Tag: 2022

Oldroyd v. Oldroyd – 2022 UT App 145 – Premarital Property

2022 UT App 145







No. 20210073-CA

Filed December 22, 2022

Second District Court, Morgan Department

The Honorable Noel S. Hyde No. 134500028

Brent D. Wride, Attorney for Appellant

Brian E. Arnold and Lauren Schultz, Attorneys for Appellee



¶1 Prior to their marriage, Robben Ann Oldroyd (Ann) and Farrell Lynn Oldroyd (Farrell) built a home on property owned by Ann. Ann paid for the materials and contractors used in the construction of the home, and Farrell contributed his skills and labor to build the specialty log home. When the parties divorced many years later, a dispute arose regarding their relative interests in the home. This is the third time questions relating to their dispute have come before this court. In the current appeal, we are asked to consider whether the district court erred in awarding Farrell a share of Ann’s premarital equity in the home based on its application of the contribution and extraordinary situation exceptions to the separate-property presumption. We conclude that the contribution exception does not apply to premarital contributions and that the extraordinary situation exception does not apply because Farrell had other means of protecting his alleged interest in the home. Accordingly, we reverse the district court’s ruling and remand with instructions for the court to award the disputed equity to Ann.


¶2      This is the third time this matter has come before this court. See Oldroyd v. Oldroyd (Oldroyd I), 2017 UT App 45, 397 P.3d 645; Oldroyd v. Oldroyd (Oldroyd II), 2019 UT App 155, 474 P.3d 467. Each appeal has concerned the parties’ home. Ann purchased the land on which the home was built before the parties were married. Oldroyd I, 2017 UT App 45, ¶ 2. While Ann and Farrell were dating, Ann arranged to have the home built. Id. Ann paid for the costs of materials and construction, but Farrell contributed “supervision, labor, work, expertise, and conceptual direction” for the construction. Id. ¶¶ 2, 4 (quotation simplified). Subsequently, the parties married and lived together in the home, but the land and home remained in Ann’s name alone. Id. ¶ 2.

¶3 While both parties agree that Ann should receive a credit for what she spent on the land on which the home was built, the parties disagree about how the remaining equity in the home should be distributed. Farrell argues that all remaining equity should be shared equally between the parties. Ann, on the other hand, maintains that she should receive a credit for both the amount she spent on the land and the amount she spent on construction costs before the parties divide the remaining equity.[1]

¶4 In its original findings of fact and conclusions of law in the parties’ divorce, the district court found that Farrell’s nonmonetary contributions were “roughly equal” to Ann’s financial contributions and that he had therefore acquired “a separate premarital interest in the improvements on the property.” Id. ¶ 4

(quotation simplified). However, we overturned that determination on appeal because the court “did not explain what legal theory gave rise to that equitable interest.” Id. ¶ 8.

¶5 On remand, the district court again determined that Farrell had a premarital interest in the home but this time premised its ruling on a theory of unjust enrichment. Oldroyd II, 2019 UT App 155, ¶ 4. However, we once again reversed the court’s ruling, this time on the basis that Farrell had never asserted an unjust enrichment claim. Id. ¶¶ 7–9.

¶6 In Oldroyd II, we further explained that Farrell’s pleadings did not raise a claim that he had acquired a premarital interest in the home. Rather, Farrell asserted that because he had “exerted hours and money into the home, including trade work,” he “should be awarded a sum certain from [Ann’s] equity in the home for all the work he has completed on the home, and for value of his trade work that he has performed for investment on the marital home.” Id. ¶ 7 (quotation simplified). In other words, Farrell raised not an equitable claim “for a premarital interest in property,” but “a claim for an equitable award of a portion of [Ann’s] premarital asset.” Id. However, because the district court had not considered equitable bases on which Farrell might be entitled to a share of Ann’s premarital interest, we left open the possibility that the court might determine that such an award was appropriate. Id. ¶ 11 & n.3.

¶7 On remand, the district court, for the third time, awarded Farrell a share of equity in the home. This time, the court recognized that the property was Ann’s premarital asset but concluded that Farrell was entitled to a portion of Ann’s premarital equity based on the contribution exception and the extraordinary situation exception. Ann again appeals.


¶8 Ann asserts that the district court erred in awarding Farrell a share of her equity in the home because Farrell’s contributions occurred prior to the marriage and the extraordinary situation exception is not applicable. “We generally defer to a trial court’s categorization and equitable distribution of separate property,” Lindsey v. Lindsey, 2017 UT App 38, ¶ 26, 392 P.3d 968 (quotation simplified), so long as the court’s judgment “fall[s] within the spectrum of appropriate resolutions,” id. ¶ 29.


¶9 Historically, we have recognized three equitable exceptions that may justify an award of one spouse’s premarital property to the other spouse: (1) the commingling exception, (2) the contribution exception, and (3) the extraordinary situation exception. See Lindsey v. Lindsey, 2017 UT App 38, ¶ 33, 392 P.3d 968. Only the contribution exception and the extraordinary situation exception are at issue in this case.

¶10 As a threshold matter, we note that it is somewhat unclear from the district court’s discussion whether it was relying on the contribution exception, the extraordinary situation exception, or both exceptions in awarding the disputed funds. The parties’ arguments on appeal primarily concern the applicability of the extraordinary situation exception, and they appear to be operating under the assumption that the court’s decision rested on that exception. However, given that the court’s application of the extraordinary situation exception was based on its determination that Farrell’s premarital contributions made it equitable to award him a share of Ann’s premarital property, we think it appropriate to address both exceptions in our analysis.

I. Contribution Exception

¶11 “Under the contribution exception, a spouse’s separate property may be subject to equitable distribution [upon divorce] when the other spouse has by his or her efforts or expense contributed to the enhancement, maintenance, or protection of that property, thereby acquiring an equitable interest in it.” Lindsey v. Lindsey, 2017 UT App 38, ¶ 35, 392 P.3d 968 (quotation simplified). Common examples include a spouse working for the other spouse’s premarital business without taking a salary, see, e.g., Rappleye v. Rappleye, 855 P.2d 260, 263 (Utah Ct. App. 1993), or a couple using marital funds to make improvements to or pay a mortgage on a premarital property, see, e.g.Schaumberg v. Schaumberg, 875 P.2d 598, 601 (Utah Ct. App. 1994). However, as we noted in Oldroyd II, “[p]revious cases addressing equitable division of premarital assets have involved contributions made to those assets during the course of the marriage,” and “Utah courts have not had the opportunity to assess the extent to which one spouse’s premarital contributions to another spouse’s premarital assets may be considered in the context of a divorce court’s equitable division of property.”[2] 2019 UT App 155, ¶ 11 n.3, 474 P.3d 467.

¶12 Having now been presented with the opportunity to consider the applicability of the contribution exception to premarital contributions, we are convinced that it does not apply in this context. Unlike a married person, an unmarried person has no reasonable expectation of any benefit from or entitlement to separate property owned or acquired by their significant other. Here, Farrell chose to assist Ann in building her home without seeking compensation.[3] At that time, even though he may have expected to eventually marry Ann and live in the home with her, he had no guarantee that would happen. “As a general rule, . . . premarital property is viewed as separate property, and equity usually requires that each party retain the separate property he or she brought into the marriage.” Walters v. Walters, 812 P.2d 64, 67 (Utah Ct. App. 1991) (quotation simplified), superseded by statute on other grounds as stated in Whyte v. Blair, 885 P.2d 791 (Utah 1994). Only “where unique circumstances exist” may a trial court “reallocate premarital property as part of a property division incident to divorce.” Id. “Generally, trial courts are . . . required to award premarital property, and appreciation on that property, to the spouse who brought the property into the marriage.” Elman v. Elman, 2002 UT App 83, ¶ 18, 45 P.3d 176.

¶13 Farrell had several options for protecting his interests, which he chose not to take advantage of. First, he could have entered into a contract with Ann requiring her to pay him for his services. Second, he could have negotiated a prenuptial agreement acknowledging his premarital contributions and granting him an interest in the home in case of divorce. Third— though likely an undesirable option given his relationship to Ann—Farrell could have filed a lawsuit bringing a quasi-contract claim, such as unjust enrichment, to obtain compensation for his services. However, the contribution exception is simply not one of the options available where the contributions occurred prior to the parties’ marriage.

II. Extraordinary Situation Exception

¶14 Just as Farrell’s premarital contributions to Ann’s premarital asset cannot support an award to him of Ann’s separate property under the contribution exception, they also cannot support an award under the extraordinary situation exception.

¶15 “The bar for establishing an extraordinary situation is high, traditionally requiring that invasion of a spouse’s separate property is the only way to achieve equity.” Lindsey v. Lindsey, 2017 UT App 38, ¶ 46, 392 P.3d 968 (quotation simplified). “A quintessential extraordinary situation arises when a spouse owns separate property but lacks income to provide alimony.” Id. In that circumstance, “an equitable distribution of the [separate property] would be well within the trial court’s discretion.” Kunzler v. Kunzler, 2008 UT App 263, ¶ 37, 190 P.3d 497 (Billings, J., concurring in part and dissenting in part); see also Burt v. Burt, 799 P.2d 1166, 1169 (Utah Ct. App. 1990) (“The court may award an interest in the inherited property to the non-heir spouse in lieu of alimony.”). The doctrine has also been applied in situations where a person did not contribute directly to their spouse’s premarital asset but their contributions to the marital estate allowed their spouse to enhance their own separate assets rather than the marital estate. See Henshaw v. Henshaw, 2012 UT App 56, ¶ 20 & n.7, 271 P.3d 837 (affirming an award of premarital ranch property to a wife, despite the fact that the value of the ranch had depreciated during the marriage, because the wife had borne “the financial burdens of the family in order to allow [the husband] to work almost exclusively on the ranch”); Elman v. Elman, 2002 UT App 83, ¶ 24, 45 P.3d 176 (affirming an award of stock in a premarital business to a wife whose income-earning activities allowed her husband to quit his job and devote time to managing and growing his premarital assets rather than contributing to marital assets). Taking on “domestic burdens” to make possible a spouse’s full-time participation in a premarital business may also be an extraordinary situation where the bulk of the business’s value is developed during the marriage. Savage v. Savage, 658 P.2d 1201, 1204 (Utah 1983).

¶16 But none of those examples reflect the situation we have here. Farrell seeks a portion of Ann’s premarital asset as payment for the work he did on the home prior to the couple’s marriage, not because Ann lacks the resources to pay alimony or enhanced her own separate asset during the marriage in lieu of contributing to the marital estate. And as we discussed above, Farrell had several options to protect his financial interests and to be compensated for his contributions to the home before marrying Ann. The fact that he chose not to employ any of these options does not give rise to the type of inequity that can be addressed only through the extraordinary situation exception. As a general matter, “equitable relief should not be used to assist one in extricating himself from circumstances which he has created.” Utah Coal & Lumber Rest., Inc. v. Outdoor Endeavors Unlimited, 2001 UT 100, ¶ 12, 40 P.3d 581 (quotation simplified). Thus, the district court exceeded its discretion in awarding Farrell a portion of Ann’s premarital asset based on the extraordinary situation exception.


¶17 Because we conclude that the contribution exception does not apply to premarital contributions to premarital property, that exception cannot be used to award Farrell a portion of Ann’s premarital interest in the home. Moreover, because Farrell had several options for seeking reimbursement for his premarital efforts, which he declined to exercise, awarding him an interest in the home at this stage of the proceedings is not justified under the extraordinary situation exception. Accordingly, we reverse the court’s award of the disputed portion of the home’s equity and remand with instructions to award the disputed equity to Ann.

Utah Family Law, LC | | 801-466-9277

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Abortion banned (except in certain circumstances) in Utah, effective June 24, 2022

Today, June 24, 2022, the U.S. Supreme Court overturned the decision from the 1973 case of overruled Roe v. Wade which had (until today’s decision of the Supreme Court) ruled that abortion was a constitutional right.

What does this mean for the law regarding abortion in Utah? The Salt Lake Tribune summed it up well:

“The U.S. Supreme Court on Friday, sending the power to regulate abortions back to the states and clearing the way for Utah’s trigger law[1] to go into effect.

“The trigger law – passed by the Utah Legislature in 2020 as SB174[2] – bans abortions in the Beehive State, except in these limited circumstances:

“• If it ‘is necessary to avert the death’ or if there is ‘a serious risk of substantial and irreversible impairment of a major bodily function’ of the pregnant woman.

“• ‘Two physicians who practice maternal fetal medicine concur … that the fetus has a defect that is uniformly diagnosable and uniformly lethal,’ or ‘has a severe brain abnormality that is uniformly diagnosable.’ According to the law, this does not include Down syndrome, spina bifida, cerebral palsy or any condition ‘that does not cause an individual to live in a mentally vegetative state.’

“• The pregnancy was caused by a rape or incest. Before performing an abortion, the physician would have to verify the rape or incest has been reported to law enforcement or the proper authorities.”

(Salt Lake Tribune: Utah’s abortion trigger law is now in effect after Supreme Court overrules Roe v. Wade, last reviewed at 6:55 p.m. on June 24, 2022)

The Utah Attorney General’s Office issued statement on June 24, 2022 regarding Utah’s abortion ban law, which can be accessed here: Utah Attorney General’s Office Statement on Supreme Court Abortion Ruling


[1] Currently, thirteen states have such trigger laws, which were passed by their state legislatures to ban abortion in the event that the Roe v. Wade decision were overturned.

[2] The “trigger” section of the Utah Code is:

Section 4. Contingent effective date.

(1) As used in this section, “a court of binding authority” means:

(a) the United States Supreme Court; or

(b) after the right to appeal has been exhausted:

(i) the United States Court of Appeals for the Tenth Circuit;

(ii) the Utah Supreme Court; or

(iii) the Utah Court of Appeals.

(2) The provisions of this bill take effect on the date that the legislative general counsel certifies to the Legislative Management Committee that a court of binding authority has held that a state may prohibit the abortion of an unborn child at any time during the gestational period, subject to the exceptions enumerated in this bill.

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In re Adoption of E.M.F. – 2022 UT App 43 time in which to appeal

In re Adoption of E.M.F… – 2022 UT App 43





S.S. AND B.S.,






No. 20200490-CA

Filed March 31, 2022

Second District Court, Ogden Department

The Honorable Joseph M. Bean

No. 182900024

Jason B. Richards, Attorney for Appellants

Emily Adams and Sara Pfrommer, Attorneys

for Appellee



¶1        In this stepparent adoption case, B.S. (Mother) and S.S. (Stepfather) appeal the district court’s order denying their petition to terminate the parental rights of J.F. (Father), with whom Mother shares two children, E.M.F. and M.S.F. (collectively, the Children). We do not reach the merits of the case, however, because we dismiss this appeal for lack of jurisdiction. Although Mother and Stepfather contend that the court rule dictating this result is unconstitutional on its face and as applied, we conclude that Mother and Stepfather have not demonstrated that exceptional circumstances exist for us to consider their constitutional argument.


¶2        Mother and Father were involved in a relationship between 2009 and 2014, during which time the Children were born. Mother has always had full physical custody of the Children since her separation from Father. Later, Mother married Stepfather. Mother and Stepfather then petitioned for Stepfather to adopt the Children and to terminate Father’s parental rights.

¶3        The matter proceeded to a two-day bench trial in December 2018. After hearing the evidence, the district court concluded that Mother and Stepfather had “not met their burden by clear and convincing evidence of any of the statutory requirements for terminating [Father’s] rights,” and the court accordingly denied the petition for adoption. The court announced its findings of fact and conclusions of law in court, explaining, “That will be the order of the Court.” It further announced that it did not “inten[d] to do written findings of fact and conclusions of law” but that “[c]ertainly anybody who would like to can do it themselves and submit it to the Court for approval.”[1] Similarly, the court’s December 11, 2018 minute entry from trial states, “The court does not intend on issuing written findings of facts and conclusions of law, either party may submit their own consistent with the court’s ruling for approval if they wish.” That minute entry was signed electronically and designated as an order of the court on December 13, 2018.

¶4        Neither side chose to submit findings and conclusions consistent with the court’s decision,[2] and neither side submitted a proposed judgment pursuant to rule 58A(c)(1) of the Utah Rules of Civil Procedure. Aside from the court’s exhibit tracking record filed a few days after trial, nothing more was filed in the case until Father, acting pro se, moved to release the trial transcripts on March 11, 2019. In his motion, Father asserted that the “records and transcripts [were] required for [him] to prepare findings of fact and conclusions of law requested by [the district court judge].” One month later, the court entered a certificate of destruction, stating that the court clerk had destroyed the exhibits on April 4, 2019.

¶5        Nothing else was entered on the court’s docket until December 2019, when Mother and Stepfather’s attorneys withdrew, and then Mother and Stepfather, acting pro se, filed an objection to a proposed findings of fact, conclusions of law, and order prepared by Father.[3] Among other objections, Mother and Stepfather complained that Father “failed to properly provide a copy of the proposed order to [them] before filing the document with the Court.” The court held a telephone conference the next month during which it indicated that the proposed findings “will be held due to the pending objection.” At a later hearing, the court decided to “sustain[]” Mother and Stepfather’s objection and ordered Father to submit amended findings with two specific revisions.

¶6        As ordered, Father then filed a proposed amended findings of fact, conclusions of law, and order. Finally, on June 9, 2020, the district court signed the amended findings of fact, conclusions of law, and order. The court reiterated its conclusion—rendered 546 days earlier—that, as a matter of law, Mother and Stepfather had “not met their burden to show by clear and convincing evidence any of [the] statutorily required bases for terminating [Father’s] parental rights,” and the court thus denied the petition for adoption. On June 22, 2020, Mother and Stepfather filed a notice of appeal.


¶7        On appeal, Mother and Stepfather challenge the district court’s denial of their adoption petition. But Father contends that this court lacks jurisdiction to consider the merits of the appeal, arguing that Mother and Stepfather did not timely file a notice of appeal in light of rule 58A of the Utah Rules of Civil Procedure. In response, Mother and Stepfather insist that they timely appealed under their view of the relevant timeline and rule 58A. “Whether appellate jurisdiction exists is a question of law.” Greyhound Lines, Inc. v. Utah Transit Auth., 2020 UT App 144, ¶ 22, 477 P.3d 472 (cleaned up). Likewise, the interpretation of a rule of civil procedure is a question of law. See Ghidotti v. Waldron, 2019 UT App 67, ¶ 8, 442 P.3d 1237.

¶8        In the event that this court agrees with Father on the correct operation of rule 58A, Mother and Stepfather assert that the rule is unconstitutional on its face and as applied to the facts of this case. Constitutional challenges present “questions of law.” Menzies v. State, 2014 UT 40, ¶ 27, 344 P.3d 581, abrogated on other grounds by McCloud v. State, 2021 UT 51, 496 P.3d 179. But when, as here, an issue was not preserved in the district court, “the party must argue that an exception to preservation applies.” State v. Johnson, 2017 UT 76, ¶ 27, 416 P.3d 443.


¶9        We begin by addressing Father’s contention that this court lacks appellate jurisdiction over this matter. We then address Mother and Stepfather’s constitutional argument aimed at defeating Father’s jurisdictional contention.

I. Appellate Jurisdiction

¶10 Father contends that this court does not have appellate jurisdiction to consider this appeal. According to Father, because a separate judgment was not filed after the district court announced its findings and order from the bench on December 11, 2018, the decision was considered final and appealable 150 days after that date under rule 58A(e)(2)(B) of the Utah Rules of Civil Procedure and any notice of appeal should have been filed within thirty days of May 10, 2019. Father asserts that the court’s amended findings of fact, conclusions of law, and order—entered on June 9, 2020—could not “restart the period for filing a notice of appeal” and that Mother and Stepfather’s June 22, 2020 notice of appeal was therefore untimely. In contrast, Mother and Stepfather contend that the June 9, 2020 order constituted the required separate judgment and that they timely filed their notice of appeal from that order.[4] We agree with Father.

¶11      This case turns on the application of rule 58A of the Utah Rules of Civil Procedure to determine when the time to appeal began to run. Rule 58A(a) provides that “[e]very judgment and amended judgment must be set out in a separate document ordinarily titled ‘Judgment’—or, as appropriate, ‘Decree.’” Utah R. Civ. P. 58A(a). Of particular import here, rule 58A(e) states,

(e) Time of entry of judgment.

(e)(1) If a separate document is not required, a judgment is complete and is entered when it is signed by the judge and recorded in the docket.

(e)(2) If a separate document is required, a judgment is complete and is entered at the earlier of these events:

(e)(2)(A) the judgment is set out in a separate document signed by the judge and recorded in the docket; or

(e)(2)(B) 150 days have run from the clerk recording the decision, however designated, that provides the basis for the entry of judgment.

Id. R. 58A(e). This provision “makes explicit the time of entry of judgment” and resolves the problem of “endlessly hanging appeals.” Griffin v. Snow Christensen & Martineau, 2020 UT 33, ¶¶ 12, 14, 467 P.3d 833 (cleaned up).

¶12 The parties agree that “a separate document” was required in this case, so they therefore agree that rule 58A(e)(1) does not apply here. See Utah R. Civ. P. 58A(a); see also Griffin, 2020 UT 33, ¶ 17 (stating that a judgment “must be set out in a separate document that is prepared by the prevailing party and signed and docketed by the court”). Accordingly, this case falls under rule 58A(e)(2).

¶13      Rule 58A(e)(2) sets forth two events, the earlier of which will trigger the time when a judgment becomes complete and entered. The first occurs when “the judgment is set out in a separate document signed by the judge and recorded in the docket.” Utah R. Civ. P. 58A(e)(2)(A). In Griffin, the Utah Supreme Court explained that when rules 58A(a) and 58A(e)(2)(A) are “properly implemented, the separate judgment signals clearly that the case is over and the appeal and post-judgment motion clock has started to run.”[5] 2020 UT 33, ¶ 17.

¶14      Alternatively, “when the prevailing party fails to prepare a separate judgment, rule 58A(e)(2)(b) creates a backstop by establishing that the ‘entry of judgment’ occurs once ‘150 days have run from the clerk recording the decision, however designated, that provides the basis for the entry of judgment.’” Id. (quoting Utah R. Civ. P. 58A(e)(2)(B)); see also id. ¶ 25 n.5; Utah R. Civ. P. 58A advisory committee notes to 2015 amendments (“[I]f a separate document is required but is not prepared, judgment is deemed to have been entered 150 days from the date the decision—or the order confirming the decision—was entered on the docket.”). Indeed, the current version of rule 58A(e)(2) was adopted in response to the supreme court’s direction for the rule to “set a maximum time . . . for filing an appeal in cases where the district court’s judgment has not otherwise been finalized.” Central Utah Water Conservancy Dist. v. King, 2013 UT 13, ¶ 27, 297 P.3d 619; see also Utah R. Civ. P. 58A advisory committee notes to 2015 amendments (explaining that the current rule addressed “the ‘hanging appeals’ problem” that the supreme court identified in King); Griffin, 2020 UT 33, ¶¶ 9–11, 14.

¶15      Here, at the end of the bench trial, the district court ruled in favor of Father and announced its findings of fact and conclusions of law on the record on December 11, 2018. Neither side prepared a separate judgment, and thus rule 58A(e)(2)(A) did not apply. See Griffin, 2020 UT 33, ¶ 17. Nevertheless, the clerk “record[ed] the decision, however designated, that provides the basis for the entry of judgment” when the clerk recorded the court’s December 11, 2018 minute entry. See Utah R. Civ. P. 58A(e)(2)(B). The “backstop” of rule 58A(e)(2)(B) therefore kicked in to “establish[] that the ‘entry of judgment’ occur[red] once ‘150 days ha[d] run from the clerk recording the decision.’” See Griffin, 2020 UT 33, ¶ 17 (quoting Utah R. Civ. P. 58A(e)(2)(B)). We thus agree with Father that the court’s judgment was complete and entered in May 2019—after 150 days had transpired since the clerk recorded the court’s minute entry in December 2018. See Utah R. Civ. P. 58A(e)(2)(B).

¶16      Further, because a party’s notice of appeal “shall be filed . . . within 30 days after the date of entry of the judgment or order appealed from,” Utah R. App. P. 4(a), and because Mother and Stepfather’s June 22, 2020 notice of appeal was filed more than thirty days after May 2019, we conclude that their appeal was untimely,[6] see Serrato v. Utah Transit Auth., 2000 UT App 299,

¶ 11, 13 P.3d 616 (indicating that deadlines for notices of appeal “must be adhered to in order to prevent cases from continually lingering and to ensure finality in the system”). “Where an appeal is not properly taken, this court lacks jurisdiction and we must dismiss.” Bradbury v. Valencia, 2000 UT 50, ¶ 8, 5 P.3d 649. Accordingly, we have no choice but to dismiss Mother and Stepfather’s appeal without reaching its merits. See id.

II. The Constitutionality of Rule 58A

¶17 Notwithstanding, Mother and Stepfather contend that if rule 58A operates to deprive this court of jurisdiction over their appeal, rule 58A is unconstitutional on its face and as applied to the facts of this case because the rule “fails to provide notice to parties when an order is final for the purposes of appeal.” At the outset, Mother and Stepfather concede that they did not preserve this issue and that they are thus raising it for the first time on appeal. Given this lack of preservation, Mother and Stepfather further recognize that this court “generally will not consider an issue, even a constitutional one, which the appellant raises on appeal for the first time.” (Quoting State v. Webb, 790 P.2d 65, 77 (Utah Ct. App. 1990).) Yet they suggest this court should reach the constitutional issue under either the plain error or the exceptional circumstances exception to the preservation rule.

¶18 Mother and Stepfather “must establish the applicability” of an exception to the preservation rule to raise the issue on appeal. See State v. Johnson, 2017 UT 76, ¶ 19, 416 P.3d 443. But appellants will not carry their burden of persuasion on an unpreserved issue if they do not supply “a plain error or exceptional circumstances analysis because, in failing to do such an analysis, [they] will have necessarily failed to explain why we should reach the issue of which [they] complain[].” Baumann v. Kroger Co., 2017 UT 80, ¶ 25, 416 P.3d 512. We conclude that Mother and Stepfather have not established that either exception applies, and thus we decline to reach this constitutional issue on its merits.

¶19      Although Mother and Stepfather mention the plain error exception to the preservation rule, they have not applied the elements of plain error to this case. See Johnson, 2017 UT 76, ¶ 20 (“To demonstrate plain error, a defendant must establish that (i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful.” (cleaned up)). They thus have not engaged in a plain error analysis, much less shown that the district court plainly erred by not sua sponte declaring rule 58A unconstitutional. As a result, they have not carried their burden to establish the applicability of this exception. See Baumann, 2017 UT 80, ¶ 25; State v. Padilla, 2018 UT App 108, ¶ 19, 427 P.3d 542 (rejecting a plain error claim when the appellant “made no attempt to develop or establish” the claim).[7]

¶20 Mother and Stepfather alternatively suggest that the exceptional circumstances exception should apply, warranting our consideration of the constitutional issue for the first time on appeal. But they similarly offer little analysis on this score. They contend only that the constitutionality of rule 58A presents “a unique constitutional question, because it directly pertains to the time set to appeal” and “there is no method to preserve a constitutional challenge that only becomes an issue of controversy on appeal.” We are not persuaded.

¶21 Our supreme court has directed that the “exceptional circumstances doctrine is applied sparingly, reserving it for the most unusual circumstances where our failure to consider an issue that was not properly preserved for appeal would have resulted in manifest injustice.” Johnson, 2017 UT 76, ¶ 29 (cleaned up). Courts “apply this exception . . . where a rare procedural anomaly has either prevented an appellant from preserving an issue or excuses a failure to do so.” Id. (cleaned up). And once a party shows that a rare procedural anomaly exists, it “opens the door to a deeper inquiry” in which “additional factors must be considered to determine whether an appellate court should reach an unpreserved issue.” Id. Such factors include whether our failure to consider the issue “would result in manifest injustice,” whether “a significant constitutional right or liberty interest is at stake,” and judicial economy. Id. ¶ 37 (cleaned up). This exception thus requires a “case-by-case assessment.” Id. ¶ 38. But it cannot be used “as a free-floating justification for ignoring the legitimate concerns embodied in the preservation and waiver rules.” Id.

¶22 Mother and Stepfather have not met their burden of establishing that exceptional circumstances are present here. This is so because they have not analyzed whether they encountered a rare procedural anomaly and they have not engaged in any “deeper inquiry” of the additional factors relevant to this exception. See id. ¶ 29.

¶23      Without putting it in terms of a rare procedural anomaly, Mother and Stepfather suggest that the constitutional question regarding rule 58A became relevant only on appeal and that they were unable to complain to the district court about notice not being built into the rule. But rule 58A was in operation and became applicable once the district court announced its ruling in court on December 11, 2018.

¶24      Rule 58A(a) requires that “[e]very judgment . . . be set out in a separate document ordinarily titled ‘Judgment,’” and, as the prevailing party, Father should have, “within 14 days . . . after the court’s decision,” “prepare[d] and serve[d] on the other parties a proposed judgment for review and approval as to

form.” See Utah R. Civ. P. 58A(c)(1). But when Father did not timely serve a proposed judgment, rule 58A(c) gave Mother and Stepfather the option of preparing a proposed judgment themselves. See id. (“If the prevailing party or party directed by the court fails to timely serve a proposed judgment, any other party may prepare a proposed judgment and serve it on the other parties for review and approval as to form.”). They did not exercise that option.

¶25 Because the parties did not avail themselves of the opportunity to prepare a proposed judgment that would lead to the judgment being entered under rule 58A(e)(2)(A), the parties’ inaction meant that, by default, the backstop of rule 58A(e)(2)(B) applied, meaning that a judgment was entered once “150 days ha[d] run from the clerk recording the decision, however designated, that provides the basis for the entry of judgment.” See id. R. 58A(e)(2)(B). In other words, time was ticking toward the second event—entry of judgment under rule 58A(e)(2)(B). If Mother and Stepfather wished to appeal the district court’s decision and were concerned that they did not know when judgment would be entered (and thus when they could file a notice of appeal), they had reason to raise that concern with the district court. Parties “cannot sleep on [their] rights and just hope for a favorable outcome.” See Dahl v. Harrison, 2011 UT App 389, ¶ 28, 265 P.3d 139, abrogated on other grounds by R.O.A. Gen., Inc. v. Chung Ji Dai, 2014 UT App 124, 327 P.3d 1233.

¶26      And while it would have been unusual, it is not obvious to us that Mother and Stepfather could not have asked the district court for a declaration that rule 58A(e)(2) was unconstitutional on the ground that it did not provide for enough notice of the events relating to entry of judgment. See State v. Van Huizen, 2019 UT 01, ¶ 27, 435 P.3d 202 (stating that appellants “[have] the burden to show that [they were] unable to object . . . at the proper time”). Mother and Stepfather contend that their constitutional challenge only became “an issue of controversy on appeal.” But their complaint lies with an alleged uncertainty that materialized once the district court recorded its decision without entering a separate document to memorialize its finality, and that complaint materialized long before Mother and Stepfather filed their appeal. Under these circumstances, it is inadequate for them to simply assert that they were unable to preserve their constitutional claim. See In re X.C.H., 2017 UT App 106, ¶ 31, 400 P.3d 1154 (requiring parties invoking the exceptional circumstances exception to “demonstrate how the actual circumstances [they] encountered in the [district] court process prevented [them] from raising the [unpreserved] claim”); see also Kelly v. Timber Lakes Prop. Owners Ass’n, 2022 UT App 23, ¶ 21 n.3 (refusing to apply the exceptional circumstances exception when the appellant did “not discuss the threshold inquiry of the exceptional circumstances exception” and thus did not establish that a rare procedural anomaly existed).

¶27      Moreover, Mother and Stepfather have not engaged in the “deeper inquiry” this court must carry out to determine whether to reach an unpreserved issue under the exceptional circumstances exception. See Johnson, 2017 UT 76, ¶ 29. For example, they have not explained why our failure to consider the constitutional issue “would result in manifest injustice.” See id. ¶ 37 (cleaned up). And based on the record before us, it is far from apparent that it would be unjust for us not to consider Mother and Stepfather’s constitutional challenge to the application of rule 58A, for a couple of reasons.

¶28 First, Mother and Stepfather cannot demonstrate on this record that they did not receive notice of the entry of the district court’s decision. There is a signed minute entry in the court’s docket dated two days after the court announced its decision from the bench. Yet Mother and Stepfather make no mention of this order on appeal; instead, they focus on an unsigned minute entry and ask us to assume they did not receive notice of its entry because no certificate of service is attached. Because Mother and Stepfather do not account for the court’s signed minute entry, and because their argument depends on assumptions, the alleged injustice about which they complain is far from manifest.[8]

¶29 Additionally, even if we were to accept Mother and Stepfather’s invitation to assume they did not receive notice of the minute entry recording the district court’s decision, Mother and Stepfather (while still represented by counsel) had ways to easily resolve their claimed problem of lacking notice of when the clerk recorded the court’s decision. They were present when the court announced its decision from the bench and informed the parties that its pronouncement would stand as the order of the court. Surely, counsel understood that the court’s decision would be recorded in the docket within a few days. But if Mother and Stepfather desired even more certainty, they could have submitted a proposed judgment and, upon its entry, been confident that their time to appeal was running. See Utah R. Civ. P. 58A(e)(2)(A). And at any time during the months following the court’s announcement of its decision from the bench, Mother and Stepfather could have checked the docket[9] or called the court clerk to determine the date on which the court’s decision was recorded. But Mother and Stepfather forwent all these opportunities. In light of these missed opportunities, we do not believe that it would be manifestly unjust for us to decline to reach the unpreserved constitutional issue.[10] Cf. Dahl, 2011 UT App 389, ¶ 28 (stating that parties “cannot sleep on [their] rights”). For these reasons, we will not apply the exceptional circumstances exception here.


¶30 We agree with Father that we lack jurisdiction over this appeal, and we thus dismiss it. We also conclude that Mother and Stepfather have not established the applicability of any exception to the preservation rule and that we therefore may not reach the merits of their constitutional challenge to rule 58A of the Utah Rules of Civil Procedure.


[1] Mother and Stepfather filed proposed findings of fact and conclusions of law on the second day of trial, prior to the court announcing its decision. Their filing did not reflect the district court’s announced decision, and the court did not sign that document.

[2] Rule 52(a)(1) of the Utah Rules of Civil Procedure provides, “In all actions tried upon the facts without a jury or with an advisory jury, the court must find the facts specially and state separately its conclusions of law. The findings and conclusions must be made part of the record and may be stated in writing or orally following the close of the evidence. Judgment must be entered separately under Rule 58A.” And rule 54(a) specifies that “‘Judgment’ as used in these rules includes a decree or order that adjudicates all claims and the rights and liabilities of all parties or any other order from which an appeal of right lies.” Utah R. Civ. P. 54(a).

[3] This proposed document is not in the record. Mother and Stepfather assert that Father submitted this proposed order to the court on or about December 16, 2019—more than a year after the court announced its ruling from the bench.

[4] Mother and Stepfather assert that Father’s “failure to oppose the entry of the [June 2020] order should be deemed a waiver” of Father’s challenge to appellate jurisdiction. But “because subject matter jurisdiction goes to the heart of a court’s authority to hear a case, it is not subject to waiver and may be raised at any time, even if first raised on appeal.” In re adoption of Baby E.Z., 2011 UT 38, ¶ 25, 266 P.3d 702 (cleaned up); see also Widdison v. State, 2021 UT 12, ¶ 100 n.26, 489 P.3d 158 (Lee, J., concurring in judgment) (“Jurisdiction is not an argument that can be waived or ignored by the parties.”). We therefore reject this argument.

[5] We recognize that because Griffin v. Snow Christensen & Martineau, 2020 UT 33, 467 P.3d 833, was not issued until June 10, 2020, the parties did not have the benefit of its analysis until then. Nevertheless, the parties still should have been aware of the relevant court rules bearing on the events that would trigger the thirty-day period for filing an appeal. Cf. Serrato v. Utah Transit Auth., 2000 UT App 299, ¶ 9, 13 P.3d 616 (stating that “inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute excusable neglect” (cleaned up)).

[6] Father originally raised his jurisdictional argument in a motion for summary disposition, which a judge on this court denied on the ground that the June 2020 order was “the proper order used for determining appellate jurisdiction.” Mother and Stepfather now assert that because this court already rejected Father’s “exact same argument” when his motion for summary disposition was denied, the doctrine of claim preclusion bars Father from raising the issue again in his appellate brief. We disagree.

The doctrine of claim preclusion “bars a party from prosecuting in a subsequent action a claim that has been fully litigated previously.” Haskell v. Wakefield & Assocs. Inc., 2021 UT App 123, ¶ 13, 500 P.3d 950 (emphasis added) (cleaned up); see also IHC Health Services, Inc. v. D & K Mgmt., Inc., 2008 UT 73, ¶ 26 n.20, 196 P.3d 588 (explaining that res judicata, of which claim preclusion is a branch, “is more appropriately used to describe the binding effect of a decision in a prior case on a second case”). Because Father is not seeking to prosecute a claim that was adjudicated in a prior action, the doctrine of claim preclusion does not apply. Instead, Father seeks reconsideration of the conclusion, rendered in this case, that this court has jurisdiction over this appeal. This panel has the discretion to entertain Father’s request.

This court’s previous order was signed by a single judge, and rule 23(e) of the Utah Rules of Appellate Procedure “allows a panel of this court to review the actions of the single judge.” Envirotech Corp. v. Callahan, 872 P.2d 487, 501 n.12 (Utah Ct. App. 1994); see also Utah R. App. P. 23(e)(3) (“[T]he action of a single justice or judge may be reviewed by the court.”). Further, while an appeal is pending, this court “remains free” to reconsider its decisions. Cf. IHC Health Services, 2008 UT 73, ¶¶ 26–27 (explaining that the law of the case doctrine generally “allows a court to decline to revisit issues within the same case once the court has ruled on them”). Under the law of the case doctrine, this court enjoys the discretion not to reconsider a prior ruling, id. ¶ 26, but the doctrine “does not prohibit a judge from catching a mistake and fixing it,” Gillmor v. Wright, 850 P.2d 431, 439 (Utah 1993) (Orme, J., concurring).

Here, we exercise our discretion to reconsider the fundamental issue of appellate jurisdiction. See State v. Brown, 2021 UT 11, ¶ 10, 489 P.3d 152 (“Jurisdiction is the blood in our judicial system. Because of its vitalness, we have an independent obligation to ensure that we have it over all matters before us.” (cleaned up)).

[7] After this case was briefed and argued, this court issued Kelly v. Timber Lakes Property Owners Ass’n, 2022 UT App 23, in which we held that plain error review is not available in ordinary civil cases. Id. ¶ 44. Whether plain error review is available in this adoption proceeding is an unanswered question. Mother and Stepfather have not engaged on that question, and for purposes of our analysis, we assume, without deciding, that plain error review is available in this case.

[8] Preserving an issue in the district court is important because, among other things, “it allows an issue to be fully factually, procedurally, and legally developed in the district court.” Baumann v. Kroger Co., 2017 UT 80, ¶ 25, 416 P.3d 512. And “[w]ithout the benefit of a fully developed record illustrating both the district court’s thinking and the factual development bearing on the issue at hand, an appellate court is necessarily handicapped in reaching a well-considered decision.” True v. Utah Dep’t of Transp., 2018 UT App 86, ¶ 25, 427 P.3d 338. Here, the parties dispute whether the district court “ever provided notice or a copy of the clerk’s minute entry to the parties.” This is the type of factual dispute that could and should have been fleshed out in the district court, and the fact that it wasn’t hinders our ability to analyze the merits of Mother and Stepfather’s constitutional argument. See Diversified Equities, Inc. v. American Sav. & Loan Ass’n, 739 P.2d 1133, 1136 (Utah Ct. App. 1987) (“Whether a party should be charged with ‘actual notice,’ either in the sense of having actual knowledge or being on inquiry notice, turns on questions of fact.”).

[9] Mother and Stepfather contend that “pursuant to Utah Code Ann. § 78B-6-141(2),” adoption cases are “sealed upon decision and the docket is not readily available on the Utah court’s Xchange system.” Thus, they suggest, they could not have reviewed the docket to determine when the clerk recorded the court’s decision. But section 78B-6-141 does not, by its terms, apply to the court’s docket. And even if it did, it states that any sealed documents are “open to inspection and copying . . . by a party to the adoption proceeding (i) while the proceeding is pending; or (ii) within six months after the day on which the adoption decree is entered.” Utah Code Ann. § 78B-6-141(3)(a) (LexisNexis 2018). Here, where no separate judgment was entered by the court and the court’s signed minute entry is not designated as private or sealed on the docket, it is not apparent that Mother and Stepfather could not have accessed the docket within the 180 days before their appeal was due to ascertain the exact date on which the court’s decision was recorded.

[10] It is also not apparent that if we were to reach the unpreserved issue, we would conclude rule 58A is unconstitutional as written. Mother and Stepfather contend that rule 58A is unconstitutional because it does not require notice of when the court records the decision, and the Utah Rules of Civil Procedure do not otherwise “provide for the service of signed orders through the E-Filing system.” Although we do not resolve this constitutional challenge expressly, we note that Mother and Stepfather are mistaken. Rule 5(b)(3)(A) of the Utah Rules of Civil Procedure provides that “except in the juvenile court,” “[a] paper is served . . . by . . . the court submitting it to the electronic filing service provider, if the person being served has an electronic filing account.”

Utah Family Law, LC | | 801-466-9277 

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Christmas/Winter Break for Parents Under the Utah Code

Christmas/Winter Break for Parents Under Utah Code § 30-3-35 or (§ 30-3-35.5 for a child 18 months and older)

If your Christmas/Winter break starts December 17, 2021 and ends January 2, 2022 (i.e., school starts back up on Monday, January 3, 2022), then that means the period between December 17 and January 2 and 17 days (an odd number of days in the holiday break parent-time period). This is how the holiday would be divided:

§ 30-3-35(2)(f)(viii): the first portion of the Christmas school vacation as defined in Subsection 30-3-32(3)(b), including Christmas Eve and Christmas Day, continuing until 1 p.m. on the day halfway through the holiday period, if there are an odd number of days for the holiday period or until 7 p.m. if there are an even number of days for the holiday period, so long as the entire holiday period is equally divided.

The day halfway through the period between December 17 and January 2 would be 1:00 p.m. December 25.

Monday Tuesday Wednesday Thursday Friday Saturday Sunday
Dec. 17

(day 1)

Dec. 18

(day 2)

Dec. 19

(day 3)

Dec. 20

(day 4)

Dec. 21

(day 5)

Dec. 22

(day 6)

Dec. 23

(day 7)

Dec. 24

(day 8)

Dec. 25

(day 9)

Dec. 26

(day 10)

Dec. 27

(day 11)

Dec. 28

(day 12)

Dec. 29

(day 13)

Dec. 30

(day 14)

Dec. 31

(day 15)

Jan. 1

(day 16)

Jan. 2

(day 17)


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