erroneous, it did not abuse its discretion in concluding that Ms. Gardner’s conduct substantially contributed to the breakup of the marriage.

¶ 29 In the divorce decree, the district court found that Ms. Gardner “had affairs involving sexual relations with persons other than her spouse in 2007 and 2009.” The court also found that Mr. Gardner “suspected another affair in 2013 and [Ms. Gardner] admitted to an inappropriate relationship in 2016 at the time of the filing of petition for divorce[,] [which] had not yet become physical.” Finally, the court found that Mr. Gardner “filed for divorce because [Ms. Gardner] had previously been unfaithful and had commenced another inappropriate relationship that [Mr. Gardner] believed would become a sexual relationship.” Based on these factual findings, the court determined that “Ms. Gardner’s sexual relationships with persons other than [Mr. Gardner] substantially caused the breakup of the marriage relationship.” The court did not misapply the law in making this determination.

¶ 30 Ms. Gardner argues the court erred by characterizing her relationship with another man in 2016 as a sexual relationship. But she does not point to any place where the district court suggested that the 2016 relationship constituted a sexual relationship. Rather, the court determined that Ms. Gardner had engaged in extramarital affairs in 2007 and 2009, and then found that “Ms. Gardner’s sexual relationships with persons other than [Mr. Gardner] caused the breakup of the marriage relationship.” Accordingly, Ms. Gardner fails to show that the court misapplied the law by incorrectly characterizing a non-physical relationship as a sexual relationship.

¶ 31 Ms. Gardner also fails to show that the court’s fault finding was clearly erroneous. Importantly, she does not deny that she engaged in extramarital affairs in 2007 and 2009, so the first element of fault is met. Instead, she argues that the district court clearly erred when it found those affairs to have substantially caused the breakup of the marriage. We disagree.

¶ 32 In reviewing a district court’s factual findings, we must keep in mind that the district court “has a comparative advantage in its firsthand access to factual evidence, and because there is no particular benefit in establishing settled appellate precedent on issues of fact, there is a potential downside and no significant upside to a fresh reexamination of the facts on appeal.”[23] So, under our clearly erroneous standard, we will disturb a court’s factual findings only where the court’s conclusions do not logically follow from, or are not supported by, the evidence.[24]

¶ 33 Ms. Gardner argues the court clearly erred for two reasons. First, she asserts the court clearly erred in concluding that other causes “did not substantially contribute to the breakup of the marriage relationship,” because “‘irreconcilable differences’ provided not only ‘[an]other reasonable explanation,’ but the most ‘reasonable explanation’ for the divorce.” Second, she asserts the court clearly erred because the extramarital affairs played a “relatively minor role in the divorce.” But neither argument convinces us that the court’s findings were clearly erroneous.

¶ 34 As evidence of irreconcilable differences, Ms. Gardner points to “multiple disputes unrelated to the infidelity,” including disputes over their level of religious involvement, their division of labor in the home, and finances, as well as to episodes of mutual verbal abuse, and one episode in which she hit Mr. Gardner. But, as we have already discussed, conduct need not be the first, or only, cause of the breakup of the marriage for it to substantially contribute to the divorce. Instead, it need only be an important or significant cause. So the evidence of other sources of contention does not foreclose the possibility that Ms. Gardner’s multiple episodes of infidelity substantially contributed to the divorce. And when the other evidence presented at trial is considered, we conclude that the district court’s fault determination is not clearly erroneous.

¶ 35 In fact, the record evidence suggests that Ms. Gardner’s extramarital affairs were a significant, if not the primary, impetus for the demise of the marriage. At trial, Mr. Gardner was asked what fueled the breakup of the parties’ marriage, and he replied as follows:

It goes back a long ways. There’s been lots of ups and downs in the marriage, lots of ups and downs. There’s been infidelity that took place back in 2005, ‘6, ‘7, I don’t know the actual time periods. I know that it was real to me in 2007. There was additional infidelity that took place in February of 2009 and on and on. The date of her accident, I believe she was with someone who was probably an inappropriate friend as well.

¶ 36 Mr. Gardner was then asked to confirm whether “these infidelities . . . led to the demise of the marriage,” to which he replied that it “was clearly a very big impetus for where [they] went.” And it was only after explaining how Ms. Gardner’s infidelities affected their marriage that he explained that there were other sources of “discontent” between them, such as disputes regarding their religion, income, and the division of responsibility within the marriage. This testimony suggests that the extramarital affairs were a significant cause of the divorce, even though there were other areas of contention in their marriage. Accordingly, the evidence supports the district court’s conclusion that Ms. Gardner’s extramarital affairs substantially contributed to the breakup of the marriage. And Ms. Gardner does not point to any other evidence that would contradict this.

¶ 37 The closest Ms. Gardner comes to contradicting Mr. Gardner’s testimony is when she discusses his attempts to stay in the marriage from the time he learned of the infidelities until 2016. She argues that the evidence suggests that her extramarital affairs played a “relatively minor role in the divorce” because Mr. Gardner stayed in the marriage for as long as he did.

¶ 38 In support, she points to the fact that Mr. Gardner had initially told their children that they were getting a divorce in 2007 after the first episode of infidelity, but that he “reconsidered” because Ms. Gardner “agreed to go through the repentance process at their church.” She also points to the fact that, despite her affair, “he tried to help her, ‘absolutely,’ [by] seeking help from a psychiatrist and staging an intervention with the help of friends [and] by sending her from Arizona to Park City for a few days ‘to collect herself.’” But rather than contradict Mr. Gardner’s testimony that the extramarital affairs harmed the marriage, this additional testimony further corroborates it. The fact that he considered divorce after the first affair in 2007 and sought to find her “help” indicates that Mr. Gardner viewed his wife’s infidelity as having significantly damaged their marriage. And this conclusion is not undermined by the fact that he agreed to remain in the marriage once she agreed to go through a formal repentance process through their church.

¶ 39 In fact, other comments he made regarding his decision to remain in the marriage confirm how damaging her extramarital affairs were. He testified that his decision was a “tough” one in light of her “multiple episodes of infidelity,” and that even though he “really tr[ied] to hang on” he “sort of knew that it was probably the end.” So Mr. Gardner’s decision to not get divorced immediately upon learning of her extramarital affairs does not suggest that the affairs were an insubstantial factor in the marriage’s eventual breakup.

¶ 40 Ms. Gardner also points to Mr. Gardner’s testimony that he “was very committed to [the] relationship forever except for some of the egregious things that took place” to suggest that her affairs were not significant. But the most reasonable interpretation of this comment is that Mr. Gardner was very committed until Ms. Gardner made the “egregious” decision to engage in an extramarital affair.[25] So, once again, the evidence Ms. Gardner cites to attack the court’s findings actually supports them.

¶ 41 Finally, Ms. Gardner points to the events surrounding an accident she suffered in 2016 to suggest that this incident, and not the previous affairs, was the true cause of the divorce. She claims that the parties “had a pretty good blowup,” and that this was the true end of their marriage. But the events surrounding the accident are significant only when viewed in the context of Ms. Gardner’s extramarital sexual affairs in 2007 and 2009.

¶ 42 The evidence on record reasonably supports the conclusion that Ms. Gardner’s affairs in 2007 and 2009 triggered the “blowup” in 2016. After the affairs, Mr. Gardner agreed to remain in the marriage for a time.[26] But in 2016, Mr. Gardner discovered that Ms. Gardner had entered into an “inappropriate relationship” with the man with whom she had been on the day of her accident. Although Mr. Gardner admitted that this relationship had not yet become physical, he testified that Ms. Gardner had said that the man “wanted to take it further.”

¶ 43 Mr. Gardner testified that this discovery was “the final nail” and “the end.” And it was around this time that the parties had their “blowup”—the event that Ms. Gardner suggests was the true cause of the divorce. Several months later Mr. Gardner formally filed for divorce. So even though Ms. Gardner’s affairs in 2007 and 2009 did not immediately end the divorce, the evidence supports the district court’s conclusion that they were significant factors in the eventual “blowup” that precipitated the ultimate end of the marriage.

¶ 44 In sum, the phrase “substantially contributed” in section 30-3-5(8) should be interpreted as referring to conduct that was a significant or important cause of the breakup of the marriage. Under this interpretation, the conduct need not be the only significant cause, or the first significant cause; instead, it need only be significant enough that a reasonable person would conclude that it was an important factor in the divorce. Because evidence supports the conclusion that Ms. Gardner’s extramarital sexual relationships in 2007 and 2009 were significant factors in the ultimate demise of the couple’s marriage, we cannot say that the district court clearly erred when it found that the affairs substantially contributed to the breakup of the marriage.

II. We Affirm the District Court’s Determination of the Terms of the Alimony Award

¶ 45 Next we must consider whether the district court committed reversible error in establishing the terms of the alimony award. As we have explained, we will disturb a district court’s determination in a divorce proceeding only if (1) “there was a misunderstanding or misapplication of the law resulting in substantial and prejudicial error”;[27] (2) the factual findings upon which the award was based are “clearly erroneous”;[28] or (3) the party challenging the award shows that “such a serious inequity has resulted as to manifest a clear abuse of discretion.”[29]

¶ 46 In this case, Ms. Gardner does not challenge the factual findings underlying the terms of the district court’s alimony award. Instead, she argues that the court misapplied the law in establishing the terms of the alimony award because it did not seek to achieve “the first two ‘primary aims of alimony’”: (1) to get the parties as close as possible to the same standard of living that existed during the marriage and (2) to equalize the standards of living of each party. Additionally, she argues that the alimony award, when the totality of its terms are considered, constitutes an abuse of discretion because it resulted in “harsh punishment.” Because the plain language of the alimony statute authorized the district court to depart from the default aims of alimony, and because the resulting alimony award did not create such a serious inequity as to manifest a clear abuse of discretion, we decline to disturb the district court’s alimony determination.

A. The district court was not required to base Ms. Gardners alimony award on the standard of living she enjoyed while married, nor to equalize her and Mr. Gardners standards of living

¶ 47 The district court was not required to base Ms. Gardner’s alimony award on the standard of living she enjoyed while married, nor to equalize her and Mr. Gardner’s standards of living. Although courts should begin each alimony determination by considering the parties’ respective economic circumstances with the aim of equalizing their post-divorce standards of living as nearly as possible to the standard of living they enjoyed while married, both our caselaw and the language of the alimony statute demonstrate that courts may depart from these default rules where necessary to achieve a fair and equitable result between the parties.

¶ 48 Our caselaw makes clear that the “overarching aim of a property division, and of the decree of which it and the alimony award are subsidiary parts, is to achieve a fair, just, and equitable result between the parties.”[30] To that end, we have stated that courts should seek to divide property and award alimony in a way that avoids “perpetuation of the difficulties that brought failure to the marriage.”[31] In other words, a property division and alimony award should “minimize animosities” and help the parties move on with their separate lives after divorce.[32]

¶ 49 To achieve these general aims, we have adopted a number of default rules to guide district courts. For example, we have held that alimony awards should be made with the purpose of “provid[ing] support for the [receiving spouse] as nearly as possible at the standard of living [he or] she enjoyed during marriage, and to prevent the [spouse] from becoming a public charge.”[33] And we have stressed that “to the extent possible” the court should “equalize the parties’ respective standards of living.”[34] These rules tend to further the aim of “avoid[ing] perpetuation of the difficulties that brought failure to the marriage”[35] because they put the parties in the best possible position to “reconstruct their [separate] lives on a happy and useful basis.”[36]

¶ 50 But in some situations the application of the default rules will not lead to the most equitable result.[37] When this is the case, courts have the discretion to deviate from them. For example, in Riley v. Riley, the Utah Court of Appeals upheld an alimony award to the wife that was “well above” her demonstrated monthly need.[38] In that case, a husband challenged the alimony award amount because it exceeded the amount needed to sustain the wife at the appropriate standard of living. But the court rejected this argument in light of the husband’s fault in causing the divorce.[39] It explained that “even though such an award would be too high if only economic factors were considered,” in light of the husband’s fault, fairness to the wife could be achieved only by considering the husband’s fault as a factor in setting the amount of the alimony award.[40] Thus the decision in Riley helps underscore the principle that where one party’s fault harmed the other party, the court may consider that fault as it attempts to balance the equities in order to achieve the ultimate aim in an alimony determination—to achieve “a fair, just, and equitable result between the parties.”[41]

¶ 51 Similarly, in Wilson v. Wilson, we considered a district court’s decision to award alimony for a period of eight and one-third years after a fifteen-year marriage.[42] In that case, the district court concluded that even though the wife’s lack of work experience caused the court to be “apprehensive” for her “welfare,” it determined that alimony for the full length of the marriage was not appropriate due to “the attitudes of the parties.”[43] Because of their attitudes, the court believed that “requiring [the husband] to carry the burden of permanent alimony would lead to ‘almost [unbearable] bitterness.’”[44] In other words, the district court determined that a lengthy alimony award would not further the aim of putting the parties in the best possible position to “reconstruct their [separate] lives on a happy and useful basis.”[45]

¶ 52 But the husband in Wilson appealed the district court’s alimony award. According to the husband, the shortened duration of the alimony award was not short enough. We agreed. Although we recognized that the district court has considerable latitude in setting the terms of alimony, we held that the award did “not conform to the design the trial judge was avowedly trying to fashion of imposing an obligation upon [the husband] to pay a modest amount of alimony for a definite period of time and with a termination date in sight.”[46] For that reason, we reduced the duration of the award by half.[47] So the decision in Wilson, like the decision in Riley, stands for the principle that where strict application of the normal alimony guidelines would not further the court’s aim of achieving a fair, just, and equitable result between the parties it is appropriate to deviate therefrom.

¶ 53 These principles were codified in Utah Code section 30-3-5(8). Section 30-3-5(8)(a) requires district courts to consider the financial situations of both spouses as part of its alimony determination.[48] Additionally, section 30-3-5(8)(e) urges district courts to “look to the standard of living, existing at the time of separation, in determining alimony in accordance with Subsection (8)(a),” and section 30-3-5(8)(f) provides that the “court may . . . attempt to equalize the parties’ respective standards of living.” Together these provisions codify the default rules that an alimony award should be crafted to “provide support for the [receiving spouse] as nearly as possible at the standard of living [he or] she enjoyed during marriage,”[49] and, “to the extent possible,” to “equalize the parties’ respective standards of living.”[50]

¶ 54 As we have explained, these default rules tend to further the court’s aim of achieving “a fair, just, and equitable result between the parties”[51] because they typically put the parties in the best possible position to “reconstruct their [separate] lives on a happy and useful basis.”[52] So the economic factors, and the general aim of placing the parties in the same position they enjoyed during the marriage, stand as an important starting point in any alimony determination.

¶ 55 But section 30-3-5(8) also provides courts the flexibility and discretion to depart from these default rules in certain situations where fairness demands. For example, in addition to the economic factors listed in section 30-3-5(8)(a), section 30-3-5(8)(b) also authorizes courts to consider “the fault of the parties in determining whether to award alimony and the terms of the alimony.”[53] So the statute expressly provides district courts with the discretion to consider fault in determining whether to award alimony, as well as in determining the terms—the amount and length—of the alimony award.

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

¶ 57 Similarly, section 30-3-5(8)(f) authorizes courts to depart from default alimony awards where fault contributed to the break-up of the marriage. It instructs courts to “attempt to equalize the parties’ respective standards of living.” But it also notes that courts should do so only “under appropriate circumstances.” So once again, when this provision is read together with section 30-3-5(8)(b)’s fault provision, it is clear that courts need not attempt to equalize the parties’ respective standards of living where one spouse’s fault would make equalization inappropriate.[54]

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

B. The district courts reduction of Ms. Gardners alimony award did not constitute an abuse of discretion

¶ 59 Although we conclude that the district court’s fault determination authorized it to consider fault as part of its alimony determination, we must also determine whether the manner in which the court factored Ms. Gardner’s fault into the alimony award constituted an abuse of discretion in this case. Ms. Gardner argues the court erred in disproportionately reducing her alimony award, because in her view, the “fault [in this case] was at most a minor piece of the failure of the marriage.” We ultimately disagree with Ms. Gardner on this point, but her argument highlights a need to clarify the manner in which district courts may rely on fault in establishing the terms of an alimony award.

¶ 60 As we have explained, conduct listed in section 30-3-5(8)(c) may constitute fault even though it is not necessarily the only, or even the most important, factor in the breakup of the marriage. But courts should also recognize that not all conduct qualifying as fault under section 30-3-5(8)(c) should be given equal weight in alimony determinations. So where the fault of the parties is at issue, courts must make a threshold determination of whether the alleged conduct qualifies as fault under section 30-3-5(8)(c). And where the court determines conduct does qualify, it must then determine the role the fault should play in the alimony calculation.

¶ 61 In so doing, courts should keep in mind that the ultimate purpose of any property division or alimony award is to “achieve a fair, just, and equitable result between the parties.”[55] For this reason, courts should consider fault only in an attempt to balance the equities between the parties. In other words, where one party’s fault has harmed the other party, the court may attempt to re-balance the equities by adjusting the alimony award in favor of the party who was harmed by that fault.[56]

¶ 62 Because courts should consider fault only to prevent or rectify an inequity to the not-at-fault spouse, courts must necessarily make detailed factual findings regarding the harmful effect of the fault. This is because the gravity of the harm caused by a party’s fault will differ from case to case. The gravity of the harm may depend upon the nature of the conduct, the effect of the at-fault party’s conduct on the marriage and the other party, and on other equitable factors.

¶ 63 So we hold that before a court considers fault as part of its determination, it must make a threshold determination, under section 30-3-5(8)(c), that the conduct qualifies as fault. It should then make detailed findings regarding the gravity of the harm caused by the fault. In making these findings, the court should focus on the harm the at-fault conduct caused to the marriage[57] and the other party, along with other equitable factors. The court should then articulate the extent to which these findings justify a departure from the default rules of alimony.[58]

¶ 64 We note, however, that where a district court has made sufficient factual findings related to the gravity of fault, it has broad discretion in determining the manner in which fault factors into a “fair, just, and equitable” alimony determination in a given case. This is because the ultimate determination of how fault should be factored in will be based on broad equitable principles. And broad equitable principles do not lend themselves to the precise legal standards typically considered as part of an appellate review.

¶ 65 Accordingly, once we have determined that a court correctly applied section 30-3-5(8)(c) in determining whether conduct qualifies as fault, we will not disturb the court’s alimony determination unless the factual findings underlying the determination are insufficient or clearly erroneous, or the resulting alimony award causes such serious inequity as to manifest a clear abuse of discretion.[59]

¶ 66 In this case, the district court properly applied section 30-3-5(8)(c) in determining that Ms. Gardner’s conduct constituted fault. As part of this determination, the court also made numerous findings regarding the effect Ms. Gardner’s fault had on the marriage, on Mr. Gardner, and on the unfairness of awarding alimony without making a fault-based reduction. After reviewing these findings, we cannot say that they are insufficient or clearly erroneous.

¶ 67 The district court found that Ms. Gardner’s extramarital affairs seriously harmed the marriage and Mr. Gardner. For example, the court found that the extramarital affairs were the only “reasonable explanation as to why th[e] marriage fell apart,” and that they “seem[ed] to have driven Mr. Gardner to file for this divorce.” These statements indicate that the district court viewed Ms. Gardner’s conduct as having had a profound, decisive effect on the parties’ marriage.

¶ 68 The court also made findings regarding the effect of Ms. Gardner’s conduct on the fairness of an alimony determination based on the default rules. The court explained it would be “unfair” to obligate Mr. Gardner to provide “a large support payment” that would allow Ms. Gardner “to continue living in a[n] affluent life-style” when it had been her conduct that caused “the break up of the marriage partnership.” Later on, the court reiterated this reasoning, stating that it was “not going to penalize Mr. Gardner for something that really did not appear . . . [to be] his fault.” Based on these equitable principles, the court determined it would be fair to reduce Ms. Gardner’s expected standard of living from “affluent” to “very comfortable.” Thus the court made findings regarding the gravity of harm caused by Ms. Gardner’s fault, and it explained how that fault would affect its alimony determination.

¶ 69 Importantly, Ms. Gardner does not challenge the factual findings underlying the court’s alimony reductions. For example, the court found that even though it was reducing her housing expenses from $2,445 per month to $1,600 per month, she would nevertheless be able to afford a “modest” home in a less expensive area or a “three bedroom apartment” in the affluent neighborhood in which she was currently living. Ms. Gardner does not argue that the amount provided for housing expenses will be insufficient for the purchase of such a home or the rental of a three bedroom apartment. She likewise does not challenge the court’s other fault-based reductions.

¶ 70 Instead, Ms. Gardner seems to challenge only the court’s characterization of the gravity of her fault. In other words, she argues that the court clearly erred when it determined that the nature of her conduct justified it in not providing her with sufficient alimony to continue living in a home that is roughly as expensive as her marital home.

¶ 71 But we are not convinced that the court’s characterization of her fault is clearly erroneous. Although it is conceivable that the court could have made more detailed factual findings regarding the relative gravity of the fault at issue in this case, there is sufficient support in the record to conclude that her extramarital affairs were severely damaging. Mr. Gardner testified that he considered her affairs to be “egregious,” and that they were a key factor in the divorce.[60] Accordingly, the court’s findings regarding the gravity of harm caused by Ms. Gardner’s conduct—that it was the primary impetus of the divorce—are not clearly erroneous.

¶ 72 And when we consider the effect of the specific alimony reductions, we also cannot say that they resulted in such serious inequity as to manifest a clear abuse of discretion. Ms. Gardner argues that the court abused its discretion in four ways: (1) by reducing her need by “nearly one-third,” (2) by “shorten[ing] the alimony award from the statutory length of the marriage (here, 22 years) to only ten,” (3) by providing for a gradual decrease in the alimony amount over the final years of the award, and (4) by imputing to her an income of $1,300. But because Ms. Gardner has not shown that these reductions resulted in such serious inequity as to manifest a clear abuse of discretion, we must uphold the district court’s alimony determination.

1. The district court’s reduction of Ms. Gardner’s expected monthly expenses did not result in such serious inequity as to manifest a clear abuse of discretion

¶ 73 The district court did not abuse its discretion in reducing Ms. Gardner’s expected monthly expenses. The court reduced Ms. Gardner’s expected monthly expenses “to reflect reasonable and necessary expenses for a person in her circumstances” because it did not believe it was fair to obligate Mr. Gardner to maintain Ms. Gardner at the standard of living she enjoyed during her marriage. The court reduced her expected monthly expenses in three ways.

¶ 74 First, the court reduced the amount of her expected housing expenses from $2,445 per month to $1,600 per month. It explained that $1,600 “should be an adequate amount, particularly given . . . the large settlement that’s coming out of the sale of the house.” According to the court, this amount would allow Ms. Gardner “to purchase a modest home, probably on the west side of the freeway rather than in [her former neighborhood], or to rent a three bedroom apartment [in that neighborhood].” Because she would likely be living in a smaller home, the court reduced her expected utility bills to $75 per month for electricity and $50 per month for gas.

¶ 75 Second, the court reduced the amount of an expected automobile loan from $533 to $250. It explained that “given the goal is not equalization,” it was reasonable to provide her with an amount sufficient to purchase “a smaller more fuel efficient car” rather than the more expensive SUV she had requested. The court also reduced her expected gasoline expenses because it believed she could “find a car that gets better than 12 or 13 miles to the gallon.”

¶ 76 Finally, the court declined to include any expenses for education because there was “no evidence . . . that during the course of the marriage or even during the course of the separation that Ms. Gardner ha[d] sought educational opportunities that require payment.”[61] After making these downward adjustments, the court estimated Ms. Gardner’s monthly expenses to be $5,437 per month— a reduction of $1,513 per month from her reasonably expected monthly expenses during marriage.

¶ 77 Although Ms. Gardner attempts to portray these adjustments in drastic terms, she fails to persuade us that the court acted unreasonably or that she has suffered a serious inequity. Section 30-3-5(8) authorizes courts to consider fault in deciding whether to depart from the goal of equalizing the parties’ respective standards of living at the standard of living they enjoyed during the marriage. And once a court decides to base a party’s alimony award on a lower standard of living than he or she enjoyed during marriage, it will inevitably have to reduce that party’s expected monthly expenses. In practice, this will require the court to reduce the costs of specific line items in that person’s budget. That is what the court did in this case.

¶ 78 Because the court was authorized, under section 30–3–5(8), to reduce Ms. Gardner’s standard of living, and Ms. Gardner has not demonstrated that the reduced standard of living results in serious inequity, we hold that the court did not abuse its discretion in reducing Ms. Gardner’s expected monthly expenses.

2. The district court’s reduction of the duration of Ms. Gardner’s award did not constitute an abuse of discretion

¶ 79 Similarly, we hold that the district court did not abuse its discretion in reducing the duration of Ms. Gardner’s alimony award. Ms. Gardner argues the district court abused its discretion in awarding alimony for a period of ten years rather than the statutory maximum of twenty-two years. It did not.

¶ 80 Utah code section 30-3-5(8)(j) states that alimony “may not be ordered for a duration longer than the number of years that the marriage existed.” So, under the statute, a twenty-two year alimony award was the maximum amount for which alimony could be awarded. Importantly, nothing in the statute bars “an award for a shorter duration.”[62] For this reason “an alimony award for shorter than the term of the marriage [should] be upheld unless it results in a serious inequity evidencing an abuse of . . . discretion.”[63]

¶ 81 Utah courts regularly uphold alimony awards for periods shorter than the term of the marriage.[64] For example, in Warren v. Warren, we upheld a four-year alimony award despite the couple having been married for close to thirty years.[65] In that case the receiving spouse argued the alimony award was insufficient in amount and duration because she had “no previous work experience and . . . she suffer[ed] a ‘medical disability of the hands.’”[66] But we rejected the receiving spouse’s argument because “no evidence in the record show[ed] [the spouse] to be unemployable,” “she presented no testimony or other evidence to show any impairment of the use of her hands,” and “the record [did not] disclose any other circumstance which might prevent [the spouse] from acquiring employable skills.”[67] For these reasons, we concluded that the alimony award of four years “ensure[d] ample time for the acquisition of [sufficient] skills prior to the termination of alimony.”[68]

¶ 82 Thus, our caselaw makes clear that district courts may award alimony for a period shorter than the length of the marriage. Our only task on appeal, therefore, is to ensure that the shortened terms of an alimony award do not result in “a serious inequity” to one of the parties.[69]

¶ 83 With this goal in mind we have previously held that it is an abuse of discretion to award alimony for a shortened period when it is unlikely the receiving spouse would be able to maintain the same standard of living after the alimony period ended.[70] Thus, before ordering an alimony award of an overly short duration, appellate courts often require district courts to demonstrate that the recipient spouse can “close the gap between actual expenses and actual income” and thereby support him or herself when the alimony period ends.[71]

¶ 84 Importantly, the length of an alimony award, on its own, can be a deciding factor in demonstrating whether the receiving spouse will be able to close the gap between expenses and actual income. For example, in Jensen v. Jensen, the court of appeals affirmed an alimony award for a five-year-period after the end of a sixteen-year marriage.[72] As Ms. Gardner argues in this case, the receiving spouse in Jensen contended that “her advanced age and her lack of significant work experience outside the home” made it necessary to award alimony equal to the entire length of the marriage.[73] And the spouse claimed that the district court had abused its discretion because “no evidence was presented to the trial court indicating that she ‘had the necessary education or work skills to increase her income’ within the five-year period so as to cover her monthly shortfall or that her circumstances would be any different in five years than at the time of trial.”[74] But the court of appeals affirmed the alimony award because it concluded that five years provided the receiving spouse enough time to “put her house in order and be able to support herself.”[75] This reasoning applies just as well to the facts of this case.

¶ 85 In this case, the court ordered the alimony to terminate in ten years and then stated it “want[ed] to give [Ms. Gardner] some incentive to start working and be able to be self sufficient.” The court explained that “at that point [Ms. Gardner is] going to need to be in a position to be able to take care of herself and so it’s important that she start getting some education or work experience.” Because ten years provides Ms. Gardner a reasonable amount of time to pursue an education or work experience that would allow her to close the gap between expenses and actual income, the court did not err by ordering a ten-year alimony award.

¶ 86 Additionally, there is evidence on the record to suggest that Ms. Gardner should share some of the responsibility for her lack of work experience and marketable skills. Mr. Gardner testified that he frequently encouraged Ms. Gardner to gain work experience or obtain more education. But Ms. Gardner declined to do so. In Warren, we refused to place the burden of a wife’s lack of work experience or marketable skills fully on a husband who had “encouraged [his wife] to finish work on her baccalaureate degree and to find a job, [even though the wife] had not done so.”[76] As the court found in Warren, evidence on the record in this case suggests that it would be unfair to impose the financial burden stemming from Ms. Gardner’s lack of earning capacity fully upon Mr. Gardner. So this reason also supports the court’s reduction.

¶ 87 Finally, even were we to assume that the length of the alimony award is inequitable when only economic factors are considered, the ten-year alimony period is justified by Ms. Gardner’s statutorily recognized fault. Section 30-3-5(8)(b) allows district courts to consider fault in determining the terms of the alimony award. And we have previously recognized that fault may be considered in establishing the length of an alimony award.[77]

¶ 88 In this case, the district court expressly tied the shortened alimony duration to its finding of fault. It did not abuse its discretion in doing so. The court stated that it seemed unfair to impose a continuing burden of support on Mr. Gardner. Because it is reasonable to conclude that imposing an alimony award for twenty-two years upon Mr. Gardner, where it was Ms. Gardner’s conduct that caused the divorce, would not be “fair, just, and equitable,” we conclude that the court did not abuse its discretion in shortening the duration of the alimony period, even were we to assume that the duration is not justified solely by economic factors.[78]

¶ 89 In sum, the district court did not abuse its discretion in setting a ten-year alimony period, because (1) ten years reasonably provides Ms. Gardner with enough time to become self-sufficient, (2) Ms. Gardner shares at least some of the blame for her lack of marketable skills and work experience, and (3) even assuming the duration is not justified by economic factors alone, the shorter alimony period is equitable in light of Ms. Gardner’s fault.

3. The district court did not abuse its discretion in establishing a gradual decrease in the alimony amount over the final years of the award

¶ 90 We also hold that the district court did not abuse its discretion by providing for a gradual decrease in the alimony amount over the final years of the award. Although Ms. Gardner admits that “stepdown awards, like shortened awards, are not per se inappropriate,” she argues that this step-down award is inappropriate because it “does not allow [her] to meet her needs.” Because there is evidence on record that the terms of the alimony award will allow Ms. Gardner to become self-sufficient before the alimony period expires, the court’s implementation of the step-down feature does not constitute an abuse of discretion.

¶ 91 The district court awarded alimony to Ms. Gardner for ten years, with an incremental annual decrease after the minor children leave the home. The court suggested that Ms. Gardner use this time to “start getting some education or work experience.” But Ms. Gardner argues that the district court’s suggested ideas for how Ms. Gardner could become self-sufficient do not “recognize reality.” Specifically, she argues that the evidence suggests she will not be able to get work experience, and the court did not structure her alimony amount to allow her to get an education. But Ms. Gardner fails to show that the court’s suggestions are unsupported by the evidence.

¶ 92 The record includes evidence that Ms. Gardner could begin working and thereby get meaningful work experience during the ten-year alimony period. The district court found that “because of her position in life[,] and the fact she does have some skills[,] . . . she probably can find a job earning more than minimum wage.” Ms. Gardner argues this is unrealistic because she “has only a high-school diploma and no meaningful job history.” But the record suggests she has other marketable skills. Ms. Gardner testified to having earned money teaching swimming, piano, sewing, and art classes. Additionally, at times during the marriage she has earned sizeable commissions for her artwork, with the largest commission being $5,000 for two or three weeks of work.

¶ 93 Ms. Gardner argues, however, that there was not “any evidence that her health would allow her to work.” But the burden at trial was on Ms. Gardner to provide evidence that her health would not allow her to work.[79] And the district court determined that Ms. Gardner did not provide any evidence to suggest that she is incapable of working. In fact, the evidence indicates just the opposite. Ms. Gardner testified she had worked part-time earning $11.00 per hour before and after her accident. And she testified she would like to pursue teaching sewing and other art classes as a career because it is something she can do even with her health problems.

¶ 94 Ms. Gardner also argues that there is no evidence she can earn sufficient income because Mr. Gardner “did not enlist a vocational expert to testify to available jobs for which [Ms. Gardner] was qualified.” But once again this argument fails because the burden was on Ms. Gardner to provide evidence that there were no viable career options.[80] And by providing Ms. Gardner with ten years of alimony, the court gave her sufficient time to find a viable career path.

¶ 95 Ms. Gardner also argues, in a single paragraph, that the court was not being realistic when it suggested that she pursue additional education, because it declined to consider her requested $675 per month for educational costs as part of her expected monthly expenses. But the court’s decision to exclude these monthly expenses was based on the fact that “there was no evidence or testimony presented to the court that [Ms. Gardner] ha[d] been seeking educational opportunities that requir[e] payment.”[81] Because Ms. Gardner has not explained what kind of educational opportunity she might pursue in the future, it is impossible to assess the cost of that education. Accordingly, the district court did not abuse its discretion by denying her request for additional education expenses.

¶ 96 Additionally, it is important to note that the district court awarded Ms. Gardner half of the marital estate, an award that includes $153,000 for her half of the marital home; half the value of property in Driggs, Idaho; half the value of a promissory note for property in Summit County, Utah; and half the value of all “retirement, 401(k), investment, savings, IRA, and other similar accounts.” With Ms. Gardner’s sizeable share of the marital property in mind, it seems reasonable that she could afford to pursue an education under the terms of the alimony award. Additionally, the court included an allotment in her monthly expenses for a car payment, despite the fact that she received a 2007 Yukon Denali that was fully paid off. So, under the terms of the court’s award, until Ms. Gardner purchases a new car, she has an extra $250 per month with which she could pursue an education.

¶ 97 Lastly, Ms. Gardner suggests that the court abused its discretion by suggesting that, if she is “indeed disabled,” she could “seek income from a government or charitable disability program.” But the court expressly determined that Ms. Gardner had not met her burden of establishing that she was disabled and it structured the alimony award accordingly. This comment by the district court, then, is most reasonably understood as the court’s attempt to reassure Ms. Gardner that even were it incorrect in determining that she was not disabled, she would not be without recourse. Because there is evidence to support the court’s determination that Ms. Gardner could work, and could become self-sufficient within the ten-year alimony period, the court did not abuse its discretion in including the step-down provision in the alimony award.

4. The district court did not err by imputing income to Ms. Gardner at $1,300 per month

¶ 98 Fourth and finally, Ms. Gardner argues that the district court erred by imputing “an arbitrary $1,300 per month [income], even while stating that she was not capable of working.” “In divorce cases where there is insufficient evidence of one of the statutory alimony factors, courts may impute figures.”[82] “The trial court in a divorce action is permitted considerable discretion in adjusting the financial and property interests of the parties, and its actions are entitled to a presumption of validity.”[83] So a court’s decision to impute income to a spouse, and its decision on the amount of income that ought to be imputed are each reviewed for an abuse of discretion.[84] A court does not abuse its discretion in imputing income to a spouse if the court determines that the spouse “is voluntarily unemployed or underemployed.”[85] But we need not determine whether the district court erred on this point, because Ms. Gardner invited it to impute income at minimum wage.

¶ 99 “Under the invited error doctrine, we [may] decline ‘to engage in plain error review when counsel made an affirmative statement that led the court to commit the error.’”[86] In this case, Ms. Gardner, through her counsel, made an affirmative statement that led the court to impute income at minimum wage level. On the last day of trial, Ms. Gardner’s attorney stated that imputing income at minimum wage was “appropriate under the law and under the statute.” Although it is unclear to which statute Ms. Gardner was referring, the most likely one is Utah Code section 78B-12-203, which provides the criteria for imputing income in the child support context. According to Utah Code section 78B-12-203(8)(c), a “parent may be imputed an income at the federal minimum wage for a 40-hour work week” if that “parent has no recent work history or a parent’s occupation is unknown.”[87] Thus Ms. Gardner’s counsel invited the court to impute income pursuant to a statute that requires, as its default, a court to impute income at minimum wage for a forty-hour work week.

¶ 100 And it is clear that this invitation led the court to commit the alleged error. During trial the following day, the court indicated it was imputing income at a minimum wage level based on Ms. Gardner’s counsel’s suggestion. Specifically, the court explained that its “notes . . . indicated that [Ms. Gardner’s counsel] suggested imputing minimum wage was . . . a fair way to calculate things.” The court then stated it was “going to impute income of $1,300 a month to [Ms. Gardner], which is a full-time minimum wage income.” Ms. Gardner did not object to this number.[88]

¶ 101 Because Ms. Gardner conceded that imputing income at minimum wage was appropriate under the law, which states that income may be imputed at minimum wage for forty hours per week when there is no work history, and this concession led the court to impute income at minimum wage for forty hours per week, we, under the invited error doctrine, decline to address this issue.

III. The District Court Did Not Plainly Err in Failing to Consider Ms. Gardner’s Tax Burden

¶ 102 Ms. Gardner also argues that the court plainly erred in establishing the terms of alimony because it failed to consider taxes she must pay on alimony, and it applied her gross income rather than her net income to its calculations. To demonstrate plain error, an appellant must show “(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful.”[89] Although the court may have committed an error in this case, Ms. Gardner has failed to meet her burden of showing that the alleged error was harmful. Accordingly, we affirm the district court’s alimony determination on this point.

¶ 103 An error is harmful where, “absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant.”[90] “The burden of showing such a likelihood rests on the complaining party.”[91] Because Ms. Gardner has made no attempt to show that the court’s failure to take taxes into consideration resulted in harm, she has failed to meet her burden on the error prong.

¶ 104 In Ms. Gardner’s opening brief, her argument in support of a finding of harm is limited to a single sentence: “Here, the error is harmful [because] paying taxes further reduces [my] ability to meet [my] need.” But she never states what the resulting tax consequences of the court’s alleged error are nor what they would have been had the district court fully considered the tax implications of the alimony award. As Mr. Gardner points out in his response brief, Ms. Gardner’s failure to provide this information is fatal to her argument.

¶ 105 According to Mr. Gardner, her effective tax bracket, and the tax deductions available to her, make it “more than likely [that she would] have no tax liability.” Although Ms. Gardner, in her reply brief, attempts to rebut this argument by suggesting that Mr. Gardner’s calculations are incorrect or speculative, she once again makes no effort to explain what the actual tax consequences of the court’s error are or what they would have been had the court considered the tax implications of its award. So Ms. Gardner fails to satisfy her burden of showing that the court’s failure to consider the tax burden of her alimony award was harmful.

¶ 106 Additionally, Ms. Gardner also fails to satisfy her burden of persuasion regarding the court’s alleged error in applying a gross imputed income rather than a net one. Mr. Gardner argues that she failed to satisfy her burden because it is not clear whether the district court intended the imputed income of $1,300 to be her gross or her net income. And he argues that even if the income was intended to be her gross income, the resulting reduction in her income would have been so slight as to be well within the court’s discretion. We agree for two reasons.

¶ 107 First, the district court never indicated whether the imputed income was intended to be her gross or net income. Because marital property distributions are “entitled to a presumption of validity” in the divorce context, we need not assume the court incorrectly intended the imputed amount to represent her gross income.[92] Second, Ms. Gardner does not address either of Mr. Gardner’s arguments nor does she make any attempt to support her conclusory statement that the alleged error harmed her. So there is nothing to support her allegation that she was harmed by the court’s alleged error.

¶ 108 Because Ms. Gardner has failed to show that the court’s alleged errors were harmful, we affirm the district court on this point.

IV. We Affirm the District Court’s Attorney Fee Decision

¶ 109 Finally, Ms. Gardner argues the district court abused its discretion by declining to award her attorney fees pursuant to Utah Code section 30-3-3, which states that “in any action to establish an order of . . . alimony . . . , 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.”[93] “The decision of whether to award attorney fees pursuant to section 30-3-3 of the Utah Code rests in the sound discretion of the district court.”[94]

¶ 110 Ms. Gardner argues the district court abused its discretion in declining to award attorney fees because there were “insufficient factual findings” to support its decision. We disagree.

¶ 111 The district court’s attorney fee determination was supported by sufficient evidence. The court stated that its denial of Ms. Gardner’s attorney fee request was “based in part” on the fact that it was “aware that there is substantial payment coming out of the home that should be sufficient to be able to pay for attorney’s fees and leave plenty to be able to purchase a new home with.” Ms. Gardner argues that this finding is insufficient because “the alimony award ensures that [Ms. Gardner’s] and [Mr. Gardner’s needs] are grossly disproportionate.”

¶ 112 But this argument misconstrues the language of section 30-3-3, which authorizes a district court to award attorney fees in order to “enable the [non-paying] party to prosecute or defend the action.” In this case, the court found that Ms. Gardner’s property disbursement was “sufficient” to cover her legal expenses. This is supported by record evidence. As part of Ms. Gardner’s property disbursement, she is expected to receive an estimated $153,000 from the sale of the parties’ marital home. And at trial, Ms. Gardner estimated that her legal costs would be close to $25,000. Because the $153,000 payment would be more than sufficient to cover the estimated $25,000 in attorney fees she had incurred in litigating the divorce, the district court’s decision declining to award attorney fees to Ms. Gardner is supported by the facts of the case. Accordingly, we affirm the district court’s attorney fee determination.

Conclusion

¶ 113 Because the district court did not abuse its discretion in determining Ms. Gardner’s conduct constituted fault or in establishing the terms of her alimony award, we affirm the district court’s alimony determination. Additionally, we hold that Ms. Gardner failed to establish that the district court’s failure to consider relevant tax consequences constituted a harmful error. Finally, we affirm the district court’s decision to decline to award attorney fees to Ms. Gardner because this decision was not an abuse of discretion.

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

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[1] Although Mr. Gardner had only four children with Ms. Gardner, Mr. Gardner helped raise Ms. Gardner’s son from a previous marriage and treated him “as his own.” At the time the divorce decree was entered, the couple had two minor children: M.G.G., age 17 and S.L.G., age 15.

[2] Although this final affair had not yet progressed to a sexual relationship, Mr. Gardner believed that it soon would.

[3] See Gardner v. Gardner, 748 P.2d 1076, 1081 (Utah 1988) (explaining that a general goal in an alimony determination is to “equalize the parties’ respective standards of living” to the extent possible).

[4] The court arrived at its imputed income amount by “imput[ing] income to [Ms. Gardner] at a minimum wage level as if it [were] full-time.” Although the court found that Ms. Gardner’s “physical impairments from the accident diminished her ability to work full-time,” it did not believe there was “enough evidence . . . to find she is incapable of working.” Despite determining that she was incapable of working full-time, the court calculated her imputed income on a full-time basis because it concluded that due to “her position in life and the fact that she does have some skills as far as she has worked before,” she probably could find a job earning more than minimum wage. We note that Ms. Gardner’s trial counsel conceded that “imputing minimum wage [would be difficult], but . . . appropriate under the law and under the statute.”

[5] The court had previously ruled that Ms. Gardner had failed to produce evidence that her health problems left her “incapable of working.”

[6] The divorce decree states that “[a]limony should automatically terminate in the event [Ms. Gardner] remarries, cohabitates, either party dies, or the term of the alimony expires on August 1, 2026; whichever occurs first.”

[7] Dahl v. Dahl, 2015 UT 79, ¶ 84, —P.3d— (alteration in original) (quoting Connell v. Connell, 2010 UT App 139, ¶ 5, 233 P.3d 836).

[8] State v. Johnson, 2017 UT 76, ¶ 20, 416 P.3d 443.

[9] Dahl, 2015 UT 79, ¶ 168.

[10] Goggin v. Goggin, 2013 UT 16, ¶ 44, 299 P.3d 1079 (citation omitted) (internal quotation marks omitted). For this reason, “we will not disturb a court’s distribution of marital property ‘unless it is clearly unjust or a clear abuse of discretion.’” Id. (citation omitted).

[11] Id. (citation omitted) (internal quotation marks omitted).

[12] Dahl v. Dahl, 2015 UT 79, ¶ 121, —P.3d—; see also id. (“[Wile give due regard to the district court’s superior position from which to judge the credibility of witnesses.”).

[13] Goggin, 2013 UT 16, ¶ 44 (citation omitted) (internal quotation marks omitted).

[14] Id. (citation omitted) (internal quotation marks omitted); see also Dahl, 2015 UT 79, ¶ 119 (“Thus, we will uphold the decision of the district court on appeal ‘unless a clear and prejudicial abuse of discretion is demonstrated.’” (citation omitted)); Davis v. Davis, 2003 UT App 282, ¶ 7, 76 P.3d 716 (quoting Breinholt v. Breinholt, 905 P.2d 877, 879 (Utah Ct. App. 1995)) (explaining that when reviewing the trial court’s findings of fact, “we will reverse only if the findings are clearly erroneous”).

[15] Cf. McCorvey v. Utah State Dep’t of Transp., 868 P.2d 41, 45 (Utah 1993) (“[T]here can be more than one proximate cause or, more specifically, substantial causative factor, of an injury.”).

[16] Substantial, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (10th ed. 1998).

[17] See, e.g., Devine v. Cook, 279 P.2d 1073, 1080 (Utah 1955) (applying the substantial factor test in a negligence case).

[18] Substantial-cause test, BLACK’S LAW DICTIONARY (11th ed. 2019).

[19] RESTATEMENT (SECOND) OF TORTS § 431 cmt. a (1965) (emphasis added).

[20] Wilson v. Wilson, 296 P.2d 977, 979 (Utah 1956).

[21] This is especially true when the alleged “fault” is infidelity. Infidelity and marital discord often walk hand in hand. As we have previously noted, “when people are well adjusted and happy in marriage, one of them does not just ou[t] of a clear blue sky fall in love with someone else.” Id. at 979. So when a district court is presented with evidence of infidelity and asked to determine fault, it will almost always be presented with a chicken-and-egg type dilemma: did marital discord lead to infidelity or did infidelity lead to marital discord? But section 30-3-5(8) does not require district courts to resolve that dilemma before considering fault in an alimony determination. Instead, it requires only that the court determine whether the infidelity “significantly contributed” to the breakup of the marriage.

[22] UTAH CODE § 30-3-5(8)(c).

[23] Myers v. Myers, 2011 UT 65, ¶ 32, 266 P.3d 806.

[24] Gardner v. Gardner, 748 P.2d 1076, 1078 (Utah 1988).

[25] Mr. Gardner’s very next statement after saying that he was committed except for the egregious things that took place clarifies that the egregious things he was referring to were Ms. Gardner’s “multiple episodes of infidelity.”

[26] As Mr. Gardner was discussing the “tough” decision he made to “hang on” to their marriage, he explained that he did it to provide “stability” for his children.

[27] Goggin v. Goggin, 2013 UT 16, ¶ 44, 299 P.3d 1079 (citation omitted) (internal quotation marks omitted).

[28] Dahl v. Dahl, 2015 UT 79, ¶ 121, —P.3d—; see also id. (“[Wile give due regard to the district court’s superior position from which to judge the credibility of witnesses.”).

[29] Goggin, 2013 UT 16, ¶ 44 (citation omitted) (internal quotation marks omitted).

[30] Dahl, 2015 UT 79, ¶ 25 (citation omitted) (internal quotation marks omitted).

[31] Wilson v. Wilson, 296 P.2d 977, 979 (Utah 1956).

[32] Id. (explaining that a fair determination “let[s] the dead past bury its dead,” so to speak).

[33] Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985) (citation omitted) (internal quotation marks omitted).

[34] Gardner v. Gardner, 748 P.2d 1076, 1081 (Utah 1988). We note that equalization is a proper aim in an alimony determination only where “the parties’ combined resources do not stretch far enough” to support “two households rather than one” at the standard of living the parties enjoyed during the marriage. Rule v. Rule, 2017 UT App 137, ¶ 20, 402 P.3d 153. In other words, where there is more than enough money to support both spouses at the marital standard of living, the surplus need not be divided equally. But where there is a shortfall, the court should attempt to equalize the burden caused by that shortfall between the parties in a fair and equitable manner. Id. ¶ 21.

[35] Wilson, 296 P.2d at 979.

[36] Id.

[37] See id. at 979 (explaining that “no firm rule can be uniformly applied in all divorce cases, and that each must be determined upon the basis of the immediate fact situation”).

[38] 2006 UT App 214, ¶ 19, 138 P.3d 84.

[39] Id. ¶ 23.

[40] Id. ¶¶ 23–24.

[41] Dahl, 2015 UT 79, ¶ 25 (citation omitted) (internal quotation marks omitted).

[42] Wilson, 296 P.2d at 980–81.

[43] Id. at 980.

[44] Id.

[45] Id. at 979.

[46] Id. at 981.

[47] Id.

[48] UTAH CODE § 30-3-5(8)(a) (requiring courts to consider the recipient spouse’s financial conditions, needs, and earning capacity; the payor spouse’s ability to provide support; the length of the marriage; whether the recipient spouse has custody of minor children; and other economic considerations).

[49] Jones, 700 P.2d at 1075 (citation omitted) (internal quotation marks omitted).

[50] Gardner, 748 P.2d at 1081.

[51] Dahl, 2015 UT 79, ¶ 25 (citation omitted) (internal quotation marks omitted).

[52] Wilson, 296 P.2d at 979; see also id. (explaining that an alimony award should help the parties “avoid perpetuation of the difficulties that brought failure to the marriage”).

[53] In Riley, the court of appeals relied upon this provision in setting an alimony award at an amount that would have been “too high if only economic factors were considered.” 2006 UT App 214, ¶ 23.

[54] Additionally, we note that it would not be appropriate to equalize the parties’ respective standards of living where doing so would result in an alimony award to the receiving spouse that exceeds the estimated expenses of maintaining that spouse at the marital standard of living.

[55] Dahl, 2015 UT 79, ¶ 25 (citation omitted) (internal quotation marks omitted).

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

[57] We emphasize that in considering the harm or effect at-fault conduct had on the marriage, a court should determine the degree to which fault caused the disruption of the marriage. This is an important consideration because not all conduct meeting the threshold standard for fault under the statute will equally contribute to the demise of the marital relationship.

[58] Without such findings, it will be difficult for an appellate court to determine whether the district court’s ultimate alimony determination was within its discretion.

[59] Once again we note that we will disturb a district court’s alimony determination only if (1) “there was a misunderstanding or misapplication of the law resulting in substantial and prejudicial error,” Goggin, 2013 UT 16, ¶ 44 (citation omitted) (internal quotation marks omitted); (2) the factual findings upon which the award was based are “clearly erroneous,” Dahl, 2015 UT 79, ¶ 121; or (3) the party challenging the award shows that “such a serious inequity has resulted as to manifest a clear abuse of discretion.” Goggin, 2013 UT 16, ¶ 44 (citation omitted) (internal quotation marks omitted).

[60] See 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.”).

[61] The court noted, however, that if Ms. Gardner wished to pursue education opportunities in the future, there would be “ways of obtaining financing for [education] outside of alimony.”

[62] Jensen v. Jensen, 2008 UT App 392, ¶ 16, 197 P.3d 117.

[63] Id.

[64] See Warren v. Warren, 655 P.2d 684, 688 (Utah 1982) (affirming an alimony award for a four-year period after a twenty-seven year marriage); Jensen, 2008 UT App 392, ¶ 20 (affirming an alimony award for a five-year period after a sixteen-year marriage); Davis v. Davis, 2003 UT App 282, ¶¶ 4, 10, 76 P.3d 716 (affirming an alimony award for a ten-year period after a thirty-five year marriage); Childs v. Childs, 967 P.2d 942, 947 (Utah Ct. App. 1998) (affirming a temporary alimony award after a five–year marriage).

[65] Warren, 655 P.2d at 688.

[66] Id.

[67] Id.

[68] Id.

[69] Jensen, 2008 UT App 392, ¶ 16.

[70] See Jones, 700 P.2d at 1076 (holding that a shortened, “rehabilitative” award “was inequitable” where the wife was “in her mid-50’s, possesse[d] few marketable job skills, and ha[d] little hope of retraining”); Mark, 2009 UT App 374, ¶ 15 (reversing an alimony award where the recipient spouse was fifty-two years old, the parties had been married for twenty-five years, the recipient spouse’s earning capacity was a fraction of the breadwinner’s earning capacity, and the recipient spouse had weak employment prospects).

[71] Mark, 2009 UT App 374, ¶ 12 (citation omitted) (internal quotation marks omitted).

[72] 2008 UT App 392, ¶ 19.

[73] Id. ¶ 18.

[74] Id.

[75] Id. ¶ 19 (internal quotation marks omitted).

[76] 655 P.2d at 688.

[77] Wilson, 296 P.2d at 980 (“[C]ourts have seen fit to impose upon the erring [spouse] the burden of permanent alimony.” (emphasis added)).

[78] See Riley, 2006 UT App 214, ¶ 23 (explaining that a spouse’s “fault goes a long way in explaining the propriety of a $900 per month alimony award, even though such an award would be too high if only economic factors were considered”).

[79] Dahl, 2015 UT 79, ¶ 95 (explaining that a “party seeking alimony bears the burden of demonstrating to the court that the [relevant alimony] factors support an award”); see also Warren, 655 P.2d at 688 (affirming the district court’s determination that a wife’s alleged physical impairment of her hands did not prevent her from working because “she presented no testimony or other evidence to show any impairment of the use of her hands”).

[80] Dahl, 2015 UT 79, ¶¶ 95–98 (affirming the district court’s decision to award no alimony because the wife had failed to demonstrate her financial need and earning capacity).

[81] The court’s decision to exclude unsubstantiated expenses from its need calculation was fully within its discretion.

[82] Id. ¶ 116; see also Connell v. Connell, 2010 UT App 139, ¶¶ 14–20, 233 P.3d 836 (imputing husband’s income from a prior job to determine his ability to pay alimony); Leppert v. Leppert, 2009 UT App 10, ¶ 12, 200 P.3d 223 (holding that the district court did not abuse its discretion in imputing an income figure for wife when the decision was “adequately supported” by the district court’s findings).

[83] Goggin, 2013 UT 16, ¶ 44 (citation omitted) (internal quotation marks omitted).

[84] Reese v. Reese, 1999 UT 75, ¶ 17, 984 P.2d 987.

[85] Rayner v. Rayner, 2013 UT App 269, ¶ 7, 316 P.3d 455 (citation omitted) (internal quotation marks omitted).

[86] State v. Ring, 2018 UT 19, ¶ 20, 424 P.3d 845 (citation omitted).

[87] UTAH CODE § 78B-12-203(8)(c). This section also states that before a court may “impute a greater or lesser income, the [court] . . . shall enter specific findings of fact as to the evidentiary basis for the imputation.”

[88] On appeal, Ms. Gardner points out that $1,300 is technically not minimum wage, and she is correct on this point. Minimum wage at forty hours per week would come out to $1,256.67 per month. Because the difference—$43.33—is not significant, and there is evidence in the record to support an imputation of an amount greater than minimum wage, the imputation of $1,300 per month falls within the district court’s range of discretion. See Goggin, 2013 UT 16, ¶ 44.

[89] State v. Johnson, 2017 UT 76, ¶ 20, 416 P.3d 443 (alteration in original) (citation omitted) (internal quotation marks omitted).

[90] State v. Dean, 2004 UT 63, ¶ 15, 95 P.3d 276 (citation omitted) (internal quotation marks omitted).

[91] State v. Arguelles, 2003 UT 1, ¶ 94, 63 P.3d 731.

[92] Goggin v. Goggin, 2013 UT 16, ¶ 44, 299 P.3d 1079 (citation omitted) (internal quotation marks omitted).

[93] UTAH CODE § 30-3-3(1) (emphasis added).

[94] Dahl v. Dahl, 2015 UT 79, ¶ 168, —P.3d—.

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State v. Harvey – 2019 UT App 108 – lay versus expert testimony

2019 UT App 108 – State v. Harvey – lay versus expert testimony

2019 UT App 108
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
V.
RANDY LYNN HARVEY,
Appellant.
Opinion No. 20170733-CA
Filed June 20, 2019
Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 161903234
Emily Adams, Attorney for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.

MORTENSEN, Judge:

The Trial

¶8        The State’s forensic scientist testified that he could not “rule out the possibility” that Harvey’s BAC was below .08 at the time it was tested. He stated that the tests he ran indicated that Harvey’s BAC would have been “around [.07 or .08] and probably within those two numbers.”

¶9        In addition to recounting the details of the arrest, Officer testified that “the average burn-off rate [for alcohol] is approximately .015” per hour. Harvey’s counsel immediately objected to this testimony for lack of foundation.

*****

The jury found Harvey guilty.

¶11      Subsequently, Harvey moved for a new trial, arguing that Officer’s burn-off-rate testimony was improper expert testimony from a lay witness. The district court denied the motion, explaining that Officer had “sufficient training and expertise to relay the information” that he had learned in the police academy “about the average blood alcohol dissipation rate.” The district court imposed a suspended prison sentence and placed Harvey on supervised probation. Harvey appeals.

*****

  1. Erroneous Admission of Officer’s Burn-Off-Rate Testimony

¶15 We agree with Harvey that Officer was not a qualified expert on the subject of alcohol burn-off rates and therefore should not have been allowed to testify about this subject. The Utah Rules of Evidence state that “a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Utah R. Evid. 702(a).

*****

¶18 Unlike signs of impairment or the behavior of drug traffickers, the burn-off rate of alcohol from the human system is not something that an officer can observe and form an expert opinion about based on training and experience. See State v. Ohotto, 323 P.3d 306, 310–11 (Or. Ct. App. 2014) (stating that testimony regarding “alcohol absorption and elimination rates” is not derived from an individual’s “training and prior experience as a police officer”). Instead, it is necessarily scientific testimony derived from lab testing, based on technical training, and presented by an expert qualified in that area. Burn-off-rate testimony requires “a formulaic calculation derived from scientific understandings of physiological processes that cannot be achieved through reading a training manual, conducting routine [DUI] investigations in the course of law enforcement, and attending [a training] course.” Id. at 311.

¶19 The error in this case was admitting Officer’s burn-off-rate testimony where the State failed to establish a sufficient foundation that Officer had the necessary scientific expertise, based on education, training, or otherwise, to offer burn-off-rate testimony.

It is not that officers, as a class, can never be qualified to provide such testimony. See State v. Claybrook, 975 P.2d 1101, 1103 (Ariz. Ct. App. 1998) (“The expert witness who presents BAC retroactive extrapolation evidence can be a police officer or the operator of the machine if properly certified and in addition possesses superior knowledge, experience and expertise on the question.” (cleaned up)); Commonwealth v. Gonzales, 546 A.2d 26, 31–32 (Pa. 1988) (holding that a police officer was qualified as an expert on the elimination of alcohol from the bloodstream where he worked in the police laboratory and had specific education in the pharmacology and toxicology of alcohol). But here, no evidence was presented to show that Officer “understood the process of alcohol elimination or relevant factors for consideration.” See People v. Beck, 90 N.E.3d 1083, 1111 (Ill. App. Ct. 2018). Nor was any testimony offered to explain the nature, extent, or depth of his training and education on burn-off rates of alcohol.

¶20 Participating in a course at the police academy where burn-off rates were generally mentioned shows merely that Officer was exposed to information—not that he is an expert in any of the subjects touched on in the course of study.[1] Thus we agree with Harvey that the testimony at trial failed to establish that Officer had sufficient training to qualify as an expert on the subject of alcohol burn-off rates. Therefore, Officer’s testimony about the alcohol burn-off rate was improperly admitted.

*****

CONCLUSION

¶30 Because the evidence of Harvey’s incapacity to operate a vehicle safely was not so overwhelming as to render the erroneous admission of Officer’s burn-off-rate testimony harmless, we determine that Harvey was prejudiced by the admission of the testimony in question. Therefore, we must vacate his DUI conviction and remand for a new trial.

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

———————————————————–

[1] We certainly acknowledge that sufficient education or training can provide a foundational basis for expert testimony. See Utah R. Evid. 702(a) (“[A] witness who is qualified as an expert by . . . training . . . or education may testify in the form of an opinion . . . .”). In the present case, however, Officer’s testimony does not establish anything besides the fact that he “learned” of burn-off rates at the police academy.

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Janson v. Janson – 2019 UT App 106 – setting aside settlement agreement

2019 UT App 106 – Janson v. Janson – setting aside stipulation
THE UTAH COURT OF APPEALS

DEIDRE SUE JANSON,
Appellant,
v.
JEFFREY ALAN JANSON,
Appellee.

Opinion No. 20170541-CA
Filed June 20, 2019

Third District Court, Salt Lake Department
The Honorable Andrew H. Stone
No. 164906327
Jamie Carpenter, Attorney for Appellant
Kara L. Barton and Ashley Wood, Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES GREGORY K. ORME and DIANA HAGEN concurred.

CHRISTIANSEN FORSTER, Judge:

¶1        Deidre Sue Janson appeals the district court’s order denying her motion to set aside a written stipulation (the Stipulation) entered in her divorce action against Jeffrey Alan Janson. We affirm.

BACKGROUND

¶2        The parties entered into the Stipulation following mediation on November 14, 2016, to resolve the issues in their divorce. As part of the Stipulation, Deidre[1] agreed to pay Jeffrey alimony of $2,500 per month for eighteen months and $1,500 per month for an additional eighteen months.

¶3        The Stipulation awarded the marital home to Jeffrey.

Deidre was awarded half of the equity in the home, less $45,000 that constituted Jeffrey’s inherited funds. The Stipulation also divided the equity in the parties’ vehicles, requiring Deidre to pay Jeffrey $13,178 from her share of the parties’ bank accounts to equalize the vehicle equity disparity.

¶4 The parties had a number of retirement funds and accounts. Regarding the retirement, the parties agreed as follows:

  1. [Deidre] has the following retirement accounts: Utah Retirement in the amount of approximately $72,440; General Electric in the approximate amount of $100,435; Roth IRA in the approximate amount of $18,252; FDIC in the approximate amount of $16,719 and $17,431; and Utah Pension in the amount of $15,281.
  2. [Jeffrey] has the following retirement accounts: Fidelity in the approximate amount of $22,012; Bernstein in the approximate amount of $18,305.
  3. The above retirement accounts will be divided equally between the parties. In addition [Deidre] has a premarital IRA in the approximate amount of $17,682 which is her separate property.
  4. [Jeffrey’s] Alliant Technical Systems Pension plan which will be divided pursuant to the Woodward formula.
  5. The parties will share equally the cost of any qualified domestic relation order.

¶5        On January 12, 2017, Deidre moved to set aside the Stipulation on the ground that there was not a meeting of the minds regarding various provisions in the agreement. She asserted that she “did not receive [Jeffrey’s] financial disclosures until the morning of mediation and was not able to consult with her attorney prior to mediation.” She asserted that because her Utah pension was listed with its approximate value alongside the other retirement accounts, her understanding was that Jeffrey was to receive only half of the listed $15,281 partial lump sum value of that pension rather than half of the entire monthly payment amount as determined by a qualified domestic relations order (QDRO). According to Deidre, the total value of Jeffrey’s half of the pension if the monthly payment option were utilized would amount to approximately $80,000. Deidre claimed that had she understood that Jeffrey would be entitled to half of the entire Utah pension, she would not have agreed to provisions granting Jeffrey premarital equity in the home. She pointed to the lack of specific dates for the accounts to be divided and the impracticality of preparing a QDRO for every retirement account as support for her assertion that the Stipulation should be interpreted as granting Jeffrey only half of the stated partial lump sum value of her Utah pension account.[2]

¶6        Jeffrey opposed the motion to set aside the Stipulation, pointing out that his financial declaration was provided to Deidre well in advance of mediation and that she was represented by counsel at the mediation. He also explained the discrepancy between how the Stipulation described the division of his pension account and how it described the division of Deidre’s—his account had been partially accrued prior to the marriage, whereas Deidre’s had been accrued entirely during the period of the marriage. He asserted that Deidre was aware that an equal division of her pension could result in him receiving half of the monthly payments rather than half of the partial lump sum payout value because her own financial declaration included a summary of the various payout options. Jeffrey also asserted that only three QDROs, at maximum, were necessary to divide the retirement accounts.

¶7        In responding to Jeffrey’s memorandum in opposition to her motion, Deidre raised additional issues impacting the Stipulation’s alimony award—she indicated that after filing the motion to set aside, she was involuntarily terminated from her job without notice, that the loss of her job precluded her from continuing to pay alimony, and that Jeffrey had become eligible to draw on his social security and retirement accounts to support himself. She asserted that these changes in circumstances justified setting aside the Stipulation.

¶8        Following a hearing, the district court denied Deidre’s motion. The court found that both parties understood that Deidre’s Utah pension had the potential for an annuitized benefit. The court determined that the language in the Stipulation dividing the pension equally was clear as to how the retirement accounts would be treated and contained sufficient detail to enforce the Stipulation. The court stated that it was reasonable to anticipate that additional details would be filled in when the QDROs were prepared. The court also determined that issues related to Deidre’s alleged change in circumstances should be handled separately as a petition to modify.

¶9        Deidre now appeals.

ISSUES AND STANDARDS OF REVIEW

¶10 Deidre asserts that the Stipulation is unenforceable because there was no meeting of the minds regarding various aspects of the Stipulation.[3]

Whether the parties had a meeting of the minds sufficient to create a binding contract is an issue of fact, which we review for clear error, reversing only where the finding is against the clear weight of the evidence, or if we otherwise reach a firm conviction that a mistake has been made.

LD III, LLC v. BBRD, LC, 2009 UT App 301, ¶ 13, 221 P.3d 867 (quotation simplified).

¶11 Deidre also asserts that the district court erred in declining to consider her substantial change in circumstances argument as a basis for setting aside the Stipulation and instead determining that a petition to modify was the necessary route for her to pursue this argument. Whether a district court erred in accepting and enforcing a proffered stipulation is reviewed for an abuse of discretion. See In re N.M., 2018 UT App 141, ¶ 17, 427 P.3d 1239.

ANALYSIS

  1. The District Court Did Not Clearly Err in Rejecting Deidre’s Assertion That There Was No Meeting of the Minds.

¶12 “It is a basic principle of contract law there can be no contract without a meeting of the minds.” Granger v. Granger, 2016 UT App 117, ¶ 14, 374 P.3d 1043 (quotation simplified). “A binding contract exists where it can be shown that the parties had a meeting of the minds as to the integral features of the agreement and that the terms are sufficiently definite as to be capable of being enforced.” LD III, LLC v. BBRD, LC, 2009 UT App 301, ¶ 14, 221 P.3d 867 (quotation simplified). “Whether there is a meeting of the minds depends on whether the parties actually intended to contract, and the question of intent generally is one to be determined by the trier of fact.” Terry v. Bacon, 2011 UT App 432, ¶ 21, 269 P.3d 188 (quotation simplified).

¶13 “[I]n divorce cases, the ability of parties to contract is constrained to some extent by the equitable nature of the proceedings . . . .” Granger, 2016 UT App 117, ¶ 15. “Because retirement funds are prospectively marital property if acquired or contributed to during the marriage, the distribution of such marital funds must fit within the overarching principle of equity unless the parties have freely and knowingly agreed to a different result that has been appropriately sanctioned by the court.” Id. ¶ 16. Nevertheless, “it is not the court’s prerogative to step in and renegotiate the contract of the parties. Instead, courts should recognize and honor the right of persons to contract freely and to make real and genuine mistakes when the dealings are at arms’ length.” Id. ¶ 14 (quotation simplified).

A. Retirement Funds

1. The Court Did Not Err in Accepting Jeffrey’s Interpretation of the Stipulation.

¶14 At the evidentiary hearing, the district court considered both parties’ testimonies regarding their understanding of the Stipulation and their intent regarding the division of their retirement funds. Having considered this evidence, the district court found that both parties understood that Deidre’s Utah pension had the potential for an annuitized benefit and that the Stipulation was clear that the listed retirement accounts were to be divided equally between the parties. Deidre asserts that this conclusion was clearly erroneous because it is inconsistent with the principle that retirement funds that can be “presently valued” should be equally divided.

¶15 As a general matter, equitable division of a defined benefit plan is accomplished by the Woodward formula[4] and equitable division of a defined contribution plan is accomplished by dividing the value contributed during the marriage. Granger Granger, 2016 UT App 117, ¶ 23, 374 P.3d 1043. While Deidre’s pension fund had a “partial lump sum” payout option—which was listed as the “approximate value”[5] in the Stipulation—it also had a monthly payment option. Because pension funds are presumptively divided according to the Woodward formula, an interpretation of the Stipulation that requires dividing the entire fund rather than only the partial lump sum amount is more consistent with equity. It is also the most logical approach in light of Deidre’s own financial declaration, which acknowledged that her Utah pension had a monthly payment option.

¶16 Deidre also asserts that Jeffrey himself testified that he believed the “approximate” amount listed for Deidre’s pension, rather than the entire pension, would be divided equally. But the record does not support Deidre’s characterization of Jeffrey’s testimony. At the hearing, Jeffrey was asked, “So it was your understanding that [the] specific value you listed would be, at least with 401-Ks or whatnot, would be divided. You would get half of that value?” (Emphasis added.) Jeffrey responded, “It would be half the value as identified by the amounts listed in the stipulation.” Jeffrey was asked specifically about the division of the 401(k)s, not the pension. Thus, his answer to this question cannot be construed as a statement that he expected and agreed that the pension would be divided only according to the amount listed in the Stipulation.

¶17 Indeed, Jeffrey testified that based on the document Deidre produced in her financial declaration outlining the various options for the distribution of the Utah pension, he understood that Deidre’s pension could be taken either “as a partial lump sum” or as “monthly payments” and that he “would have a choice” either to take half of the monthly payments or to add half of the partial lump sum to his share of the distributions of the other IRA and 401(k) accounts. Deidre also testified that she knew that a monthly payment could be an option for payout of her pension. Thus, the court’s interpretation of the Stipulation is supported by the evidence and is not clearly erroneous.

2. The Court Did Not Err in Enforcing the Stipulation.

¶18 Deidre also asserts that the Stipulation should not be enforced because it was not equitable. She argues that the district court should have considered the Stipulation as a whole and recognized that she had given up other valuable assets in exchange for treating the pension as a lump sum rather than as a monthly benefit calculated by utilizing the Woodward formula. However, there is nothing on the face of the Stipulation to indicate that such an exchange was made. The Stipulation states that Jeffrey was granted an extra $45,000 of equity in the home because he had contributed inherited funds to the home, not in exchange for the retirement.

¶19      Even if the court had accepted Deidre’s argument, it is by no means clear that she gave up anything in exchange for the pension, let alone something of comparable value such that the court should have recognized the retirement division as inequitable. Presumably, Jeffrey would have contested Deidre’s assertion that the inheritance funds were comingled, and she has not established that she was equitably entitled to share in the portion of the equity gained by investing the inheritance funds. Further, her half of that portion of the equity was significantly smaller than the amount of the pension Jeffrey would be giving up by accepting half of the partial lump sum value rather than half of the monthly payments. Additionally, Deidre herself asserted only that her belief regarding the pension made her “a little more flexible” on the issue of the allegedly comingled inheritance, not that she bargained for an exchange of one for the other.

¶20 To require the district court to examine and evaluate the Stipulation to the degree recommended by Deidre would be to undermine the parties’ right to contract freely. While courts should ensure that the provisions of a divorce stipulation comply with “the overarching principle of equity,” Granger v. Granger, 2016 UT App 117, ¶ 16, 374 P.3d 1043, they are also to “respect[] and give[] considerable weight” to the parties’ agreement, Maxwell v. Maxwell, 796 P.2d 403, 406 (Utah Ct. App. 1990). Thus, weighing every provision of a stipulation against every other to ensure that the parties have reached a perfectly fair agreement is beyond the scope of the court’s mandate.

¶21      Indeed, the court’s equity analysis generally focuses “not on the contract’s subject matter, but rather on whether the contract was fairly negotiated and does not result in an outcome so severely one sided that it prevents the district court from fulfilling its equitable obligations.” Ashby v. Ashby, 2010 UT 7, ¶ 21, 227 P.3d 246. We see nothing in the record to suggest that the district court was presented with such a situation. Both parties were represented by counsel, and the terms of the Stipulation were not so one-sided as to give the court reason to believe that the parties’ agreement had violated the principles of equity. Thus, the court did not exceed its discretion in determining that the Stipulation’s division of the retirement funds was enforceable.

B. Deidre’s Arguments Regarding Alimony and Vehicles Were Not Preserved for Appeal.

¶22 On appeal, Deidre renews the arguments made in her motion to set aside that there was no meeting of the minds with respect to the Stipulation’s provisions regarding alimony and the division of equity in the vehicles. However, the district court made no ruling on these issues.[6]

¶23      “[I]n order to preserve an issue for appeal the issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue.” Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 14, 48 P.3d 968. “[O]nce trial counsel has raised an issue before the trial court, and the trial court has considered the issue, the issue is preserved for appeal.” Id. (emphasis added).

¶24 We agree with Jeffrey that Deidre’s reference to the alimony and vehicle issues in her motion to set aside was not sufficient to preserve them for appeal when she did not present evidence or argue these issues to the district court at the evidentiary hearing and the district court did not rule on them. “[T]he mere mention of an issue in the pleadings, when no supporting evidence or relevant legal authority is introduced at trial in support of the claim, is insufficient to raise an issue at trial and thus insufficient to preserve the issue for appeal.” LeBaron & Assocs., Inc. v. Rebel Enters., Inc., 823 P.2d 479, 483 (Utah Ct. App. 1991). Further, a party may waive an issue by relinquishing or abandoning it before the district court, either expressly or impliedly. State v. Johnson, 2017 UT 76, ¶ 16 n.4, 416 P.3d 443.

¶25      “The fundamental purpose of the preservation rule is to ensure that the district court had a chance to rule on an issue before an appellate court will address it.” Helf v. Chevron U.S.A. Inc., 2015 UT 81, ¶ 42, 361 P.3d 63. Because the district court did not rule on the alimony and vehicle issues, and Deidre made no attempt to remedy that omission before raising the issues on appeal, her arguments regarding these issues are unpreserved, and we will not consider them for the first time on appeal. See Vandermeide v. Young, 2013 UT App 31, ¶¶ 8–9, 296 P.3d 787 (holding that a challenge to a district court’s failure to rule on an issue raised in the pleadings was not preserved for appeal, because the appellants did not object to the court’s findings or file a post-judgment motion requesting additional findings).

II. Deidre Will Have the Opportunity to Pursue Her Change of Circumstances Argument in the Context of a Petition to Modify.

¶26 Deidre also argues that the district court erred in declining to consider the change in her employment status as a basis for setting aside the Stipulation before a final order was entered. Although Deidre filed her motion to set aside prior to the entry of the final Decree of Divorce (the Decree), the court declined to consider whether the Stipulation should be modified based on a change of circumstances, stating, “[O]ur procedural rules contemplate that a petition to modify has to be made when the parties reached this state of the proceeding. The Parties reached a resolution in this case and new situations are handled differently.”

¶27 The district court has the discretion to reconsider a prior ruling any time before a final judgment is entered. See Utah R. Civ. P. 54(b); see also Hafen v. Scholes, 2014 UT App 208, ¶ 3, 335 P.3d 396 (per curiam); Durah v. Baksh, 2011 UT App 159, ¶ 5, 257 P.3d 458 (per curiam). However, to seek a modification of a divorce decree, a movant must show “a substantial change of circumstances occurring since the entry of the decree and not contemplated in the decree itself.” Gardner v. Gardner, 2012 UT App 374, ¶ 38, 294 P.3d 600 (emphasis added) (quotation simplified).

¶28      The change in Deidre’s employment status occurred after the Stipulation was signed but before the Decree was entered. Thus, Deidre asserts that the district court’s refusal to reconsider the alimony portion of the Stipulation as part of her motion to set aside was an abuse of discretion because it put her in a catch-22—the court would not let her seek a modification prior to the entry of the Decree, but she would be precluded from seeking one afterward because her alleged change in circumstances occurred before the entry of the Decree.

¶29 We agree with Deidre that the district court, contrary to its own assertion, had the discretion to reconsider whether to accept the parties’ Stipulation as to alimony prior to the entry of the Decree, since the alleged change in circumstances occurred prior to a final judgment being entered. This issue was relevant to the court’s consideration of whether the Stipulation complied with the “overarching principle of equity.” See Granger v. Granger, 2016 UT App 117, ¶ 16, 374 P.3d 1043. The court may have determined that the Stipulation as to alimony was no longer equitable in light of the change in circumstances and that the parties would not have entered into the Stipulation as to alimony had they been aware that Deidre would lose her employment.

¶30 However, while considering Deidre’s alleged substantial change of circumstances at an earlier stage of the proceedings may have been desirable as a matter of judicial economy, Deidre has not been prejudiced by the district court’s refusal to do so. Deidre filed a Petition to Modify on January 9, 2018, which is currently pending in the district court. The district court gave Deidre leave to pursue her substantial change of circumstances argument subsequent to the entry of the Decree, and Jeffrey has conceded that she should be allowed to do so. These circumstances avoid the catch-22 scenario Deidre feared. Because Deidre has not actually been precluded from raising her substantial change of circumstances claim, any error on the part of the district court in declining to consider her motion to set aside the alimony portions of the Stipulation on that basis was harmless.

CONCLUSION

¶31 The district court’s interpretation of the Stipulation’s retirement provisions is supported by the evidence presented at the evidentiary hearing. Deidre’s arguments concerning other aspects of the Stipulation were not preserved, and we therefore do not consider them. Further, while the district court could have considered Deidre’s arguments concerning her alleged change in circumstances in the context of the motion to set the Stipulation aside, the court’s refusal to do so was not prejudicial. Deidre will be permitted to pursue her claim in the context of the petition to modify already filed with the district court. Accordingly, we affirm the district court’s denial of Deidre’s motion to set aside the Stipulation.

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[1] Because the parties share the same last name, we refer to them by their first names to avoid confusion, meaning no disrespect by the apparent informality.

[2] Deidre also challenged other provisions of the Stipulation that she asserted were inartfully drafted. Specifically, she claimed that there was a mathematical error in the calculation of the vehicle equity and that a lack of language regarding the parties’ incomes and needs in the alimony provision had the potential to preclude a future modification. However, she did not present argument or evidence on these issues at the evidentiary hearing, and the district court ultimately made no ruling on them. See infra ¶¶ 22–25.

[3] Deidre also asserts that the district court erred in determining that the Stipulation was unambiguous. Although the court stated that it considered the Stipulation’s language to be “clear,” it did not make an explicit ruling regarding whether the Stipulation was ambiguous. In fact, the district court’s consideration of extrinsic evidence suggests that the court actually did consider the Stipulation to be ambiguous, since the purpose of considering extrinsic evidence is to clarify ambiguous terms in the contract. See Ward v. Intermountain Farmers Ass’n, 907 P.2d 264, 268 (Utah 1995) (explaining that if a court determines that a contract is ambiguous, the next step is to admit extrinsic evidence “to clarify the ambiguous terms”). We therefore review only the district court’s evaluation of the extrinsic evidence and its determination that Jeffrey’s interpretation of the Stipulation was more reasonable, that there was a meeting of the minds regarding how the retirement was to be divided, and that the

Stipulation was enforceable.

[4] The Woodward formula grants a spouse one-half of the “portion of the retirement benefits represented by the number of years of the marriage divided by the number of years of the [acquiring spouse’s] employment.” Woodward v. Woodward, 656 P.2d 431, 433–44 (Utah 1982).

[5] Incidentally, the fact that the parties listed only the “approximate” values of the various retirement funds also undermines Deidre’s assertion that the parties intended to effectuate the division based on the listed values rather than the actual values of the funds.

[6] Deidre asserts that the court’s ruling that “[i]n order to have a contract, the Court doesn’t need perfect clarity on every factual point” constituted a ruling on all the issues she raised. However, Deidre omits vital language from the court’s ruling. The court actually stated, “In order to have a contract, the Court doesn’t need perfect clarity on every factual point that might fill in a QDRO here.” (Emphasis added.) Thus, it is clear from the context that the court’s ruling contemplated only the issues Deidre raised with respect to the retirement, not the alimony and vehicle issues.

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2019 UT App 104 – Ross v. Ross – § 30-3-37 relocation

2019 UT App 104 – Ross v. Ross
THE UTAH COURT OF APPEALS

JESSECA RAE ROSS, Appellee,
v.
TIMOTHY RONALD ROSS,Appellant.

Opinion No. 20170916-CA
Filed June 13, 2019
Third District Court, Salt Lake Department
The Honorable Su Chon No. 154901171
Bastiaan K. Coebergh, Attorney for Appellant
Kyle Adams, Attorney for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in whichJUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred.

HARRIS, Judge:

¶1        When they divorced, Jesseca Rae Ross (Mother) and Timothy Ronald Ross (Father) agreed to an arrangement under which they equally shared physical custody of their two minor children (the Children). After a time, Mother expressed a desire to relocate from Salt Lake County to Uintah County, and she wanted to take the Children with her. To effectuate this change, she filed a notice of relocation with the district court pursuant to Utah Code section 30-3-37, but did not file a separate petition to modify the joint custody provisions of the divorce decree. Father protested that no change in custody could be ordered in Mother’s favor in the absence of a petition to modify, but the district court disagreed. After holding a hearing, the court allowed Mother to relocate with the Children, and changed custody to make Mother the primary physical custodian. Father now appeals from that decision, asserting that the district court improperly ordered a change in custody without requiring Mother to file a petition to modify. We agree with Father’s argument, and therefore reverse the court’s order and remand the case for further proceedings consistent with this opinion.

BACKGROUND

¶2        After seven years of marriage, Mother and Father divorced, and stipulated to a decree that provided for joint legal custody and equally-shared physical custody of the Children. Less than a year after the decree was entered, Mother filed a notice of relocation, setting forth her intent, “due to her impending marriage,” to relocate to Lapoint, a small farming community in Uintah County, Utah. The notice also stated Mother’s intent to take the Children with her, and her belief that such a move was in the best interest of the Children, since she “provided the majority [of] care” for them. Mother did not separately file a petition to modify asking the court to change the custody provisions of the decree.

¶3        Father objected to Mother’s notice to relocate, arguing that the relocation would require the Children to leave their current school district, where they were “well adjusted and happy,” that he and Mother had equal custody of the Children according to the stipulated decree, and that the move would interfere with his access to, and parent-time with, the Children.

¶4 A hearing was held before a domestic relations commissioner, who heard argument from both sides and apparently considered the matter a close call. He lamented the fact that no petition to modify had been filed, stating that although he did not want to “put the parties through a . . . more expensive elaborate process than necessary,” he viewed this case as one “that just begs for having someone file a petition to modify to address this relocation,” and stated that he was not “comfortable that [he knew] the right answer” in the absence of the more formal process a petition to modify would provide. He also noted that the filing of a petition might have caused the parties and the court to “consider whether some kind of custody evaluation or mediation-based custody evaluation . . . might be useful in . . . coming up with the best solution.” At the conclusion of the hearing, and in the absence of a petition to modify or a custody evaluation, the commissioner recommended that Mother not be permitted to relocate the Children out of Salt Lake County on a permanent basis, but that the Children could go to Lapoint with Mother for the summer, during which time Father would have parent-time for one weekend each month.

¶5        Mother objected to the commissioner’s recommendation, and asked the district court to issue an order allowing the Children to relocate with her permanently. Father opposed that request, and the court held a two-day evidentiary hearing on the matter. At the close of Mother’s evidence, Father moved for a directed verdict, specifically raising the issue flagged by the commissioner, namely, that Mother had not filed a petition to modify and therefore was not entitled to a change in custody. The court denied the motion for a directed verdict, and at the conclusion of the hearing took the matter under advisement.

¶6        A few weeks later, the district court issued a written decision on Mother’s objection. Therein, the court noted that, “[o]rdinarily, a petition to modify is required to change the custody arrangements” at issue, and acknowledged that granting Mother’s relocation would alter the current physical custody arrangement. However, the court explained that the arrangement would change “regardless” because the commissioner’s recommendation effectively awarded custody to Father, and determined “that no petition to modify is required with a notice of relocation.” The court then proceeded to apply a “best interest” analysis with regard to the relocation, and concluded that relocation would be in the best interest of the Children. Accordingly, the court overruled the commissioner’s recommendation, allowed Mother to relocate to Lapoint with the Children, and ordered a change of custody making Mother the primary physical custodian and awarded Father parent-time pursuant to the relocation statute.

¶7        Thereafter, Father filed a motion for a new trial and a motion to amend findings based on allegedly newly discovered evidence, insufficiency of the evidence, and the verdict being contrary to law. The court denied Father’s motions, finding that the allegedly new evidence was available before the evidentiary hearing, that the evidence presented at trial had been sufficient, and that its ruling complied with the requirements of the relevant statutes.

ISSUE AND STANDARD OF REVIEW

¶8        Father now appeals both the district court’s original order allowing the relocation and changing custody, as well as the court’s subsequent order denying his motions for a new trial and to amend findings. Father asks us to consider three issues, but because of our resolution of the first, we need not consider the other two.[1] Father’s first argument raises the issue of the propriety of ordering a change in custody in favor of a relocating parent in the absence of a petition to modify. That question involves the interpretation of various statutes and one procedural rule. “The applicability of a particular rule or statute is a question of law reviewed for correctness.” Gullickson v. Gullickson, 2013 UT App 83, ¶ 16, 301 P.3d 1011. “A [district] court’s interpretation of a statute is a question of law that we review for correctness.” Donnelly v. Donnelly, 2013 UT App 84, ¶ 11, 301 P.3d 6 (quotation simplified). And a “district court’s interpretations of rules of procedure are questions of law reviewed for correctness.” Simler v. Chilel, 2016 UT 23, ¶ 9, 379 P.3d 1195 (quotation simplified).

ANALYSIS

¶9        In this case, we must consider whether, under applicable statutes and rules, a district court may order a change in custody in favor of a relocating parent in the absence of a petition to modify. Father asserts that a district court is not authorized to take such action and, after examination of the relevant provisions, we agree.

¶10      Our procedures for interpreting statutes and rules are the same: “[W]e do so according to our general rules of statutory construction.” Arbogast Family Trust v. River Crossings, LLC, 2010 UT 40, ¶ 18, 238 P.3d 1035. We interpret the relevant provisions according to their plain language, “seek[ing] to give effect to the intent of the body” that enacted the statute or promulgated the rule, Burns v. Boyden, 2006 UT 14, ¶ 19, 133 P.3d 370, and we read the language “in light of its linguistic, structural, and statutory context,” Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 9, 248 P.3d 465.

¶11 Here, we start our analysis with two provisions that generally require the filing of a petition to modify before allowing changes to divorce decrees. First, rule 106(a) of the Utah Rules of Civil Procedure states generally that, “[e]xcept as provided in Utah Code Section 30-3-37, proceedings to modify a divorce decree or other final domestic relations order shall be commenced by filing a petition to modify.” Second, Utah Code section 30-3-10.4(1) states specifically that, “[o]n the petition of one or both of the parents, . . . the court may, after a hearing, modify or terminate an order that established joint legal or physical custody” if certain conditions are met. Utah Code Ann. § 30-3-10.4(1) (LexisNexis Supp. 2018). Thus, rule 106 establishes a general rule—subject to an important exception, discussed below—that any changes to divorce decrees must be brought about by the filing of a petition to modify, and section 10.4 makes clear that this rule applies specifically in the context of modifying decrees that provide for joint custody.

¶12 Mother points out, however, that the exception set forth in rule 106 expressly references the relocation statute, and allows a district court to alter custody orders in the relocation context even in the absence of a petition to modify.[2] See Utah R. Civ. P. 106(a) (stating that, “[e]xcept as provided in” the relocation statute, modifications require a petition). We acknowledge Mother’s point that rule 106 refers to the relocation statute and allows exceptions to the petition requirement in relocation cases, at least to the extent that the relocation statute permits modification. But we do not read rule 106 as providing a blanket exception for all modifications that might be sought in the relocation context.

¶13 The language “[e]xcept as provided” signals a limited exception to the petition requirement. See id. To be sure, the drafters of the rules could have stated that petitions to modify are required “except in cases in which relocation is sought.” Such language would have made clear that, in relocation cases, a court could modify divorce decrees in any manner, even without a petition to modify. But the drafters did not use such language; instead, they included a simple reference to the relocation statute, signaling an intent to incorporate into rule 106 whatever exceptions that statute allows. Indeed, at oral argument, Mother’s counsel acknowledged that, even in the relocation context, a party seeking to modify alimony or child support would need to file a petition to modify, since the relocation statute makes no mention of alimony or child support. Thus, a court may not simply ignore rule 106’s petition requirement any time section 30-3-37 is invoked; rather, a court may modify a decree without a petition only in instances in which section 30-3­37 allows such modification.

¶14      And section 30-3-37 contemplates modification of divorce decrees in only three particular instances: (a) it allows modification of parent-time arrangements in cases where a custodial parent is allowed to relocate with a child, see Utah Code Ann. § 30-3-37(5)–(11) (LexisNexis Supp. 2018); (b) it allows assessment of transportation costs, see id. § 30-3-37(12); and (c) it allows modification of custody—but only in favor of the non-relocating party—in cases in which the court decides not to allow the children to relocate with the relocating party, see id. § 30-3-37(4). Only subsection (4) addresses a change of custody (as opposed to parent-time),[3] providing:

In a hearing to review the notice of relocation, the court shall, in determining if the relocation of a custodial parent is in the best interest of the child, consider any other factors that the court considers relevant to the determination. If the court determines that relocation is not in the best interest of the child, and the custodial parent relocates, the court may order a change of custody.

Id. (emphasis added).

¶15      The relocation statute thus authorizes a change of custody only if two events occur: (1) the court “determines that relocation is not in the best interest of the child,” thus denying the relocating parent’s request for the children to relocate; and (2) the custodial parent decides to relocate—alone—in spite of the court’s ruling. Id.; see also Pingree v. Pingree, 2015 UT App 302, ¶¶ 12–13, 365 P.3d 713 (noting that, “if a court determines that relocation is not in a child’s best interest, it then has authority to order a change in custody if a custodial parent chooses to relocate,” and that “a conditional change of custody ordered under section 30-3-37(4) is triggered only if . . . a custodial parent elects to relocate despite a court’s finding that relocation would not be in the child’s best interest”). Only then is the court authorized to order a change of custody under section 30-3-37. The relocation statute does not contemplate changes in custody (as opposed to parent-time) outside that context, and therefore if a change in custody is sought in a different context, rule 106 (as well as, in some cases, section 30-3-10.4) requires the filing of a petition to modify.

¶16      Thus, we read rule 106 and the relocation statute together to require that a petition to modify be filed in all cases in which a grant of the relocation request will necessitate a change in custody in favor of the relocating party. In a situation in which a parent enjoys “sole” (as opposed to “joint”) physical custody, and wishes to relocate with a child, no change in custody will be required in the event the relocation request is granted. That parent will have sole physical custody prior to the request, and (if granted) that parent will have sole physical custody after the relocation. In that situation, the court need only consider appropriate modifications to the parties’ parent-time schedule.[4]

¶17      The situation is different, however, where the parent who seeks to relocate does not already have sole physical custody, but wishes to attain sole physical custody upon relocation.[5]

 

Because “relocation” is defined as “moving 150 miles or more from the residence of the other parent,” see Utah Code Ann. § 30­3-37(1), joint physical custody is very difficult to practicably maintain in the wake of one parent’s relocation. These practical realities mean that a parent who relocates with a child will usually need to be awarded sole (as opposed to joint) physical custody. And if that parent does not already enjoy sole physical custody, that parent will need to seek a modification of the existing custody arrangement in order to facilitate well-ordered relocation, because rule 106 requires the filing of a petition for any modification, and the relocation statute does not provide an exception in that particular situation.

¶18 In this case, Mother did not have sole physical custody prior to seeking relocation. As noted above, the parties shared physical custody equally. Moreover, Mother did not claim that her situation presented one of the presumably rare situations in which a joint custody arrangement could be continued even after she moved more than 150 miles away from Father; that is, the success of Mother’s relocation request—at least insofar as she would be able to take the Children with her—depended upon Mother being awarded sole physical custody. In this situation, the relocation statute does not contemplate a change in custody without a petition to modify, and therefore rule 106’s petition requirement applies with full force.[6]

CONCLUSION

¶19 Mother needed to file a petition to modify in order to effectuate the change of custody in her favor that was, as a practical matter, essential to her relocation request. The relocation statute does not contemplate such a change of custody, and therefore the exception to rule 106’s petition requirement does not cover this situation. Because Mother did not file a petition to modify, the district court erred in ordering a change of custody in favor of Mother without one. Accordingly, we vacate the district court’s custody order and remand this case for further proceedings consistent with this opinion.

¶20      On remand, one of the parents (or both) will need to file a petition to modify to address the custody situation. It will be up to the district court, on remand, to determine whether the Children will remain in Lapoint pending adjudication of the petition(s) to modify. In making that determination, and in ruling upon the merits of the petition(s) to modify, the court should consider the present circumstances of the parties and the Children and not simply re-litigate the issues as they were at the time of the now-vacated custody order, bearing in mind its duties to “ensure that a child’s best interests will be met before transferring custody” and “to provide stability to children by protecting them from ‘ping-pong’ custody awards.” Chaparro v. Torero, 2018 UT App 181, ¶¶ 39–40, 436 P.3d 339 (quotation simplified).

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

[1] Father’s other two arguments are: (1) that the district court’s relocation decision, on its merits, was against the clear weight of the evidence presented and/or supported by insufficient evidence; and (2) that the court ignored newly discovered relevant evidence when it denied his motion for a new trial. In light of our determination that a change in custody in Mother’s favor was not permitted in the absence of a petition to modify, and our resolution vacating the district court’s custody order and remanding for further proceedings, we need not reach the merits of Father’s additional arguments.

[2] Section 10.4 contains no such exception, and it could be argued that section 10.4 eclipses rule 106’s relocation exception in instances where a relocating party seeks to alter a joint custody order. We do not address this argument further, however, because Father does not expressly make it, and because—as we explain herein—even if section 10.4 is somehow construed (like rule 106) to contain such exceptions as are permitted by the relocation statute, those exceptions do not benefit Mother here.

[3] Custody and parent-time are conceptually distinct. See Jones v. Jones, 2016 UT App 94, ¶ 10, 374 P.3d 45 (stating that, “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,” and holding that “there was no error in the district court’s failure to require a substantial or material change of circumstances” when modifying parent-time (quotation simplified)); see also Erickson v. Erickson, 2018 UT App 184, ¶ 16, 437 P.3d 370 (“A material change of circumstances with respect to parent-time is thus a different inquiry from whether there was a material change with respect to custody.” (quotation simplified)).

[4] Although the relocation statute does not expressly cover a situation in which a noncustodial parent seeks leave to relocate, see Utah Code Ann. § 30-3-37(4) (speaking only in terms of “determining if the relocation of a custodial parent is in the best interest of the child” (emphasis added)), for obvious reasons no change in custody would be required if a noncustodial parent relocates and does not seek a change in custody status associated with that relocation. Whether a petition to modify would be required in this context—given that the relocation statute does not specifically speak to this situation, and that rule 106’s exception is limited to situations covered by the relocation statute—to address requested changes to the parent-time arrangement is a question we leave for another day.

[5] According to statutory definition, “joint physical custody” occurs when a “child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support.” See Utah Code Ann. § 30-3-10.1(3)(a). Thus, any parent who enjoys less than 70% of overnights has something short of sole physical custody, and would almost certainly need to seek a change in the custody arrangement in order to relocate with a child.

[6] By contrast, the relocation statute (and rule 106’s exceptional reference to it) would have allowed the district court to order a change of custody in favor of Father, even without a petition to modify, in the event that it had denied Mother’s relocation request and Mother had decided to relocate anyway. See Utah Code Ann. § 30-3-37(4); Utah R. Civ. P. 106(a).

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Wollsieffer v. Wollsieffer – 2019 UT App 99 – modifying child support

THE UTAH COURT OF APPEALS

BURRIS WOLLSIEFFER, Appellant,
v.
HEATHER WOLLSIEFFER, Appellee.

Opinion No. 20170645-CA
Filed June 6, 2019
Third District Court, Salt Lake Department
The Honorable Matthew Bates
No. 154905336

Burris Wollsieffer, Appellant Pro Se
Courtney Cooper, Ryan A. Rudd, and Bruce M. Pritchet Jr., Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES GREGORY K. ORME and JILL M. POHLMANconcurred.CHRISTIANSEN FORSTER, Judge:

¶1        Burris Wollsieffer (Father) petitioned for modification of the parties’ settlement agreement and the Illinois judgment dissolving their marriage. Heather Wollsieffer (Mother) moved the court to hold Father in contempt for his refusal to comply with certain terms of that judgment. After a bench trial, the trial court found Father in contempt for his failure to satisfy his child support obligations and awarded Mother the attorney fees she incurred in her enforcement proceeding. The court also modified Father’s child support obligations. Father appeals. We affirm and remand to the trial court for a determination of Mother’s attorney fees reasonably incurred on appeal.

BACKGROUND

¶2        Father and Mother divorced in Illinois in 2013. They entered into a settlement agreement, and based upon that agreement, an Illinois court issued a judgment (Illinois Divorce Judgment) awarding Mother sole custody of the parties’ children, subject to Father’s parent-time. Based on his income, the court ordered Father to pay $935.85 as child support every two weeks. Moreover, the Illinois court directed Father to provide additional child support in the amount of 32% of any net bonuses and any income earned in excess of his annual income used for calculating child support (Additur Provision). The Illinois Divorce Judgment required each party to pay one-half of the daycare expenses for the children. When the decree was entered, the parties were living in different states. They anticipated daycare expenses of $2,000 per month, due in part to Mother’s work-related travel. In the settlement agreement, the parties acknowledged that Mother planned “to move to the state of California” with the children, and Father, who resided in South Dakota at the time, was “moving to Florida.”

¶3        In 2015, both parties briefly resided in Utah and Father registered the Illinois Divorce Judgment with the Utah court. In August 2015, Father petitioned for modification of the Illinois Divorce Judgment, alleging that a substantial and material change in circumstances justified altering the existing orders. Father primarily sought a reduction in his child support obligation, but he also requested that the court “make equitable orders regarding parent time and award [Father] statutory parent time” because Mother had allegedly been interfering with his parent-time. Father served Mother with the petition to modify in October 2015.

¶4        Mother moved to dismiss Father’s petition, arguing that Father had failed to establish a substantial and material change in circumstances that would support modification of his child support obligation and the parent-time provisions of the Illinois Divorce Judgment. The court agreed with Mother that the parent-time provisions of Father’s petition to modify should be dismissed but denied Mother’s motion to dismiss with respect to the modification of the child support provisions. Mother also filed an order to show cause alleging that Father had failed to stay current on child support and daycare expenses as ordered by the Illinois Divorce Judgment. The parties proceeded to trial in April 2017 on these issues.

¶5        After hearing testimony and reviewing the evidence offered at trial, the court determined that both parties’ incomes had materially increased and that the change in incomes justified a modification of the Illinois Divorce Judgment. Although the parties’ incomes had both increased, Father’s child support obligation, calculated pursuant to the Utah child support guidelines, changed only minimally. The trial court ordered that child support be paid monthly rather than every other week and eliminated the original 32% Additur Provision from the Illinois Divorce Judgment. Lastly, the court ordered the modification to apply retroactively beginning January 1, 2016. In fixing this date, the court reasoned that the children lived in Utah for only the latter part of 2015 and that they should therefore benefit from the Illinois Divorce Judgment’s Additur Provision for that year.

¶6        Among other evidence presented at trial, each party offered an exhibit detailing the payments Father had made for child support and daycare expenses since the Illinois Divorce Judgment was entered in 2013. Relying on Mother’s exhibit, the trial court determined that Father failed to pay $1,401.08 in past-due child support and $5,520 in daycare expenses. For Father’s refusal to comply with the Illinois Divorce Judgment and meet these obligations, the trial court held Father in contempt. The trial court further determined that Father received income in 2015 above the Additur Provision’s threshold, triggering his obligation to pay an additional amount of child support for that year. Pursuant to the terms of the Illinois Divorce Judgment, the trial court concluded that 32% of Father’s excess 2015 income—calculated to be approximately $10,000 over the threshold—should have been directed to the parties’ children in the form of additional child support. Because Father provided no child support under the Additur Provision for 2015, the court found Father in contempt and ordered him to pay $3,205 in unpaid additional child support. In total, the court found that Father was $10,126 in arrears.

¶7        Each party requested an award of attorney fees at the end of trial. The trial court denied Father’s request for fees for his modification action because he was not impecunious. See Davis v. Davis, 2011 UT App 311, ¶ 22, 263 P.3d 520 (“To recover costs and attorney fees in proceedings on a petition to modify a divorce decree, the requesting party must demonstrate his or her need for attorney fees, the ability of the other spouse to pay, and the reasonableness of the fees.” (quotation simplified)); see also Utah Code Ann. § 30-3-3(1) (LexisNexis Supp. 2018). However, the court identified two other statutory bases supporting an award of attorney fees in this action: the contempt statute, see generally id. §§ 78B-6-311 to -317 (LexisNexis Supp. 2018), and Utah Code section 30-3-3(2), which authorizes an award of attorney fees and costs in any action to enforce an order of child support to the party that “substantially prevailed upon the claim or defense.” Concluding that Mother “prevailed on her enforcement action,” the court awarded her attorney fees, but limited that award specifically to counsel’s time spent on the portion of the litigation focused on successfully proving Father’s contempt. Supporting this conclusion, the trial court observed that Mother “filed an order to show cause in which she alleged that [Father] was delinquent in his existing support obligations” and that the court “held [Father] in contempt for failing to comply with the existing support order.” The trial court also noted that “some of [Mother’s] enforcement efforts were unsuccessful,” particularly her argument that “[Father’s] income was much higher than he was claiming.”

¶8        Considering Mother’s counsel’s affidavit and supporting documents, including a detailed explanation of work performed and billing rates, the trial court ultimately awarded Mother $12,300 in enforcement-related attorney fees.

ISSUES AND STANDARDS OF REVIEW

¶9        Father appeals.[1] He first contends that the trial court erred when it determined that Mother substantially prevailed on her motion to enforce the Illinois Divorce Judgment and therefore erred in awarding her the attorney fees she incurred.[2] “The decision to award or deny attorney fees in domestic cases is within the [trial] court’s sound discretion, and we will disturb the decision only if the [trial] court abuses that discretion.” Gore v. Grant, 2015 UT App 113, ¶ 11, 349 P.3d 779. Moreover, we “review the trial court’s determination as to who was the prevailing party under an abuse of discretion standard,” R.T. Nielson Co. v. Cook, 2002 UT 11, ¶ 25, 40 P.3d 1119, but the trial court’s “interpretation of a statute is a question of law that we review for correctness,” Stephens v. Stephens, 2018 UT App 196, ¶ 20, 437 P.3d 445 (quotation simplified). We will reverse a trial court’s award of attorney fees if it fails to provide adequate findings of fact. Anderson v. Anderson, 2018 UT App 19, ¶ 22, 414 P.3d 1069.

¶10 Father also contends that the trial court erred by miscalculating his arrearages under the Illinois Divorce Judgment for his share of the children’s expenses. Specifically, Father contends that the trial court overlooked overpayments he allegedly made between October 2013 and July 2015. We review the trial court’s factual findings for clear error. Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733.

¶11 Finally, both parties seek attorney fees on appeal. “Generally, when the trial court awards fees in a domestic action to the party who then substantially prevails on appeal, fees will also be awarded to that party on appeal.” Osguthorpe v. Osguthorpe, 872 P.2d 1057, 1059 (Utah Ct. App. 1994) (quotation simplified).

ANALYSIS

I. Award of Attorney Fees

¶12 Father argues that the trial court abused its discretion when it awarded attorney fees to Mother and when it fixed the amount of that award. We conclude that the trial court sufficiently supported its decision to award attorney fees to Mother and that the court did not exceed its discretion in fixing the amount of that award.

¶13      Utah Code section 30-3-3(2) authorizes an award of costs and attorney fees “[i]n any action to enforce an order of custody, parent-time, child support, alimony, or division of property in a domestic case” upon the court’s determination “that the party substantially prevailed upon the claim or defense.” Utah Code Ann. § 30-3-3(2) (LexisNexis Supp. 2018); see also Gore v. Grant, 2015 UT App 113, ¶ 25, 349 P.3d 779 (“When a fee request is made in an order-enforcement proceeding, . . . the guiding factor is whether the party seeking an award of fees substantially prevailed on the claim.” (quotation simplified)). Fees awarded under subsection (2) “serve no equalizing function but allow the moving party to collect fees unnecessarily incurred due to the other party’s recalcitrance.” Connell v. Connell, 2010 UT App 139, ¶ 30, 233 P.3d 836. In other words, when one party refuses to comply with a court order, thereby compelling another party to seek its enforcement, that party risks liability for the fees and costs accrued in the enforcement proceeding. See, e.g., Tribe v. Tribe, 202 P. 213, 216 (Utah 1921) (observing that if a party “refuses to comply with the decree, he does so at his peril”).

¶14 Here, Mother filed an order to show cause alleging that Father had failed to provide child support and other expenses as required by the Illinois Divorce Judgment, which collectively amounted to more than $60,000. The trial court ultimately agreed with Mother, in part, and found Father in contempt because, despite knowing of his support obligations, he willingly disobeyed the terms of the Illinois Divorce Judgment. The court determined that Father failed to pay $1,401 in base child support, $3,205 in additional child support under the Additur Provision, and $5,520 in daycare expenses. In total, the trial court found Father to be more than $10,000 in arrears as a result of unpaid obligations under the Illinois Divorce Judgment.

¶15 Considering Mother’s request for an award of attorney fees, the trial court observed that Mother sought to enforce the provisions of the Illinois Divorce Judgment.[3] And the court concluded that Mother ultimately “prevailed on her enforcement action” based on the court’s determination that Father was “in contempt for failing to comply with the existing support order.” Included in the trial court’s findings regarding why Mother prevailed, the court refers to its earlier findings and conclusions in which it resolved both Mother’s enforcement motion and Father’s petition to modify. It observed that Mother “filed an order to show cause in which she alleged that [Father] was delinquent in his existing support obligations.” The trial court also noted that “some of [Mother’s] enforcement efforts were unsuccessful,” particularly her argument that “[Father’s] income was much higher than he was claiming.”

¶16 Mother claimed that Father refused to pay his share of child support and other expenses as required by the Illinois Divorce Judgment. As a result, Mother asserted she was left to “bear [these] costs” of supporting the parties’ children “alone.” She therefore sought the court’s assistance in enforcing the terms of the then-existing order. The trial court ultimately found Father in contempt for his refusal to meet his obligations to his children, including providing base child support, additional child support under the Additur Provision, and daycare expenses.

¶17 Father successfully argued that the amount of additional child support required under the Additur Provision—a support amount he nevertheless refused to provide—was significantly less than the amount Mother asserted in her order to show cause. Father thus argued below that he substantially prevailed, but the trial court concluded that Mother substantially prevailed because she won on her contempt claims. On appeal, Father argues that because Mother did not receive 51% or more of the amount she alleged Father failed to provide in child support, Mother did not substantially prevail on her claims. But Father cites no authority to support his contention. And without more, we are unpersuaded that Mother, who successfully proved Father’s contempt, did not substantially prevail within the meaning of section 30-3-3(2) simply because she recovered less than half of what she sought in child support payments. Accordingly, we discern no abuse of the trial court’s discretion in determining that Mother should be awarded attorney fees for her efforts to enforce the terms of the Illinois Divorce Judgment.[4]

¶18      Father also challenges the amount of the attorney fees the trial court awarded to Mother. In fixing the amount of reasonable attorney fees, a trial court should generally consider (1) the legal work that was “actually performed,” (2) the amount of work that was “reasonably necessary to adequately prosecute the matter,” (3) the attorney’s billing rate and whether it is “consistent with the rates customarily charged in the locality for similar services,” and (4) any other relevant factors, “including those listed in the Code of Professional Responsibility.” Dixie State Bank v. Bracken, 764 P.2d 985, 990 (Utah 1988). Here, Mother submitted the billing invoices from her attorneys documenting the amount of fees she had incurred and counsel’s declaration attesting to the time spent, billing rates, and description of the work performed.[5]

¶19 Counsel’s billing statements to Mother included the fees charged for work performed prior to Mother’s filing of the order to show cause. And separately described and accounted for the work performed in responding to Father’s petition to modify the Illinois Divorce Judgment and on Mother’s motion to enforce the terms of the then-in-effect judgment. To limit Mother’s award of attorney fees to her “efforts to enforce the existing decree,” the trial court reduced Mother’s requested fees to only those incurred in litigating Mother’s motion to enforce the orders of the Illinois Divorce Judgment. The court also took into consideration the fact that some of Mother’s enforcement efforts were ultimately unsuccessful.

¶20 Considering the hours Mother’s counsel spent litigating her order to show cause all the way through trial,[6] the trial court determined that the time spent and the billing rates of counsel were reasonable in light of their experience. The court therefore awarded Mother $12,300 for the fees she incurred specifically litigating the enforcement action. Our review of the record and the court’s findings reveals no abuse of the trial court’s discretion in calculating reasonable attorney fees. We accordingly affirm the trial court’s award of attorney fees to Mother and affirm its calculation of the amount of that award.

II. Calculation of Daycare Expenses

¶21 Father next argues that the trial court overlooked overpayments Father allegedly made with respect to his daycare expense obligations between October 2013 and July 2015.

¶22 Due to the parties’ living in different states and work-related travel, the parties’ Illinois Divorce Judgment obligated each parent to provide $1,000 per month toward daycare expenses for their children. During trial, each party submitted an exhibit summarizing, among other things, receipts for daycare expense payments. When Father moved for admission of his own exhibit, Mother objected, arguing that the calculations in his exhibit were unclear and asserting that his calculations included irrelevant information. During cross-examination, Father stated that he had not prepared a portion of his exhibit and therefore could not testify to its accuracy. Mother subsequently submitted her own exhibit, which documented all child support and daycare expense amounts provided by Father following entry of the Illinois Divorce Judgment. Father later submitted a substitute exhibit, and Mother withdrew her objection. Relying on Mother’s exhibit, the trial court determined that Father had failed to meet his daycare-related obligations under the Illinois Divorce Judgment and was $5,520 in arrears.

¶23      On appeal, Father asks this court to consider the evidence presented at trial and reach a different finding. “When reviewing a [trial] court’s findings of fact on appeal, we do not undertake an independent assessment of the evidence presented during the course of trial and reach our own separate findings with respect to that evidence.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 75, 99 P.3d 801. Instead, we “evaluate whether the court’s findings are so lacking in support that they are against the clear weight of the evidence.” Id.

¶24      Here, the court considered the testimony of the parties as well as summaries of daycare-expense payments offered by both parties between the entry of the Illinois Divorce Judgment and December 2015. As a starting point, the trial court determined that over this period, the Illinois Divorce Judgment obligated Father to provide $1,000 per month for his share of the children’s daycare expenses. Mother testified that she had hired a nanny in 2015 but that she had dismissed that nanny midway through December of that year because she did not need surrogate care for the children. Accordingly, the trial court credited Father with $500 for that month.

¶25 The court next considered the amounts Father actually provided to cover the costs of the children’s daycare. Father asserted that he had overpaid during some months but acknowledged that he “didn’t pay anything” toward daycare expenses for the last half of August 2015 through the end of that year. After considering the evidence submitted by both parties, the trial court found that Father owed $5,520 in unpaid daycare expenses—the amount Mother asserted remained outstanding. We are not persuaded that the trial court’s finding—that Father failed to meet his support obligation for daycare expenses amounting to $5,520—is against the clear weight of the evidence presented at trial.

III. Father’s Unpreserved Issues

¶26 Finally, Father raises two issues that we conclude were not preserved for appellate review. First, he argues that the trial court erred when it purportedly failed to apply Utah Code section 78B-12-112(4) to fix the date for retroactive application of the modified divorce decree. See Utah Code Ann. § 78B-12-112(4) (LexisNexis 2012) (authorizing a court to retroactively modify a support obligation “with respect to any period during which a modification is pending” and requiring that “the effective date of the modification shall be the month following service on the parent whose support is affected”). We conclude that this issue was not preserved in the trial court.

¶27      Father advocated at trial for retroactive application of the modified divorce decree, but he did not argue for the application of section 78B-12-112(4) or contend, as he does now, that the statute required that the divorce decree be modified effective November 1, 2015. Instead, Father cited no authority for his request and argued generally that the court should make the modified decree retroactive to either the date he filed his petition for modification or the date the petition was served.

¶28 On appeal, Father argues that the applicable statute requires the court to apply a date altogether different from the date he advocated for at trial and different from the date ultimately adopted by the court. Because Father did not argue to the trial court that it was required by section 78B-12-112(4) to make the modification retroactive to November 1, 2015, he has not preserved this issue for appeal.[7] See State v. Johnson, 2006 UT App 3, ¶ 13, 129 P.3d 282 (“Utah courts require specific objections in order to bring all claimed errors to the trial court’s attention to give the court an opportunity to correct the errors if appropriate.” (quotation simplified)).

¶29 Father also argues that the trial court incorrectly interpreted the parties’ Illinois Divorce Judgment. Specifically, he asserts that the trial court improperly used Father’s 2015 gross income instead of his net income when it calculated his additional child support obligation under the Additur Provision.

¶30      In addition to obligating Father to provide a fixed amount of base support for the children, the Illinois Divorce Judgment obligated Father to provide additional support amounting to “32% of the net of all bonuses he received, and 32% of any income in excess of” his base salary. (Emphases added.) The trial court determined that, in 2015, Father “earned approximately $10,000 in excess of the [threshold amount],” thus triggering the Additur Provision. It accordingly found Father in contempt for failing to provide this additional child support and determined that he was $3,205 in arrears. Because Father did not challenge the trial court’s interpretation of the Illinois Divorce Judgment’s Additur Provision as requiring examination of his gross income as opposed to his net income, we conclude that this issue was not preserved and do not consider it further.[8]

IV. Attorney Fees on Appeal

¶31 Each party requests fees incurred on appeal. “Generally, when the trial court awards fees in a domestic action to the party who then substantially prevails on appeal, fees will also be awarded to that party on appeal.” Osguthorpe v. Osguthorpe, 872 P.2d 1057, 1059 (Utah Ct. App. 1994) (quotation simplified). Because we affirm the trial court’s award of attorney fees to Mother below and because she has substantially prevailed on appeal, Mother is entitled to the attorney fees she incurred on appeal. We therefore remand to the trial court to determine the amount of attorney fees reasonably incurred in defending this appeal.

CONCLUSION

¶32 Father has not shown that the trial court exceeded its discretion when it determined that Mother substantially prevailed on her motion to enforce the terms of the Illinois Divorce Judgment. The court also acted within its discretion when it fixed the amount of that award, and we discern no clear error in the trial court’s factual findings regarding Father’s unpaid daycare expense obligations. And Father’s other claims are either inadequately briefed or unpreserved. Accordingly, we affirm and award Mother her attorney fees reasonably incurred on appeal. We remand to the trial court for the limited purpose of determining the amount of the award.

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

[1] Father asserts a total of six issues on appeal. We address the merits of two of those issues and discuss Father’s two unpreserved issues in the body of the opinion. Father’s remaining arguments are discussed below: Father argues that the trial court should have credited him with alleged child support overpayments made “shortly before” entry of the Illinois Divorce Judgment. He also contends that the trial court erred when it dismissed his petition to modify the parent-time provisions of the Illinois Divorce Judgment. Because Father cites no supporting authority and offers no reasoned analysis on either of these issues, we conclude that he has inadequately briefed them and we do not consider them further. See Utah R. App. P. 24(a)(8) (requiring an appellant to “explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal”). As a self-represented party, Father is entitled to “every consideration that may reasonably be indulged,” Allen v. Friel, 2008 UT 56, ¶ 11, 194 P.3d 903 (quotation simplified), though “we will ultimately hold him to the same standard of knowledge and practice as any qualified member of the bar,” Robinson v. Jones Waldo Holbrook & McDonough, PC, 2016 UT App 34, ¶ 28, 369 P.3d 119.

Father’s remaining claims of error—the trial court’s selection of a date to retroactively apply the modified divorce decree and its allegedly incorrect interpretation of the Additur Provision in the Illinois Divorce Judgment—are discussed in Part III of this opinion. But our conclusion that these issues were not preserved for appellate review obviates the need to recite the standards of review that would otherwise apply to those issues. See Cheek v. Clay Bulloch Constr. Inc., 2016 UT App 227, ¶ 14 n.3, 387 P.3d 611.

[2] Father contends that the trial court “incorrectly interpreted” Utah Code section 30-3-3(2) when it awarded attorney fees to Mother. Although seemingly framing this issue as one of statutory interpretation, Father challenges only the trial court’s factual determination that Mother prevailed on her petition to enforce the Illinois Divorce Judgment. We accordingly limit our review to this question.

[3] We note that both parties requested an award of attorney fees following trial. The trial court determined that neither party was eligible for such an award with respect to the petition to modify because “neither side is impecunious” and both “have the ability to pay their own fees.” See Utah Code Ann. § 30-3-3(1) (LexisNexis Supp. 2018) (authorizing an award of attorney fees and costs in divorce decree modification proceedings in order “to enable the other party to prosecute or defend the action”); see also Wilde v. Wilde, 969 P.2d 438, 444 (Utah Ct. App. 1998) (requiring that the award of attorney fees in modification proceedings “be based on evidence of the financial need of the receiving spouse, the ability of the other spouse to pay, and the reasonableness of the requested fees” (quotation simplified)). Neither party challenges this aspect of the trial court’s decision.

[4] The court also noted that it was authorized to award Mother her attorney fees “as a remedy for [Father’s] contempt.” (Citing Utah Code section 78B-6-311.) But on appeal, Father does not challenge this ruling. Father’s failure to do so provides this court with an alternative basis to affirm the trial court’s award of attorney fees to Mother. See Kendall v. Olsen, 2017 UT 38, ¶ 12, 424 P.3d 12 (“We will not reverse a ruling of the [trial] court that rests on independent alternative grounds where the appellant challenges only one of those grounds.” (quotation simplified)).

[5] Father asserts that the trial court “did not explain [the court’s] basis and numbers used . . . with detailed evidence” when it calculated the amount of the attorney fees awarded to Mother. The court, however, explained that it “carefully review[ed] counsel’s records,” which included the detailed billing statements that Mother’s counsel attached to their declaration of attorney fees in which counsel attested to the work performed, time spent, and rates charged. And the court explained which categories of fees it disallowed and the specific number of hours it found reasonable.

[6] The trial court included one-half of the total hours counsel billed for trial.

[7] Father does not argue that any exceptions to the preservation rule apply. See State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443 (“When a party fails to raise and argue an issue in the trial court, it has failed to preserve the issue, and an appellate court will not typically reach that issue absent a valid exception to preservation.”).

[8] Father does not argue an exception to the preservation rule on this claim. See State v. Johnson, 2006 UT App 3, ¶ 13, 129 P.3d 282.

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Kirkham v. Widdison – 2019 UT App 97 – tax issues in divorce

Kirkham v. Widdison – 2019 UT App 97

THE UTAH COURT OF APPEALS

JANAE A. KIRKHAM,
Appellant,
v.
JAMIE WIDDISON, HRB TAX GROUP, GRACE HANSEN, BONNY WIDDISON, AND ALPINE GARDENS INC.,
Appellees.

Opinion No. 20170655-CA
Filed June 6, 2019

Third District Court, Salt Lake Department
The Honorable Andrew H. Stone
No. 150902366

Janae A. Kirkham, Appellant Pro Se
Suzanne Marelius, Attorney for Appellees Jamie Widdison and Bonny Widdison
Sean N. Egan, Anthony J. Durone, and Timothy West, Attorneys for Appellees HRB Tax Group and Grace Hansen
Jonathan O. Hafen and Jeffery A. Balls, Attorneys for Appellee Alpine Gardens Inc.

JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGE DIANA HAGEN concurred. JUDGE MICHELE M.
CHRISTIANSEN FORSTER concurred, except that as to section VI, she concurred only in the result.

MORTENSEN, Judge:

¶1        Appellant Janae A. Kirkham appeals—for the fourth time[1]—issues arising from claims that she alleges occurred during the litigation of a petition to modify in a separate divorce proceeding. Kirkham argues that the trial court erred by granting a rule 12(b)(6) motion to dismiss four of her claims, granting a rule 12(c) judgment on the pleadings dismissing one of her claims, (3) dismissing her remaining claims on summary judgment, (4) granting a motion to disqualify her attorney, (5) granting a protective order under rule 37 of the Utah Rules of Civil Procedure, and (6) awarding attorney fees and costs pursuant to Utah Code section 78B-5-825. We affirm.

BACKGROUND

¶2        In 2011, Jamie Widdison sought a modification of his and Kirkham’s divorce decree, which would, among other things, allow him to retroactively claim a tax exemption for the parties’ minor child—whom Kirkham had previously claimed. During those proceedings, Kirkham produced copies of her tax returns for the years 2009, 2010, and 2011 (Tax Returns). According to Kirkham’s second amended complaint (Complaint), Widdison and his wife Bonnie Widdison (collectively, Widdisons) received the Tax Returns from their attorney and used Alpine Gardens Inc.’s fax machine to send those copies to HRB Tax Group and its employee, Grace Hansen (collectively, HRB). HRB used the Tax Returns to prepare pro forma returns (Pro Forma Returns)[2] demonstrating the potential impact to Kirkham’s tax liability without the child exemption. The Pro Forma Returns were offered as exhibits in hearings before a commissioner and the trial court.

¶3 Based on the Pro Forma Returns, the commissioner determined that the parties’ collective tax liability would be lowered by allowing Widdison to claim the child exemption. Widdison proposed that if Kirkham filed the Pro Forma Returns, he would pay Kirkham the difference in any tax that would be assessed to her as a result. The commissioner, however, certified the issue to the trial court when Kirkham would not agree. The commissioner noted that Kirkham “had no explanation for her position, particularly where it would cost her nothing.”

¶4        The trial court agreed with the commissioner that Widdison would realize a greater tax benefit from the exemption than Kirkham. On October 10, 2012, the trial court entered a written order authorizing Widdison to claim the child exemption for tax years 2009 through 2012. The court also ordered Kirkham to sign and file the Pro Forma Returns as well as IRS Form 8332, which authorized Widdison to claim the child exemption for those years (Amended Returns). Finally, the court ordered Widdison to reimburse Kirkham any difference in taxes owed by Kirkham as a result of filing the Amended Returns. Kirkham timely appealed the trial court’s order.[3]

¶5        While the modification appeal was pending, Kirkham refused to sign and file the Amended Returns.[4] On December 11, 2012, the commissioner held an order to show cause hearing and again ordered Kirkham to sign and file the Amended Returns. Kirkham, again, refused. On January 10, 2013, the commissioner ordered the clerk of the court to sign IRS Form 8332 on behalf of Kirkham[5]—effectively authorizing the Widdisons to file their amended returns with the child exemption.

¶6        On January 18, 2013, Kirkham’s Amended Returns were filed and received by the IRS. Kirkham alleged in her Complaint that the “amended tax returns for the years 2009, 2010 and 2011 in [Kirkham’s] name were filed by [the Widdisons] and HRB.” However, Kirkham conceded two points. First, after HRB argued that it “did not and cannot file amended returns even if they are final” because “[a]mended returns cannot be filed electronically,” Kirkham conceded that “[HRB] didn’t file the amended returns.” Second, when the court later asked Kirkham, “Who filed the returns?” Kirkham replied, “Widdison did.” As discussed below, infra ¶ 13, Kirkham was ultimately unable to produce any evidence that Widdison, or any other defendant, filed the returns.

¶7        In October 2014, this court vacated the modification order and remanded with instructions to make additional findings on whether shifting the child exemption was justified. See Widdison v. Widdison, 2014 UT App 233, ¶ 21, 336 P.3d 1106. But prior to the remand trial, “the parties fully resolved all claims arising from their 2009, 2010 and 2011 tax returns,” and therefore the court did not address that issue. On remand, the trial court reinstated the original modification order and found that the “allocation of tax dependent exemptions [was] consistent with Utah law . . . [and] the ruling was an equitable, fair and reasonable way to distribute the tax benefit in this case.” The trial court found Kirkham in contempt of the 2012 modification order for refusing to sign and file the Amended Returns and for obstructing Widdison’s ability to comply with the order by “frustrating [his] efforts to compensate her.” The court also found that due to Kirkham’s contempt, Widdison “had to file his amended tax returns on his own with an 8332 form in the absence of [Kirkham’s] amended return being filed. This led to [Kirkham’s] tax return for 2012 being seized. . . . [And] this [was] due to [Kirkham’s] own lack of cooperation.” Finally, the court awarded Widdison costs and attorney fees arising from Kirkham’s contempt.[6]

¶8        Kirkham filed this lawsuit against the Widdisons, HRB, and Alpine (collectively, Appellees), alleging that Appellees’ role in preparing the Pro Forma Returns and filing the Amended Returns gave rise to various claims. Specifically, Kirkham raised claims for tortious conversion against all Appellees (Claim 1); civil conspiracy against all Appellees (Claim 2); invasion of privacy against all Appellees (Claim 3); violation of the Utah Consumer Sales Practices Act (UCSPA) against HRB (Claim 4); violations of the UCSPA–Unconscionability against HRB (Claim 5); intentional infliction of emotional distress (IIED) against all Appellees (Claim 6); and breach of fiduciary duty against HRB and Widdison (Claim 7).

¶9 During discovery, HRB moved to have Kirkham’s attorney disqualified.[7] HRB argued that Kirkham’s attorney had obtained employment with HRB without disclosing that he represented Kirkham, who intended to sue HRB. Further, HRB argued that Kirkham’s attorney had taken at least one confidential document from HRB during his employment, which he intended to use in the suit against HRB. The trial court granted HRB’s motion to disqualify, finding that (1) the “likelihood of public suspicion or obloquy outweighs the social interest in allowing [Kirkham’s attorney] to continue to represent [her]”; (2) because Kirkham “has filed this action as a Tier 3 action and seeks extensive punitive damages,” “it is likely that [she] will be able to obtain substitute counsel”; and (3) “the ongoing harm to public confidence and to [HRB] in allowing [Kirkham’s attorney] to continue to represent [Kirkham] outweighs the minimal harm to [her] in having to obtain substitute counsel.”

¶10 HRB also moved the trial court to enter a protective order governing discovery. Kirkham objected, but rather than offering any alternative language to the proposed protective order, she requested that the court not enter the order at all. The trial court rejected Kirkham’s objection, finding that “the order has procedure in it for designating documents as well as objecting to designations” and that “the order as prepared is an ordinary and customary protective order in commercial cases.”

¶11 Next, the Widdisons moved pursuant to rule 12(b)(6) to dismiss Claims 1, 2, 3, 6, and 7—or in other words, Kirkham’s entire Complaint as against them. Simultaneously, HRB moved pursuant to rule 12(b)(6) to dismiss Claims 1, 3, 6, and 7. The trial court granted both motions, excepting Claim 2 against the Widdisons. In a seven page memorandum decision, the trial court made the following conclusions with respect to each dismissed claim:

  • Claim 1 (Tortious Conversion)—that “intangible property such as knowledge of Kirkham’s tax status is not property that can be converted”—and “[e]ven if such an intangible interest were subject to conversion . . . Kirkham was never deprived of its use.”
  • Claim 3 (Invasion of Privacy)—that “Kirkham’s counsel made clear that this claim is brought based on misappropriation of name or likeness” and “[s]he alleges no ‘intrinsic value’ of her name” as required by Utah law. And Kirkham’s argument that “every name has intrinsic value . . . is simply legally incorrect.” (Cleaned up.)
  • Claim 6 (IIED)—that the Widdisons’ conduct and HRB’s conduct, as alleged, does not, as a matter of law, constitute such extreme conduct to state a claim for IIED. Further, Kirkham’s allegations show that she views “the modification proceeding as one long pattern of [IIED]”—and under Utah law, “[a]n allegation of improper filing of a lawsuit or the use of legal process against an individual is not redressable by a cause of action for [IIED].” (Citing Bennett v. Jones, Waldo, Holbrook & McDonough, 2003 UT 9, ¶ 66, 70 P.3d 17.)
  • Claim 7 (Breach of Fiduciary Duty)—that Widdison “is not a fiduciary for Kirkham . . . by virtue of his status as a law enforcement officer.”[8] And similarly, HRB, “by contracting with [Widdison] and or his attorney, did not become fiduciaries to Kirkham.”

¶12      HRB then moved the trial court, pursuant to rule 12(c), to dismiss Claims 2 (Civil Conspiracy), 4 (Violation of UCSPA), and 5 (Violation of UCSPA–Unconscionability). At the hearing for this motion, HRB argued that it “did not and cannot file amended returns even if they are final,” because “[a]mended returns cannot be filed electronically.” Kirkham then conceded, “[HRB] didn’t file the amended returns.” The court granted the motion, finding that HRB did not violate “26 U.S.C. § 7216 or any other IRS regulation or tax law in preparing the [Pro Forma Returns],” nor did it violate “U.C.A. §§ 76-6-1102 or 76-6-1105 or . . . the [UCSPA].”[9] And thus, “[t]here was not an unlawful overt act committed by [HRB] upon which liability under a civil conspiracy theory could rest, nor has [Kirkham] pleaded any such act.” Further, the court found that Kirkham failed to establish that HRB proximately caused her alleged damages, because she had been ordered to file the Amended Returns in the modification proceeding and refused to do so.

¶13 Finally, Alpine and the Widdisons moved under rule 12(c) to dismiss Kirkham’s remaining claims: Claim 2 (Civil Conspiracy) against the Widdisons and all claims against Alpine.[10] The trial court converted the rule 12(c) motion to one for summary judgment, “giving [Kirkham] the opportunity to support her claims with deposition testimony, affidavits or other evidence.” Ultimately, the trial court granted the motion in favor of the Widdisons, finding (1) “the Declaration of [Kirkham] . . . is merely a restatement of the allegations in the Complaint, and is not supported by personal knowledge on her part”; (2) “there is no evidence that [Alpine or the Widdisons] or any other defendant ever filed a tax return on behalf of [Kirkham] or conspired with others to do so”; and (3) “there is no evidence that a tax return was ever filed on behalf of [Kirkham] by anyone other than [Kirkham].”

¶14 After all Kirkham’s claims were dismissed, HRB moved for attorney fees under Utah Code section 78B-5-825. The court concluded that Kirkham’s claims against HRB lacked merit and were brought in bad faith and therefore, awarded HRB $61,464 in attorney fees.

¶15      Kirkham appeals.

ISSUES AND STANDARDS OF REVIEW

¶16 Kirkham raises six issues on appeal. First, whether the trial court erroneously granted HRB’s and the Widdisons’ rule 12(b)(6) motions to dismiss on Claims 1, 3, 6, and 7. “We review a [trial] court’s decision to grant a rule 12(b)(6) motion to dismiss a complaint for correctness, giving no deference to the [trial] court’s ruling.” Van Leeuwen v. Bank of Am. NA, 2016 UT App 212, ¶ 6, 387 P.3d 521 (cleaned up).

¶17 Second, whether the trial court erroneously granted HRB’s rule 12(c) motion for judgment on the pleadings on Claims 2, 4, and 5. The same standard of review applies for a rule 12(c) motion as for one under rule 12(b)(6), and therefore we review the grant of a motion for judgment on the pleadings for correctness, giving no deference to the trial court’s ruling. Tuttle v. Olds, 2007 UT App 10, ¶ 6, 155 P.3d 893.

¶18 Third, whether the trial court erroneously dismissed Claim 2 against the Widdisons, pursuant to rule 12(c). The record shows, however, that this rule 12(c) motion was converted into a rule 56 motion for summary judgment when matters and evidence outside the pleadings were presented to the trial court. Thus, “we review the [trial] court’s summary judgment ruling for correctness and view all facts and reasonable inferences in favor of the nonmoving party.” USA Power, LLC v. PacifiCorp, 2010 UT 31, ¶ 28, 235 P.3d 749 (cleaned up).

¶19      Fourth, whether the trial court erroneously granted HRB’s motion to disqualify Kirkham’s attorney. “The proper standard of review for decisions relating to disqualification is abuse of discretion.” Snow, Christensen & Martineau v. Lindberg, 2013 UT 15, ¶ 18, 299 P.3d 1058 (cleaned up).

¶20 Fifth, whether the trial court erroneously granted a protective order governing discovery. A trial court’s grant of a protective order is reviewed for an abuse of discretion. Spratley v. State Farm Mutual Auto. Ins. Co., 2003 UT 39, ¶ 8, 78 P.3d 603.

¶21 And sixth, whether the trial court erred by awarding attorney fees and costs pursuant to Utah Code section 78B-5-825. “The Utah Code requires a court to award reasonable attorney fees in a civil action to the prevailing party if the court determines that the action or defense to the action was without merit and not brought or asserted in good faith.” Bresee v. Barton, 2016 UT App 220, ¶ 15, 387 P.3d 536 (cleaned up). “The without merit determination is a question of law, and therefore we review it for correctness. The bad-faith determination is a question of fact and is therefore reviewed by this court for clear error.” Id. (cleaned up).

ANALYSIS

  1. Motions to Dismiss

¶22      “The purpose of a rule 12(b)(6) motion is to challenge the formal sufficiency of the claim for relief, not to establish the facts or resolve the merits of a case, and accordingly, dismissal is justified only when the allegations of the complaint clearly demonstrate that the plaintiff does not have a claim.” Van Leeuwen v. Bank of Am. NA, 2016 UT App 212, ¶ 6, 387 P.3d 521 (cleaned up). Further, “we accept the factual allegations in the complaint as true” and we make all reasonable inferences in favor of the non-moving party, Oakwood Village LLC v. Albertsons, Inc., 2004 UT 101, ¶ 9, 104 P.3d 1226, but we do not accept a complaint’s legal conclusions as true, Franco v. Church of Jesus Christ of Latter-day Saints, 2001 UT 25, ¶ 26, 21 P.3d 198 (“The sufficiency of . . . pleadings must be determined by the facts pleaded rather than the conclusions stated.” (cleaned up)); see also America West Bank Members, LC v. State, 2014 UT 49, ¶ 7, 342 P.3d 224 (“When reviewing a dismissal under Rule 12(b)(6), . . . we accept the plaintiff’s description of facts alleged in the complaint to be true, but we need not accept extrinsic facts not pleaded nor need we accept legal conclusions in contradiction of the pleaded facts.” (cleaned up)).

¶23 The trial court dismissed Kirkham’s claims, pursuant to rule 12(b)(6), for tortious conversion, invasion of privacy, intentional infliction of emotional distress, and breach of fiduciary duty against HRB and the Widdisons. We examine each claim in turn.

  1. Claim 1—Tortious Conversion

¶24 “A conversion is an act of willful interference with a chattel, done without lawful justification by which the person entitled thereto is deprived of its use and possession.” Bonnie & Hyde, Inc. v. Lynch, 2013 UT App 153, ¶ 30, 305 P.3d 196 (emphasis added) (cleaned up). The trial court concluded that Kirkham’s conversion claim failed because “Kirkham’s tax status is not property that can be converted” and “[e]ven if such an intangible interest were subject to a conversion,”[11] Appellees “plainly had lawful justification to use Kirkham’s tax information . . . and did not deprive her of its use in any event.” The court elaborated, “[t]ax returns and pro forma returns are commonly exchanged and prepared in such actions. The whole point of the modification as it related to the underlying tax exemptions . . . necessarily requires examining at least Kirkham’s tax liabilities, with and without the exemption.” Lastly, the court noted that “Kirkham could have sought protection on the use of such information in the context of discovery in that action, but did not do so.”

¶25      Kirkham acknowledges that “Utah Appellate Courts have not explicitly recognized conversion as involving personal information as a chattel.” Instead, her sole argument on appeal is that the personal information in her tax returns should be considered property subject to conversion. In other words, Kirkham urges us to expand the definition of a chattel to apply to intangible property. We decline to do so. But even if we did, Kirkham has failed to demonstrate that Appellees were not legally justified in using that information or that they deprived her of the use of that information.

¶26 Appellees were legally justified to use Kirkham’s tax information for two reasons. First, Kirkham did not seek any discovery classification or designation—such as “confidential” or “attorney’s eyes only”—which would have limited its use by Appellees. Second, Appellees used Kirkham’s tax information merely to prepare the Pro Forma Returns in order to demonstrate the impact of claiming, or not claiming, the exemption at issue—a practice that is commonplace in this type of litigation.

¶27      Finally, Kirkham has not argued that Appellees deprived her of the use of her personal information. Even if Appellees’ use of Kirkham’s information was improper, she was not precluded from also using that information, and in fact she makes no argument otherwise. We agree with the trial court that “[i]n a sense, Kirkham appears to be arguing that she was entitled to defy the trial court’s order and refuse to file the [A]mended [R]eturns as ordered, and thus is entitled to sue for damages resulting from their filing.” Therefore, we conclude that Kirkham’s claim for tortious conversion was properly dismissed.

  1. Claim 3—Invasion of Privacy

¶28 Kirkham’s invasion of privacy claim is based on misappropriation of her name or likeness.[12] To prevail under this tort theory, a party must show “(1) appropriation, (2) of another’s name or likeness that has some intrinsic value, (3) for the use or benefit of another.” Stien v. Marriott Ownership Resorts, Inc., 944 P.2d 374, 379 (Utah Ct. App. 1997) (cleaned up). The trial court concluded that Kirkham’s allegations were not sufficient to satisfy these elements. The court noted that Kirkham “alleges no intrinsic value of her name” and that her argument “that every name has intrinsic value” is “legally incorrect.” Further, the court concluded that “[a]t the time the returns were allegedly filed, Kirkham had been ordered to file amended returns without claiming that exemption. Thus, there was no intrinsic value in Kirkham’s name that was appropriated by the supposed filing.” We agree.

¶29 On appeal, Kirkham dedicates a single paragraph to support her position that the trial court erred in dismissing this claim. She argues that her tax information is private and confidential under federal law and that therefore Appellees had “absolutely no right to amend those tax returns.” Again, Kirkham’s argument misses the mark. First, Kirkham herself produced the Tax Returns without any designation limiting their use. Second, the Widdisons used the Tax Returns merely to prepare the Pro Forma Returns for the court’s consideration. Third, even if the Widdisons filed the Amended Returns, Kirkham has not demonstrated that doing so was a misappropriation of her name that benefitted the Widdisons.[13] And fourth, Kirkham fails to address the fatal defect in her complaint: that she has not alleged that her name has an intrinsic value. For these reasons, the trial court correctly dismissed Kirkham’s invasion of privacy claim.

  1. Claim 6—Intentional Infliction of Emotional Distress

¶30 To state a claim for IIED, a party must allege that the defendant intentionally engaged in some conduct toward the plaintiff, “(a) with the purpose of inflicting emotional distress, or, (b) where any reasonable person would have known that such would result; and his actions are of such a nature as to be considered outrageous and intolerable in that they offend against the generally accepted standards of decency and morality.” Franco v. Church of Jesus Christ of Latter-day Saints, 2001 UT 25, ¶ 25, 21 P.3d 198 (cleaned up).

¶31 Kirkham’s allegations of IIED show that “she views the modification proceeding as one long pattern of intentional infliction of emotional distress.” That is, she alleges that a host of perceived offenses in the course of the modification proceeding amount to IIED. These perceived offenses included attempts to reduce child support, hold her in contempt, and modify the decree. Other alleged offenses included Appellees’ representations and actions taken in the course of litigation, dragging the case out, rushing to get to hearings when Kirkham’s attorney withdrew, rule violations, and discovery abuses.

¶32      Indeed, on appeal, Kirkham furthers this line of reasoning by arguing that “[s]he has been forced to deal with the IRS and continues in her litigation with her ex-husband relating to those amended tax returns” and “[f]ew if any people and certainly no reasonable person can disagree that one cannot be allowed to take and use another person’s tax returns and personal information.” We deem these arguments unpersuasive for two reasons. First, as we have already noted, Kirkham did not designate her tax returns as confidential under a protective order when she produced them in the modification proceeding. Therefore, use of those returns to prepare the Pro Forma Returns was not extreme and outrageous—especially given that the tax exemption was one of the key issues at play in the modification proceeding.

¶33 Second, Kirkham’s argument on appeal is essentially a recitation of her argument to the trial court below—that “she views the modification proceeding as one long pattern of intentional infliction of emotional distress.” Simply put, “allegation[s] of improper filing of a lawsuit or the use of legal process against an individual is not redressable by a cause of action for [IIED].” Bennett v. Jones, Waldo, Holbrook & McDonough, 2003 UT 9, ¶ 66, 70 P.3d 17. Accordingly, the IIED claim was properly dismissed.

  1. Claim 6—Breach of Fiduciary Duty

¶34 Kirkham contends that HRB owed her a fiduciary duty because “she was set up in HRB’s system as a client.” We reject this argument and affirm the trial court on this point because it is inadequately briefed in two aspects. First, Kirkham does not provide a citation to the record—nor have we been able to find one—in support of her position that she was set up in HRB’s system as a client. See Angel Inv’rs, LLC v. Garrity, 2009 UT 40, ¶ 34, 216 P.3d 944 (declining to address a party’s argument on appeal for lack of citations to the record). Second, even if she had cited the record, Kirkham does not provide any legal authority supporting her allegation that HRB became her fiduciary by entering her information into their system. See id. ¶ 35. Nor does she provide any reasoned argument to establish such a precedent under the facts of this case. In other words, we are not persuaded by the argument that HRB owed Kirkham a fiduciary duty when they were retained by the Widdisons to prepare Pro Forma Returns for the purpose of their litigation against Kirkham.

  1. Motion for Judgment on the Pleadings

¶35 Next, Kirkham contends that the trial court erroneously granted HRB’s rule 12(c) motion on Claim 2 for civil conspiracy.[14] A claim for civil conspiracy requires “(1) a combination of two or more persons, (2) an object to be accomplished, (3) a meeting of the minds on the object or course of action, (4) one or more unlawful, overt acts, and (5) damages as a proximate result thereof.” Lawrence v. Intermountain, Inc., 2010 UT App 313, ¶ 12, 243 P.3d 508 (cleaned up).

¶36 The trial court—without deciding on the first three elements—concluded that Kirkham could not meet the final two elements of civil conspiracy. Specifically, the court concluded that HRB did not commit an unlawful or overt act, nor was HRB the proximate cause of damages (if any) that Kirkham sustained. We need not reach the issue of whether HRB committed an overt unlawful act[15] because we agree with the trial court that any alleged wrongdoing on HRB’s behalf was not the proximate cause of the alleged damages suffered by Kirkham, and this determination is fatal to her claim.

¶37 Kirkham articulates an argument that damages arising under this claim include “[h]er 2012 tax refund [being] seized to pay for the tax liability created by the amended tax returns” and her “[spending] a considerable amount of time dealing with the IRS and still litigating with [Widdison].” These damages, however, were proximately caused by Kirkham’s conduct, not HRB’s. To be sure, the trial court, on remand from the modification appeal, found that due to Kirkham’s refusal to sign and file the Amended Returns, Widdison “had to file his amended tax returns on his own . . . in the absence of [Kirkham’s] amended return being filed. This led to [Kirkham’s] tax [refund] for 2012 being seized.” But the court found that “this is due to [Kirkham’s] own lack of cooperation.” If Kirkham would have filed the Amended Returns, notified Widdison of the new amount that she owed, and allowed Widdison to pay that amount to the IRS—as she was ordered to do—her 2012 tax refund would not have been seized. But due to Kirkham’s contemptuous behavior, this did not happen. In other words, Kirkham was not entitled to disregard the modification order or claim damages arising from doing so. Therefore, this claim was properly dismissed.

III. Motion for Summary Judgment

¶38 Next, Kirkham contends that the trial court erred by dismissing Claim 2—for civil conspiracy—against the Widdisons. Although Kirkham argues on appeal that this claim was dismissed pursuant to rule 12(c), we note that the trial court converted the motion to one for summary judgment, “giving [Kirkham] the opportunity to support her claims with deposition testimony, affidavits or other evidence.” Thus, we will “affirm [the trial court’s] grant of summary judgment [if] the record shows that there is no genuine issue as to any material fact and that [the Widdisons are] entitled to a judgment as a matter of law.” See Menzies v. State, 2014 UT 40, ¶ 30, 344 P.3d 581 (cleaned up).

¶39 As an initial matter, Kirkham does not argue on appeal that a genuine issue as to a material fact exists or that she is entitled to judgment as a matter of law—rather, she argues that we must take her allegations as true under rule 12(c). We reject this argument because it ignores the conversion of the rule 12(c) motion to one for summary judgment, where a party cannot merely rest on its pleadings. Orvis v. Johnson, 2008 UT 2, ¶ 18, 177 P.3d 600 (“[O]n summary judgment . . . , the nonmoving party . . . may not rest upon the mere allegations or denials of the pleadings.” (cleaned up)).

¶40 On summary judgment, Kirkham did produce a three-page declaration. However, as the trial court noted, that declaration “is merely a restatement of the allegations in the Complaint, and is not supported by personal knowledge on [Kirkham’s] part”; “there is no evidence that [Alpine or the Widdisons] or any other defendant ever filed a tax return on behalf of [Kirkham] or conspired with others to do so”; and “there is no evidence that a tax return was ever filed on behalf of [Kirkham] by anyone other than [Kirkham].” Accordingly, because no genuine issue of material fact was created below, and because Kirkham has failed to argue that summary judgment was otherwise erroneously granted, we affirm the trial court on this issue.[16]

  1. Motion to Disqualify

¶41 The trial court granted HRB’s motion to disqualify Kirkham’s attorney on the grounds of an appearance of impropriety. In State v. Johnson, 823 P.2d 484 (Utah Ct. App. 1991), this court “articulated a two-pronged test for determining on appeal whether an attorney should have been disqualified from a case because of an appearance of impropriety.” Id. at 490. “First, the court must find that there is at least a reasonable possibility that some specifically identifiable impropriety occurred because of the representation.” Id. (cleaned up). “Second, the court must balance the likelihood of public suspicion or obloquy against the social interest in allowing the defendant to continue being represented by the lawyer of his or her choice.” Id. (cleaned up).

¶42      Kirkham now argues that “[HRB] is not telling the truth.

[And] [a]t the very least [she] should have been afforded an evidentiary hearing before her attorney was disqualified.” As an initial matter, these arguments do not address whether the trial court abused its discretion in its application of the facts of this case to the two-prong test set forth in Johnson. Further, we note that Kirkham has not cited any legal authority—nor do we believe that one exists—that entitles her to an evidentiary hearing before her attorney can be disqualified. Finally, even if we were to reach the conclusion that error was committed, Kirkham has not argued that she suffered any prejudice as a result. See Utah R. Civ. P. 61 (“The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”); Covey v. Covey, 2003 UT App 380, ¶ 21, 80 P.3d 553. In any event, we determine that the record supports the trial court’s conclusion that Kirkham’s attorney was properly disqualified under Johnson.

¶43 The record here demonstrates “a reasonable possibility” that Kirkham’s attorney committed “some specifically identifiable impropriety.” Johnson, 823 P.2d at 490 (cleaned up). Kirkham does not dispute that her attorney gained employment with HRB without disclosing that he simultaneously represented Kirkham, who intended to bring this suit. Nor does Kirkham dispute that her attorney obtained documents during his employment at HRB that he intended to use in the current litigation.[17] This conduct potentially violates at least three rules of professional conduct—all of which could be grounds for disqualification. See Utah R. Prof’l Conduct 4.4(a) (“In representing a client, a lawyer shall not use . . . methods of obtaining evidence that violate the legal rights of [third parties].”); see also id. R. 8.4(c)–(d) (“It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation [or to] engage in conduct that is prejudicial to the administration of justice.”). Further, in light of the fact that Kirkham does not dispute that this conduct occurred, we are hard-pressed to see how there is not at least a reasonable possibility of impropriety. Thus, we conclude that the trial court did not abuse its discretion in finding that Kirkham’s attorney’s conduct satisfied the first prong of Johnson.

¶44      The record also demonstrates that the trial court properly analyzed the second prong of Johnson—whether “the likelihood of public suspicion or obloquy” outweighed “the social interest in allowing the defendant to continue being represented by the lawyer of his or her choice.” 823 P.2d at 490 (cleaned up). After considering the parties’ submissions, the trial court concluded that the “likelihood of public suspicion or obloquy outweighs the social interest in allowing [Kirkham’s attorney] to continue to represent [her].” And because Kirkham “has filed this action as a Tier 3 action and seeks extensive punitive damages,” “it is likely that [she] will be able to obtain substitute counsel.” Therefore, “the ongoing harm to public confidence and to [HRB] in allowing [Kirkham’s attorney] to continue to represent [Kirkham] outweighs the minimal harm to [Kirkham] in having to obtain substitute counsel.”

¶45 Kirkham makes no attempt to show that these findings are clearly erroneous. Counsel’s obtaining employment at a target defendant’s business would generally be perceived as underhanded by the public. Moreover, Kirkham does not even claim that she unsuccessfully tried to retain alternative counsel. Accordingly, the trial court’s analysis was sound, and it was not an abuse of discretion to disqualify Kirkham’s attorney.

  1. Protective Order

¶46 Kirkham next argues that the trial court erroneously granted a protective order governing discovery. Generally, a “trial court has numerous tools it must employ to prevent unwarranted disclosure of the confidential information, including the use of sealing and protective orders.” Spratley v. State Farm Mutual Auto. Ins. Co., 2003 UT 39, ¶ 22, 78 P.3d 603 (cleaned up). “The liberal use of these tools, and others inherent in a trial court’s authority to govern the conduct of proceedings, is a prudent and sufficient safeguard against overbroad disclosure.” Id.

¶47 Here, HRB moved the trial court to enter a protective order governing discovery. Kirkham objected, but rather than offering any alternative language to the proposed protective order, she requested that the court not enter the order at all. The trial court rejected Kirkham’s objection, finding that “the order has procedure in it for designating documents as well as objecting to designations.” The court confirmed the existence of these provisions on the record by asking HRB whether the “order [had a] procedure in it for designating documents as well as objecting to designations.” HRB replied, “Yes.”

¶48 Kirkham now contends that the trial court erred because the protective order precluded her from obtaining discovery. She fails, however, to provide a single citation to the record that would support her argument. Indeed, her arguments on appeal show only that HRB objected to some of Kirkham’s requests for production on the grounds of relevance and privilege. For example, she argues that “requests [that] HRB produce from its records the tax returns and amended tax returns of [the Widdisons]” was objected to on the grounds of relevancy and privilege. Whether this objection was well-taken has nothing to do with whether a protective order should have been entered. Kirkham does not explain how the protective order impeded her ability to conduct discovery. Nor has Kirkham provided any meaningful argument that the trial court abused its discretion by entering what we view as a standard, garden-variety protective order. We conclude that the trial court acted well within its discretion. Moreover, Kirkham does not identify any prejudice associated with the entry of the protective order. Accordingly, Kirkham has provided no basis for reversal.

  1. Attorney Fees

¶49 Finally, Kirkham contends that the trial court erred in granting HRB’s motion for attorney fees under Utah’s bad faith attorney fees statute, which provides that “[i]n civil actions, the court shall award reasonable attorney fees to a prevailing party if the court determines that the action or defense to the action was without merit and not brought or asserted in good faith.” Utah Code Ann. § 78B-5-825 (LexisNexis 2018).[18] “To award fees pursuant to this section, a trial court must determine both that the losing party’s action or defense was without merit and that it was brought or asserted in bad faith.” Fadel v. Deseret First Credit Union, 2017 UT App 165, ¶ 30, 405 P.3d 807 (cleaned up).

  1. Without Merit

¶50 Kirkham argues that the trial court erred in concluding that her claims against HRB were without merit. “To determine whether a claim is without merit, we look to whether it was frivolous or of little weight or importance having no basis in law or fact.” Id. ¶ 32 (cleaned up). In other words, “the bare existence of a basis in law for a potential claim is not sufficient to make a claim meritorious. Rather, there must also be a factual basis for a party’s claims apart from a . . . theoretical basis in law.” Id. (cleaned up).

¶51 Kirkham has not shown that the trial court erred in concluding that her claims were without merit. Kirkham’s only meaningful allegation against HRB was that “[t]he amended tax returns for the years 2009, 2010 and 2011 in [Kirkham’s] name were filed by . . . HRB.” This allegation, if true, certainly could have given rise to a meritorious claim. Kirkham, however, conceded that “[HRB] didn’t file the amended returns,” and she instead argued that “Widdison did.” This concession is telling. If Kirkham knew that HRB had not filed her Amended Returns, we are left with only the allegation that HRB prepared Pro Forma Returns to assist in the underlying modification proceeding—an act that does not rise to the level of tortious or criminal conduct. Further, even after Kirkham conceded this point, she refused to drop her remaining claims against HRB. Thus, we conclude that there was no factual basis for Kirkham’s claims against HRB and therefore, those claims were frivolous as a matter of law.

  1. Bad Faith

¶52      Kirkham contends that the trial court erred in finding that she did not bring her claims in good faith. She argues that “there was no evidentiary hearing and indeed no discovery” and “[t]he amounts of fees and costs awarded clearly indicate the court has not proceeded judiciously and has sought to limit [Kirkham’s] access to the courts.” This assertion does not address the findings that were the legal basis of the trial court’s ruling.

¶53      To satisfy the bad faith element under the statute, a court “must find that the plaintiff (1) lacked an honest belief in the propriety of the activities in question; (2) intended to take unconscionable advantage of others; or (3) had intent to, or knowledge of the fact that the activities in question will hinder, delay or defraud others.” Fadel, 2017 UT App 165, ¶ 35 (cleaned up). “On appeal, a trial court’s finding of bad faith may be upheld despite a party’s claim that he or she held a subjectively reasonable or honest belief in the propriety of the claims . . . raised during the course of a case.” Id. (cleaned up). Thus, we will affirm a finding of bad faith “when there is sufficient evidence in the record to support a finding that at least one of the three factors applies.” Id. (cleaned up).

¶54      Here, we conclude that the trial court’s bad faith finding was not clearly erroneous for three reasons. First, as discussed above, Kirkham conceded that HRB did not file the Amended Returns. When Kirkham alleged that HRB did file the Amended returns, she clearly “lacked an honest belief in the propriety of the activities in question.” See id. (cleaned up). Second, Kirkham’s general allegation that she suffered damages as a result of the Amended Returns being filed is in direct contradiction to the ruling made in the modification proceeding ordering Kirkham to sign and file the Amended Returns. See Warner v. Warner, 2014 UT App 16, ¶¶ 35–37, 319 P.3d 711 (affirming a finding of bad faith when a party prepared an order that was “180 degrees different than what the court ruled” (cleaned up)). Third, Kirkham, on appeal, has declined to provide a single meaningful citation to the record[19] or otherwise provide analysis or legal authority in support of her position. Instead, Kirkham provides the conclusory statement that “[t]he amounts of fees and costs awarded clearly indicate the court has not proceeded judiciously and has sought to limit [her] access to the courts.” Again, this assertion does not directly confront the basis of the trial court’s ruling and fee award. Further, HRB supported their motion below with assertions of bad faith actions that Kirkham does not mention, let alone rebut. In failing to directly address the basis of the trial court’s ruling and additionally failing to confront the record evidence of bad faith, we conclude that Kirkham has not established a basis for overcoming the trial court’s bad faith finding—and therefore, she has failed to meet her burden of persuasion on appeal. See State v. Nielsen, 2014 UT 10, ¶ 41, 326 P.3d 645.

¶55 Next, we reject Kirkham’s argument that “[t]he amounts of fees and costs awarded clearly indicate the court has not proceeded judiciously and has sought to limit [Kirkham’s] access to the courts.” As we have discussed above, supra ¶¶ 50–54, the trial court’s award was justified under the bad faith attorney fee statute. Furthermore, this conclusory statement does not provide a basis for us to reverse by showing that the “amounts of fees and costs awarded” were unreasonable or excessive. Turtle Mgmt., Inc. v. Haggis Mgmt., Inc., 645 P.2d 667, 671 (Utah 1982) (“The amount to be awarded as attorney[] fees is generally within the sound discretion of the trial court” and will be “upheld . . . where the amount does not appear to be unreasonable.” (cleaned up)). Therefore, besides affirming the award in general, we decline to disturb the trial court’s finding of the amount of fees awarded below.

¶56 Finally, HRB seeks an award of attorney fees incurred on appeal. “Generally, when a party who received attorney fees below prevails on appeal, the party is also entitled to fees reasonably incurred on appeal.” Fadel, 2017 UT App 165, ¶ 38 (cleaned up). “This rule applies when the basis for attorney fees in the trial court is the bad faith statute.” Id. (cleaned up). HRB has successfully defended the trial court’s dismissal of Kirkham’s claims, and the trial court awarded attorney fees pursuant to Utah Code section 78B-5-825. Therefore, we grant HRB’s request for an award of attorney fees on appeal.

CONCLUSION

¶57 We conclude that all of Kirkham’s claims were properly dismissed, the trial court did not erroneously disqualify Kirkham’s attorney, the trial court properly entered a protective order, and HRB was properly awarded attorney fees. We further award HRB’s costs and attorney fees on appeal. We remand to the trial court only to determine HRB’s fees on appeal.

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

[1] See generally Widdison v. Kirkham, 2018 UT App 205, 437 P.3d 555 (appealing the remand trial regarding the 2012 modification order); Kirkham v. McConkie, 2018 UT App 100, 427 P.3d 444 (appealing the dismissal of her legal malpractice claim); Widdison v. Widdison, 2014 UT App 233, 336 P.3d 1106 (appealing the trial court’s 2012 modification order).

[2] Pro forma is defined as “made or carried out in a perfunctory manner or as a formality” or “based on financial assumptions or projections: such as . . . reflecting a transaction (such as a merger) or other development as if it had been or will be in effect for a past or future period.” Pro forma, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/pro%20forma [htt ps://perma.cc/68K9-FQ3U].

[3] Kirkham also brought numerous claims against the attorney who represented her from 2007 to 2012 for conduct related to the modification proceeding. See McConkie, 2018 UT App 100, ¶ 2. Kirkham’s claims were dismissed on summary judgment, and this court affirmed. Id. ¶ 1.

[4] The record does not indicate that Kirkham moved to stay the modification while the appeal was pending.

[5] The court clerk was authorized to sign IRS Form 8332 on behalf of Kirkham under rule 70 of the Utah Rules of Civil Procedure.

[6] Kirkham again appealed, and this court affirmed. See Widdison, 2018 UT App 205, ¶ 18 (affirming the trial court, but remanding to recalculate attorney fees owed by Kirkham for the prior appeal and remand trial proceedings).

[7] Kirkham’s attorney was her father, Larry A. Kirkham.

[8] Kirkham makes no mention of the trial court’s treatment of Claim 7—as against Widdison—in her opening brief, and therefore we decline to address whether it was properly dismissed. See Allen v. Friel, 2008 UT 56, ¶ 8, 194 P.3d 903 (“Issues . . . that were not presented in the opening brief are considered waived and will not be considered by the appellate court.” (cleaned up)).

[9] Kirkham makes no mention of the trial court’s treatment of Claims 4 and 5 in her opening brief, and therefore we decline to address whether they were properly dismissed. See id.

[10] 10. Because of Alpine’s insignificant role in this case—the Widdisons used Alpine’s fax machine to send copies of the Tax Returns to HRB—the trial court disposed of all claims against it pursuant to this rule 12(c) motion by simply stating that “all Causes of Action against the Defendant Alpine Gardens, Inc., are hereby dismissed with prejudice.” And while the trial court dedicated no analysis to the disposal of claims against Alpine, Kirkham has dedicated an equal paucity of analysis in her opening brief. Therefore, we limit our review to claims against HRB and the Widdisons as the appeal of the dismissal of claims against Alpine are inadequately briefed. See Angel Inv’rs, LLC v. Garrity, 2009 UT 40, ¶ 35, 216 P.3d 944 (“We have long held that we have discretion to not address an inadequately briefed argument.”).

[11] The court also noted, and we agree, that the precise issue is not whether the Pro Forma Returns were subject to conversion but whether the underlying information used in the returns was.

[12] Kirkham conceded below that this claim was rooted in misappropriation of name or likeness.

[13] The Widdisons’ only practical benefit arose from the signing and filing of IRS Form 8332, which transferred the child exemption to them from Kirkham. IRS Form 8332, however, was properly signed by the court clerk under rule 70 of the Utah Rules of Civil Procedure. Thus, Kirkham cannot—nor has she attempted to—demonstrate that filing the Amended Returns benefitted HRB or the Widdisons.

[14] As noted, Claims 4 and 5 were also dismissed on this motion, but Kirkham has failed to brief those claims, instead focusing only on Claim 2. See supra ¶ 12 n.9.

[15] We note, however, that in light of Kirkham’s concession that HRB did not actually file her Amended Returns, we agree with the trial court that no unlawful act was committed by HRB.

[16] Even if we were inclined to take Kirkham’s argument at face value—that we must take her allegations as true—this claim still fails for the reasons we articulate in section II.

[17] Kirkham instead argues that obtaining HRB’s internal documents was not prejudicial to HRB because that information was discoverable.

[18] Because the statutory provision in effect at the relevant time does not differ in any material way from the provision now in effect, we cite the current version of the Utah Code.

[19] Kirkham cites the record only to indicate that a full motion cycle and ruling on attorney fees was made below.

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Higley v. Buhler – 2019 UT App 96 – civil stalking injunction

Higley v. Buhler – 2019 UT App 96

THE UTAH COURT OF APPEALS

JEDEDIAH WELLS HIGLEY, Appellee,
v.
BRYAN DEAN BUHLER,Appellant.

Per Curiam Opinion No. 20180925-CA

Filed June 6, 2019
First District Court, Logan Department
The Honorable Brian G. Cannell
No. 180100393

Glen R. Thomas, Attorney for Appellant Jedediah Wells Higley, Appellee Pro Se
Before JUDGES GREGORY K. ORME, KATE APPLEBY, and DIANA HAGEN.

PER CURIAM:

¶1        Bryan Dean Buhler appeals a permanent civil stalking injunction entered against him in favor of Jedediah Wells Higley. We affirm.

¶2        “On appeal, when a trial court has made findings of fact to support a civil stalking injunction, we will recite the facts in a light most favorable to the trial court’s findings.” Carson v. Barnes, 2016 UT App 214, ¶ 2 n.1, 385 P.3d 744 (quotation simplified).

¶3        On September 28, 2018, Higley requested an ex parte civil stalking injunction against Buhler. Higley listed three stalking events in which Buhler allegedly drove by Higley’s house a number of times on August 16, 2018, September 6, 2018, and September 22, 2018. The request contained allegations regarding Buhler’s earlier alleged assault of Higley, listing a pending assault case involving Higley and Buhler with a court case number. Higley also attached two police reports. One described a call to police about alleged harassment on August 16, 2018. The other police report described the investigation of the alleged assault and demonstrated that the investigation culminated in Buhler’s arrest for assaulting Higley.

¶4        Buhler requested a hearing after the entry of the temporary civil stalking injunction. See Utah Code Ann. § 77-3a­-101(6) (LexisNexis 2017). At the hearing, Buhler conceded that there was a fight on July 7, 2018, between Higley and Buhler and that Higley’s injuries required medical attention. But Buhler challenged the credibility of Higley’s account of the events that led to the fight. Buhler also did not directly dispute that he drove by Higley’s residence on one or more of the dates alleged in the request for a civil stalking injunction and flipped him off.

¶5        Higley testified and also presented the testimony of his mother, who lived next door to him and had seen Buhler drive by her as she was walking and flip her off. Higley’s adult sister testified that she also encountered Buhler, that she heard him refer to her as a “bitch,” and that he flipped her off as he drove away. Higley stated that his family felt threatened, unsafe, and uneasy. They were concerned that they did not know what Buhler was “capable of anymore.”

¶6        Buhler argued that his conduct could not meet the definition of stalking, claiming that flipping someone off is “protected speech” that cannot constitute an act of stalking unless it is accompanied “with fighting words or some sort of threat.” The court inquired about considering the gesture in the context of the fight between the two men. Buhler argued that the events were “so remote in time and place . . . and not even related to the same people. The flipping off would have to put them under some sort of emotional distress, which they didn’t offer any testimony to that effect.”[1] Buhler also argued that there was no proof of significant mental or psychological suffering and that there were credibility issues with Higley’s account.

¶7 The court refocused the parties on the statutory requirements for a civil stalking injunction. In response to the court, Buhler conceded that the fight occurred, that Higley was harmed, and that he had to go to the hospital for treatment. The court then asked Higley about the allegations in the request for a civil stalking injunction “that there were multiple events in which Mr. Buhler drove by your place of residence. . . . How many times did he go by your place where you see him going by and he gave you the finger?” Higley responded that he saw Buhler do this “three or four times” after the July 7 fight, “like a day or two after he got out of jail from being released from the initial arrest for this, . . . a day or two after that.” These three or four additional events after the fight caused him to be in fear of harm. The court inquired whether Buhler wished to reexamine Higley, and his counsel declined.

¶8        The district court found that there was a fight between Higley and Buhler that resulted in some level of harm to Higley. The court found that there was an additional witness—Mr. Higley’s mother—who testified that she witnessed “an event of her own being flipped off.” The district court found that Buhler had options other than driving past Higley’s residence to reach the landfill when he needed to go there for purposes of his work. Buhler also could have driven past the Higley residence without taking the additional action of flipping off Higley (or his mother). The district court found that, regardless of any claim of “free speech,” when considered in the context of the July 7, 2018, fight—“where there apparently was significant harm”—the court was required under the stalking statute to address the later instances as acts “where . . . the respondent directly observed or communicated to this petitioner,” and determine whether those actions “would cause a reasonable person to suffer emotional distress or be afraid for that person’s own safety.” The court considered the ensuring actions in “the context of the fight and the resulting harm to Mr. Higley.” Accordingly, the district court concluded that it was “required . . . at this point to confirm the status associated with that civil stalking injunction and have it remain in place.”

¶9        After the court ruled, Buhler’s counsel inquired about potential issues regarding the school where both men had children attending. The court directed the parties to stay away from each other if they were both at the school. Buhler did not object at that time to the inclusion of other family members in the injunction’s coverage.

¶10 Buhler argues that the district court erred in its interpretation and application of the statutory requirements for a civil stalking injunction. We review the “interpretation and application of a statute” for correctness, “affording no deference to the district court’s legal conclusion.” Baird v. Baird, 2014 UT 08, ¶ 16, 322 P.3d 728 (quotation simplified).

¶11 To obtain a civil stalking injunction, a petitioner must establish the elements necessary to meet the definition of stalking in the criminal code. See Utah Code Ann. § 77-3a-101(1).

(2) A person is guilty of stalking who intentionally or knowingly engages in a course of conduct directed at a specific person and knows or should know that the course of conduct would cause a reasonable person:

(a) to fear for the person’s own safety or the safety of a third person; or

(b) to suffer other emotional distress.

Utah Code Ann. § 76-5-106.5(2) (LexisNexis Supp. 2018). A “reasonable person” is defined as “a reasonable person in the victim’s circumstances.” Id. § 76-5-106.5(1)(e). A course of conduct requires “two or more acts directed toward a specific person, including:”

(i) acts in which the actor follows, monitors, observes, photographs, surveils, threatens, or communicates to or about a person, or interferes with a person’s property:

(A) directly, indirectly, or through any third party; and

(B) by any action, method, device, or means.

Id. § 76-5-106.5(1)(b)(i).

¶12 The inclusion of the phrase “in the victim’s circumstances” in the statutory definition of “reasonable person,” “provides for an individualized objective standard.” Baird, 2014 UT 08, ¶ 26 (quotation simplified). “Under this standard, a court must consider the entire context surrounding [respondent’s] conduct.” Id. Thus, a court may consider whether a respondent “had knowledge of a particular vulnerability of the victim and then acted with full knowledge of the victim’s vulnerability.” Id. ¶ 27 (quotation simplified). “Thus even actions that, viewed in isolation, might be insufficient to cause a reasonable person in the same position to fear for his safety can, taken together, cause fear.” Carson v. Barnes, 2016 UT App 214, ¶ 20, 385 P.3d 744 (quotation simplified); see also Meyer v. Aposhian, 2016 UT App 47, ¶ 13, 369 P.3d 1284 (stating a court does not view the incidents in isolation when determining whether a reasonable person in the petitioner’s position would fear for his safety).

¶13 Buhler claims that the evidence was insufficient to establish a course of conduct that constituted stalking. He first claims that flipping someone off is constitutionally protected speech. This specific argument was not presented to the district court for a ruling. In order to preserve an issue for appeal, it “must be specifically raised in a timely manner and must be supported by evidence and relevant legal authority.” See Meyer, 2016 UT App 47, ¶ 26 (quotation simplified). While Buhler argued in the district court that flipping a person off was protected speech unless combined with other “fighting words,” the specific constitutional argument contained in his appellate brief was not presented to the district court and is not preserved for appeal. We do not consider it further.

¶14 Buhler also argues that the court improperly considered irrelevant evidence and that the evidence was otherwise insufficient to establish a course of conduct under the civil stalking injunction statute. In this case, the district court was required to consider the individual circumstances of the petitioner—Higley—and determined that Buhler’s actions constituted a course of conduct. See Utah Code Ann. § 76-5­-106.5(1)(e) (defining a “reasonable person” as “a reasonable person in the victim’s circumstances”). As such, the court properly considered whether repeatedly driving past Higley’s residence within days of Buhler’s release from jail after his arrest for allegedly assaulting Higley would place a reasonable person in Higley’s circumstances in fear for his and his family’s safety. See Carson, 2016 UT App 214, ¶ 21 (stating that the district court did not err in determining that a threshold incident involving a threat with a gun “impacted all future actions” taken by the respondent directed toward the petitioner (quotation simplified)). In addition, the court properly considered the acts directed toward Higley’s mother as corroborating evidence of the course of conduct, as well as Buhler’s contacts with other members of Higley’s family.

¶15 The district court did not err in determining that Higley demonstrated by a preponderance of the evidence that the civil stalking injunction should remain in place. Considered in context, Buhler’s “pattern of behavior ha[d] a cumulative effect that would cause a reasonable person in [the petitioner’s] position to fear for his safety or the safety of his family.” Id. ¶ 25 (quotation simplified). Buhler’s conduct—flipping off Higley and his family members—was conduct that “communicates to or about a person,” see Utah Code Ann. § 76-5-106.5(1)(b)(i), and it was properly considered by the district court in the context of the earlier fight between the two men and other evidence presented to the district court. The court did not err in concluding that the evidence taken as a whole supported continuation of the civil stalking injunction.

¶16      Accordingly, we affirm the decision to enter a permanent civil stalking injunction.

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

[1] This argument is only pertinent if counsel was referring to the actions of flipping off Higley’s mother and sister.

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New laws from 2019 Utah Legislative Session – Section 30-3-34 – step parents and others

Welcome back to our feature on new laws from the 2019 Utah Legislative Session.

In 2019 the legislature amended section 30-3-34 rather extensively. We discussed some of those changes in previous blog posts. Another change is the addition of new criteria the court can consider when making a child custody and parent time award. One of those new criteria is “the child’s interaction and relationship with stepparents and extended family members of other individuals who may significantly affect the child’s best interest.” Here’s the link to Section 30-3-34.

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

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