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Tag: abuse of discretion

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

2024 UT App 84 – Corn v. Groce

THE UTAH COURT OF APPEALS

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

Opinion No. 20220526-CA Filed May 31, 2024

Second District Court, Farmington Department

The Honorable Ronald G. Russell No. 194700657

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

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

CHRISTIANSEN FORSTER, Judge:

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

BACKGROUND

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ISSUES AND STANDARDS OF REVIEW

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

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

ANALYSIS

I. Custody and Parent-Time

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

A.        Statutory Standard for Modification of a Custody Order

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

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

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

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

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

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

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

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

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

B.        Modification of Parent-Time

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

1.         Allegations of Changed Circumstances

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

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

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

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

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

2.         Stipulated Order

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

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

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

3.         Temporary Order

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

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

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

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

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

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

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

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

II. Child Support

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

¶47 “A noncustodial parent’s child support obligation is calculated using each parent’s adjusted gross income.” Twitchell v. Twitchell, 2022 UT App 49, ¶ 34, 509 P.3d 806 (quotation simplified). When a parent is self-employed, “gross income” is calculated by “subtracting necessary expenses required for self-employment . . . from gross receipts.” Utah Code § 78B-12­203(4)(a). However, “[o]nly those expenses necessary to allow the business to operate at a reasonable level may be deducted from gross receipts.” Id. The individual claiming business expenses carries the burden of demonstrating that “those expenses are necessary to allow the business to operate at a reasonable level.” Ouk v. Ouk, 2015 UT App 104, ¶ 4, 348 P.3d 751 (quotation simplified). Because the district court is “best equipped to find whether expenses are necessary,” we accord a court broad discretion to make such determinations. Barrani v. Barrani, 2014 UT App 204, ¶ 11, 334 P.3d 994 (quotation simplified). “Generally, so long as the steps by which the ultimate conclusion on each factual issue was reached are apparent, a [district] court may make findings, credibility determinations, or other assessments without detailing its justification for finding particular evidence more credible or persuasive than other evidence supporting a different outcome.” Twitchell, 2022 UT App 49, ¶ 36 (quotation simplified).

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

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

CONCLUSION

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

¶51 Affirmed.


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

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

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

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

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Wilson v. Wilson, 2024 UT App 87 – civil stalking injunction, appeals

Wilson v. Wilson – 2024 UT App 87

THE UTAH COURT OF APPEALS

TKS CO-PACK MANUFACTURING, LLC AND TROY WILSON, Appellants and Cross-appellees, v. DOUG WILSON, Appellee and Cross-appellant.

Opinion No. 20210855-CA Filed June 6, 2024 Fourth District Court, Provo Department

The Honorable Robert A. Lund

The Honorable James R. Taylor

No. 200401547

Michael D. Stanger, Scarlet R. Smith, and R. Jesse Davis, Attorneys for Appellants and Cross-appellees Brady Brammer and Brenton Ranck, Attorneys for Appellee and Cross-appellant, assisted by law student Annie Carmack[1]

JUDGE JOHN D. LUTHY authored this Opinion, in which JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred, with the exception of Part II.B.2.b. JUDGE HARRIS authored a separate opinion regarding Part II.B.2.b, which JUDGE ORME joined.

LUTHY, Judge:

¶1        This opinion addresses a number of issues related to civil stalking injunctions. It also addresses the requirements for judgments as set forth in rule 58A of the Utah Rules of Civil Procedure and the range of discretion given to district courts when deciding whether voluntary dismissal under rule 41(a) of the Utah Rules of Civil Procedure should be granted with or without prejudice.

¶2        Troy Wilson is the president and co-owner of TKS Co-Pack Manufacturing, LLC (TKS). He hired his brother Doug Wilson to work at TKS. After a time, Doug[2] left TKS. Subsequently, Troy and TKS (collectively, the TKS parties) filed a complaint against Doug, which contained several tort claims as well as a request for a civil stalking injunction. With their complaint, the TKS parties also filed a motion for an ex parte civil stalking injunction, an ex parte temporary restraining order, and a preliminary injunction. The district court granted a temporary stalking injunction, and Doug then filed an answer and counterclaims. Doug later asked that his counterclaims be dismissed, and they were dismissed without prejudice.

¶3        After an evidentiary hearing, the district court issued a permanent civil stalking injunction (the Stalking Injunction) against Doug and in favor of Troy. The Stalking Injunction also protected “[a]ny customer of TKS” and “[a]ny employees of TKS.” Subsequently, Doug posted on Facebook about the Stalking Injunction and communicated with a prior TKS customer (Prior Customer). The TKS parties then filed a motion requesting that Doug be held in contempt for violating the Stalking Injunction. The district court held another evidentiary hearing, applied the standard for criminal contempt, found that Troy had not established the alleged violations beyond a reasonable doubt, and denied Troy’s motion.

¶4        In the meantime, the TKS parties had also moved to dismiss their tort claims without prejudice. Doug opposed the motion and moved for dismissal of the claims with prejudice. The court dismissed the tort claims without prejudice.

¶5        The TKS parties appeal the district court’s decision not to hold Doug in contempt. Doug also appeals, asserting that the Stalking Injunction was not properly granted in the first place and that the district court erred by dismissing the TKS parties’ tort claims without prejudice.[3]

¶6        As to Doug’s appeal, we conclude that the district court did not err in issuing the Stalking Injunction and that the court did not abuse its discretion in dismissing the TKS parties’ tort claims without prejudice. As to the TKS parties’ appeal, we unanimously affirm the district court’s determinations to apply the criminal standard in the contempt proceedings and to not hold Doug in contempt for communicating with Prior Customer. Additionally, based on Judge Harris’s separate opinion, which is joined by Judge Orme, we also affirm the district court’s determination to not hold Doug in contempt based on the allegation that his Facebook post and related comments violated the Stalking Injunction.

BACKGROUND
Pre-litigation History

¶7        Troy offered Doug, who was then living in California, a job at TKS, a business in which Troy held a 50% interest. Doug moved to Utah and began working at TKS as a production manager. After about a year and a half, Doug left TKS in mid-2020. Following Doug’s departure, Troy received reports from TKS employees that Doug had allegedly behaved inappropriately toward multiple employees while he worked there.

¶8        Doug then began working for TKS’s landlord (Landlord), a company that had its office in the same building as TKS. In his new role, Doug continued to have interactions with TKS employees that the TKS parties believed were harassment. Thus, Troy emailed Landlord to request that it appoint another of its employees as a point of contact for TKS. TKS also terminated the employment of several of its employees who it believed were attempting to sabotage TKS at Doug’s request.

The TKS Parties’ Complaint

¶9        In October 2020, the TKS parties filed a complaint against Doug, requesting a civil stalking injunction and asserting seven tort claims: tortious interference with employment relationships, tortious interference with customer relationships, tortious interference with government relationships, tortious interference with the landlord-tenant relationship, defamation, tortious infliction of emotional distress, and trespass. The TKS parties alleged, among other things, that after Doug left TKS, he had

·        driven a forklift “into TKS’s roll up door”;

·         convinced several TKS employees to help him fabricate safety violations by TKS by doing such things as staging pictures to make it look like TKS was violating workplace safety regulations;

·         convinced several TKS employees to sabotage TKS by doing such things as putting “grease on a brand new filter that was being used in production”;

·         attempted to falsely “blow the whistle” on TKS by reporting that TKS was transporting CBD without a permit when TKS had such a permit;

·         persuaded Landlord that TKS “was dumping paint and other toxic items into the sewer,” resulting in Landlord terminating TKS’s lease and then reinstating it after another company was identified as the source of the dumping; and

·         continued to harass TKS employees by confronting them for speeding and using a roundabout improperly, “overzealously monitor[ing]” them, “sexually harass[ing] female employees, both on site . . . and via text and phone,” and telling “an employee of TKS that he now knows ‘why Cain killed Abel.’”

The TKS parties asserted that “[t]hese actions by Doug [had] caused Troy and other employees of TKS to fear for their safety and alter their commuting patterns in an attempt to avoid a confrontation with Doug.”

Temporary Civil Stalking Injunction

¶10 With their complaint, the TKS parties also filed a motion for an ex parte civil stalking injunction, an ex parte temporary restraining order, and a preliminary injunction. In that motion, the TKS parties alleged many of the details recounted above and requested that the district court “issue a stalking injunction against Doug and issue an injunction in the form of a Temporary Restraining Order and preliminary injunction enjoining Doug from having any contact with any TKS employee (including Troy) or customer, and to stay away from Troy’s home, and to stay out of TKS’s facilities.” The district court issued an ex parte civil stalking injunction on October 27, 2020.

Doug’s Suicide Attempt

¶11 Three days later, Doug attempted suicide, prompting the TKS parties to move to modify the temporary stalking injunction in light of Doug’s alleged actions during that episode. Specifically, the TKS parties alleged that Doug had come with a shotgun in his car to the building that housed TKS and Landlord, that he had gone into the building and left a suicide note, and that he had “then [gone] to the mountains with the intent of taking his own life.” The TKS parties further alleged that Doug had “eventually [been] talked out of killing himself, . . . placed in police custody, and then transferred to a hospital.” They continued, “After being released from the hospital, Doug has returned to work. This is problematic as Doug and Troy both work in the same building and the [temporary stalking injunction] specifically orders Doug to ‘stay away’ from Troy’s work.” The TKS parties explained that law enforcement had “declined” to remove Doug from his workplace because the temporary injunction identified as protected premises “the suite . . . of the building instead of the building itself.” Accordingly, the TKS parties sought an amendment that would clarify that the term “‘stay away’ includes but is not limited to staying away from the building and the parking lot.” They also requested “language specifically stating that Doug is prohibited from possessing a firearm.”

Doug’s Answer and Counterclaims

¶12      In November 2020, Doug filed both an answer to the TKS parties’ complaint and several counterclaims. He asserted that the allegations against him were based on “speculation and rumors” and that he “was distraught over being accused of sexual misconduct.” He also recited the severe impact the allegations were having on his health, job, and marriage. Doug’s complaint then recounted Doug’s attempt to end his life:

On October 30, 2020[,] Doug Wilson left a suicide note at his . . . desk [in Landlord’s office]. The note read:

“To my family I love you all with everything I have. I feel like there is no other way out of where Troy has put me. I do not have the will or strength to fight. I have come to the end of the line. Forgive me. I want no funeral and no burial. Cremate me and take my ashes anywhere. Kids I love you so much. Everything I own I give to my wife, the house, the belongings, everything.” —Douglas Wilson.

He did not have any shotgun at the time he left the note. He left [Landlord’s office], obtained a shotgun and went to the mountains with intent to take his own life.

Doug’s complaint relayed how he encountered hunters in the mountains, he voluntarily surrendered the gun to them, and they called the police to help him. It further stated that the police had noted, “Douglas believes [his family] would be better off without him because his brother Troy is going to make him lose his job so he can’t support them.” (Alteration in original.) Doug’s complaint then asserted counterclaims of intentional infliction of emotional distress, defamation/libel/slander, interference with economic and employment relations, and wrongful use of civil proceedings. Doug later voluntarily dismissed his counterclaims, purportedly at the behest of his mother. His counterclaims were dismissed without prejudice.

Permanent Civil Stalking Injunction

¶13 In December 2020, the district court held an evidentiary hearing on the motion for a civil stalking injunction. After hearing evidence and arguments, the court first identified incidents that it felt did not provide grounds for making the stalking injunction permanent. Specifically, it said that the allegation that Doug left the suicide note with the intent to harm Troy was “extreme” and “unlikely” and that “[t]he placement of the note at [Doug’s] work” did not evidence “an intent to direct that note or the activity that was . . . intended toward either . . . [TKS] or [Troy].” The court also said that it did not interpret Doug’s reference to Cain and Abel “as a threat to commit bodily harm.” And it reasoned that Doug’s efforts to “enforce parking restrictions” were not “necessarily retaliatory toward . . . the company . . . or Troy . . . or directly committed in a way that intended . . . either physical harm or emotional distress to Troy.”

¶14      The district court then identified evidence that it felt did support a permanent stalking injunction. It first pointed to conversations that Doug had engaged in with his and Troy’s sister (Sister). The court characterized those conversations as Doug communicating, “I will ruin Troy. I will contact customers. I will bring the company down. . . . [T]hey will lose the business. They’ll lose everything.” The court said, “That’s personal, that’s harmful; and that evinces an intent to . . . cause emotional distress to a specific person, which is what’s required by the statute.” The court then pointed to a text message Doug sent to a person (Vendor) who works for another company owned by Troy and is frequently on site for TKS. After Vendor had a conversation with a TKS employee while at the TKS plant, Doug texted Vendor asking what the pair had been talking about. The court observed, “[Doug] create[d] the impression that he’s all-knowing, that . . . he sees. He create[d] a sense of unease and discomfort. And that is fearful, and that is emotionally frightening. And that can upset the workings of a company and . . . create a cloud of suspicion and distrust for the company.” Finally, the court pointed to a conversation between Doug and Vendor during which Doug “suggested that he was going to go to . . . [a] customer [of TKS] and tell them how their . . . product [was] being handled,” which the court said “undermine[d] the wellbeing of the company.” The court concluded by saying that these incidents showed that “Doug engaged in this conduct in order to bring . . . [Troy] down” and “in order to cause distress and ruin the company.” Based on these incidents, the court said, “[I’m] satisfied to a preponderance that there is a course of action, that it was directed in such a way that although it was aimed at the company, [it] was aimed at the company in a particularly harmful way and that it satisfies the requirements of the stalking [statute].”

¶15      The district court further explained that because it did not consider the suicide-related incident to be part of the “course of conduct” required by the stalking statute, see generally Utah Code § 76-5-106.5(2)(a),[4] it was denying the TKS parties’ request that the injunction include “the firearms prescription.” The court also denied the TKS parties’ request that Doug be restricted from the building housing TKS and Landlord’s offices. Instead, it clarified that the permanent stalking injunction would restrict Doug from being involved in any direct interactions between Landlord and TKS, from entering TKS’s premises within the building, and from acting inappropriately on the surrounding premises, such as repeatedly driving around in circles, hovering, or acting with the intent to intimidate.

¶16      The district court thereafter issued the Stalking Injunction, which did not detail the facts giving rise to its issuance but stated, “For the reasons stated on the record, the Court finds that there is reason to believe that Doug Wilson has stalked Troy Wilson.” The Stalking Injunction contained both a “Personal Conduct Order” and a “No Contact Order.” The Personal Conduct Order read:

Doug is not to stalk Troy. This means that Doug must not do things such as follow, threaten, annoy, or harass Troy in a way that could cause a reasonable person to suffer emotional distress or to be afraid for the person’s safety or the safety of another person. For a legal definition of stalking, see Utah Code Ann. § 76-5-106.5.

The No Contact Order read:

Doug must not contact, phone, text, mail, email, or communicate with, either directly or indirectly in any way with Troy and any other person listed below.

The Stalking Injunction was issued in favor of Troy (not TKS) and listed as additional protected persons Troy’s spouse and children, Vendor, three named TKS employees, “[a]ny customer of TKS,” and “[a]ny employee of TKS.”

Motion for Contempt Sanctions

¶17      In March 2021, the TKS parties filed a motion to hold Doug in contempt for violating the Stalking Injunction. The judge who received and adjudicated the contempt motion was not the one who had presided over the proceedings related to the issuance of the temporary stalking injunction and the Stalking Injunction. In their contempt motion, the TKS parties alleged that Doug had violated the Stalking Injunction by making a Facebook post along with subsequent comments related to the post and by communicating with Prior Customer.

¶18      As to the Facebook post, the TKS parties identified a post by “John Dough” that read verbatim:

I have kept my mouth shut for far to long. I have listened to some of my family member bear false witness against me all in a attempt to cover up wrong doing. Had family members try to hurt me to the point to drive me to take my life. They hoped for it. Being sued because I stood up and talked out. For the first time I am appalled to be part of this family. To have family members turn their backs on me. So Christ like to take one side of a story and make it true. All that evil needs to prevale in this world is that good people do nothing. I am so glad you act like Christians.

In response to comments on this post, “John Dough” also posted two comments:

There was a law suite filed against me. I have the document. The stalking injunction was filed against me as well in court. [Sister] mislead and lied in court about what was going on and about what was said. This is why I sent out the post in the first place. You have only one side of a truth which is based in lies.

and

I am just so glad my family has both sides of the story. Oh wait they don’t. Thanks for getting my side of the story so you you have all the information.

Doug admitted that he “uses the name John Dough on Facebook.”

¶19 As to Doug’s communication with Prior Customer, the TKS parties alleged that Doug had informed Prior Customer, “[B]ecause you are a customer of Troy, I am not allowed to talk to you.” The motion ended with the TKS parties’ request that the court “impose a fine and/or incarceration.”

Dismissal of the TKS Parties’ Tort Claims

¶20      By June 2021 and before a hearing on the contempt motion, the parties had engaged in little to no discovery on the TKS parties’ tort claims, and the TKS parties moved to voluntarily dismiss those claims, stating, “Having prevailed on their 8th Cause of Action (Civil Stalking), and having been granted [the] Stalking Injunction against Doug . . . , the TKS [p]arties have obtained the primary relief sought and needed to protect Troy, his family and TKS’[s] employees and customers from Doug.”

¶21      Doug opposed granting a dismissal of the TKS parties’ tort claims without prejudice, and he moved for dismissal of the claims with prejudice. He contended that the TKS parties never “offered any initial disclosures or proof of the . . . devastating smears on Doug’s moral character,” that they did not participate in discovery though the fact discovery period would end in “less than twenty days,” and that they “should not be allowed to raise these serious allegations, idle away their time before the court, and then withdraw their claims with the intent of bringing them again some other time.”

¶22      The court held a hearing on this matter in July 2021. At the conclusion of the hearing, the court stated,

I would have found excusable delay on such a short time frame. I find that the [TKS parties] were involved with other stuff in the case even if they weren’t doing that disclosure. Had they sought additional time from me, I would have granted it. I am loath to dismiss cases. I routinely grant more time . . . for the public policy reasons [the TKS parties’ counsel] outlined about cases being resolved on the merits. So if Doug intends to re-pursue his claims, then I think that it is going to open up the necessity to hear a lot of the evidence that Troy alleges in his claims.

On September 14, 2021, the court issued a written “Order Granting Petitioners’ Motion to Dismiss and Denying Respondent’s Motion to Dismiss,” in which it dismissed the TKS parties’ tort claims without prejudice.

Hearing and Decision on the Motion for Contempt Sanctions

¶23 The following week, the court held a hearing on the contempt matter, with the judge who had not conducted the original stalking injunction proceedings presiding. The court informed the parties that “any of the facts that gave rise to” the Stalking Injunction were “beyond the scope” of the contempt proceeding. Thus, the court limited the witnesses to giving “testimony in regards to the allegations in the contempt proceeding.” The TKS parties contended that “the question of . . . whether [Troy] suffered emotional distress [from the alleged violations of the Stalking Injunction] is context specific” and that evidence of events that occurred before the contempt action was necessary to establish “what a reasonable person in Troy’s shoes looks like.” The court indicated that it would “take judicial notice of the fact that there were prior proceedings” and “of the order that was issued by [the previous judge] and the findings that [the previous judge] made in relation to” the initial proceedings. The TKS parties noted their concern that “there was testimony underlying those orders” and “some of the facts that . . . came out [were not] necessarily memorialized in [the Stalking Injunction] itself, or in [the prior] ruling.” Doug also stated his contrary concern that Troy not be allowed to testify about matters the previous judge “found irrelevant or unpersuasive for purposes of [the Stalking Injunction].” The court then reiterated its view that “the scope of [the contempt] proceeding” was the “limited allegations of the order [to show cause].”

¶24      During the hearing, Doug did not dispute that he authored the Facebook post and related comments that the TKS parties contended violated the Stalking Injunction, nor did he dispute their contents. Also during the hearing, the court received evidence of an email Doug sent to Prior Customer in March 2021 asking Prior Customer to tell him the last date he did any business with TKS. Prior Customer responded by saying he was not a current TKS customer but that he had purchased some products from TKS a few months earlier. Prior Customer also testified that when he had initiated contact with Doug in the past, Doug had said, “[I]f you’re a TKS customer, I can’t talk to you . . . .”

¶25 The court issued an order on the contempt motion on October 13, 2021. Therein the court first explained that it was applying the standard for criminal contempt:

Because Doug Wilson has substantially complied with the [Stalking Injunction], were the court to sanction Doug Wilson, the [principal] reason would be to vindicate the court’s authority, rather than to compel future compliance. Because the court’s primary purpose would be punitive in nature, the criminal standard of proof beyond a reason[able] doubt applies to the proceeding.

¶26 The court then addressed Doug’s Facebook post and comments by turning to the language of the Stalking Injunction’s Personal Conduct Order and noting that it “contain[ed] a citation” to Utah Code section 76-5-106.5 “for the legal definition of stalking” and that “the statute contains a provision precluding an enjoined party from communicating ‘about’ the protected party.” But the court also noted that the Stalking Injunction did “not contain that language, and no evidence exist[ed] in the record that Doug Wilson ever consulted the statute.” The court then determined that “because no evidence exist[ed] [that] Doug knew speaking indirectly about Troy would violate the order, a reasonable doubt exist[ed] as to whether Doug intended the message to violate[] the order.” The court highlighted that “[n]either Troy Wilson nor any other protected party were friends on the Facebook platform with Doug Wilson at the time of his . . . posting, and Doug deleted the post and his account shortly thereafter.” “Moreover,” the court continued, “the post does not reference Troy Wilson by name, such that acquaintances unfamiliar with the details of the lawsuit would not associate Troy with the content of the post.” And the court observed that “[i]n the subsequent comments to the original post, Doug Wilson asserted that his reference to ‘my family member’ who bore ‘false witness against me’ related to [Sister]” and Sister was not “among the protected parties” of the Stalking Injunction. The court concluded that “because Troy was not a Facebook friend of Doug and because the message [did] not reference Troy by name, a reasonable doubt exist[ed] as to whether Doug intended the message to reach Troy and cause Troy emotional distress.”

¶27      The court also considered “the circumstances surrounding the case at bar,” which involved “great turmoil in the extended Wilson family” as “Doug and Troy are the youngest of 11 siblings, and the controversy was causing division and divided loyalties in the family.” Given this, the court concluded that “a reasonable doubt exist[ed] as to whether the [Facebook] post was designed to harass or annoy Troy, rather than Doug’s stated intention of determining who in the family supported him.” Also of note, the court found “that all of the witnesses from [the] Wilson family possess[ed] such significant biases that the court [could not] credit any of their testimony beyond a reasonable doubt.”

¶28 The court further determined that “a reasonable doubt exist[ed] as to whether a reasonable person in Troy Wilson’s position, rather than any inordinately sensitive person, would suffer emotional distress because of that singular Facebook post, even if the post would cause some lesser degree of annoyance.” On this front, the court stated that “[t]he only persons who commented on Doug’s Facebook post were immediate Wilson family members, and the only persons who spoke to Troy about the post were family members and a small number of employees and old family friends.” The court indicated that the evidence suggested that “all of the family members and acquaintances who viewed or learned about the post [held] Troy in high esteem and the post did not influence their perception of him.”

¶29 As to Doug’s communication with Prior Customer, the court stated that “the content” of Doug’s messages to Prior Customer raised “a reasonable doubt as to whether Doug intentionally violated the order by sending those messages or whether he merely attempted to comply with the order, by obtaining written confirmation that [Prior Customer] was not a current customer, after [Prior Customer] initiated contact with Doug.”

¶30 Ultimately, as to both the Facebook post and Doug’s communication with Prior Customer, the court ruled that the TKS parties “failed to meet the heavy burden of establishing the alleged violations beyond a reasonable doubt” and thus denied the motion to find Doug in contempt.

The Appeals

¶31 In November 2021, the TKS parties appealed the district court’s decision declining to hold Doug in contempt. Later that same month, Doug appealed the Stalking Injunction and the district court’s decision to dismiss the TKS parties’ other claims without prejudice.

ISSUES AND STANDARDS OF REVIEW
Doug’s Appeal

¶32 As an initial matter, the TKS parties assert that this court lacks jurisdiction over Doug’s appeal. “Whether this court has jurisdiction over [an] appeal is a question of law that we review for correctness.” Ashton v. Learnframe, Inc., 2008 UT App 172, ¶ 7, 185 P.3d 1135, cert. denied, 199 P.3d 970 (Utah 2008).

¶33      Besides jurisdiction, Doug’s appeal raises three issues. First, Doug asserts that the district court erred by employing a legally incorrect interpretation and application of the stalking statute when it ruled that Doug’s actions “aimed at [TKS]” could form the basis of the Stalking Injunction in favor of Troy. “The proper interpretation and application of a statute is a question of law which we review for correctness . . . .” Baird v. Baird, 2014 UT 08, ¶ 16, 322 P.3d 728 (cleaned up); see also Ragsdale v. Fishler, 2021 UT 29, ¶¶ 15, 20, 491 P.3d 835 (reviewing “for correctness” the district court’s determination of whether particular actions by the respondent legally qualified as a course of conduct “directed at” the petitioner (cleaned up)).

¶34      Second, Doug challenges the district court’s finding that he knew or should have known that his actions constituting a “course of conduct” under the stalking statute would cause a reasonable person in Troy’s position to experience emotional distress. “On review of both criminal and civil proceedings, we accept the trial court’s findings of fact unless they are clearly erroneous.” Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988) (cleaned up), superseded on other grounds as recognized in State v. Hurst, 821 P.2d 467 (Utah Ct. App. 1991); see also Baird, 2014 UT 08, ¶ 16 (“When reviewing factual determinations, [appellate] court[s] will only rule as a matter of law if the evidence is so clear and persuasive that all reasonable minds would find one way.” (cleaned up)).

¶35 Finally, Doug argues that the district court erred by dismissing the TKS parties’ tort claims without prejudice. “A trial court has discretion to determine whether to grant a motion for voluntary dismissal,” and it is “entitle[d] . . . to grant or dismiss the motion upon such terms and conditions as the court deems proper.” H&H Network Services, Inc. v. Unicity Int’l, Inc., 2014 UT App 73, ¶ 4, 323 P.3d 1025 (cleaned up). Accordingly, “we review a trial court’s decision” as to granting a voluntary dismissal with or without prejudice “for an abuse of discretion.” Id. (cleaned up).

The TKS Parties’ Appeal

¶36      In their appeal, the TKS parties assert that the district court erred when it applied “the criminal standard” for contempt. They further contest the court’s determination not to hold Doug in contempt. When, as here, the alleged “contempt is not committed in the immediate view and presence of the court or judge, we review a district court’s findings of fact for clear error and apply a correction of error standard to our review of the district court’s legal determinations.” Valerios Corp. v. Macias, 2015 UT App 4, ¶ 10, 342 P.3d 1127 (cleaned up). Once a court finds the existence of facts necessary to support a contempt sanction, “the decision to hold a party in contempt of court rests within the sound discretion of the trial court and will not be disturbed on appeal unless the trial court’s action is so unreasonable as to be classified as capricious and arbitrary, or a clear abuse of discretion.” Anderson v. Thompson, 2008 UT App 3, ¶ 11, 176 P.3d 464 (cleaned up). “That discretion includes not just the power to decide whether a party should be held in contempt, but the power to determine whether the purpose of a particular contempt order is civil or criminal.” Dickman Family Props., Inc. v. White, 2013 UT App 116, ¶ 3, 302 P.3d 833 (cleaned up), cert. denied, 312 P.3d 619 (Utah 2013).

¶37      The TKS parties also challenge the district court’s decision to exclude from the contempt proceedings evidence of the full circumstances surrounding the incidents that gave rise to the Stalking Injunction. We review the district court’s “determinations regarding the admissibility of evidence under an abuse of discretion standard.” Anderson, 2008 UT App 3, ¶ 25.

ANALYSIS

I. Doug’s Appeal

¶38 We first address Doug’s appeal. Doug challenges the district court’s decision to issue the Stalking Injunction in the first instance. He also challenges the district court’s decision to dismiss the TKS parties’ tort claims without prejudice. For their part, the TKS parties contend that “this court lacks jurisdiction to consider [Doug’s] appeal because it was not made timely.” We begin by addressing the threshold issue of jurisdiction. We then address, in turn, Doug’s challenges to the district court’s orders.

A.        Whether This Court Has Jurisdiction

¶39 The TKS parties contend that Doug did not file a timely notice of appeal and, therefore, that this court lacks jurisdiction over his appeal. According to the TKS parties, the court’s order dismissing the TKS parties’ claims without prejudice on September 14, 2021, was a final judgment that triggered the thirty-day deadline for Doug to file a notice of appeal. Thus, the TKS parties assert, “Doug’s appeal of the principal action was due October 14, 2021—more than a month before Doug filed a notice of appeal.” We hold that the September 14 order was not a final judgment and, therefore, that it did not trigger the thirty-day deadline for Doug to file a notice of appeal. Instead, the thirty-day deadline for Doug to file a notice of appeal was triggered 150 days after the court entered the September 14 order.[5]

¶40      Rule 4 of the Utah Rules of Appellate Procedure provides that, with a few exceptions not applicable here, “in a case in which an appeal is permitted as a matter of right from the trial court to the appellate court, the notice of appeal . . . must be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from.” Utah R. App. P. 4(a). Rule 58A of the Utah Rules of Civil Procedure requires that, again with some exceptions that are not applicable here, “[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)—(b). Rule 58A also provides that when “a separate document is required, a judgment is complete and is entered at the earlier of” (A) when “the judgment is set out in a separate document signed by the judge and recorded in the docket” or (B) when “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)(2).

¶41      In Griffin v. Snow Christensen & Martineau, 2020 UT 33, 467 P.3d 833, our supreme court analyzed an “Order of Dismissal with Prejudice” entered by the trial court in that case to determine whether it met the requirements of rule 58A(a) and was thus a “judgment” under that rule. Id. ¶¶ 23–28. The order had been prepared in response to a directive from the trial court to the defendant’s counsel to “draft[] a proposed order confirming the court’s oral ruling” on the defendant’s motion to dismiss. Id. ¶ 23. The supreme court held that the order did not qualify as a “judgment” under rule 58A(a). Id. ¶ 28.

¶42 The supreme court first explained that “the goal of Utah rule 58A(a) is to impose a clear line of demarcation between a judgment and an opinion or memorandum” and that “to distinguish a judgment from an order or ruling, it should be identified accordingly.” Id. ¶ 22 (cleaned up). The court then observed that the order at issue “was not titled ‘Judgment,’ but was instead named ‘Order of Dismissal with Prejudice’” and that this was “not a mere technical deviation” from the rule. Id. ¶ 23. Rather, the title “accurately described” the document’s purpose, which was to confirm the trial court’s oral ruling, not to be “a separate judgment documenting the resolution of all claims in the district court.” Id.

¶43      The supreme court next emphasized the rule’s requirement that a “judgment be set out in a ‘separate document.’” Id. ¶ 24 (cleaned up). It noted that “separate means individual; distinct; particular; disconnected” and declared that “a separate judgment, by definition, must be self-contained and independent from any other document in the case, including the decision that gave rise to it.” Id. (cleaned up). Even if a particular decision “disposes of all claims in the action” and the trial court “directs a party to prepare an order confirming [that] decision,” the court explained, “a separate judgment is required” in order to comply with rule 58A(a). Id. ¶ 26 (cleaned up). Although the order at issue in Griffin was “separate from the [trial] court’s oral ruling and accompanying minute entry, that [was] beside the point.” Id. To be a “judgment,” it needed to be wholly separate from the decision giving rise to the judgment. See id.

¶44 Finally, and “[m]ost importantly,” the Griffin court observed that the order in that case “serve[d] a different function than a 58A(a) judgment.” Id. ¶ 27. The purpose of “a separate 58A(a) judgment” is not to “operate at the decision level” but, rather, to “operate[] at the case level to signal that all claims involving all parties have been resolved.” Id. The fact that the order at issue in Griffin “contain[ed] procedural history, legal reasoning, and factual content” indicated that it operated at the decision level, not the case level. Id. ¶ 28.

¶45 In sum, because the document in Griffin was not “clearly identified as a judgment,” was not “separate from the court’s decision on the relevant motion,” and was not “limited to only that information relevant to a judgment,” it was “not a separate 58A(a) judgment.” Id.

¶46 The reasoning of Griffin applies here, compelling the conclusion that the September 14 order is not a separate rule 58A(a) judgment either. Like the order in Griffin, the September 14 order is not titled “Judgment” but, instead, is titled “Order Granting Petitioners’ Motion to Dismiss and Denying Respondent’s Motion to Dismiss.” Also like the order in Griffin, the September 14 order does not amount to a self-contained judgment that is independent from the decision that gave rise to it. Finally, the September 14 order operates primarily at the decision level, not at the case level. It states, in full:

This case came on for hearing on July 13, 2021[,] on: (1) the Motion to Dismiss filed by [the TKS parties], which sought voluntary dismissal of Causes of Action 1–7 contained in the Verified Complaint & Petition for Civil Stalking Injunction (“the Complaint”), without prejudice; and (2) [Doug’s] Motion to Dismiss, which sought dismissal of the same claims with prejudice. . . . The [c]ourt, having considered the motions and corresponding memoranda, and the oral argument of counsel, for the reasons stated on the record, HEREBY ORDERS THAT:

1. [The TKS parties’] Motion to Dismiss is GRANTED;

2. [Doug’s] Motion to Dismiss is DENIED;

3. Claims 1–7 in the Complaint are dismissed without prejudice; [and]

4. With Claim 8 having resulted in the issuance of a civil stalking injunction, and [Doug] having previously dismissed his counterclaim, all claims in this case have now been resolved.

While the order does not wax long on “procedural history, legal reasoning, and factual content,” id., it does address the procedural posture of the motions, recount details of the hearing, and incorporate the reasoning the court stated at the hearing—all decision-level information. Admittedly, the last sentence of the order says that “all claims in this case have now been resolved,” which is a case-level statement. But because the order predominantly operates at the decision level, it does not qualify as a judgment under rule 58A(a). Cf. In re Cendant Corp., 454 F.3d 235, 241 (3d Cir. 2006) (explaining that to qualify as a judgment under federal rule 58(a), an order “must omit (or at least substantially omit) the [d]istrict [c]ourt’s reasons for disposing of the parties’ claims”).[6]

¶47      The TKS parties ask us to conclude that the September 14 order qualifies as a judgment because “the parties exchanged emails about and edited the document to clarify that the case was over with nothing left to be litigated.” After the TKS parties’ counsel emailed the proposed order to Doug’s counsel for approval, Doug’s counsel responded with an email saying, “What is your position as to [cause of action] #8 (injunction)[?] We probably need to make it clear as to whether the case is over or not through this. It seems that this ends the case, but I am not sure if you are of the same opinion.” Counsel for the TKS parties wrote back, “We are of that opinion. Each of the claims in the Verified Complaint has been resolved, and with this dismissal and Doug’s earlier dismissal of his counterclaim, there is nothing left to be litigated in this case. For clarity, I’ve added a sentence in the attached.” From this exchange, it does appear that the parties intended for the September 14 order to serve as a judgment under rule 58A(a). But because this court’s jurisdiction is tied to a timing determination that depends on when a final judgment is entered, the question of whether a document complies with rule 58A(a) cannot turn on the parties’ subjective intent. Cf. Duke Cap. LLC v. Proctor, 2023 UT App 59, ¶ 25, 531 P.3d 745 (recognizing that “parties cannot create, by contract, jurisdiction that would not otherwise exist” (cleaned up)). Instead, rule 58A(a) compliance is determined by whether the document at issue objectively satisfies the requirements of the rule.

¶48 The September 14 order objectively does not satisfy the requirements of rule 58A(a), and it therefore did not trigger a thirty-day deadline to appeal. Instead, that deadline was triggered 150 days after the clerk recorded the September 14 order. See Utah R. Civ. P. 58A(e)(2)(B). Thus, Doug’s appeal, which was filed before those 150 days had run, was timely. See Utah R. App. P. 4(c) (“A notice of appeal filed after the announcement of a decision, judgment, or order but before entry of the judgment or order will be treated as filed after such entry and on the day thereof.”). We therefore have jurisdiction to consider it.

B.        Whether the Stalking Injunction Was Proper

¶49      Having determined that we have jurisdiction to consider Doug’s appeal, we now address his first contention, which is that the district court should not have granted the Stalking Injunction in the first instance. “Under Utah’s civil stalking [injunction] statute, a person who believes that he or she is the victim of stalking may obtain an injunction against an alleged stalker” by “prov[ing] by a preponderance of the evidence that an offense of stalking has occurred.” Ragsdale v. Fishler, 2021 UT 29, ¶ 25, 491 P.3d 835 (cleaned up); see also Utah Code § 78B-7-701. At the time of Doug’s alleged stalking, to prove that an offense of stalking had occurred, a person was required to show that (1) the alleged stalker “intentionally or knowingly engage[d] in a course of conduct directed at [the] person” and (2) the alleged stalker knew or should have known “that the course of conduct would cause a reasonable person to fear for the person’s own safety or suffer other emotional distress.” Ragsdale2021 UT 29, ¶ 25 (cleaned up); see also Utah Code § 76-5-106.5(2) (2020). Doug asserts that (1) the district court committed legal error when it ruled that Doug had engaged in a course of conduct and (2) even if Doug had engaged in a course of conduct, the evidence does not support a finding that Doug knew or should have known that the course of conduct would cause a reasonable person to suffer emotional distress. We disagree with each of Doug’s assertions.

1.         Course of Conduct

¶50      Doug asserts that the court committed legal error when it ruled that he had engaged in a course of conduct. The stalking statute’s definition of a “[c]ourse of conduct” is broad. See Utah Code § 76-5-106.5(1)(a)(i). It defines a course of conduct as “two or more acts directed at or toward a specific individual,” id., and it says that those acts may include “acts in which the actor . . . communicates to or about an individual, or interferes with an individual’s property . . . directly, indirectly, or through any third party,” id. § 76-5-106.5(1)(a)(i)(A). It also says that the acts may include instances when the actor “appears at the individual’s workplace or contacts the individual’s . . . coworker”; “enters property owned, leased, or occupied by an individual”; or “sends material . . . for the purpose of . . . disseminating information about . . . the individual to a . . . coworker, friend, or associate of the individual.” Id. § 76-5-106.5(1)(a)(i)(B)(II)–(IV). Any of the foregoing types of conduct qualifies to be part of a course of conduct even if the actor “uses a computer, the Internet, text messaging, or any other electronic means to commit [the] act.” Id. § 76-5-106.5(1)(a)(i)(B)(VI).

¶51      In this case, Doug agrees that the district court identified three instances of stalking behavior that the court said amounted to a course of conduct. First, the court identified the conversations during which Doug essentially told Sister, “I will ruin Troy. I will contact customers. I will bring the company down. . . . [T]hey will lose the business. They’ll lose everything.” Second, the court identified the text message Doug sent to Vendor asking what he had been talking about with a TKS employee, even though Doug had not been visibly present during the conversation and the participants would not, therefore, have had reason to know that Doug was aware the conversation had occurred. Third, the court identified a conversation between Doug and Vendor wherein Doug “suggested that he was going to go to . . . [a] customer [of TKS] and tell them how their . . . product [was] being handled.”

¶52      After identifying these instances of stalking behavior, the district court said, “[I’m] satisfied to a preponderance that there is a course of action, that it was directed in such a way that although it was aimed at the company, [it] was aimed at the company in a particularly harmful way and that it satisfies the requirements of the stalking [statute].” Based on this statement, Doug contends that the court’s finding of a course of conduct was “mistaken as a matter of law” because “[n]owhere in the stalking statute does it suggest that a harm can be directed at a company” and qualify as part of a course of conduct but, rather, “harms to companies, as opposed to specific individuals, are simply not contemplated by the statute.” Restated, we understand Doug’s argument to be that conduct that the court acknowledges was “aimed at [TKS]” cannot at the same time legally qualify as conduct “directed at” Troy for purposes of finding a course of conduct under the stalking statute.[7]

¶53 Our supreme court considered a related question in Ragsdale v. Fishler, 2021 UT 29, 491 P.3d 835. There, the director of “an inpatient treatment facility for young women recovering from severe depression and anxiety” sought a civil stalking injunction protecting her from a neighbor living on the same street as the facility. Id. ¶¶ 1, 6–7. The neighbor “feared [the facility] would increase noise and traffic in the neighborhood,” and he “began protesting the facility directly” by placing “signs in his yard” that disparaged the facility. Id. ¶¶ 6–7. “He also began flipping off and swearing at employees, clients, and anyone else involved with [the facility].” Id. ¶ 7. Eventually, after the neighbor routinely flipped off the director and began “coming out of his garage to say things” to her directly, the director sought a stalking injunction against the neighbor. Id. ¶¶ 7–9. The district court issued an ex parte temporary injunction, but following an evidentiary hearing, it declined to issue a permanent stalking injunction, reasoning that the neighbor had “not direct[ed] his conduct at [the director] but toward [the facility] as a business.” Id. ¶¶ 9, 12.

¶54      On appeal, the supreme court ruled that the district court had “erred in concluding that because [the neighbor] claimed to subjectively target only [the facility], he did not direct his conduct at [the director].” Id. ¶ 24. The supreme court observed that “nothing in the statute defines the term ‘directed at’” or “expressly indicate[s] that [a stalking] petitioner must be the ‘ultimate target’ of a respondent’s course of conduct.” Id. ¶ 31. Instead, the court explained, “regardless of whether a petitioner is a respondent’s ultimate target, the fact that the respondent engaged in any act proscribed by the statute two or more times makes his or her conduct ‘directed at’ the petitioner.” Id. ¶ 32. Thus, the Ragsdale court concluded, “the person toward whom a respondent’s behavior is ‘directed at’ . . . is determined by an objective assessment of whether the respondent engaged in conduct prohibited by the stalking statute.” Id. ¶ 37. “And this is true even where a respondent directs his or her conduct at a petitioner indirectly or through a third party.” Id. (cleaned up). Accordingly, “[t]he fact that [the facility] was allegedly [the neighbor’s] ultimate target [did] not shield him” from a finding that his actions constituted a course of conduct toward the director. Id. ¶¶ 39, 42. “It simply mean[t] [that the facility] could potentially obtain an injunction against [the neighbor] as well.” Id. ¶ 39; see also supra note 7. Based on this holding, the supreme court remanded the Ragsdale case to the district court for a course-of-conduct determination under a proper understanding of the statute. 2021 UT 29, ¶ 43.

¶55 Another case merits mention in this context as well. In Carson v. Barnes, 2016 UT App 214, 385 P.3d 744, a petitioner sought a stalking injunction based on an alleged course of conduct that included an incident where the respondent had taken “a handgun from his vehicle and confronted” two business associates of the petitioner when the petitioner was not present. Id. ¶¶ 3, 9, 16. The respondent contended that reliance on this incident was “problematic because [the petitioner] was not present, and therefore [the respondent’s] actions on that day were not ‘directed at’ [the petitioner] as the statute requires.” Id. ¶ 16. We disagreed and held that “the statute does not require the victim to be physically present for an act to be considered in the course of conduct” because “the plain language of the statute . . . includes situations in which the actor comes to the person’s workplace or contacts the person’s . . . coworkers, without requiring the presence of the victim.” Id. ¶¶ 16–17 (cleaned up).

¶56 The Ragsdale and Carson holdings apply to this case. Specifically, under the Ragsdale holding, the district court’s acknowledgment that Doug’s conduct “was aimed at [TKS]” is not legally at odds with a determination that Doug had engaged in a course of action directed at Troy. That is because an objective assessment reveals that each of the three instances of stalking behavior the court identified qualify as conduct prohibited by the statute. Doug’s conversations with Sister wherein he said, among other things, that he would ruin Troy amounted to acts in which Doug “communicate[d] . . . about [Troy] . . . directly, indirectly, or through any third party.” Utah Code § 76-5-106.5(1)(a)(i)(A)(I). And Doug’s text message to Vendor about a conversation Doug had not been visibly present for as well as Doug’s conversation with Vendor wherein he suggested that he was going to tell a TKS customer how their product was being handled each amounted to Doug “contact[ing] [Troy’s] . . . coworker,” id. § 76-5-106.5(1)(a)(i)(B)(II), and perhaps also to Doug “send[ing] material . . . to a . . . coworker” of Troy “for the purpose of . . . communicating with [Troy],” id. § 76-5-106.5(1)(a)(i)(B)(IV). Additionally, under the Carson holding, none of these actions by Doug are disqualified from contributing to a course of conduct directed at Troy by virtue of the fact that Troy was not present for or the direct recipient of the conduct. Because an objective assessment reveals that each of the three instances of stalking behavior the court identified qualify as conduct prohibited by the stalking statute as against Troy, the court committed no legal error by ruling that these three instances constituted a course of conduct directed at Troy, even if the same instances might also have been aimed at TKS.

2.         Emotional Distress

¶57      Doug also asserts that, even if he engaged in a course of conduct directed at Troy, the evidence does not support the district court’s implicit finding that Doug knew or should have known that the course of conduct would cause a reasonable person to suffer emotional distress.[8] At the time of Doug’s alleged conduct, a determination that stalking had occurred required a finding that the actor “[knew] or should [have known] that the course of conduct would cause a reasonable person . . . to fear for the person’s own safety or the safety of a third person” or “to suffer other emotional distress.” Utah Code § 76-5-106.5(2) (2020).[9] The statute defines “[e]motional distress” to mean “significant mental or psychological suffering.” Id. § 76-5-106.5(1)(a)(ii)(A) (2024). And it defines “[r]easonable person” to mean “a reasonable person in the victim’s circumstances.” Id. § 76-5-106.5(1)(a)(v). “By including ‘in the victim’s circumstances’ as part of the reasonable person definition, the statute provides for an individualized objective standard, meaning that a court must consider the entire context surrounding the defendant’s conduct.” Richins v. Weldon, 2023 UT App 147, ¶ 67, 541 P.3d 274 (cleaned up). “Courts applying this individualized objective standard have considered such factors as the victim’s background, the victim’s knowledge of and relationship with the defendant, any history of abuse between the parties, the location of the alleged stalking, and the cumulative effect of the defendant’s repetitive conduct.” Id. (cleaned up). “Another consideration could be whether the behavior might cause damage to one’s reputation, relationships, or livelihood.” Id. (cleaned up).

¶58 With regard to the consideration of whether a course of conduct might cause damage to one’s reputation, relationship, or livelihood, the stalking case of Richins v. Weldon, 2023 UT App 147, 541 P.3d 274, is instructive. There, this court emphasized that the respondent “was saying very negative things” about the petitioner, a vice president of a company, to the petitioner’s “fellow employees and boss, including telling [the boss] that he should fire” the petitioner. Id. ¶¶ 2, 69. Because the respondent’s “behavior could have damaged [the petitioner’s] work relationships and reputation as well as his livelihood,” we determined that “ample evidence existed for the district court to conclude that a reasonable person in [the petitioner’s] circumstances would feel emotional distress.” Id. ¶ 69.

¶59      Here, Doug was a former production manager of TKS who was familiar with TKS’s operations and employees. After leaving TKS, he was employed by Landlord and continued to work in the same building that housed TKS. Thus, Doug was well positioned to harm Troy by harming TKS. And that’s exactly what he told Sister he intended to do. Doug asserts that “[e]xpressing an intent to sue is not emotionally distressing” and that “[w]anting to ‘ruin’ someone is more so an expression of frustration or anger rather than a phrase intended to cause significant stress or suffering.” We agree that a threat of civil litigation by itself would not satisfy the emotional distress component of stalking. But Doug did not simply threaten to file a lawsuit, and we do not agree that, under the circumstances, the court was required to interpret Doug’s express desire to “ruin” Troy and cause both TKS and Troy to “lose everything” to be a mere expression of frustration. Actions undermining TKS could certainly undermine Troy’s livelihood where Troy held a 50% interest in TKS. And if TKS employees felt targeted by Doug in his effort to get at Troy, that could certainly interfere with Troy’s work relationships. Indeed, the district court specifically found that the sum of Doug’s communications to Sister “evince[d] an intent to . . . cause emotional distress to a specific person,” namely Troy; that the text from Doug to Vendor “create[d] the impression” that Doug was “all-knowing” and “create[d] a sense of unease and discomfort” that could “upset the workings of a company and . . . create a cloud of suspicion and distrust for the company”; and that the conversation wherein Doug “suggested that he was going to go to . . . [a] customer and tell them how their . . . product [was] being handled” “undermine[d] the wellbeing of the company.” All of these findings were reasonable under the circumstances, and they amply support the overarching finding that Doug knew or should have known that his course of conduct would cause emotional distress to a reasonable person in Troy’s position.

¶60 Accordingly, Doug has failed to demonstrate that the district court erred in issuing the Stalking Injunction.[10]

C.        Whether the TKS Parties’ Tort Claims Were Properly Dismissed Without Prejudice

¶61    Apart from challenging the Stalking Injunction, Doug also argues that the district court abused its discretion when it dismissed the TKS parties’ tort claims without prejudice, as opposed to with prejudice. Rule 41 of the Utah Rules of Civil Procedure indicates that “[u]nless the order states otherwise, a [voluntary] dismissal [by court order] is without prejudice.” Utah R. Civ. P. 41(a)(2). This provision confirms that the default for voluntary dismissals is dismissal without prejudice. The rule also directs a court to grant a motion for voluntary dismissal “only on terms the court considers proper.” Id. In Rohan v. Boseman, 2002 UT App 109, 46 P.3d 753, cert. denied, 59 P.3d 603 (Utah 2002), we adopted the Tenth Circuit’s analysis in Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997), which includes a list of “relevant factors the trial court should consider” when determining “proper” terms of dismissal under rule 41(a)(2). Rohan, 2002 UT App 109, ¶¶ 20–22 (cleaned up). The Ohlander factors include “the opposing party’s effort and expense in preparing for trial; excessive delay and lack of diligence on the part of the movant; insufficient explanation of the need for a dismissal; and the present stage of the litigation.” Id. ¶ 21 (cleaned up). These factors have since been employed in analyzing a district court’s decision to grant or deny a motion for voluntary dismissal, see, e.g.Keystone Ins. Agency v. Inside Ins., 2019 UT 20, ¶¶ 25‒26, 445 P.3d 434, and in analyzing a district court’s decision to grant a motion for voluntary dismissal with or without prejudice, see H&H Network Services, Inc. v. Unicity Int’l, Inc., 2014 UT App 73, ¶ 5, 323 P.3d 1025. These factors “are by no means exclusive[,] and any other relevant factors should also be considered.” Id. (cleaned up).

¶62      Doug frames his argument in terms of the factors set forth in Westinghouse Electric Supply Co. v. Paul W. Larsen Contractor, Inc., 544 P.2d 876 (Utah 1975), which are used when determining whether a dismissal with prejudice for failure to prosecute should be granted: “the length of time since the suit was filed,” “the conduct of both parties,” “the opportunity [the parties have] had to move the case forward and what they have done about it,” “what difficulty or prejudice may have been caused to the other side,” and “whether injustice may result from the dismissal.” Id. at 879. These factors are similar to the Ohlander factors, and we agree that some of them are also relevant here.

¶63      Under the Ohlander and Westinghouse factors that we deem to be relevant here, we conclude that the district court did not abuse its discretion in dismissing the TKS parties’ tort claims without prejudice. First, as to whether injustice resulted from a dismissal without prejudice, we note that Doug’s claims—which he raised as counterclaims to the TKS parties’ complaint—were also voluntarily dismissed without prejudice, leaving Doug able to bring his claims again in the future if he so desires. On this score, the court’s dismissal of the TKS parties’ claims without prejudice preserved parity between the parties regarding possible future litigation, an outcome that appears just on its face. Cf. Clear Creek Dev., LLC v. Peterson Pipeline Ass’n, 2024 UT App 22, ¶ 24, 545 P.3d 306 (stating, in the context of determining when a counterclaim is compulsory under rule 13(a) of the Utah Rules of Civil Procedure, that an outcome “allowing both parties the option to bring their claims anew in a subsequent action . . . is certainly the more just outcome”).

¶64      Doug argues that the district court abused its discretion by dismissing the TKS parties’ claims without (as opposed to with) prejudice because “[t]he case had been on the court’s docket for almost eight months,” “fact discovery was set to end [in] less than three weeks,” and “the TKS parties had done nothing to litigate any of their [tort] claims.” These facts implicate the Ohlander factor regarding excessive delay and lack of diligence on the part of the movant. But we believe that these factors ultimately weigh neutrally or in the TKS parties’ favor here. During the eight months that their tort claims were pending, the TKS parties did not exhibit a lack of diligence generally; they were actively litigating their request for a stalking injunction as well as their motion for contempt sanctions. Additionally, we credit the district court’s indication that, in its view, the eight-month delay in discovery was a relatively “short time frame” under the circumstances and that an allowance of “additional time” for discovery would have been merited if the TKS parties had sought it.

¶65      As to the factor regarding the opposing party’s expense in preparing for trial, we do not have reason to doubt Doug’s claim that his litigation expenses “amounted to over a third of his yearly salary.” Yet those expenses were nevertheless limited by the TKS parties’ decision not to initiate depositions and other costly discovery related to their tort claims while they litigated the Stalking Injunction. Thus, we believe that this factor weighs out neutrally when it comes to evaluating the propriety of dismissing the TKS parties’ claims without prejudice.

¶66 Finally, Doug argues that dismissal with prejudice was required because the TKS parties’ “unsubstantiated claims have cost [him] his personal relationships and led him to try and commit suicide.” While we are not unsympathetic to the emotional and relationship costs that are often incurred through litigation, Doug provides no support for the proposition that this type of prejudice is properly within the scope of our inquiry. Without such authority, we are unconvinced that emotional and relationship costs constitute the type of “legal prejudice” that the Ohlander factors are designed to prevent. See 114 F.3d at 1537 (explaining that “[t]he parameters of what constitutes ‘legal prejudice’ are not entirely clear” but providing factors to guide this inquiry, which speak in terms of “effort,” “delay,” “expense,” and “diligence”). Indeed, although to this point the TKS parties’ tort claims have not been substantiated, there has been no contention that they are frivolous, and our system does not condition the ability to maintain potentially meritorious litigation on a showing that the process will not cause stress to the opposing party.

¶67 In sum, in light of the factors that are relevant here, we determine that the district court did not abuse its discretion by dismissing the TKS parties’ tort claims without prejudice.

II. The TKS Parties’ Appeal

¶68 We now turn to the TKS parties’ appeal. The TKS parties first challenge the district court’s decision to treat their motion for contempt sanctions as a motion to hold Doug in criminal contempt rather than civil contempt. The TKS parties also challenge, for several reasons, the court’s decision not to hold Doug in criminal contempt. We address the TKS parties’ various arguments in turn.

A.        Whether the District Court Applied the Correct Standard for Contempt

¶69 The TKS parties assert that the district court erred by “applying the criminal standard” for contempt. We disagree.

¶70      Whether a contemplated contempt order is civil or criminal determines the standard of proof a court must apply to find that the elements of contempt have been met: for civil contempt, the standard is clear and convincing evidence; for criminal contempt, it is proof beyond a reasonable doubt. Koehler v. Allen, 2020 UT App 73, ¶ 14 & n.3, 466 P.3d 738. “The primary determinant of whether a particular contempt order is to be labeled civil or criminal is the trial court’s purpose in entering the order.” Von Hake v. Thomas, 759 P.2d 1162, 1168 (Utah 1988), superseded on other grounds as recognized in State v. Hurst, 821 P.2d 467 (Utah Ct. App. 1991). “A criminal contempt order is punitive in nature, whereas a civil contempt order has a remedial purpose.” Koehler, 2020 UT App 73, ¶ 14 n.3. “A remedial purpose is indicated when the contemner is allowed to purge him- or herself of the contempt by complying with the court’s orders.” Von Hake, 759 P.2d at 1168. Accordingly, “a contempt order is criminal if the fine or sentence imposed is fixed and unconditional, but [it] is civil if the fine or imprisonment is conditional such that the contemner can obtain relief from the contempt order merely by doing some act as ordered by the court.” Id. at 1168 n.5. For example, in the stalking injunction context, this court has found a contempt order civil when its sanctions included “a jail term of 10 days and a fine of $300” because “these sanctions were stayed to allow [the contemner] an opportunity to purge his contempt . . . by having no further contact . . . with [the protected party] for a period of two years.” Koehler, 2020 UT App 73, ¶ 14 n.3 (cleaned up).

¶71 The district court determined that the contemplated contempt order in this case was criminal, explaining:

Because Doug Wilson has substantially complied with the [Stalking Injunction], were the court to sanction Doug Wilson, the [principal] reason would be to vindicate the court’s authority, rather than to compel future compliance. Because the court’s primary purpose would be punitive in nature, the criminal standard of proof beyond a reason[able] doubt applies to the proceeding.

This determination was not an abuse of discretion.

¶72 First, the TKS parties did not indicate in their motion for contempt that they were seeking a civil contempt adjudication. Their motion asked the court to “impose a fine and/or incarceration,” without any mention of giving Doug an opportunity to purge his contempt. That the relief the TKS parties requested was not conditional suggests that the contempt they sought was not civil. See id. (“Because this order was conditional such that [the contemner] could obtain relief by staying away from [the protected party], the contempt order is not criminal but civil.”).

¶73 Moreover, regardless of what the TKS parties requested, the court gave sound reasons for its application of the criminal standard. Its finding that Doug had “substantially complied” with the terms of the Stalking Injunction—a finding that the TKS parties do not challenge on appeal—supports the court’s determination that the chief reason for it to hold Doug in contempt “would be to vindicate the court’s authority, rather than to compel future compliance.” This finding supports the court’s determination that a contempt sanction in this case would be “punitive in nature.” The court employed the correct standard in approaching this issue, and it provided sound reasoning for its determination that the proceeding was criminal in nature. Thus, the court did not abuse its discretion related to this issue.

B.        Whether the District Court Erred in Not Holding Doug in Contempt

¶74      The TKS parties next challenge the district court’s decision, even under the criminal standard, not to hold Doug in contempt. Relatedly, the TKS parties also assert that the court abused its discretion by excluding certain evidence during the contempt hearing. The TKS parties’ motion for contempt sanctions was based on two sets of alleged violations of the Stalking Injunction: Doug’s communications with Prior Customer and Doug’s Facebook post and related comments. We first review the court’s determination that Doug’s communications with Prior Customer did not satisfy the elements of contempt. We then review the court’s determination that Doug’s Facebook post did not satisfy the elements of contempt. We address the evidentiary issue as part of our review of the court’s determination that Doug’s Facebook post did not satisfy the elements of contempt.

1.         Doug’s Communications with Prior Customer

¶75 The TKS parties identified Doug’s communications with Prior Customer as violative of the Stalking Injunction’s No Contact Order. “As a general rule, in order to prove contempt for failure to comply with a court order it must be shown that the person cited for contempt knew what was required, had the ability to comply, and intentionally failed or refused to do so.” Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988), superseded on other grounds as recognized in State v. Hurst, 821 P.2d 467 (Utah Ct. App. 1991). The district court found that the TKS parties failed to prove beyond a reasonable doubt that by communicating with Prior Customer Doug intentionally failed to comply with the Stalking Injunction. The TKS parties challenge that finding. We determine that this finding is not clearly erroneous and, therefore, that Doug’s communications with Prior Customer cannot be a basis for holding Doug in contempt.

¶76 The Stalking Injunction’s No Contact Order stated that “Doug must not contact, phone, text, mail, email, or communicate . . . either directly or indirectly in any way with . . . [a]ny customer of TKS.” While there was evidence that Doug spoke with and emailed Prior Customer, who had at some point been a customer of TKS, the district court was also presented with evidence that Prior Customer had been the one to initiate contact with Doug and that when he had initiated contact, Doug told him, “[I]f you’re a TKS customer, I can’t talk to you . . . .” The court also received evidence that Doug subsequently sent Prior Customer an email asking for the last date on which he had done business with TKS. Prior Customer responded by saying he was not a current TKS customer but that he had purchased some products from TKS a few months earlier. The court found that “the content” of Doug’s communications with Prior Customer raised “a reasonable doubt as to whether Doug intentionally violated the order by sending those messages or whether he merely attempted to comply with the order, by obtaining written confirmation that [Prior Customer] was not a current customer, after [Prior Customer] initiated contact with Doug.”

¶77      The TKS parties acknowledge that if Prior Customer was the one who initiated contact with Doug, “it is unclear how Doug could have handled [the situation] differently” and that when Doug subsequently emailed Prior Customer, Doug “was apparently trying to determine whether [he] was a ‘current’ customer or a prospective customer.” Yet the TKS parties appear to argue that because Doug’s email asking Prior Customer “how long he had been working with TKS” was sent three days after Doug was served with the motion for contempt sanctions, the email must have amounted to an intentional failure by Doug to comply with the Stalking Injunction. Specifically, they apparently contend that because “Doug knew Troy considered his communications with [Prior Customer] to be a violation of the Stalking Injunction” yet “reached out to him anyway,” it was clear error for the court not to find that Doug intentionally violated the No Contact Order when he emailed Prior Customer. We are not convinced.

¶78      Nothing in the record suggests that Doug trusted Troy or the assertions of Troy’s counsel. Accordingly, the fact that Doug learned that Troy and Troy’s counsel considered communications with Prior Customer to be a violation of the Stalking Injunction does not definitively establish that Doug intentionally violated the Stalking Injunction by inquiring of Prior Customer himself whether he was a current customer of TKS, especially where he told Doug that he was not a current customer. Given the evidence that Doug repeatedly told Prior Customer that Doug could not speak with him if he was a TKS customer and the evidence that Doug’s email to Prior Customer was merely to confirm whether he was a current customer, we see no clear error in the district court’s finding that the TKS parties failed to prove beyond a reasonable doubt that by communicating with Prior Customer Doug intentionally violated the Stalking Injunction. That alleged violation of the Stalking Injunction cannot serve as a basis for holding Doug in contempt.

2.         Doug’s Facebook Post and Related Comments

¶79      We now consider the TKS parties’ challenge to the court’s determination that Doug’s Facebook post and related comments did not satisfy the elements of contempt. While the Stalking Injunction was in place, Doug made a series of communications on Facebook. The full text of those communications is quoted above. See infra ¶ 18. We address, in turn, the district court’s determination that these communications did not violate the No Contact Order and its determination that they did not violate the Personal Conduct Order.

a.         Whether Doug’s Facebook Post and Comments Violated the No Contact Order

¶80      The Stalking Injunction’s No Contact Order forbade Doug from communicating with Troy, even indirectly. For the district court to impose contempt sanctions based on the allegation that the Facebook communications violated the No Contact Order, the TKS parties had to prove beyond a reasonable doubt that, among other things, Doug intended the Facebook post and comments to be a direct or indirect communication with Troy or that he knew they were a direct or indirect communication with Troy. See Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988), superseded on other grounds as recognized in State v. Hurst, 821 P.2d 467 (Utah Ct. App. 1991). The district court determined that it could not find beyond a reasonable doubt that the Facebook post was an intentional or knowing violation of the No Contact Order, and we see no clear error in that finding.

¶81      On this point, the court reasoned that “because Troy was not a Facebook friend of Doug and because the message [did] not reference Troy by name, a reasonable doubt exists as to whether Doug intended the message to reach Troy.” Indeed, there was evidence that Troy was not a Facebook friend with Doug, which does support a finding that the post was not a knowing or intentional attempt by Doug to communicate with Troy directly. And there is no evidence that any of Doug’s Facebook friends routinely shared Doug’s posts with Troy, which supports a finding that the post and related comments did not amount to a knowing or intentional attempt to communicate with Troy indirectly.

¶82 Admittedly, we have held in the context of a no-contact order that “a factfinder could readily infer that calls [an ex-husband] placed to [his ex-wife’s new husband] . . . would routinely and predictably be conveyed to [the ex-wife]” and, therefore, that by making those calls, the ex-husband “intentionally or knowingly” contacted his ex-wife at least indirectly. State v. Fowers, 2023 UT App 128, ¶ 13, 538 P.3d 1274 (cleaned up). Similarly, we have held that a factfinder could infer that an estranged husband intended to communicate with or contact his wife, who had obtained a protective order against him, by sending letters with language directed to his wife to the address of the wife’s “sister who lived next door.” State v. Fouse, 2014 UT App 29, ¶¶ 3, 41, 43, 319 P.3d 778, cert. denied, 329 P.3d 36 (Utah 2014). But in neither of those cases did we say that the evidence required a finding that the defendant knowingly or intentionally communicated indirectly with the protected person. See Fowers, 2023 UT App 128, ¶ 13; Fouse, 2014 UT App 29, ¶ 43. And we are unwilling here to hold that a person who is subject to an order not to contact his or her sibling indirectly necessarily violates that order any time he or she communicates about the sibling with any other family member or friend of the sibling.

¶83 In short, we affirm the district court’s determination that Doug’s Facebook post and related comments did not violate the No Contact Order.

b.         Whether Doug’s Facebook Post and Comments Violated the Personal Conduct Order

¶84 The TKS parties allege that Doug’s Facebook communications violated the Stalking Injunction’s Personal Conduct Order because he was thereby communicating “about” Troy. On this issue, Judge Harris’s opinion, joined in by Judge Orme, is the majority opinion; my views in this Part II.B.2.b constitute a dissenting opinion on this issue.

¶85 As to the allegation that Doug’s Facebook post and comments violated the Stalking Injunction’s Personal Conduct Order, I address each of the elements of contempt in turn. Again, those elements include that Doug “knew what was required [of him by the Personal Conduct Order], had the ability to comply, and intentionally failed or refused to do so.” Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988), superseded on other grounds as recognized in State v. Hurst, 821 P.2d 467 (Utah Ct. App. 1991).

(i) Whether Doug Knew What Was Required

¶86      The Personal Conduct Order said:

Doug is not to stalk Troy. This means that Doug must not do things such as follow, threaten, annoy, or harass Troy in a way that could cause a reasonable person to suffer emotional distress or to be afraid for the person’s safety or the safety of another person. For a legal definition of stalking, see Utah Code Ann. § 76-5-106.5.

The district court found that “no evidence exists [that] Doug knew speaking indirectly about Troy would violate the order.” In making this finding, the court reasoned that while the Personal Conduct Order “contains a citation” to Utah Code section 76-5­106.5 “for the legal definition of stalking” and while “the statute contains a provision precluding an enjoined party from communicating ‘about’ the protected party,” the Stalking Injunction “does not contain that language, and no evidence exists in the record that Doug Wilson ever consulted the statute.” I believe this approach was erroneous.

¶87 The Personal Conduct Order prohibited Doug from stalking Troy. The supplied list of actions that constitute stalking was not exhaustive, as evidenced by the order’s use of “such as.” See State v. Green, 2023 UT 10, ¶ 70, 532 P.3d 930 (explaining that a rule’s “use of ‘such as’ indicates that the list” following that phrase is “illustrative and not exclusive” (cleaned up)); State v. Verde, 2012 UT 60, ¶¶ 14–15, 296 P.3d 673 (discussing a list following “such as” as “illustrative and not exclusive”), abrogated on other grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016. Thus, the fact that communicating about Troy was not among the listed examples of stalking is not dispositive.

¶88      Furthermore, the Personal Conduct Order unambiguously stated that the legal definition of stalking could be found in Utah Code section 76-5-106.5. I have some doubt as to whether Doug could successfully claim ignorance on the meaning of stalking even if the stalking statute had not been explicitly cited in the Personal Conduct Order, because “citizens are generally presumed to know what the law is.” Laker v. Caras, 2023 UT App 125, ¶ 21, 538 P.3d 926. At any rate, however, Doug’s argument that he only knew of the listed examples of stalking and not the full definition of stalking is unavailing given that he was plainly forbidden from stalking and told where to find the definition of that term. Cf. State v. Barlow, 153 P.2d 647, 653 (Utah 1944) (“Ignorance of a fact may sometimes be taken as evidence of a want of criminal intent, but not ignorance of the law.”). I reject the district court’s position that a person subject to a court order not to engage in certain conduct does not know what is required if the person elects not to read a statute that defines the forbidden conduct that is expressly identified in the order. Accordingly, I would vacate the district court’s finding that “no evidence exists [that] Doug knew speaking indirectly about Troy would violate the [Personal Conduct Order],” remand the case, and instruct that the court make a new finding on this issue.

(ii) Whether Doug Was Able to Comply

¶89      As the TKS parties point out, the district court did not make a finding regarding Doug’s ability to comply with the Personal Conduct Order’s restriction against communicating about Troy. However, while it is true that a “district court must make explicit findings, whether written or transcribed, on the three elements of contempt,” Koehler v. Allen, 2020 UT App 73, ¶ 14, 466 P.3d 738 (cleaned up), I would find the lack of an explicit finding on this element to be harmless, see generally Green, 2023 UT 10, ¶ 101 (“[W]hen an error is harmless, we do not disturb the district court’s decision.”). Because there is simply no evidence to suggest that Doug would have been unable to refrain from posting about Troy on Facebook, the only supportable finding on this point is that Doug could have complied with the Personal Conduct Order.

(iii) Whether Doug Intended Noncompliance

¶90 On the element of whether Doug knowingly or intentionally violated the Personal Conduct Order, the district court found that “because no evidence exists [that] Doug knew speaking indirectly about Troy would violate the order, a reasonable doubt exists as to whether Doug intended the [Facebook post and related comments] to violate[] the order.” I have already expressed my view that the court’s finding of no evidence that Doug knew communicating about Troy would violate the Personal Conduct Order was the product of legal error. See supra ¶¶ 86‒88. Because I would have thus vacated this basis for the court’s finding that Doug did not knowingly or intentionally violate the Personal Conduct Order through his Facebook post and related comments, I would vacate the court’s finding on this point as well.

¶91 Doug contends that there is evidence apart from his professed ignorance of the restrictions imposed by the Personal Conduct Order that supports a finding that he did not knowingly or intentionally violate that order with his Facebook communications. Specifically, he asserts that the post and comments were not knowingly or intentionally “about” Troy but, instead, “only about” Sister. I am skeptical on this point. While the Facebook post and comments may have been, in part, about Sister, that does not necessarily mean they were not also about Troy. They refer to the lawsuit and the request for the Stalking Injunction, neither of which was filed by Sister. Additionally, the Facebook post declares, “I have . . . [h]ad family members try to hurt me to the point to drive me to take my life.” And Doug’s suicide note stated: “I feel like there is no other way out of where Troy has put me. I do not have the will or strength to fight.” Doug explicitly blamed Troy for his suicidal thoughts, so I am doubtful that his Facebook reference to the “family members” who prompted such thoughts was not intended to be about Troy. For these reasons, I do not believe that we can say that the evidence supported only the district court’s finding that Doug did not knowingly or intentionally violate the Personal Conduct Order through his Facebook post and related comments. I would instruct the court to make a new finding on this issue on remand as well.

¶92      In the context of stalking, this third element of contempt—that the stalker intentionally failed or refused to comply with the court’s order, see Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988), superseded on other grounds as recognized in State v. Hurst, 821 P.2d 467 (Utah Ct. App. 1991)—required the TKS parties to also prove that, to the extent the Facebook post and comments were about Troy, the communications would have caused “emotional distress to a reasonable person in [Troy’s] circumstances,”[11] Baird v. Baird, 2014 UT 08, ¶ 25, 322 P.3d 728; see also Utah Code § 76-5­106.5(2). The district court found that “a reasonable doubt exists as to whether a reasonable person in Troy Wilson’s position, rather than an inordinately sensitive person, would suffer emotional distress because of that singular Facebook post.” I would conclude that the court’s approach that led to this finding suffered from a legal error and that the court exceeded its discretion when it excluded certain evidence related to this finding.

¶93 A determination of whether Doug’s Facebook post and comments would have caused emotional distress involves an “objective inquiry into whether [Doug’s] conduct would have caused a reasonable person in [Troy’s] circumstances emotional distress.” Baird, 2014 UT 08, ¶ 21. This objective inquiry is “an individualized objective” inquiry, “meaning that a court must consider the entire context surrounding the [alleged stalker’s] conduct,” Anderson v. Deem, 2023 UT App 48, ¶ 29, 530 P.3d 945 (cleaned up), including, as we have already noted, “such factors as the victim’s background, the victim’s knowledge of and relationship with the defendant, any history of abuse between the parties, the location of the alleged stalking, . . . the cumulative effect of the defendant’s repetitive conduct[, and] whether the behavior might cause damage to one’s reputation, relationships, or livelihood,” Richins v. Weldon, 2023 UT App 147, ¶ 67, 541 P.3d 274 (cleaned up); see also State v. Miller, 2023 UT 3, ¶¶ 84, 86, 527 P.3d 1087; Ragsdale v. Fishler, 2021 UT 29, ¶ 45, 491 P.3d 835; Baird, 2014 UT 08, ¶ 27. “In this context, acts that seem perfectly innocent or even well intentioned may constitute stalking. For example, conduct such as sending the victim a dozen roses may seem benign and loving to the casual observer, but could mean a very different thing when understood in the context of the victim’s experience.” Ragsdale, 2021 UT 29, ¶ 45 (cleaned up). Moreover, courts “must consider the conduct cumulatively.” Id. (cleaned up).

¶94 At the outset of the contempt hearing, the district court expressly stated its view that “the facts that gave rise to” the Stalking Injunction were “beyond the scope” of the contempt proceeding. As the majority opinion on this issue points out, the court thereafter did say that it would “take judicial notice of the [Stalking Injunction] and the findings that [the previous judge] made in relation to . . . issuing” it, and the court admittedly had before it evidence of many of the circumstances surrounding the controversy in general. However, after the court expressed its willingness to take judicial notice of the Stalking Injunction and the findings that the previous judge had made in relation to it, the court again affirmed its view that “the scope of [the contempt] proceeding” allowed it to consider only the “limited allegations of the order [to show cause],” not the circumstances surrounding the issuance of the Stalking Injunction in the first place. If we take the district court at its word—and I do—even if it took judicial notice of the findings that the previous judge made in relation to the Stalking Injunction, it did not consider those facts when ruling on the contempt motion.

¶95 A conclusion that the district court did not properly consider the entire context surrounding Doug’s conduct is further supported by an evidentiary ruling the court made at the contempt hearing. Specifically, the court limited testimony at the hearing to “testimony in regards to the allegations in the contempt proceeding.” While a judge who presides over both a stalking injunction hearing and a subsequent contempt hearing may not need to rehear evidence of the events leading to the stalking injunction to be able to fulfill its charge to consider the entire context surrounding the stalker’s conduct when deciding the contempt issue, in this case the same judge did not preside over both hearings. And because the first judge’s findings fell far short of telling the whole story of the parties’ history, the second judge’s willingness to take judicial notice of those findings was insufficient to demonstrate that it met its charge. For example, the TKS parties alleged various misdeeds by Doug that the first judge did not discuss when determining whether there was a course of conduct justifying issuance of the Stalking Injunction. See supra ¶¶ 9, 13–16. Accordingly, I believe the court abused its discretion by excluding from the contempt hearing evidence of the events surrounding the issuance of the Stalking Injunction on the basis that it was irrelevant to the contempt proceeding. And that abuse of discretion further confirms that the district court did not properly consider the entire context surrounding Doug’s conduct when it ruled on the contempt issue.

¶96 The majority opinion on this issue begins by correctly reciting “a few background concepts,” including the standard of review related to a district court’s factual findings and the burden of proof related to criminal contempt. Infra ¶¶ 103‒05. But as the majority opinion on this issue recognizes, those concepts come into play only if “a district court applies the correct legal standard.” Infra ¶ 103. And the correct legal standard was whether, considering the entire context, Doug’s Facebook post and comments would have caused a reasonable person in Troy’s position emotional distress. And, as explained, it is the district court’s repeatedly expressed intention not to consider the entire context that undergirds my opinion on this issue.

¶97      The majority opinion on this issue also states, alternatively, that, even assuming the district court did not consider the entire context surrounding Doug’s Facebook post and comments, no reasonable factfinder who had considered the entire factual context could conclude beyond a reasonable doubt that Doug’s Facebook post and comments were more than a “blip on the radar screen” and were capable of causing a person in Troy’s position emotional distress. Infra ¶¶ 107, 113. I disagree. As already noted, even the “seem[ingly] . . . innocent” or “well intentioned” “sending [of] . . . a dozen roses” might, in some circumstances, constitute a violation of a stalking injunction “when understood in the context of the victim’s experience.” Ragsdale, 2021 UT 29, ¶ 45 (cleaned up). In light of that, and given the established context of “division,” “escalated” tensions, and “great turmoil” into which the Facebook post and comments were placed, I am not prepared to hold as a matter of law that no reasonable factfinder considering the entire context could determine that the post and comments would cause an ordinary person in Troy’s position emotional distress.

¶98 For the foregoing reasons, I would vacate the court’s finding as to whether Doug’s Facebook post and comments would cause a reasonable person in Troy’s position emotional distress and direct that the court make a new finding on this issue as well.[12]

CONCLUSION

¶99      We have jurisdiction over Doug’s appeal. As to his appeal, the district court did not interpret or apply the stalking statute erroneously when it found a course of conduct directed at Troy. The court’s finding that Doug knew or should have known that his course of conduct would cause a reasonable person in Troy’s position emotional distress was not clearly erroneous. And the court did not abuse its discretion by dismissing the TKS parties’ tort claims without prejudice.

¶100 As to the TKS parties’ appeal, we unanimously affirm the district court’s determinations to apply the criminal standard in the contempt proceedings and to not hold Doug in contempt for communicating with Prior Customer. Additionally, based on Judge Harris’s opinion, joined by Judge Orme, we also affirm the district court’s determination to not hold Doug in contempt based on the allegation that his Facebook post and comments violated the No Contact Order.

HARRIS, Judge (concurring in part and authoring the Opinion of the Court as to Part II.B.2.b, in which ORME, J., joined):

¶101 Judge Orme and I join the first 83 paragraphs of the lead opinion without reservation. That is, we agree that this court has jurisdiction over Doug’s appeal—as a direct appeal and not as a cross-appeal—and that, on the merits of that appeal, the district court did not err in issuing the Stalking Injunction, nor did it abuse its discretion in dismissing the TKS parties’ tort claims without prejudice. We also agree that, with regard to the TKS parties’ appeal, the district court correctly treated the motion for contempt sanctions as a motion to hold Doug in criminal contempt rather than civil contempt, and we further agree that the court did not commit reversible error either (a) in finding that Doug’s communication with Prior Customer was not contemptuous or (b) in determining that Doug’s Facebook communications did not violate the No Contact Order. To that extent, we concur fully in the lead opinion.[13]

¶102 We disagree, however, with the lead opinion’s conclusion that the district court committed reversible error in determining that the TKS parties had not proved, beyond a reasonable doubt, that Doug’s Facebook communications violated the Personal Conduct Order. In particular, we take issue with the lead opinion’s assessment regarding the emotional distress component of the analysis. On that score, we agree wholeheartedly with the district court’s determination that “reasonable doubt exists as to whether a reasonable person in Troy Wilson’s position, rather than any inordinately sensitive person, would suffer emotional distress because of that singular Facebook post.” On that basis, we affirm the judgments of the district court in their entirety, a result that will bring this case to a well-deserved conclusion and present no need for further proceedings on remand.

¶103 Let us begin with a few background concepts, starting with the applicable standard of review. Assuming that a district court applies the correct legal standard—an “individualized objective standard,” see Baird v. Baird, 2014 UT 08, ¶ 26, 322 P.3d 728—its determination regarding whether a claimant suffered the sort of emotional distress the stalking statute contemplates is a factual finding that we review only for clear error. See Richins v. Weldon, 2023 UT App 147, ¶ 42, 541 P.3d 274 (reviewing an emotional distress finding, in this context, “for clear error” (cleaned up)). In this case, the district court applied the correct standard, expressly asking whether “a reasonable person in Troy Wilson’s position, rather than any inordinately sensitive person,” suffered emotional distress. Accordingly, the court’s ultimate finding regarding emotional distress is, in this case, a determination we review only for clear error.

¶104 Moreover, the overarching standard of review generally applicable in contempt cases is quite deferential. Indeed, the lead opinion, supra ¶ 36, acknowledges that—regardless of whether the case involves civil or criminal contempt—a district court’s “decision to hold a party in contempt of court rests within the sound discretion of the trial court and will not be disturbed on appeal unless the trial court’s action is so unreasonable as to be classified as capricious and arbitrary, or a clear abuse of discretion.” Anderson v. Thompson, 2008 UT App 3, ¶ 11, 176 P.3d 464 (cleaned up).

¶105 We also note that the TKS parties were seeking criminal contempt, not civil contempt, and therefore they were required to prove Doug’s contempt beyond any reasonable doubt. See supra ¶¶ 69–73. This is the most stringent burden of proof found in the law, and the district court recognized this concept in its ruling.

¶106 Furthermore, the type of emotional distress at issue here is something far greater than mere annoyance. Utah’s stalking statute—incorporated into the Personal Conduct Order—defines “[e]motional distress” to mean “significant mental or psychological suffering.” Utah Code § 76-5-106.5(1)(a)(ii)(A) (2021). This court has previously noted that this definition requires claimants to demonstrate that they have suffered more than just “some emotional distress.” See Noel v. James, 2022 UT App 33, ¶ 20, 507 P.3d 832; see also Meyer v. Aposhian, 2016 UT App 47, ¶ 16, 369 P.3d 1284 (affirming a district court’s determination that the incidents in question, while “upsetting, intimidating, and annoying,” were not sufficient to cause the sort of emotional distress contemplated by the stalking statute).

¶107 With these foundational principles in mind, we see no error at all—let alone a clear one—in the district court’s determination that “reasonable doubt exists as to whether a reasonable person in Troy Wilson’s position, rather than any inordinately sensitive person, would suffer emotional distress because of that singular Facebook post.” In the grand scheme of this family’s lengthy dispute, this Facebook post was merely a blip on the radar screen, and the district court was well within its contempt-case discretion to determine that the TKS parties hadn’t proved, beyond a reasonable doubt, that—of all things in this case’s history—it was these rather innocuous Facebook communications that tipped Troy over the emotional edge into “significant mental or psychological suffering.”

¶108 The lead opinion’s inclination to reverse and remand on this point appears largely driven by the district court’s (perhaps somewhat ill-considered) remarks that “any of the facts that gave rise to” the Stalking Injunction were “beyond the scope” of the contempt proceeding. In our view, one reasonable reading of the court’s remarks is simply that it did not want to unduly elongate the evidentiary hearing by having witnesses come in and rehash the same testimony they’d given under oath some nine months earlier. Indeed, at one point the court referred to its request—made previous to the contempt hearing—that “the parties . . . provide declarations of any witnesses,” and it stated that it had made that request in an attempt “to avoid going back to other proceedings and trying to listen to the” audio recording of the previous hearing. Nevertheless, the lead opinion has decided to “take the district court at its word” and assume that, because of these remarks, the court “did not properly consider the entire context surrounding” Doug’s Facebook communications. See supra ¶¶ 94–95.

¶109 Our reading of the record is different from the lead opinion’s. As we see it, the district court actually did consider the entire context of the case in making its contempt ruling, even if it refused to allow additional testimony and evidence to be re­presented at the hearing. At the contempt hearing, during the debate over the scope of the witnesses’ testimony, the court noted that “there is a record with regard to” what had happened at the previous hearing that could be reviewed and consulted. The court then expressly took “judicial notice of the fact that there were prior proceedings” and “judicial notice of the [Stalking Injunction] and the findings” the prior judge made in entering it. Our reading of this exchange is that the court was not just taking judicial notice of the Stalking Injunction and related findings made by the previous judge, but of the “record with regard to” the previous hearing. Indeed, in its contempt order, the district court expressly stated that it had considered “the circumstances surrounding the case at bar” that had “created great turmoil in the extended Wilson family.”

¶110 Moreover, during that same debate, Troy’s counsel noted that Troy had submitted a lengthy declaration in advance of the contempt hearing, with the intent of informing the court about “what [Troy] had experienced prior to” the entry of the Stalking Injunction. That declaration was just one of many exhibits submitted by the parties with their briefing in advance of the contempt hearing; that briefing, including the exhibits, contained a whole lot of context and descriptions of past underlying events. Unless this court is aware of some indication to the contrary, it should presume that lower courts read the relevant briefing, including the submitted exhibits, before rendering a decision. See, e.g.Merrick Young Inc. v. Wal-Mart Real Estate Bus. Trust, 2011 UT App 164, ¶ 29, 257 P.3d 1031 (noting the lower court’s statement that it had “fully reviewed this matter” before making its ruling, and “presum[ing]” therefrom that the court “closely examined all of the documents filed in support of the parties’” positions). Here, the district court stated, at the hearing, that it had “received and reviewed all the declarations” submitted by the TKS parties, and it indicated in its final written ruling that it “took evidence and received briefing from the parties” and that it was “fully advised in the premises” before making its ruling. We therefore presume that the district court read all the material Troy submitted in support of his motion.

¶111 In addition, at the contempt hearing, the court heard live testimony not only from Troy but also from several other witnesses, including at least four other members of the family. Two of those witnesses—Troy and his sister—offered testimony about Troy’s reaction to Doug’s Facebook communications.

¶112 In our view, it is nigh on impossible to read the file in this case well enough to be able to rule on a contempt motion and not be fully aware of the circumstances surrounding the controversy in general and the Facebook communications in particular. Here, the district court not only read the file but then presided over an evidentiary hearing at which live testimony was presented and these matters were further discussed. We therefore reach a different conclusion than the lead opinion; as we see it, the district court considered all the relevant contextual circumstances before concluding that the TKS parties had not met their burden of proving that Troy had suffered emotional distress.

¶113 But be all of that as it may, even if we were to assume for purposes of the discussion that the district court truly did not consider the entire context surrounding Doug’s Facebook communications, the parties have—in this appeal—provided this court with all of that context, through briefing and citations to the record, and we have certainly considered that contextual evidence. After undertaking that consideration, we are of the view that—to the extent the district court actually failed to consider the underlying circumstances—any error on the part of the court here was harmless. In our view, no reasonable factfinder, after considering the contextual evidence to which the TKS parties now point, could conclude beyond a reasonable doubt that Doug’s “John Dough” Facebook posts caused a reasonable person in Troy’s position to suffer the sort of significant emotional distress contemplated by the stalking statute.

¶114 Accordingly, for all these reasons, we part ways with the lead opinion’s analysis in paragraphs 90 through 98. On this record, reasonable doubt exists as to whether a reasonable person in Troy’s shoes would have sustained significant mental or psychological suffering from Doug’s Facebook posts. The district court’s contempt ruling was sound, and we therefore affirm it. Because we agree with the lead opinion’s analysis affirming the court in all other respects, the court’s rulings are affirmed across the board.

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


[1] See Utah R. Jud. Admin. 14-807 (governing law student practice in the courts of Utah).

[2] Because the parties share a surname, we use their given names, with no disrespect intended by the apparent informality.

[3] As explained in more detail below, although Doug’s appeal has been designated as a cross-appeal for ease of reference, the two appeals in this matter are separate and distinct appeals. See infra note 5.

[4] The stalking statute was amended after the events relevant to this appeal. Compare Utah Code § 76-5-106.5 (2020), with id. (2024). Because the changes to the relevant text are mostly minor and do not affect our analysis, we cite the current version of the statute except where the text has materially changed. See infra note 9.

[5] We are not unaware of rule 4(d) of the Utah Rules of Appellate Procedure, which states that “[i]f a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed.” If rule 4(d) applied here, Doug would have had fourteen days from the date the TKS parties filed their notice of appeal to file his notice of appeal, and Doug in fact did file his notice of appeal within fourteen days of when the TKS parties filed theirs. But rule 4(d) does not apply here. This matter involves both the TKS parties’ original lawsuit and a subsequent criminal contempt proceeding, see infra ¶¶ 69‒73 (concluding that the district court did not abuse its discretion in classifying the contempt proceeding as criminal), and a criminal contempt proceeding is an action “separate and apart from the [principal] action,” Robinson v. City Court, 185 P.2d 256, 258 (Utah 1947). Because the original lawsuit and the contempt proceeding are separate actions, the appeal deadlines for those separate actions operate independently. See Burgers v. Maiben, 652 P.2d 1320, 1322 (Utah 1982) (per curiam) (holding that a notice of appeal that was untimely to perfect an appeal from the original action was timely and conferred appellate jurisdiction to review a related criminal contempt proceeding). Thus, notwithstanding that they have been designated cross-appeals for ease of reference and share a common appellate case number, the two appeals in this matter are separate, and the deadline for Doug to perfect his appeal from the TKS parties’ original lawsuit was thirty days after entry of the final judgment in that lawsuit, see Utah R. App. P. 4(a).

[6] Our supreme court has said that In re Cendant Corp., 454 F.3d 235 (3d Cir. 2006), “provides a helpful description of what a proper separate judgment should look like.” Griffin v. Snow Christensen & Martineau, 2020 UT 33, ¶ 21, 467 P.3d 833.

[7] We understand this to be Doug’s argument because the Stalking Injunction was entered in favor of Troy and not in favor of TKS. Because the Stalking Injunction was not entered in favor of TKS, this case cannot implicate or resolve the issue of whether a stalking injunction may be issued in favor of a company. With our supreme court, “we note that at least one court has found its state’s civil stalking statute to ‘protect[] institutions as well as people.’” Ragsdale v. Fishler, 2021 UT 29, ¶ 39 n.29, 491 P.3d 835 (quoting Board of Regents-UW System v. Decker, 2014 WI 68, ¶ 26, 850 N.W.2d 112 (alteration in original)). But again, this case does not raise that issue, and we, like the supreme court before us, do not address it. See id.

[8] We see in the record no explicit finding that Doug knew or should have known that his course of conduct would cause a reasonable person to suffer emotional distress. Generally, however, “unstated findings can be implied if it is reasonable to assume that the trial court actually considered the controverted evidence and necessarily made a finding to resolve the controversy, but simply failed to record the factual determination it made.” Uhrhahn Constr. & Design, Inc. v. Hopkins, 2008 UT App 41, ¶ 23, 179 P.3d 808 (cleaned up). And here, the necessary finding regarding emotional distress is implicit in the court’s statement that “although [the course of conduct] was aimed at the company, [it] was aimed at the company in a particularly harmful way and . . . satisfies the requirements of the stalking [statute].” At a minimum, Doug makes no argument to the contrary.

[9] In contrast, the current version of the code requires a finding that the actor “[knew] or [wasreckless as to whether the course of conduct would cause a reasonable person . . . to fear for the individual’s own safety or the safety of a third individual” or “to suffer other emotional distress.” Utah Code § 76-5-106.5(2)(a) (emphasis added).

[10] While we have concluded that the district court correctly interpreted the stalking statute and that its findings here are supported by the evidence, courts should remain cautious about allowing civil stalking injunctions to be used as tools in commercial litigation.

[11] The TKS parties do not argue that the Facebook post and comments would have caused a reasonable person in Troy’s position to fear for his or her safety or the safety of a third person.

[12] The TKS parties also contend that “[t]he district court erred in categorically finding that ‘all of the witnesses from [the] Wilson family possess such significant biases that the court cannot credit any of their testimony beyond a reasonable doubt.’” However, “the factfinder serves as the exclusive judge of both the credibility of witnesses and the weight to be given particular evidence.” State v. Jok, 2021 UT 35, ¶ 28, 493 P.3d 665 (cleaned up). This includes when the trial court is the factfinder. See In re J.R.H., 2020 UT App 155, ¶ 17, 478 P.3d 56 (“Trial courts . . . have wide latitude to make credibility determinations, and we defer to such determinations . . . .”). Hence, I believe the TKS parties have not demonstrated error on this point.

[13] Moreover, we take no issue with the lead opinion’s analysis in paragraphs 86 through 88, in which the lead opinion expresses a desire to “vacate the district court’s finding that ‘no evidence exists [that] Doug knew speaking indirectly about Troy would violate the [Personal Conduct Order].’” But our affirmance of the court’s emotional distress determination is, by itself, sufficient to conclude our analysis on the overarching question of whether Doug’s Facebook communications violated the Personal Conduct Order; thus, Judge Orme and I do not need to specifically assess the other elements contained in Part II.B.2.b of the lead opinion.

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In re Adoption of M.A. – 2024 UT 6 – petition to unseal adoption records – good cause

In re Adoption of M.A. – 2024 UT 6

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

2024 UT 6 IN THE SUPREME COURT OF THE STATE OF UTAH

In the matter of the adoption of M.A.

MARIANNE TYSON,  Appellant.

No. 20221097

Heard November 8, 2023

Filed February 22, 2024

On Certification from the Court of Appeals

Third District, Salt Lake County

The Honorable Laura S. Scott No. 223902369

Attorney: David Pedrazas, Millcreek, for appellant

ASSOCIATE CHIEF JUSTICE PEARCE authored the opinion of the

Court, in which CHIEF JUSTICE DURRANT, JUSTICE PETERSEN,

JUSTICE HAGEN, and JUSTICE POHLMAN joined.

ASSOCIATE CHIEF JUSTICE PEARCE, opinion of the Court:

INTRODUCTION

¶1 Marianne Tyson wants to see the court records that memorialized her 1978 adoption.[1] Tyson does not know who her birth parents are but hopes to learn “health, genetic, or social information” about them to inform her doctors about any medical predispositions she may have.

¶2 The Utah Legislature has made a number of policy choices concerning adoption records. “An adoption document and any other documents filed in connection with a petition for adoption are sealed” and closed from public view for a century following the adoption. UTAH CODE § 78B-6-141(2), (3)(e). The Legislature has also decided that those sealed adoption records can be inspected or copied when a petitioner has shown “good cause.” See id. § 78B-6-­141(3)(c). The Legislature has not, however, defined good cause. This court has implemented the Legislature’s “good cause” directive through Utah Rule of Civil Procedure 107(d). That rule instructs a court to determine “whether the petitioner has shown good cause and whether the reasons for disclosure outweigh the reasons for non-disclosure.” UTAH R. CIV. P. 107(d).

¶3 The district court denied Tyson’s petition to examine her adoption records. The court reasoned that good cause “require[d] something more than a desire to obtain health or genetic or social information unrelated to a specific medical condition of [Tyson]” and that to require less would “severely undermine[]” the “Legislature’s policy determination that adoption records should be sealed for 100 years.”

¶4 Tyson appeals, arguing in part that the district court misinterpreted the statute. We agree and remand to permit the district court to reassess Tyson’s petition under the correct standard.

BACKGROUND

¶5 Tyson was less than a year old when she was adopted in 1978. Some four decades later, she petitioned the district court to unseal her adoption file to discover “health, genetic, or social information” about her birth parents. Before her petition, Tyson had requested records from Utah’s voluntary adoption registry, which could not find a parental match.[2] In her petition, Tyson claimed that her doctors had requested family medical history regarding “menopause, high blood pressure and/or stroke” and that she could not provide the history because of her lack of access to her birth parents’ records. Tyson argued that her lack of family medical history was sufficient good cause to unseal her record under section 78B-6-141(3)(c). With respect to rule 107’s balancing requirement, she contended that her desire to understand her family medical history forty-four years after her adoption outweighed any interest in keeping the record sealed from her view.

¶6 Before the district court, Tyson admitted she was not aware that she suffered from any genetic condition for which it would be beneficial to have a better understanding of her family’s medical history. The court asked for additional briefing on the question of how it should interpret good cause. The court noted that “as I interpret the statute correctly or incorrectly, good cause is something more than simply the adult adoptee’s desire to have a general understanding of health or background or ethnicity or who the parents are.”

¶7 At the next hearing, Tyson continued to argue that her right to know her birth parents and their respective medical histories outweighed the birth parents’ privacy interests. The district court denied Tyson’s petition. It recognized that “good cause” is not defined in the statute nor in rule 107. The court also noted that there was no controlling precedent to provide a definition. The court nonetheless concluded that good cause “require[d] something more than a desire to obtain health or genetic or social information unrelated to a specific medical condition of [a] [p]etitioner.” The court reasoned that to require less would “severely undermine[]” the “Legislature’s policy determination that adoption records should be sealed for 100 years. ”

¶8 The district court acknowledged that Tyson correctly asserted that “[i]t is the intent and desire of the Legislature that in every adoption the best [interest] of the child should govern and be of foremost concern in the court’s determination.” (First referencing UTAH CODE § 78B-6-102; and then citing In re Adoption of B.B., 2017 UT 59, ¶ 35, 417 P.3d 1.) But the court also noted that the Legislature has decided that an unmarried mother is entitled to privacy regarding her pregnancy and adoption plan and that it protected this right through the one-hundred-year seal and the good cause requirement for unsealing. (Citing UTAH CODE § 78B-6­-102(5)(b), (7).) The court refused to use the best interest of the child standard for its inquiry, instead adhering to the good cause standard it had outlined.

¶9 The district court next conducted the balancing that rule 107 contemplates and determined that Tyson’s proffered reasons for unsealing her adoption records did not outweigh her birth mother’s privacy interests. The court found this was especially true “given the confidentiality that the statute afforded [the birth mother] when she made the decision to place [Tyson] for adoption over 40 years ago.” The court also noted that “in the absence of good cause, the court is required to guard the confidentiality of adoption records consistent with the Utah Legislature’s policy that such records be sealed.” In accordance with this analysis, the court determined that Tyson was not entitled to obtain the requested records and denied her petition.

STANDARD OF REVIEW

¶10 The Legislature has given district courts discretion to decide if good cause exists to unseal adoption records. We review that decision for an abuse of that discretion. But “[w]hen district courts have discretion to weigh factors[] [or] balance competing interests, . . . those discretionary determinations must rest upon sound legal principles.” State v. Boyden, 2019 UT 11, ¶ 21, 441 P.3d 737. A “[m]isapplication of the law constitutes an abuse of discretion.” Id. ¶ 19. Thus, “when a legal conclusion is embedded in a district court’s discretionary determination, we peel back the abuse of discretion standard and look to make sure that the court applied the correct law.” Id. ¶ 21. We review a lower court’s statutory interpretation for correctness. Scott v. Benson, 2023 UT 4, ¶ 25, 529 P.3d 319.

ANALYSIS

¶11 Tyson raises three arguments on appeal. She first claims that the best interest of the child is the overriding consideration in all adoption cases. And therefore, Tyson contends, the district court abused its discretion when it failed to consider whether the unsealing of her adoption records was in her best interest. Tyson next argues that the district court abused its discretion when it concluded that she was not entitled to obtain the records under Utah Code section 78B-6-141(3)(c). Finally, she contends that the district court abused its discretion when it held that the interest in non-disclosure outweighed Tyson’s justifications to unseal the records under Utah Rule of Civil Procedure 107.[3]

I. THE GOOD CAUSE STANDARD, NOT THE BEST INTEREST OF THE CHILD STANDARD, APPLIES TO PETITIONS TO UNSEAL ADOPTION RECORDS

¶12 Tyson first asserts that the district court erred because it failed to afford primacy to the “child’s best interest” in its analysis. Before the district court, Tyson argued that the Legislature has recognized that “in every adoption the best interest of the child should govern” and that standard should apply to her petition. (Quoting UTAH CODE § 78B-6-102(1).) The court refused to apply that standard and instead analyzed Tyson’s petition using what it understood to be the good cause standard found in Utah Code section 78B-6-141(3)(c).

¶13 Tyson argues that as an adult who was adopted as a minor, she maintains the protections that the law affords to adopted children.[4] Tyson advocates that the Legislature’s mandate—that “in every adoption the best interest of the child should govern”— applies to all proceedings related to a child’s adoption, regardless of when the proceedings occur. Tyson further argues that because “the best interests of the child are paramount[,] . . . [w]hen the interests of a child and an adult are in conflict, the conflict must be resolved in favor of the child.” (Citing In re Adoption of B.B., 2017 UT 59, ¶ 35 n.14, 417 P.3d 1.) Tyson contends we should categorically consider her interest, “as the adult adoptee, over the interest of her birth parents.”

¶14 Even assuming, without deciding, that the child’s best interest standard would otherwise apply to this proceeding, a basic canon of statutory interpretation defeats Tyson’s argument. “When we interpret a statute, we start with the plain language of the provision, reading it in harmony with other statutes in the same chapter and related chapters.” Buck v. Utah State Tax Comm’n, 2022 UT 11, ¶ 27, 506 P.3d 584 (cleaned up). “And where there is an inconsistency between related statutory provisions, the specific provision controls over the general.” Latham v. Off. of Recovery Servs., 2019 UT 51, ¶ 35, 448 P.3d 1241.

¶15 Here, Tyson wants us to promote the general over the specific. Section 78B-6-102(1) speaks about the “intent and desire of the Legislature” generally regarding adoptions, in that “in every adoption the best interest of the child should govern.” Section 78B­6-141(3)(c) speaks directly to the issue presented here—what a petitioner must show to unseal adoption records. We presume that the Legislature intended the more specific provision to control over the general statement. Therefore, the district court did not err when it applied the good cause standard instead of examining what was in Tyson’s best interest.

II. THE DISTRICT COURT ERRED WHEN IT RELIED ON THE LEGISLATURE’S DECISION TO SEAL ADOPTION RECORDS FOR ONE HUNDRED YEARS TO DERIVE THE MEANING OF “GOOD CAUSE”

¶16 The district court concluded that a desire to obtain health information “unrelated to a specific medical condition” was categorically insufficient to make a good cause showing under section 78B-6-141(3)(c). The court relied on what it perceived as the Legislature’s strong emphasis on privacy in adoption statutes to reach that conclusion. Tyson’s desire to provide family medical history to her doctors regarding “menopause, high blood pressure and/or stroke” did not, in the court’s eyes, constitute good cause to unseal her adoption records.

¶17 Tyson challenges the district court’s definition of good cause. She argues that the privacy concerns the Legislature addresses lose their potency over time. Tyson claims her birth mother has enjoyed over forty years of privacy and that affording her further confidentiality cannot outweigh Tyson’s desire to know her family medical history. Specifically, Tyson states that the only reason the Legislature protects a birth mother’s privacy is to assure “the permanence of an adoptive placement.” (Quoting UTAH CODE § 78B-6-102(5)(b).) Tyson argues that “once the Adoptee is an adult, there is no other interest in protecting the privacy of the mother and/or adoptee” because permanence has been achieved. In other words, “once the adoptee has become an adult, the legislative intent has been met and satisfied.” So, according to Tyson, “[t]he interest of Adult Adoptee[s] [like Tyson] should outweigh whatever interest the [S]tate has in protecting . . . [the] privacy of the mother from an Adult Adoptee.”

¶18 Utah Code section 78B-6-141(3)(c) states that an adoption petition and all other documents filed in connection with a petition for adoption “may only be open to inspection and copying . . . upon order of the court expressly permitting inspection or copying, after good cause has been shown.” When it applied this provision to Tyson’s petition, the district court stated that good cause required Tyson to show “something more than a desire to obtain health or genetic or social information unrelated to a specific medical condition.” The court further reasoned that “if this was all that was required to show good cause, the Utah Legislature’s policy determination that adoption records should be sealed for 100 years would be severely undermined.” In essence, the court concluded that a desire to see one’s medical record unrelated to a specific medical condition could not constitute good cause as a matter of law because it would weaken the privacy protections the statute affords to birth parents.

¶19 The Legislature did not define good cause in the context of section 78B-6-141(3)(c). This stands in contrast to other statutory provisions where the Legislature makes clear what it intends good cause to mean. For example, in Utah Code section 32B-14-102(3), the Legislature tells us that good cause equates to “the material failure by a supplier or a wholesaler to comply with an essential, reasonable, and lawful requirement imposed by a distributorship agreement if the failure occurs after the supplier or wholesaler acting in good faith provides notice of deficiency and an opportunity to correct.”

¶20 At times, the Legislature has granted courts broad discretion by not defining good cause, only to add a definition after it sees how the courts have applied the standard. We noted in State v. Ruiz that, under a prior version of the plea withdrawal statute, judges “had broad discretion to determine the scope of circumstances that constituted ‘good cause’ and warranted withdrawal of a plea.” 2012 UT 29, ¶ 31, 282 P.3d 998. But we also noted that the Legislature had amended the statute so that “judges may now grant a motion to withdraw only when they determine that a defendant’s plea was not knowingly and voluntarily entered.” Id. ¶ 32.

¶21 When a court deals with an undefined good cause standard, it has discretion to look to the facts and arguments presented to decide the question. Although it deals with a rule and not a statute, Reisbeck v. HCA Health Services of Utah, Inc. is instructive. See 2000 UT 48, ¶¶ 5–15, 2 P.3d 447. The appellant in Reisbeck failed to file her notice of appeal within the thirty days that Utah Rule of Appellate Procedure 4(a) requires and sought a discretionary extension from the trial court for “good cause” under Utah Rule of Appellate Procedure 4(e). Id. ¶¶ 5, 7. We refused to “establish any specific criteria for determining good cause” because “the assessment of the justifications offered by a moving party will remain highly fact-intensive, and because any given justification may entail aspects both within and beyond the moving party’s control.” Id. ¶¶ 14–15 (cleaned up). That is, an undefined good cause standard provides courts with discretion to consider the merits of individual cases.

¶22 Here, the district court attempted to breathe a more specific meaning into the phrase “good cause.” Although it is understandable that the court would want more guidance than the statute provides, it interpreted the statute in a fashion that rewrote the law. The district court opined that good cause must mean “something more than a desire to obtain health or genetic or social information unrelated to a specific medical condition of [Tyson].” The court reasoned that to require less would “severely undermine[]” the “Legislature’s policy determination that adoption records should be sealed for 100 years.”

¶23 But the statute already balances the policy determination that records be sealed for one hundred years against a petitioner’s desire to see those records. The Legislature resolved the question of when a petitioner can have access to those records by stating that a petitioner can unseal those records whenever she can show a court that good cause exists to do so. To impose additional requirements—such as more than a general desire to know one’s medical history—is inconsistent with the statute’s language. Stated differently, if the Legislature had wanted to impose a requirement that a petitioner point to something more than wanting to know her medical history, it could have put that in the statute. It did not, and it was error for the court to do so.

III. THE DISTRICT COURT DID NOT CONSIDER THE REASONS FOR DISCLOSURE IN ITS RULE 107 DETERMINATION

¶24 The district court not only concluded that Tyson had failed to establish good cause under section 78B-6-141(3)(c), it also determined that she could not meet the showing Utah Rule of Civil Procedure 107(d) requires.

¶25 Rule 107 provides, in relevant part, that: (i) a petition to open adoption records “shall identify the type of information sought and shall state good cause for access”; (ii) if seeking “health, genetic or social information, the petition shall state why the health history, genetic history or social history of the Bureau of Vital Statistics is insufficient for the purpose“; and (iii) in its resolution of the petition, “[t]he court shall determine whether the petitioner has shown good cause and whether the reasons for disclosure outweigh the reasons for non-disclosure.”[5] UTAH R. CIV. P. 107(b), (d).

¶26 Here, the district court ruled that Tyson’s “reasons for wanting access to the adoption records” did not “outweigh her birth mother’s interest in privacy.” But instead of balancing both interests under rule 107, the court focused solely on the birth mother’s privacy interests. The court did not consider the reasons for disclosure. This is likely because the court had already discounted Tyson’s desire to see her adoption records when it interpreted “good cause.” In other words, once the court determined that Tyson could not show good cause under section 78B-6-141(3)(c), it may have concluded that it had nothing to put on the disclosure side of the scale when the court balanced disclosure against non-disclosure.

¶27 We remand to permit the district court to evaluate Tyson’s petition under a correct interpretation of section 78B-6-141(3)(c) and to conduct a rule 107 balancing that gives weight to both the birth mother’s privacy interests and Tyson’s reasons for wanting to see her adoption records.

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


[1] In juvenile matters, we typically refer to the subject of the case by their initials. Tyson used her name in the district court briefing and in the briefing before this court. We acknowledge the importance of maintaining confidentiality in juvenile cases, but because Tyson is an adult who uses her full name in court documents, we do so as well.

[2] The Utah Adoption Registry is a voluntary, mutual-consent registry that helps adult adoptees born in Utah and their birth parents and blood-related siblings reunite with one another. See UTAH CODE § 78B-6-144.

[3] On appeal, Tyson asserts that “[e]very person has the constitutional and natural right to know their health, genetic or social information” and that by denying her that right and refusing to unseal her adoption records, we are denying her equal protection under the law as guaranteed by the Fourteenth Amendment. But Tyson has failed to offer any authority or legal basis to support that argument. Advancing a successful argument requires more than dangling an interesting soundbite. “A party may not simply point toward a pile of sand and expect the court to build a castle.” Salt Lake City v. Kidd, 2019 UT 4, ¶ 35, 435 P.3d 248. Tyson has inadequately briefed her constitutional argument, and we will leave the question for a case in which it has been fully briefed.

[4] Tyson cites the District of Columbia high court to support her proposition that the legal protections afforded to children should extend to minor adoptees who have become adults. (Citing In re G.D.L., 223 A.3d 100 (D.C. 2020).) That case is not helpful because the District of Columbia’s unsealing statute is significantly different from Utah’s. The D.C. statute provides that adoption records may only be unsealed “when the court is satisfied that the welfare of the child will . . . be promoted or protected.” D.C. CODE § 16-311.

[5] At first blush, Utah Rule of Civil Procedure 107 appears to smear some extra-textual gloss on the statute when it requires a petitioner to state why she cannot get medical information from the Bureau of Vital Statistics, and when it instructs a court to assess whether the “reasons for disclosure outweigh the reasons for non­disclosure.” Tyson does not challenge rule 107 and we will leave that question for another case.

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Clark v. Clark – 2023 UT App 111 – divorce, exhibits, dissipation

Clark v. Clark – 2023 UT App 111

THE UTAH COURT OF APPEALS

SUSAN JEANNE CLARK,

Appellee,

v.

RICHARD LEE CLARK,

Appellant.

Opinion

No. 20210713-CA

Filed September 28, 2023

Fourth District Court, Heber Department

The Honorable Jennifer A. Brown

No. 184500153

Karra J. Porter and Kristen C. Kiburtz, Attorneys for Appellant

Julie J. Nelson, Attorney for Appellee

JUDGE AMY J. OLIVER authored this Opinion, in which JUDGES

MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY

concurred.

OLIVER, Judge:

¶1        Richard Lee Clark appeals from the district court’s decision following a two-day divorce trial. Clark challenges several aspects of the court’s ruling, including a discovery sanction for his failure to timely disclose his trial exhibits under rule 26 of the Utah Rules of Civil Procedure; findings relating to his claim that his ex-wife, Susan Jeanne Clark, dissipated the marital estate; and the court’s division of the marital property. We affirm the district court’s ruling with the exception of one aspect of the district court’s marital property determination, which we vacate and remand for additional findings.

BACKGROUND

¶2        Richard and Susan[1] married in 2002, when Richard was in his sixties and Susan was in her fifties. Richard was retired from military service and from employment as an attorney with the Department of Justice. Susan owned a wallpaper business when she met Richard but quit working shortly after they married. For the next six years, Richard and Susan lived off Richard’s retirement income from both the Army and the Department of Justice.

¶3        In 2008, Richard came out of retirement to work for a government contractor in Afghanistan, where he lived for thirty-eight months. During that time, Richard’s retirement and employment income of $814,627 was deposited into a joint account that Susan controlled. Richard returned home to find “probably about $100,000 . . . had been saved” in the joint bank account—much less than he expected—yet he said nothing to Susan at that time.

¶4        Three years after his return, Richard moved into the basement of the marital home. The following year, in 2016, Susan transferred approximately $78,000 from their joint account into her personal account, prompting Richard to confront her about what he viewed as missing money from his time in Afghanistan. Two years later, in 2018, Susan filed for divorce. Shortly afterward, Richard purchased a Harley-Davidson motorcycle with financing, which he paid off in 2020.

¶5        At the time of their divorce, Richard and Susan owned two real properties—a condo in Norfolk, Virginia (Mooring Drive), and a home in Kamas, Utah (Ross Creek). Richard had purchased Mooring Drive before the marriage for approximately $205,000. In 2003, Richard added Susan to the title of Mooring Drive, which allowed her to vote at the condominium association’s meetings and to join the board. The following year, Richard and Susan used equity loans on Mooring Drive to finance the purchase and construction of Ross Creek. From 2009—when Susan moved to Utah and Richard was in Afghanistan—until June 2019, Richard rented Mooring Drive out to others and the revenues were deposited into his separate account that was designated to pay for the property’s expenses.

¶6        During their marriage, the parties took out an equity loan on Ross Creek that matured, along with one of the equity loans from Mooring Drive, in 2019. With the divorce still pending, Susan agreed to refinance Ross Creek’s mortgage to pay off the two equity loans that were due, but only if Richard would stipulate that Mooring Drive and Ross Creek were marital property and were subject to equitable division in their pending divorce. Richard agreed, and the parties stipulated that “the Ross Creek and Mooring Drive properties shall remain marital property and shall be subject to equitable division in the parties’ divorce notwithstanding that the Ross Creek home and Mooring Drive property will no longer be jointly titled.”

¶7        In April 2019, the Mooring Drive tenants’ lease expired. Richard decided he could only offer the tenants a month-to-month lease until his divorce was over. When the tenants declined to renew and moved out in June, Richard withdrew $30,000 from the joint bank account, claiming that he needed the funds to cover Mooring Drive’s expenses. After a hearing, the court entered temporary orders in December 2019, permitting Richard to access equity in Ross Creek to pay off debt on Mooring Drive but denying his “request for financial relief based on the loss of rental income because [Richard] ha[d] not made any attempt to secure new renters.”

¶8        Trial was originally scheduled for June 2020, but when the COVID-19 pandemic hit and courts were required to hold bench trials virtually, Richard declined to proceed with a virtual trial, and it was continued without a date. In February 2021, the court held a pretrial scheduling conference and rescheduled the trial for May 2021. The court’s pretrial order stated the parties must produce pretrial disclosures on or before April 26, 2021, pursuant to rule 26(a)(5)(B) of the Utah Rules of Civil Procedure.

¶9        Richard missed the deadline. A week after it passed, he requested a continuance to hire trial counsel. Richard had been representing himself as a pro se litigant despite being eighty-four years old and not having practiced law since 1988. According to Richard, health issues arose that made him “no longer physically and mentally capable of representing” himself. The court granted the motion, rescheduling the trial for June. The new deadline for pretrial disclosures became May 24, but Richard did not submit his pretrial disclosures until June 10—eleven days before trial.

¶10      The two-day trial began with Susan’s objection to Richard’s untimely pretrial disclosures. Susan contended that Richard had “ample opportunity” to produce his pretrial disclosures given the multiple continuances of the trial. In response, Richard claimed his failure to meet the disclosure deadline was harmless because he had previously produced as discovery responses the 339 pages of financial documents—including check registers, paystubs from 2008 to 2009, and bank account information from 2011 to 2012— that he sought to admit as exhibits 2 through 8. Yet Richard did not file certificates of service for those responses, and neither party’s counsel could confirm whether Richard had previously sent the documents in exhibits 2 through 8 to Susan, leaving the district court with only Richard’s testimony to support the claim that he had previously disclosed the exhibits. The district court sustained Susan’s objection as to exhibits 2 through 8, excluding them from trial.

¶11      Both Susan and Richard testified at trial. Susan testified Richard had transferred $30,000 from their joint account to his personal account in June 2019 and contended she was entitled to half of that amount. Susan also testified about her exhibits that provided recent balances in her bank and retirement accounts.

¶12      On cross-examination, Susan admitted she had not looked for work and was unemployed despite the court’s urging in 2020 for her to seek employment. Richard then peppered Susan about numerous expenditures during his time in Afghanistan, to which Susan replied that it “was a number of years ago” and she “ha[d] no recollection at all” of the transactions. Susan did state, however, that when Richard left for Afghanistan, she recalled they “had very large credit card balances” that Richard instructed her “to start paying off” while he was away.

¶13 First testifying as Susan’s witness, Richard answered questions about some of the marital property. He testified about a recent appraisal of Mooring Drive that valued it at $390,000, his three life insurance policies that all list Susan as the beneficiary, and his purchase of the Harley-Davidson in May 2019. Susan then introduced a pleading Richard had filed with the court in November 2019 that stated, in relevant part, he had “owned three motorcycles, selling the last one when [he] moved to Norfolk,” but he has “never ridden a Harley-Davidson.” Richard replied that he had “misstated the fact,” both in that pleading and at a hearing the same month when he told the court he did not own a Harley-Davidson. Richard testified he should receive three-fourths of the equity in Mooring Drive because he purchased it before the marriage. Unable to provide a figure for what the property was worth when he married Susan, Richard claimed that “the[] prices have gone up and gone down a great deal” since their marriage, but his best guess was that Mooring Drive appreciated from $205,000 to $350,000 between 2000 and 2002. Richard continued to do some impromptu math on the stand to clarify how much equity he felt he was owed, asserting that since Mooring Drive was recently appraised at $390,000 and had been worth $350,000 in 2002—by his best guess—there is $40,000 of equity for them to divide, but then he admitted such valuation “is something I’m just not knowledgeable about.”

¶14      As his own witness, Richard testified about Susan’s alleged dissipation during his time in Afghanistan. Richard’s excluded exhibits went to the issue of dissipation, so without the financial documents from that period, Richard sought to prove Susan “dissipated money while [he] was in Afghanistan” through his testimony about his earnings and typical expenses during that time frame. Using the excluded exhibits to refresh his recollection, Richard estimated their monthly expenses before he left were approximately $10,000 to $11,000. Richard also challenged Susan’s testimony about credit card balances, claiming that “there weren’t any large credit card balances before [he] left.”

¶15      At the conclusion of trial, the district court asked both parties to submit proposed findings of fact and conclusions of law in lieu of closing arguments. After issuing an oral ruling, the district court memorialized its decision in written findings of fact and conclusions of law. The court found that Richard’s “testimony was insufficient to establish his [dissipation] claim” and that Richard had “failed to meet his burden of demonstrating dissipation.” The court also found “problems with the credibility of both parties,” specifically finding that Susan’s “credibility was lacking with regards to the dissipation issue” and Richard’s “credibility was lacking with regards to his motorcycle purchase.” Susan was awarded Ross Creek’s equity, and Richard was awarded Mooring Drive’s. The court awarded Susan $2,500 per month in alimony and an offset of $43,474 (from Richard’s purchase of the Harley-Davidson and his $30,000 withdrawal from the joint account) “to achieve an equitable division of the estate.” The court found Richard “withdrew $30,000 from the joint account without [Susan’s] knowledge or consent and deposited it into his own personal account,” but it made no findings as to how Richard spent the $30,000.

ISSUES AND STANDARDS OF REVIEW

¶16      Richard raises three main issues for our review. First, Richard challenges the district court’s exclusion of his exhibits for his failure to comply with rule 26(a)(5) of the Utah Rules of Civil Procedure. A district court “has broad discretion regarding the imposition of discovery sanctions,” and when we apply “the abuse of discretion standard to the district court’s imposition of a particular sanction, we give the district court a great deal of latitude.” Bodell Constr. Co. v. Robbins, 2009 UT 52, ¶ 35, 215 P.3d 933 (cleaned up).

¶17 Second, Richard contends the district court erred in its application of the burden of proof on Richard’s dissipation claim. A district court’s “allocation of the burden of proof is . . . a question of law that we review for correctness.” Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶ 20, 435 P.3d 179.

¶18      Finally, Richard challenges the district court’s division of the property, including the court’s finding that the marital estate included Mooring Drive and the Harley-Davidson, and its decision to deduct from the marital estate the $30,000 Richard withdrew from the parties’ joint account. A district court “has considerable discretion considering property division in a divorce proceeding, thus its actions enjoy a presumption of validity,” and “we will disturb the district court’s division only if there is a misunderstanding or misapplication of the law indicating an abuse of discretion.” Beckham v. Beckham, 2022 UT App 65, ¶ 6, 511 P.3d 1253 (cleaned up).

ANALYSIS

I. Pretrial Disclosures

¶19      Richard asserts the district court abused its discretion in excluding his exhibits 2 through 8 for failure to comply with rule 26(a)(5) of the Utah Rules of Civil Procedure because he “produced the documents that comprised the exhibits” during discovery and any “technical non-compliance with that rule” was “harmless.” We disagree.

¶20      Rule 26 governs “disclosure and discovery” in civil matters and requires parties to provide “a copy of each exhibit, including charts, summaries, and demonstrative exhibits, unless solely for impeachment, separately identifying those which the party will offer and those which the party may offer . . . . at least 28 days before trial.” Utah R. Civ. P. 26(a)(5). A party who fails to timely disclose exhibits “may not use the undisclosed witness, document, or material at . . . trial unless the failure is harmless or the party shows good cause for the failure.” Id. R. 26(d)(4). A district court “has broad discretion in selecting and imposing sanctions for discovery violations under rule 26,” and “appellate courts may not interfere with such discretion unless there is either an erroneous conclusion of law or no evidentiary basis for the district court’s ruling.” Wallace v. Niels Fugal Sons Co., 2022 UT App 111, ¶ 26, 518 P.3d 184 (cleaned up), cert. denied, 525 P.3d 1267 (Utah 2023).

¶21      Richard does not dispute that he failed to timely disclose exhibits 2 through 8. Instead, Richard argues he produced the documents in those exhibits to Susan in earlier discovery responses, so his failure to timely file pretrial disclosures was harmless, and he further argues that it was Susan’s burden to prove she had not received them. In response, Susan asserts it was Richard’s burden, not hers, to prove that he produced the documents earlier in discovery, and the failure to file his pretrial disclosures pursuant to rule 26(a)(5) was not harmless. We agree with Susan on both fronts.

¶22 First, “the burden to demonstrate harmlessness or good cause is clearly on the party seeking relief from disclosure requirements.” Dierl v. Birkin, 2023 UT App 6, ¶ 32, 525 P.3d 127 (cleaned up), cert. denied, 527 P.3d 1107 (Utah 2023). Second, Richard failed to carry his burden of demonstrating harmlessness. Although Richard “assured [his counsel] that he [had] produced records related to this 2008-to-2012 timeframe,” he did not file the required certificates of service. See Utah R. Civ. P. 26(f) (requiring a party to file “the certificate of service stating that the disclosure, request for discovery, or response has been served on the other parties and the date of service”). Thus, Richard failed to prove that the documents had previously been produced.

¶23 But even if he had proved prior production, excusing pretrial disclosures if the documents were produced earlier in discovery would “eviscerate[] the rule that explicitly requires parties to” serve a copy of the documents they intend to use “in their case-in-chief at trial.” Johansen v. Johansen, 2021 UT App 130, ¶¶ 19, 26, 504 P.3d 152 (rejecting argument to follow the spirit of rule 26 rather than “the plain language of rule 26” regarding pretrial disclosures); see also Utah R. Civ. P. 26(a)(5)(A)(iv) (requiring pretrial disclosure of “each exhibit” the party will or may offer at trial). And expecting a party to sort through hundreds, if not thousands, of pages of documents that were produced earlier by the other side during discovery and then expecting the party to predict which ones the opposing party might seek to admit at trial would be harmful and would violate the intent of rule 26.

¶24 Ultimately, “a court’s determination with respect to harmlessness . . . . is a discretionary call,” and our review of it “is necessarily deferential.” Johansen, 2021 UT App 130, ¶ 11 (cleaned up). Thus, the district court was well within its “broad discretion” to exclude Richard’s exhibits 2 through 8 under these circumstances. See Wallace, 2022 UT App 111, ¶ 26 (cleaned up).

II. Dissipation

¶25 Richard claims the district court erred in finding that he failed to meet the burden of proof on his dissipation claim. We disagree.

¶26      “The marital estate is generally valued at the time of the divorce decree or trial.” Goggin v. Goggin, 2013 UT 16, ¶ 49, 299 P.3d 1079 (cleaned up). “But where one party has dissipated an asset,” the “trial court may, in the exercise of its equitable powers,” “hold one party accountable to the other for the dissipation.” Id. (cleaned up). A court’s inquiry into a dissipation claim may consider “a number of factors,” such as “(1) how the money was spent, including whether funds were used to pay legitimate marital expenses or individual expenses; (2) the parties’ historical practices; (3) the magnitude of any depletion; (4) the timing of the challenged actions in relation to the separation and divorce; and (5) any obstructive efforts that hinder the valuation of the assets.” Wadsworth v. Wadsworth, 2022 UT App 28, ¶ 69, 507 P.3d 385 (cleaned up), cert. denied, 525 P.3d 1259 (Utah 2022).

¶27 The burden of proof for dissipation initially falls on the party alleging it. See Parker v. Parker, 2000 UT App 30, ¶ 15, 996 P.2d 565 (stating that a party seeking to assert dissipation must make an “initial showing of apparent dissipation”). The district court correctly concluded that Richard bore the “burden of demonstrating dissipation.” To meet the “initial showing of apparent dissipation,” the party alleging dissipation must first show evidence of dissipation. Id. ¶¶ 13, 15. Only after “present[ing] the trial court with evidence tending to show that [Susan] had dissipated marital assets” does the burden shift to Susan “to show that the funds were not dissipated, but were used for some legitimate marital purpose.” Id. ¶ 13.

¶28 Richard’s documentary evidence on this issue had been excluded by the court, so the only evidence he presented was his testimony in 2021 that his income while in Afghanistan from 2008 to 2012 exceeded the estimated historical marital expenses from before 2008, some thirteen years earlier. Richard asserts that his testimony alone should suffice for an initial showing of dissipation. In Parker v. Parker, 2000 UT App 30, ¶ 15, 996 P.2d 565, the husband “presented the trial court with evidence” that detailed how the wife had dissipated marital assets—exact beginning and ending balances for eight bank accounts, the marital expenses during the time in question, and specific checks the wife wrote to herself—thus shifting the burden to the wife. Id. ¶ 13. But Richard, like the wife in Parker, only “testified in conclusory and cryptic terms,” and thus “wholly failed to meet [his] burden.” Id. ¶ 14.

¶29      Therefore, the district court was well within its discretion to decide that Richard’s uncorroborated testimony about Susan’s spending that occurred many years before either party contemplated divorce[2] was insufficient evidence to meet his initial burden of proving dissipation. Accordingly, the district court did not err in its finding that Richard failed to meet his burden of proof on the dissipation claim.

III. Marital Property

¶30      Richard presents three challenges to the district court’s division of the marital property. First, Richard asserts he is entitled to his premarital contribution to Mooring Drive. Second, he alleges the Harley-Davidson he purchased during the pendency of the divorce is his separate property. Third, Richard claims the court should not have deducted from the marital estate the $30,000 that he withdrew from the joint account in June 2019.

We affirm the district court’s decision on Richard’s first two challenges and vacate the decision on the third, remanding the matter for additional findings.

A.        Mooring Drive

¶31      Although the district court awarded Richard the equity in Mooring Drive when it divided the marital estate, it did not also award Richard any premarital equity in the property for three reasons. First, it found that Richard “formally stipulated that Ross Creek and Mooring Drive were marital property subject to division in this divorce action.” Second, it found that “through a series of refinances, [Richard] transferred equity from Ross Creek to Mooring Drive, and paid expenses associated with both properties with marital funds.” Third, it found that Richard “formally conveyed the property to himself and [Susan] in 2003” when he added Susan’s name to the title. Because we affirm the district court’s decision not to award Richard any premarital equity on the basis of the parties’ stipulation, we do not address the other two reasons the district court relied upon.

¶32 Richard and Susan stipulated that “the Ross Creek and Mooring Drive properties shall remain marital property and shall be subject to equitable division in the parties’ divorce, notwithstanding that the Ross Creek home and Mooring Drive property will no longer be jointly titled.” Richard now claims that despite the language of the stipulation, he “never agreed that he should not be compensated for his premarital and separate contributions to Mooring Drive before the property became marital.” Furthermore, Richard argues, “nowhere in the stipulation did he agree that he was waiving his premarital equity in that property.”

¶33 Richard’s argument is flawed. “Parties to a divorce are bound by the terms of their stipulated agreement.” McQuarrie v. McQuarrie, 2021 UT 22, ¶ 18, 496 P.3d 44. And according to the “ordinary contract principles” that govern “contracts between spouses,” see Ashby v. Ashby, 2010 UT 7, ¶ 21, 227 P.3d 246 (cleaned up), “if the language within the four corners of the contract is unambiguous, the parties’ intentions are determined from the plain meaning of the contractual language,” Green River Canal Co. v. Thayn, 2003 UT 50, ¶ 17, 84 P.3d 1134 (cleaned up). See also Mind & Motion Utah Invs., LLC v. Celtic Bank Corp., 2016 UT 6, ¶ 24, 367 P.3d 994 (holding that “the best indication of the parties’ intent is the ordinary meaning of the contract’s terms”); Ocean 18 LLC v. Overage Refund Specialists LLC (In re Excess Proceeds from the Foreclosure of 1107 Snowberry St.), 2020 UT App 54, ¶ 22, 474 P.3d 481 (holding that where the “contract is facially unambiguous, the parties’ intentions are determined from the plain meaning of the contractual language . . . without resort to parol evidence” (cleaned up)).

¶34      Richard essentially argues that the district court erred when it refused to go beyond the stipulation’s language and infer his intention from what he omitted. But the district court was correct when it interpreted the parties’ intentions by what the plain language of the stipulation does say and not by what it does not. Therefore, the district court did not abuse its discretion when it abided by the parties’ stipulation and included Mooring Drive as marital property, “subject to equitable division.”

B.        The Harley-Davidson

¶35      “Prior to the entry of a divorce decree, all property acquired by parties to a marriage is marital property, owned equally by each party.” Dahl v. Dahl, 2015 UT 79, ¶ 126, 456 P.3d 276. Thus, the presumption is that property acquired during the pendency of a divorce is marital, not separate. Richard failed to rebut this presumption regarding the Harley-Davidson motorcycle he purchased because he failed to present evidence that he used separate funds.

¶36 Richard argued that he purchased the Harley-Davidson from separate, rather than marital, funds in his proposed findings of fact and conclusions of law.[3] To be clear, Richard does not assert that the Harley-Davidson is separate property because he purchased it after the parties separated or after Susan filed for divorce. Instead, he argues the only funds available to him to purchase the motorcycle came from his “separate premarital retirement income.” Richard’s argument fails for two reasons. First, Richard did not present evidence to support his argument that the funds he used to purchase the motorcycle came from separate, not marital, funds. Instead, Richard essentially places his burden on the district court by asserting, on appeal, that “[t]here was no marital account identified by the district court from which [Richard] could have made that purchase.” But Richard, not the court, bears the burden of identifying where the funds came from that he used to purchase the motorcycle.

¶37      Second, the district court found credibility problems with Richard’s testimony about the Harley-Davidson, concluding that Richard’s “credibility was lacking with regards to his motorcycle purchase.”[4] A district court “is in the best position to judge the credibility of witnesses and is free to disbelieve their testimony” or “disregard such testimony if it finds the evidence self-serving and not credible.” Ouk v. Ouk, 2015 UT App 104, ¶ 14, 348 P.3d 751 (cleaned up).

¶38      In sum, as “property acquired during [the] marriage,” the Harley-Davidson is presumptively “marital property subject to equitable distribution.” Dahl, 2015 UT 79, ¶ 26. Richard bore the burden of proof to rebut the presumption that the funds he used to purchase the Harley-Davidson were not marital, and he presented no credible evidence to the district court to support that position. Thus, the district court did not abuse its discretion by including the motorcycle in the marital estate.

C.        $30,000 Offset

¶39      Finally, Richard challenges the district court’s decision to include in the marital estate the $30,000 he withdrew from the joint account. The district court agreed with Susan that because Richard had made a unilateral withdrawal from the joint account during the pendency of the divorce, he should be held accountable for that withdrawal. Richard, on the other hand, claims he used the money for marital expenses, paying costs associated with Mooring Drive. Susan argues the money could also have been spent on personal items including travel and motorcycle payments and accessories. “How the money was spent, including whether [the] funds were used to pay legitimate marital expenses or individual expenses,” Wadsworth v. Wadsworth, 2022 UT App 28, ¶ 69, 507 P.3d 385 (cleaned up), cert. denied, 525 P.3d 1259 (Utah 2022), is a critical question that needs to be resolved.

¶40 Divorce cases often require district courts to make numerous findings of fact. And generally speaking, “for findings of fact to be adequate, they must show that the court’s judgment or decree follows logically from, and is supported by, the evidence” and such findings “should be sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.” Armed Forces Ins. Exch. v. Harrison, 2003 UT 14, ¶ 28, 70 P.3d 35 (cleaned up). Moreover, when it comes to the “unequal division of marital property,” a district court must “memorialize[] in . . . detailed findings the exceptional circumstances supporting the distribution.” Bradford v. Bradford, 1999 UT App 373, ¶ 27, 993 P.2d 887 (cleaned up). “Without adequate findings detailing why [one spouse] should be entitled to such an unequal split of the marital estate, we cannot affirm the court’s award.” Fischer v. Fischer, 2021 UT App 145, ¶ 29, 505 P.3d 56; see, e.g.Rothwell v. Rothwell, 2023 UT App 50, ¶ 57, 531 P.3d 225 (concluding that “we simply do not have enough information” to rule on whether the funds were marital or separate, “let alone to conclude that the district court

. . . erred”).

¶41      We face the same dilemma here. The district court made no findings as to how Richard spent the $30,000. The written ruling merely states, “In June 2019, [Richard] withdrew $30,000 from the joint account without [Susan’s] knowledge or consent and deposited it into his own personal account.” “We will not imply any missing finding where there is a matrix of possible factual findings and we cannot ascertain the trial court’s actual findings.” Hall v. Hall, 858 P.2d 1018, 1025–26 (Utah Ct. App. 1993). Without “adequate findings” on whether Richard used the funds for marital expenses or not, “we cannot affirm,” nor properly review, the court’s decision to offset the $30,000 against Richard in its division of the marital estate. See Fischer, 2021 UT App 145, ¶ 29. Therefore, we vacate this portion of the decision and remand the matter to the district court for it to enter findings on how the funds were spent.

CONCLUSION

¶42 The district court did not abuse its discretion when it excluded Richard’s exhibits for failure to comply with rule 26(a)(5) of the Utah Rules of Civil Procedure. The district court also did not err in its conclusion that Richard failed to meet the burden of proof for his dissipation claim nor did it abuse its discretion in how it divided the marital estate with respect to Mooring Drive and the Harley-Davidson. We vacate the district court’s decision to offset the $30,000 against Richard when it divided the marital estate and remand the matter for the district court to enter additional findings and to alter its conclusion as may be necessary.


[1] Because the parties share the same surname, we refer to them by their first names, with no disrespect intended by the apparent informality.

[2] Susan invites us to join some other states in drawing a bright-line rule concerning the timing of a dissipation claim and limit pre-separation dissipation claims to those occurring (1) in contemplation of divorce or separation or (2) when the marriage is in serious jeopardy or undergoing an irretrievable breakdown. Under our caselaw, the district court is empowered to consider the “timing of the challenged actions in relation to the separation and divorce” as one of several factors when determining “whether a party should be held accountable for the dissipation of marital assets.” Marroquin v. Marroquin, 2019 UT App 38, ¶ 33, 440 P.3d 757 (cleaned up). We see no need to alter this approach. Assessing timing as one factor among many provides the greatest flexibility to the district court to consider all the circumstances in a particular case, and we believe the district court is in the best position to evaluate the importance of such evidence on a case-by-case basis.

[3] Because the district court directed the parties to submit proposed findings of fact and conclusions of law in lieu of closing arguments, Richard’s argument was preserved for our review.

[4] Indeed, in its oral ruling, the court stated that Richard “lied to the Court about the purchase of the motorcycle.”

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Blake v. Smith – 2023 UT App 78 – child custody, child support

Blake v. Smith – 2023 UT App 78

2023 UT App 78

THE UTAH COURT OF APPEALS

DEJUAN BLAKE,

Appellee,

v.

JILLYN SMITH,

Appellant.

Opinion

No. 20210779-CA

Filed July 20, 2023

Third District Court, Salt Lake Department

The Honorable Su Chon

No. 184900112

Julie J. Nelson, Attorney for Appellant

DeJuan Blake, Appellee Pro Se

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

concurred.

CHRISTIANSEN FORSTER, Judge:

 

¶1        Jillyn Smith appeals the district court’s order regarding custody and child support for her minor son (Child). Because we determine the court abused its discretion by awarding Smith sole physical and legal custody while requiring joint decision-making between Smith and Child’s father, DeJuan Blake, we vacate that part of the court’s custody award. Furthermore, because we conclude the court made a mathematical error in calculating the amount of child support, and that a further examination of the evidence of Blake’s income is warranted, we reverse the court’s child support award and remand for recalculation as appropriate.

BACKGROUND

¶2        Smith met Blake in 2007 in Las Vegas, Nevada, and the two entered into a relationship. As a result of the relationship, Smith became pregnant with Child in 2009. At the time Smith learned about the pregnancy, she was no longer living in Las Vegas—she had moved to Utah to escape her relationship with Blake.

¶3        After a tumultuous pregnancy, during which Blake continuously asked Smith to have an abortion, Child was born in Utah in October 2009. Blake traveled to Utah to visit Child twice during the first year of Child’s life, with each visit lasting “maybe an hour or two.” The sporadic visits continued over the next few years, with Child and Smith traveling with Blake on short trips together. Although Smith asked Blake for financial support during this time, Blake did not provide support and instead always offered an “excuse.” Eventually, the communications between the couple became too toxic and Smith elected to “take a break from communication” with Blake.

¶4        Thereafter, Smith decided to “give [Blake] a second chance.” Blake and Child had “maybe a few” “infrequent[]” telephone conversations a year, but the conversations were short due to Child’s speech impediment. Blake was not involved in Child’s schooling or scheduling, he never attended Child’s doctor’s appointments, and he “wouldn’t follow through” or offer any explanation as to why he could not help Smith with financial support for Child’s medical care or educational needs.

¶5        Blake traveled to Utah in 2015 to attend Child’s birthday party. Toward the end of the party, Blake and Smith had a verbal altercation regarding Blake’s failure to honor their agreement for Blake to pay Smith child support. Following this visit, Blake returned to Utah once in 2016 to attend Child’s baseball game. That visit also ended in a verbal altercation.

¶6        In January 2018, Blake petitioned the district court for paternity and custody of Child. At the time, Child was eight years old and living with Smith.

¶7        After initiating custody proceedings, Blake filed a series of three financial declarations with the district court. Blake is self-employed and owns a company managing professional and aspiring boxers. Blake’s stated gross income, monthly expenses, and debt listed on each of the three financial declarations differed significantly. In the first declaration, Blake claimed $0 in gross monthly income, $1,875 in monthly expenses, and a debt of $7,240. In the second, Blake claimed $2,000 in gross monthly income, $17,797 in monthly expenses, and no debt. And in the third, Blake claimed $1,686 in gross monthly income, $3,947 in monthly expenses, and no debt. The bank statements filed with each disclosure were incomplete; however, the bank statements that were submitted showed that between August 2017 and January 2019, Blake made deposits into his personal account totaling $456,669.98, and that during that same time, he made withdrawals totaling nearly $50,000 for investments in cryptocurrency, payments to his mother, payments to the mother of one of his other children, and luxury clothing.

¶8        The case proceeded to a bench trial in October 2020. At trial, Smith detailed the relationship between Child and Blake. She explained that Blake had never been actively involved in Child’s life and that Blake had not seen Child at all since May 2016. Smith testified that she and Blake had reached an “original agreement” for child support where Blake would pay her $1,000 per month. She further testified that this agreement did not start until 2015—when Child was already six years old—and that the payments had lasted for only one month. In total, Smith estimated that Blake had contributed $1,600 in support payments “over the entirety of [Child’s] life.”

¶9        Following trial, the district court adjudicated Blake as Child’s father, awarded Smith sole physical and legal custody of Child, and awarded Blake standard relocation parent-time pursuant to Utah Code section 30-3-37, which is approximately 17% of the year. In reaching its legal custody determination, the court analyzed the statutory factors outlined in Utah Code sections 30-3-10 and 30-3-10.2 and concluded that the presumption favoring joint legal custody had been rebutted and that joint legal custody was not in Child’s best interest. However, the court ordered a joint decision-making arrangement between the parties, requiring that the parties “discuss with each other decisions that should be made regarding [Child].” The arrangement further provides, “If there is a dispute, the parties should attend mediation and each pay half of the mediation fees. If the dispute remains, then [Smith] will have final say. [Blake] can . . . bring the matter to court if he is unsatisfied with the decision.”

¶10      Regarding child support, the district court primarily calculated Blake’s past child support payments based on his 2018 tax record, where he claimed $45,050 in gross receipts and $34,483 in deductions. After reviewing the evidence, the court concluded that several of the deductions—totaling $27,530—were unsupported and accordingly struck those deductions. Based on this, the court found that Blake’s “annual income should be $23,790” through March 2020. However, given the outbreak of the COVID-19 pandemic, the court concluded that “Blake’s income has come to a halt,” and it accordingly found it “appropriate . . . to impute minimum wage income of $1,257/month from March 2020 forward.”

ISSUES AND STANDARDS OF REVIEW

¶11      Smith now appeals the district court’s order regarding custody and child support, raising two issues for our review. First, Smith argues the court abused its discretion when it “issued an internally inconsistent [custody] award” giving Smith “sole legal and physical custody but also order[ing] joint decision-making” between her and Blake. “We review custody determinations under an abuse of discretion standard, giving the district court broad discretion to make custody awards.” K.P.S. v. E.J.P., 2018 UT App 5, ¶ 24, 414 P.3d 933 (quotation simplified). “But this broad discretion must be guided by the governing law adopted by the Utah Legislature. And on matters of statutory interpretation, we review for correctness.” Dahl v. Dahl, 2015 UT 79, ¶ 155, 459 P.3d 276 (quotation simplified). And “[w]here the court’s findings are internally inconsistent on a material point, reversal and remand are appropriate.” Vandermeide v. Young, 2013 UT App 31, ¶ 21, 296 P.3d 787, cert. denied, 308 P.3d 536 (Utah 2013).[1]

¶12      Second, Smith argues the district court abused its discretion when it calculated Blake’s income for purposes of child support. “We review the district court’s decisions regarding child support . . . under the abuse of discretion standard.” Pankhurst v. Pankhurst, 2022 UT App 36, ¶ 13, 508 P.3d 612 (quotation simplified). Where the court’s findings contain mathematical error or conflict with the record, we will remand for recalculation. See Miner v. Miner, 2021 UT App 77, ¶¶ 57–60, 496 P.3d 242.

ANALYSIS
I. Custody

¶13      Smith first challenges the district court’s custody award, contending the court abused its discretion in crafting the award because it is “internally inconsistent.” According to Smith, the joint decision-making arrangement “undermines” her award of sole physical and legal custody because it “allows [Blake] to force mediation and litigation whenever he disagrees with a decision made by [Smith], even though she has sole legal and physical custody.” We agree.

¶14      As an initial matter, the Utah Code does not define “sole physical custody” or “sole legal custody.” But in Hansen v. Hansen, 2012 UT 9, 270 P.3d 531, our supreme court provided guidance as to the meaning of those terms. In Hansen, the father and the mother were awarded joint custody of their daughter following their divorce. Id. ¶ 2. The mother was awarded sole physical custody and the father was ordered to pay child support to the mother. Id. Sometime later, the daughter entered a private youth homeless shelter, where she lived through her eighteenth birthday. Id. While the daughter was living at the shelter, the father filed a petition with the district court seeking to redirect his child support payments from the mother to the homeless shelter. Id. ¶¶ 2–3. The court denied the motion, which denial was ultimately upheld by the Utah Supreme Court. Id. ¶¶ 4–5, 30.

¶15      The supreme court’s decision centered on the meaning of custody. Although the daughter had been residing at the shelter, the court determined that the daughter’s physical custody had not changed; rather, the mother still retained physical custody. Id. ¶¶ 15–19, 28. The court explained,

Family law treatises consistently define custody as a bundle of constituent rights and obligations to a child’s possession, care, and control, and explain that the essence of custody is control over all aspects of the child’s life coupled with responsibility for the child’s welfare. Standard dictionary definitions of custody are to the same effect.

Custody is often divided into two subsets: legal and physical custody. Both encompass a duty of control and supervision. While legal custody carries the power and duty to make the most significant decisions about a child’s life and welfare, physical custody involves the right, obligation, and authority to make necessary day-to-day decisions concerning the child’s welfare. Although the latter is limited to the right to control the child’s daily activities, it still involves a right of control. This grant of authority is necessary so that the custodian can control and discipline the child or make emergency medical or surgical decisions for the child.

Id. ¶¶ 16–17 (quotation simplified). Put differently, “the legal duty of control or supervision [is] the essential hallmark of custody.” Id. ¶ 18 (quotation simplified). Legal custody encompasses the ability to make major decisions in a child’s life, while physical custody encompasses the ability to make day-to-day decisions in a child’s life.

¶16      Although the Utah Code does not define sole physical or legal custody, it does define “joint legal custody” and “joint physical custody.”[2] Under the current statutory scheme, a parent may be awarded “joint legal custody,” which is defined as “the sharing of the rights, privileges, duties, and powers of a parent by both parents.” Utah Code § 30-3-10.1(2)(a) (emphasis added). As this court has long recognized, the purpose of joint legal custody is to allow “both parents [to] share the authority and responsibility to make basic decisions regarding their child’s welfare.” See Thronson v. Thronson, 810 P.2d 428, 429–30 (Utah Ct. App. 1991), cert. denied, 826 P.2d 651 (Utah 1991).

¶17      Taken together, it follows that an award of “sole” legal custody does not involve sharing the “rights, privileges, duties, and powers of a parent.” See Utah Code § 30-3-10.1(2)(a). Accordingly, when the district court awarded sole legal and physical custody to Smith, it also awarded her alone the “rights and obligations to [Child’s] possession, care, and control,” see Hansen, 2012 UT 9, ¶ 16 (quotation simplified), including the sole authority to “make the most significant decisions about [Child’s] life and welfare,” see id. ¶ 17 (quotation simplified), and the “authority to make necessary day-to-day decisions concerning [Child’s] welfare,” see id. (quotation simplified). It therefore was inconsistent to simultaneously order a joint decision-making arrangement.

¶18       Moreover, the joint decision-making arrangement is at odds with the district court’s own findings regarding Child’s best interest. “In making a custody determination, a [district] court’s primary focus is what custody arrangement would be in the best interest[] of the child.” Grindstaff v. Grindstaff, 2010 UT App 261, ¶ 4, 241 P.3d 365. Utah law presumes that joint legal custody is in a child’s best interest, but that presumption may be rebutted by showing “by a preponderance of the evidence that it is not in the best interest of the child.” Utah Code § 30-3-10(3)–(4). And under Utah law, there is “neither a preference nor a presumption for or against joint physical custody or sole physical custody.” Id. § 30­3-10(8).

¶19      “In determining whether the best interest of a child will be served by ordering joint legal custody or joint physical custody or both, the court shall consider” a number of statutory factors. See id. § 30-3-10.2(2). Here, the court analyzed the statutory factors and determined that awarding Smith sole legal and physical custody of Child was in Child’s best interest. In particular, the court found that there was “very little evidence provided that either parent could function appropriately with co-parenting skills,” that it was “unclear” whether the parties could work together to reach shared decisions in Child’s best interest, and that there was “very little evidence” the parties “actually discussed and made decisions together.” In light of these findings, it is unclear how the joint decision-making arrangement—which is not limited to major decisions but instead encompasses all decisions—could be properly viewed as advancing Child’s best interest. It does not follow from the evidence of the parties’ ongoing issues making decisions relating to Child that such an arrangement would lead to success in the future. Rather, precisely because of the court’s findings, it seems likely that such an arrangement would cause ongoing issues, result in costly mediation and additional court involvement, and be detrimental to Child’s best interest, which is exactly what Utah law seeks to avoid.

¶20      In sum, the district court abused its discretion when it awarded Smith sole physical and legal custody while also ordering a joint decision-making arrangement between Smith and Blake. Although Utah law does not prohibit a joint decision-making arrangement in cases involving an award of joint physical and legal custody, an examination of the underlying statutory scheme reveals that such an arrangement is not compatible with an award of sole physical and legal custody. Furthermore, these competing provisions belie the court’s own findings regarding Child’s best interest as relates to custody. As such, we vacate the portion of the court’s custody award ordering the joint decision-making arrangement.

II. Child Support

¶21      Smith next argues the district court erred in calculating child support. Specifically, Smith takes issue with the court’s calculation of Blake’s income for purposes of child support, contending the court’s calculation (1) contains a mathematical error and (2) is inconsistent with the evidence in the record. We agree.

¶22      The Utah Child Support Act outlines the process by which a district court must evaluate the income of a parent when calculating child support. See generally Utah Code § 78B-12-202. To begin, the court must consider the “gross income” of a parent, which the Utah Code defines broadly as including

prospective income from any source, including earned and nonearned income sources which may include salaries, wages, commissions, royalties, bonuses, rents, gifts from anyone, prizes, dividends, severance pay, pensions, interest, trust income, alimony from previous marriages, annuities, capital gains, Social Security benefits, workers’ compensation benefits, unemployment compensation, income replacement disability insurance benefits, and payments from “nonmeans-tested” government programs.

Id. § 78B-12-203(1). And when a parent is self-employed—as is the case with Blake—the statute directs how gross income should be handled. It provides that “[g]ross income from self-employment or operation of a business shall be calculated by subtracting necessary expenses required for self-employment or business operation from gross receipts. . . . Gross income . . . may differ from the amount of business income determined for tax purposes.” Id. § 78B-12-203(4).

¶23      The district court determined that Blake’s income had been impacted as a result of the COVID-19 pandemic and accordingly evaluated his income for purposes of child support based on what he had earned pre-pandemic and what he was earning during the pandemic. On the record before us, we see two errors in the court’s calculations. First, the court made a discrete mathematical error in calculating Blake’s pre-pandemic income. Second, and more broadly, the court did not consider all the evidence of Blake’s finances when calculating Blake’s income, both pre-pandemic and at the time of trial.

¶24      First, the district court calculated Blake’s past child support payments using his 2018 tax record. On that record, Blake claimed $45,050 in gross receipts. From that, Blake deducted $34,483 as follows: $5,270 for “materials and supplies,” $3,605 for “advertising,” $360 for “legal and professional services,” $500 for “office expense,” $21,760 for “other business property,” and $2,988 for “utilities.” After viewing the evidence, the court found that Blake had failed to adequately explain why he should be entitled to deductions for “materials and supplies” ($5,270), “other business property” ($21,760), or “office expense” ($500), and it accordingly struck those deductions, totaling $27,530. As a result, the court should have concluded that Blake’s income was $38,097, or $3,175 per month rounded. But it did not. Instead, it concluded that Blake’s income was $23,790, or $1,983 per month. This value is mathematically incorrect.

¶25      Second, notwithstanding the mathematical error in the court’s calculation of Blake’s income, the value imputed by the court is inconsistent with the evidence in the record. Utah law is clear that “in contested cases,” a judge is entitled to impute income to a parent so long as the judge “enters findings of fact as to the evidentiary basis for the imputation.” See id. § 78B-12­203(8)(a). “The purpose of such imputation is to prevent parents from reducing their child support or alimony by purposeful unemployment or underemployment.” Connell v. Connell, 2010 UT App 139, ¶ 16, 233 P.3d 836 (quotation simplified). Accordingly, when imputing income, “the income shall be based upon employment potential and probable earnings considering,” among other things, “employment opportunities,” “work history,” and “occupation qualifications.” Utah Code § 78B-12­203(8)(b).

¶26      As explained above, the court calculated Blake’s income at $1,983 per month up until the time that the COVID-19 pandemic began in March 2020. And at trial, which was held in October 2020, the court concluded that due to the pandemic, “Blake’s income has come to a halt” and therefore determined it was “appropriate . . . to impute minimum wage income of $1,257/month from March 2020 forward.” But the financial documents submitted by Blake do not support the low amount of income the court chose to impute.

¶27      Blake’s bank records—which were all filed with the court—show that Blake made deposits into his personal account totaling $456,669.98 between August 2017 and January 2019. These deposits included a check for $200,000, which Blake testified “was for my services that was rendered” in connection with a high-publicity boxing match. And in addition to the deposits, Blake’s bank records show significant withdrawals. For example, the records indicate that Blake had regularly invested in cryptocurrency, had transferred over $15,000 to his mother, had transferred over $9,000 to the mother of one of his other children,[3] and had spent over $10,000 on luxury clothing.

¶28      Despite the evidence of Blake’s spending, Blake did not demonstrate how he was funding his lifestyle, and he claimed only one debt of $7,240 in the first of his three financial disclosures. In light of the foregoing, the district court’s determination that Blake was making no money and therefore should be imputed minimum wage is not supported by the evidence. Rather, the evidence suggests that Blake was less than forthcoming with the court as to the actual amount of his income. As such, on remand the court should reevaluate evidence of Blake’s finances, his earning capacity, and whether he is voluntarily underemployed and should make a further determination as to whether greater income should be imputed to him.[4] In so doing, the court should take special care to ensure that the final award is void of mathematical error.

CONCLUSION

¶29      The district court abused its discretion when it awarded Smith sole physical and legal custody of Child while also ordering a joint decision-making arrangement with Blake. We therefore vacate the court’s custody ruling as it relates to the joint decision-making arrangement. The court also abused its discretion when calculating child support. The current award contains a mathematical error and is not supported by record evidence. Accordingly, we reverse the court’s award of child support and remand with instructions that the court reexamine the evidence to determine whether greater income should be imputed to Blake.

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


[1] Blake did not file a brief or otherwise appear in this appeal. Although “an appellee’s failure to file a brief does not amount to an automatic default and consequent reversal of the lower court,” our supreme court has recently recognized that such failure does impact the “typical burden of persuasion on appeal.” See AL-IN Partners, LLC v. LifeVantage Corp., 2021 UT 42, ¶ 19, 496 P.3d 76 (quotation simplified). Because an appellee’s failure to raise any argument leaves the appellant’s claims “unrebutted,” see Broderick v. Apartment Mgmt. Consultants, LLC, 2012 UT 17, ¶¶ 18–21, 279 P.3d 391, “when an appellee fails to present us with any argument, an appellant need only establish a prima facie showing of a plausible basis for reversal,” AL-IN Partners, 2021 UT 42, ¶ 19 (quotation simplified). We question whether the standard articulated in AL-IN Partners should apply the same way in cases such as this where the standard of review on appeal is deferential to the discretionary decisions of the district court. But because this issue was not briefed and our decision on both arguments presented ultimately involves the conclusion that the district court did abuse its discretion and committed other errors, we need not decide the issue today. However, we note the question does warrant additional consideration in a case where it is squarely before the court.

[2] In relevant part, the statute defines “joint physical custody” as when “the child stays with each parent overnight for more than 30% of the year.” Utah Code § 30-3-10.1(3)(a). This particular provision is not applicable here because Blake was awarded standard relocation parent-time which falls below the 30% threshold. See id. § 30-3-37. Nevertheless, Utah law is clear that “[e]ach parent may make decisions regarding the day-to-day care and control of the child while the child is residing with that parent.” Id. § 30-3-10.9(6). Thus, by statute Smith has sole decision-making authority over day-to-day decisions when Child is in her care. Likewise, Blake has decision-making authority over day-to-day decisions when Child is in his care.

[3] This amount does not include child support payments awarded to the mother, which were $1,000 per month. Those support payments were made directly to Nevada’s State Collection and Disbursement Unit.

[4] Smith filed a post-trial motion pursuant to rule 59(e) of the Utah Rules of Civil Procedure seeking to amend, among other things, the court’s child support award. The district court issued a Memorandum Decision and Order denying the motion. In analyzing the child support issue, the court stated that “[g]ifts are not generally considered income.” This is legally incorrect. As explained above, the Utah Code explicitly defines “gross income” as including “gifts from anyone.” See Utah Code § 78B-12-203(1). To the extent Blake was gifted items, the court must include the value of those gifts when calculating his income.

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Mintz v. Mintz – 2023 UT App 17

Mintz v. Mintz – 2023 UT App 17

THE UTAH COURT OF APPEALS

RAYNA ELIZABETH MINTZ,

Appellant and Cross-appellee,

v.

GLEN RYAN MINTZ,

Appellee and Cross-appellant.

Opinion

No. 20200507-CA

Filed February 9, 2023

Third District Court, Silver Summit Department

The Honorable Kent R. Holmberg

No. 174500034

Julie J. Nelson and Alexandra Mareschal, Attorneys for Appellant and Cross-appellee

Thomas J. Burns and Aaron R. Harris, Attorneys for Appellee and Cross-appellant

JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGE GREGORY K. ORME and JUSTICE DIANA HAGEN concurred.[1]

MORTENSEN, Judge:

¶1        After a lengthy marriage, Rayna and Glen Mintz[2] divorced and have since been involved in ongoing litigation regarding the distribution of marital property. Rayna and Glen now raise various issues for review, including questions about alimony, property distribution, and dissipation awards. In response to these appeals, we affirm in part, reverse in part, and remand to the district for further proceedings.

BACKGROUND[3]

¶2        Through more than twenty years of marriage, Rayna and Glen enjoyed a relatively luxurious lifestyle. During the marriage, in addition to meeting their regular expenses, Rayna and Glen invested money essentially as savings. Before 2014, they made deposits into investment accounts “when money was left over after normal marital spending,” and after 2014, they made direct deposits into investment accounts as part of Glen’s employment. Historically, they spent money freely, traveled frequently, and treated themselves to a variety of entertainment—often with other people. For Rayna’s part, she often invited friends to join her on different jaunts across the globe or visits to the theater. For Glen’s part, as is relevant to this appeal, he invested both time and substantial money into an extramarital affair.

¶3        Rayna and Glen financed this lifestyle through substantial income generated by Glen’s employment as an investment advisor managing the assets and investments of various clients. As a salaried employee for his employer (Employer), Glen “did not sell . . . a client list to [Employer]”; instead, he expanded the clients he serviced by creating relationships with other employees and assisting other employees in managing their clients’ assets. As part of Glen’s compensation, Employer offered cash awards distributed as forgivable loans. For each loan, Employer provided the cash to Glen up front and then forgave Glen’s payback obligation each year, leaving Glen with a decreased payback obligation but an increased tax obligation. The cash awards were deposited directly into Glen and Rayna’s investment accounts.

¶4        When Rayna discovered Glen’s infidelity, the couple sought a divorce. Ultimately, the district court made several determinations relevant to this appeal. First, although Rayna would be awarded alimony, a monthly amount for investment would be excluded from the calculation because she presented insufficient evidence to show that the parties’ investments were “standard practice during the marriage” or that they “helped form the couple’s standard of living.”

¶5        Second, although an amount for entertainment was included as a historical expense in alimony calculations, the court “divided by four” the amount Rayna had proposed because the entertainment amount was calculated based on a time “when two minor children also lived in the home.”

¶6        Third, although the list of clients Glen serviced could be considered an asset, Glen did not own a “book of business,” and accordingly, whatever value his client list contained could not be divided between the parties.

¶7        Fourth, although Glen had admitted to dissipating $75,000 on his extramarital affair and although the court determined that Rayna should be entitled to “half” that amount, in an appendix to the district court’s findings of fact and conclusions of law, designating the specific property distributions, the court provided no amount in the space for money awarded to Rayna because of Glen’s dissipation.

¶8        And fifth, although Rayna would receive what Glen argued was an investable property distribution, the court declined to include investment income in its alimony calculation because (1) the likelihood of a specific return was uncertain, (2) Rayna’s investment income should be left unencumbered as was Glen’s, and (3) the parties had traditionally reinvested investment income instead of living off it.

¶9        Following entry of the divorce decree, Rayna filed a motion to enforce, asserting that various investment accounts at issue in the divorce “were not divided immediately after trial and that they subsequently appreciated in value.” Accordingly, Rayna sought an order requiring Glen to transfer holdings “equivalent to her proportionate share of appreciation since trial.” However, before the hearing on that motion, Rayna filed a notice of appeal. At the hearing, the court determined that the enforcement order Rayna requested would require the court to not just enforce the order but to “read language into [the decree] and interpret [the decree] in a way that modifie[d] or amend[ed]” it. Because a notice of appeal had been filed in the case, the court determined it had been “divested of jurisdiction” to amend the decree and therefore could not provide the relief Rayna requested.

¶10      On these issues, Rayna and Glen both appeal.

ISSUES AND STANDARDS OF REVIEW

¶11      First, Rayna contends that the court abused its discretion through its award of alimony. Specifically, Rayna contends that (1) the court “misapplied Utah law” when it declined to award alimony consistent with historical investment and (2) the court entered unsupported findings of fact in reducing her entertainment expenses. “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.” Gardner v. Gardner, 2019 UT 61, ¶ 16, 452 P.3d 1134 (cleaned up). However, misapplication of the law is a de facto abuse of discretion, and an alimony award based on a misapprehension of the law will not be upheld. See Bjarnson v. Bjarnson, 2020 UT App 141, ¶ 5, 476 P.3d 145. Moreover, an alimony award based on clearly erroneous findings of fact will be overturned, see Leppert v. Leppert, 2009 UT App 10, ¶ 8, 200 P.3d 223, as will be an incorrect determination that evidence is insufficient to support an award, see Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733. “[U]nder 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.” Gardner, 2019 UT 61, ¶ 32.

¶12      Second, Rayna contends that the district court erred when it determined that the list of clients Glen managed as an investment advisor (the book of business) was not a divisible marital asset. “Determining and assigning values to marital property is a matter for the trial court,” and an appellate court “will not disturb those determinations absent a showing of clear abuse of discretion.” Talley v. Talley, 739 P.2d 83, 84 (Utah Ct. App. 1987).

¶13 Third, Rayna contends that the district court failed to award or reimburse her half of the amount that Glen dissipated. “Where the trial court’s conclusions of law do not properly follow from the findings of fact, those conclusions can be overturned on appeal.” Cowley v. Porter, 2005 UT App 518, ¶ 46, 127 P.3d 1224.

¶14 Fourth, Rayna contends that the court erred in determining, based on the divorce decree’s language, that it lacked jurisdiction to grant Rayna appreciation on investment account awards. We review for correctness the district court’s interpretation of a divorce decree, Mitchell v. Mitchell, 2011 UT App 41, ¶ 5, 248 P.3d 65, and the district court’s “determination on jurisdictional issues,” National Advert. Co. v. Murray City Corp., 2006 UT App 75, ¶ 11, 131 P.3d 872 (cleaned up).

¶15      Fifth, on cross-appeal, Glen contends that the district court abused its discretion when it did not “determine an amount of income that Rayna [would] be able to earn from her awarded investment account assets and . . . apply that income to her ability to pay for her marital standard of living.” As indicated above, we review the district court’s alimony determination for abuse of discretion. See Gardner, 2019 UT 61, ¶ 16.

ANALYSIS
I. Alimony

A.        Investment

¶16 Rayna contends that the district court erred in excluding from the alimony award an amount reflective of historical investment. Specifically, Rayna argues that the court misunderstood the phrases “standard practice” and “marital standard of living” as these phrases have been employed in Utah caselaw concerning the appropriateness of alimony awards that include amounts for investment or savings. Rayna argues that the parties made deposits into investment accounts as a standard practice that contributed to their marital standard of living, and she asserts that she should have received a higher alimony award to be able to continue this practice and maintain her standard of living. On appeal, we conclude that the district court erred in its application of the law on this point.

¶17      In Bakanowski v. Bakanowski, 2003 UT App 357, 80 P.3d 153, we indicated that “while the recipient spouse’s need to fund post-divorce savings, investment, or retirement accounts may not ordinarily be factored into an alimony determination, we cannot say that the ability to fund such post-divorce accounts may never be taken into account as part of” that analysis. Id. ¶ 16. Rather, “[t]he critical question is whether funds for post-divorce savings, investment, and retirement accounts are necessary because contributing to such accounts was standard practice during the marriage and helped to form the couple’s marital standard of living.” Id. (emphasis added); see also Knowles v. Knowles, 2022 UT App 47, ¶ 57 n.8, 509 P.3d 265; Miner v. Miner, 2021 UT App 77, ¶ 58 n.8, 496 P.3d 242. Thus, the court should, as a legal matter, ensure it employs the correct legal definitions of standard practice and marital standard of living, apply the facts of a given case to those definitions, and then determine whether the facts as found meet the criteria for a savings-based alimony award.

¶18      First, the district court erred in concluding that Rayna and Glen’s undisputed course of conduct did not demonstrate a standard practice. See Bakanowski, 2003 UT App 357, ¶ 16; Kemp v. Kemp, 2001 UT App 157U, paras. 3–4, 2001 WL 522413. When the Bakanowski court provided the test for appropriate consideration of savings, investment, and retirement accounts in alimony calculations, it cited Kemp v. Kemp, in which the court reasoned that because “the parties had made regular savings deposits,” including savings in the alimony award could help “maintain the recipient spouse’s marital standard of living.” See 2001 UT App 157Uparas. 3–4 (emphasis added).

¶19 An event must certainly be recurring but need not be uniformly systematic to be considered “regular.” See id. at para. 3. Indeed, “something can be done ‘regularly’ if done whenever the opportunity arises, though the actual time sequence may be sporadic.” Youth Tennis Found. v. Tax Comm’n, 554 P.2d 220, 223 (Utah 1976); see also Allen Distrib., Inc. v. Industrial Comm’n, 604 P.2d 938, 940 (Utah 1979) (reciting the then-enacted workers’ compensation laws that provided that “regularly” could include employment “continuous throughout the year or for only a portion of the year” (cleaned up)); Holt v. Industrial Comm’n, 87 P.2d 686, 689 (Utah 1939) (defining “regularly employed” to include “all employees who are employed and engaged in the usual or regular business of the employer, regardless of whether they were regularly or only casually or occasionally employed” (cleaned up)). Thus, even though an activity may “occur[] at intermittent times,” it can still be a regular activity. See Youth Tennis, 554 P.2d at 223 (cleaned up); see also B.L. Key, Inc. v. Utah State Tax Comm’n, 934 P.2d 1164, 1166 (Utah Ct. App. 1997). And although “regular” could also be understood to require methodic uniformity, see Valentine v. Farmers Ins. Exch., 2006 UT App 301, ¶ 11, 141 P.3d 618 (noting that “‘regular use’ connotes use that is consistent with a recurring pattern or uniform course of conduct or dealing” and that it “embodies use that is marked by a pattern of usage or some frequency of usage”); Youth Tennis, 554 P.2d at 223 (noting that “one of the meanings of the term ‘regular’ is: ‘Steady or uniform in course, practice or occurrence’” (quoting Black’s Law Dictionary 1450 (Rev. 4th Ed. 1968))), there exists no requirement that savings or investment deposits be made with uniform frequency.

¶20      Accordingly, even if savings deposits and investments do not occur on an exact timetable, such marital expenditures can be considered a standard practice, see Bakanowski, 2003 UT App 357, ¶ 16, in those infrequent and unusual circumstances where a party can produce sufficiently persuasive evidence that savings deposits and investments were a recurring marital action “whenever the opportunity ar[ose], though the actual time sequence may be sporadic.” See Youth Tennis, 554 P.2d at 223; see also Bakanowski, 2003 UT App 357, ¶ 16.

¶21 The district court found that Rayna did not present “sufficient evidence” to show that contributing to savings and investment accounts was the standard practice during the marriage. But on appeal, neither party appears to dispute that the district court was presented with evidence that before 2014 the parties invested substantial amounts of income at least yearly and that after 2014 a substantial portion of Glen’s income was deposited directly into investment accounts at least yearly. Accordingly, for nearly a decade immediately preceding the divorce, the parties set aside substantial money for investments at least annually. This undisputed evidence established that the parties followed a regular pattern, i.e., a “standard practice,” see Bakanowski, 2003 UT App 357, ¶ 16, of investing a portion of their annual income. In other words, given these undisputed facts, we conclude the district court applied too narrow a definition of standard practice in rejecting this evidence as insufficient.

¶22 Second, to justify an alimony award that includes an amount for investment, the parties’ acts of investing must also contribute to the “marital standard of living.” Id. “Standard of living is defined as a minimum of necessities, comforts, or luxuries that is essential to maintaining a person in customary or proper status or circumstances.” Howell v. Howell, 806 P.2d 1209, 1211 (Utah Ct. App. 1991) (cleaned up) (emphasis added). In other words, in the alimony context, the marital standard of living is all that the parties enjoyed during the marriage—including luxuries and customary allocations—by virtue of their financial position. See id.see also Rule v. Rule, 2017 UT App 137, ¶ 15, 402 P.3d 153.

¶23 In Knowles v. Knowles, 2022 UT App 47, 509 P.3d 265, the trial court refused to include tithing expenditures as part of the alimony calculation because it was “not a necessary living expense.” Id. ¶ 57 (cleaned up). On appeal, we reversed that decision, explaining that it “ignored the requirement that [trial courts] assess the expense based on how the parties chose to spend and allocate their money while married.” Id. (emphasis added). “By failing to assess whether the parties’ expenditures were consistent with the marital standard of living, the court abused its discretion.” Id.

¶24 The marital standard of living analysis is not merely a question about what the parties spent their money on or whether they spent it at all. Rather, in terms of alimony, the marital standard of living analysis is about whether the parties’ proposed points of calculation are consistent with the parties’ manner of living and financial decisions (i.e., the historical allocation of their resources). Something may contribute to the marital standard of living even though it may not result in a direct benefit or detriment to the marital estate’s net worth.

¶25      Like the trial court in Knowles, the district court here did not fully consider how the parties chose to “allocate” their income. See id. The parties’ choice to devote a substantial portion of income to investment and savings—much like the parties in Knowles chose to devote a substantial portion of their income to tithing, see id.—contributed to the parties’ marital standard of living. The court should consider this evidence in determining the amount of investment and savings expenditures to include in its alimony calculations. See id.see also, e.g.Lombardi v. Lombardi, 145 A.3d 709, 716 (N.J. Super. Ct. App. Div. 2016) (“An appropriate rate of savings can, and in the appropriate case should, be considered as a living expense when considering an award of maintenance.” (cleaned up)); Bryant v. Bryant, 534 S.E.2d 230, 232 (N.C. Ct. App. 2000) (“The trial court may also consider established patterns of contributing to savings as part of the parties’ standard of living.” (cleaned up)); In re Marriage of Stenzel, 908 N.W.2d 524, 536 (Iowa Ct. App. 2018) (“[R]etirement savings in a reasonable sum may be a part of the needs analysis in fixing spousal support.”).

¶26 Below, the district court declared that “Rayna ha[d] not convinced the court that [the couple’s] savings [practices] somehow helped form the couple’s standard of living.” The court continued, “There was no evidence that the deposits into the investment accounts were used to fund future purchases or otherwise contributed to the marital standard of living.” In making this ruling, the district court apparently relied on Kemp, where the court found that “during their marriage, the parties had made regular savings deposits to fund future major purchases, rather than making those purchases on credit.” 2001 UT App 157U, para. 3. Including saved money in the “marital standard of living,” however, does not require a party to spend it, as the parties did in Kemp. Our precedent does not exclude prudent saving from the definition of the marital standard of living. Indeed, it would be a perverse state of the law if we, as a rule, always included in an alimony calculation all sums parties spent, even imprudently, but excluded sums wisely saved.

¶27      The parties presented evidence (and on appeal the parties continue to agree) that the investments were meant to facilitate future financial growth; that during the economic recession in 2008, the parties dipped into their investments to maintain their standard of living; and that they later used investments to pay tax obligations incurred because of Glen’s compensation structure. The very fact that such a substantial amount of Glen’s income went straight to investment that then served to pay off a tax obligation represents the type of allocation that constituted part of the marital standard of living. An understanding of the marital standard of living that is restricted to direct and immediate expenses is simply too limited. Instead, the use of marital funds to cover the parties’ investments and savings—provided it was standard practice during the marriage—is a proper consideration in determining the marital standard of living. See Bakanowski, 2003 UT App 357, ¶ 16.

¶28 In sum, the district court erred in concluding that insufficient evidence supported Rayna’s request to include amounts for investment in alimony calculations. The undisputed evidence established that it was both a standard practice to invest marital assets annually and that this pattern of investment contributed to the marital standard of living. We remand the case to the district court to recalculate alimony based on the amount that the couple’s historical investment contributed to the marital standard of living. See Bjarnson v. Bjarnson, 2020 UT App 141, ¶ 5, 476 P.3d 145 (“We will reverse if the court has not exercised its discretion within the bounds and under the standards we have set.” (cleaned up)).

B.         Entertainment

¶29 Rayna also contends that the district court “entered a factual finding that was unsupported by the evidence regarding [her] entertainment expenses.” This is so, she argues, because testimony at trial established that the amount she originally requested for entertainment as part of her living expenses was “carved out . . . for her alone” and because the evidence, including the exhibit used to calculate her living expenses, did not otherwise suggest that the amount should have been reduced as it was by the district court. We agree that the district court’s reduction of Rayna’s entertainment expenses was based on clearly erroneous findings of fact because “the court’s conclusions do not logically follow from” and are not supported by “the evidence.” See Gardner v. Gardner, 2019 UT 61, ¶ 32, 452 P.3d 1134.

¶30      In determining the amount for entertainment expenses to include in its alimony calculation, the district court stated that the amount “presents expenses calculated for . . . years . . . when two minor children also lived in the home. Therefore, this amount should have been divided by four.” The district court reduced the amount it considered in its alimony calculation related to entertainment accordingly. However, this does not follow from the evidence presented at trial.

¶31      As an initial matter, when asked about the entertainment line item, Rayna testified that she loved “to go to concerts,” that she went “to New York City to the ballet [and] to the theater,” and that she generally hosted a friend on those trips. And testimony from Rayna’s expert on the matter explained that the amount was for “entertainment that she would normally spend on a monthly basis” and, specifically, that the amount was “what she actually spent if . . . carved out [for] her alone.” (Emphasis added.)

¶32      Glen attempts to provide support for the district court’s apparently contrary finding by suggesting that several line items on Rayna’s living-expense exhibit included a note that the amount was for “Rayna Only,” and that based on this notation, the district court “acted within its appropriate discretion” when it determined the amount requested for entertainment should be reduced because that line item did not include that note. However, in our review of the exhibit referred to by Glen, of the thirty-nine line items listed, only three specify that the amount was for “Rayna Only.” Yet some of the unmarked items reflect amounts the parties agree were spent on Rayna alone. Therefore, the absence of the “Rayna Only” notation does not necessarily reflect that those items were not for “Rayna Only.” And further, a line item for “Money Spent on Kids” specifically notes that it includes “Entertainment” expenses for those children. If Rayna’s entertainment expenses included money spent on the children, there would be no need to include a separate line item for entertainment under “Money Spent on Kids.” Moreover, we note that the district court’s determination that the amount should be “divided by four” because “two minor children also lived in the home” does not quite add up. Rayna and two children add up to three, and whether the court also included Glen or the friends Rayna often hosted is unclear from the court’s findings of fact. Either way, the justification does not appear to support the reduction.

¶33      Accordingly, the district court’s reduction of the alimony amount requested for entertainment contradicts not only the direct testimony at trial but also the very exhibit on which the court expressly based its findings. Because the court’s conclusions do not logically follow from and are not supported by the evidence, we determine that this portion of the award is based on clearly erroneous findings of fact, and we therefore remand to the district court for clarification and correction of the matter. See Leppert v. Leppert, 2009 UT App 10, ¶ 8, 200 P.3d 223; Gardner, 2019 UT 61, ¶ 32.

II. Book of Business

¶34      Rayna next opposes the district court’s determination that the book of business “was not a divisible marital asset.” However, to prevail on such a contention, Rayna would need to show that the court clearly abused its discretion, see Talley v. Talley, 739 P.2d 83, 84 (Utah Ct. App. 1987), something she has not done here.

¶35      In dealing with Rayna’s argument that Glen owned a book of business that should be a divisible marital asset, the district court first explained that the alleged book of business, comprising “a client list and the assets under management from these clients,” constituted an “asset” as a legal matter —a determination neither party appears to challenge on appeal. But the court did not stop there, determining next that this “asset” was owned not by Glen but by Employer.

¶36 The court explained its reasoning in over five pages of detailed findings of fact and conclusions of law. Throughout those pages, the district court explained, among other things, that although Glen had extensive experience in his field and a portion of his compensation required him to meet lofty expectations concerning the funds he managed, “[w]hen Glen began work for [Employer], he did not sell a book of business or a client list to [Employer]”; “[n]owhere within [the relevant employment documents] did [Employer] indicate that it was purchasing any client list from Glen or that Glen was selling anything at all to [Employer]”; and “Rayna ha[d] not presented any evidence that Glen sold any client list, client information, or other asset to [Employer] as a condition of his hiring.” Further, Glen “worked as an employee of [Employer]”; “ha[d] been paid a salary . . . as a W-2 employee”; and “expand[ed] the client list” by, in part, “creat[ing] relationships with other . . . employees who advise individuals that they service to place assets under Glen’s management.” The court then noted that often “Glen manages assets owned by numerous individuals and entities with whom he has no personal relationship.”

¶37 The court then described various agreements concerning Glen’s compensation and employment and highlighted portions of those agreements. One read,

All information concerning [c]lients of [Employer], former clients of [Employer], and prospective clients of [Employer] must be treated as confidential and must not be disclosed to anyone outside of [Employer.] . . . [I]n the event Employee’s employment is terminated for any reason whatsoever[,] Employee may not take any records or information referring or relating to [c]lients of [Employer], former clients of [Employer] and prospective clients of [Employer], whether originals or copies, in hard copy or computerized form.

Another read,

Employee may not directly or indirectly use, maintain, take or disclose any Confidential Information, except . . . in the course of carrying out Employee’s duties for [Employer] during Employee’s employment[.] . . . “Confidential Information” . . . includes . . . client relationships and prospective client relationships, client lists and contact information, client information (including but not limited to clients’ past and present financial conditions, investment practices, preferences, activities, objectives, and plans and other client data Employee obtained while in [Employer’s] employ)[.] . . . Employee further expressly agrees that, in the event his or her employment terminates, Employee’s use of Confidential Information, including but not limited to any information referring or relating to clients of [Employer], former clients of [Employer] and prospective clients of [Employer], must immediately cease and that Employee must immediately return, destroy or delete, any Confidential Information whether in hard copy or computerized form, including in any electronic device owned by Employee.

The court then reasoned, “[i]f the clients were clients, relationships, or contracts that Glen owned, he would not be subject to any restrictions with respect to the manner in which he stored, maintained, or utilized any of the client information, either during or after his employment with [Employer]. Similarly, if the client information was owned by Glen, he would not be subject to any restrictions.” Significantly, the court noted that “individuals and entities that own the assets under management have no contractual obligation to continue to use Glen to manage their assets; they are free to select a different . . . adviser [of Employer] at any time.” These individuals had “not contracted with Glen” but instead had “contracted with” Employer. And finally, the court reasoned that “[t]he terms Glen was offered by [Employer] were not negotiated. He did not negotiate higher pay or different terms but simply accepted employment on the terms offered by [Employer]. If Glen owned the book of business[,] he would have been in a position of greater leverage and been able to negotiate with [Employer].” In short, the district court determined that because Glen’s interactions with the book of business did not demonstrate ownership, “Glen [did] not own the book of business.”

¶38 Rayna attacks this determination primarily based on the alleged existence of alternative evidence. First, she asserts that evidence that Glen had some control over the book of business and its fruits and that the book of business included the information of some clients he had obtained before joining Employer demonstrated that Glen owned the book of business. But regardless of whether such evidence was before the district court, it would not contradict the findings the court did make— findings on which it relied to determine that, on the whole, Glen did not own the book of business. And although Rayna contends that “the evidence showed that [Employer] hopes to buy Glen’s book of business when he retires or transitions out of the industry and would facilitate the transfer of all of his clients to another advisor within [Employer],” this argument fails to acknowledge that the district court specifically considered this evidence in its findings of fact and ultimately found that the evidence did not deserve “any weight” because of a “lack of any testimony or other evidence by anyone who actually knew anything about” such a buy-out program. Indeed, “if there is evidence supporting a finding, absent a legal problem—a fatal flaw—with that evidence, the finding will stand, even though there is ample record evidence that would have supported contrary findings.” See Hinds v. Hinds-Holm, 2022 UT App 13, ¶ 28 n.4, 505 P.3d 1136 (cleaned up). And here Rayna has not demonstrated that such a flaw exists.

¶39      Because none of Rayna’s arguments on appeal show that the court clearly abused its discretion in its thorough and record-supported explanation of why Glen did not own the book of business, her contention on appeal is unavailing and we affirm the district court’s determination.

III. Dissipation

¶40 Rayna also contends that the district court erred when it included in the final distribution only half of the amount it determined Glen dissipated and failed to award Rayna any of it. Indeed, the district court found that “the amount of dissipation attributable to [Glen’s affair] is $75,000” and that “[t]hese funds were marital funds, for which Glen was entitled to half and Rayna to half.” But in the next line, the court, in seeming contradiction, stated, “Through dissipation, Glen spent half of $37,500 which Rayna was entitled to and therefore should be added to Glen’s [distribution] column.”

¶41 On appeal, the parties agree that Rayna is owed $37,500 due to Glen’s dissipation of $75,000. But the parties do not agree about the meaning of the court’s order or its associated appendix distributing the marital property. Having viewed both the court’s order, as recited above, and the appendix that purports to effectuate that order, we remand this issue to the district court for clarification.

¶42 Because the parties agree that the full amount of dissipation is $75,000 and that Rayna is thus entitled to $37,500, the only matter for us on appeal is to ensure that the order of the district court reflects that agreement. And it does not appear to do so. The court’s appendix lists three columns: one for the value of a given property item, one for Rayna’s portion of the property, and one for Glen’s portion of the property. In Rayna’s and Glen’s respective columns, a number was entered without parentheses to indicate a positive sum owed to the party, and a number was entered inside parentheses to indicate a sum to be subtracted from the ultimate distribution. For the line-item entry for dissipation, instead of $75,000, the value was listed as only $37,500. More important for our present purposes, Rayna’s column for that line item is empty whereas Glen’s contains $37,500 without parentheses, indicating a positive sum. As we read this entry, it appears that the incorrect dissipation amount was entered into the value, and instead of Rayna being awarded half of that $75,000, the amount of $37,500 was given to Glen. This was error.

¶43      On remand, the district court should correct this error and the associated appendix to indicate without ambiguity that the full amount of dissipation is $75,000 and that Rayna will be awarded $37,500 as her share of that total.[4]

IV. Property Distribution Appreciation

¶44 Rayna lastly contends that the district court “abused its discretion when it refused to award [her] a proportional share of the appreciation that accrued on the marital investment accounts” as she requested in her motion to enforce. She asserts that the court mischaracterized her motion to enforce as a motion to amend and that it accordingly erred in determining that it lacked jurisdiction to provide the relief she requested. On appeal, Rayna appears to maintain that her motion below was nothing more than a motion to enforce the decree; that the court had jurisdiction to enforce its decree; and that in determining that the order she requested would require an amendment (as opposed to mere enforcement), the court inherently “determined the decree did not already offer Rayna a proportional amount of the appreciation.” We agree with the district court that the relief Rayna sought would have required an amendment to the decree and that the court did not have jurisdiction to amend that decree once the notice of appeal had been filed.

¶45      We note that a “trial court is [generally] divested of jurisdiction upon the filing of an appeal.” Ortiz v. Crowther, 2017 UT App 133, ¶ 2, 402 P.3d 34 (per curiam). But a court may still enforce its decree even if an appeal has already been sought.[5] See Cheves v. Williams, 1999 UT 86, ¶ 48, 993 P.2d 191. Accordingly, because “Rayna filed a motion to enforce the decree,” she asserts that the court should have reached the merits of the issue she presented to it. But “[t]he substance of a motion, not its caption, is controlling.” DeBry v. Fidelity Nat’l Title Ins. Co., 828 P.2d 520, 523 (Utah Ct. App. 1992). And here, although Rayna titled her motion as one “to enforce,” the requested relief does not match that title. Cf. CBS Enters. LLC v. Sorenson, 2018 UT App 2, ¶¶ 11–12, 414 P.3d 925.

¶46      The decree instructed Glen “to ‘transfer’ equities valued at the exact amounts set forth.” (Emphasis added.) But in her motion, Rayna requested not only those exact amounts but also “post-trial appreciation over and above the exact figures set forth.” On appeal, Rayna concedes that “the decree said nothing about who should receive the appreciation that accrued” post-trial. Accordingly, we agree with the district court that to award the relief that Rayna sought would require the district court to “read language into” the decree “in a way that modifie[d] or amend[ed]” it. See Mitchell v. Mitchell, 2011 UT App 41, ¶ 5, 248 P.3d 65 (“We interpret a divorce decree according to established rules of contract interpretation.” (cleaned up)); see also Brady v. Park, 2019 UT 16, ¶ 53, 445 P.3d 395 (“If the language within the four corners of the contract is unambiguous, the parties’ intentions are determined from the plain meaning of the contractual language . . . .” (cleaned up)).

¶47      Because Rayna filed her notice of appeal before the district court ruled on her request for post-trial appreciation of the investment distribution, the district court had been divested of jurisdiction to alter the divorce decree in the way Rayna requested. See Ortiz, 2017 UT App 133, ¶ 2. Accordingly, we affirm the district court’s determination.

V. Investment Income

¶48      On cross-appeal, Glen contends that the district court abused its discretion when it did not include in its alimony calculation an amount reflecting Rayna’s ability to earn income from awarded investment accounts and apply that amount toward Rayna’s unmet needs.[6] Initially, Glen asserts that the district court “fail[ed] to consider Rayna’s ability to earn” income from these sources, but in the remainder of his argument, he proceeds to explain why the court’s actual consideration of her ability to earn income from investment accounts is based on unsupported findings or is otherwise unjustified.

¶49 For its part, the district court acknowledged Glen’s argument that Rayna would receive an investable property distribution that could provide “at least” a six percent return. While Utah “caselaw directs district courts to consider all sources of income when determining alimony, it does not dictate that all sources of income be counted as income received”—instead district courts have “broad discretion to treat sources of income as the court sees fit under the circumstances.” Eberhard v. Eberhard, 2019 UT App 114, ¶ 21, 449 P.3d 202. The court then provided three justifications for its determination that “it would be inequitable to include interest, dividend or other unearned income potentially generated from investment assets received in the marital property award.”

¶50      First, the court explained that the “ability to obtain a 6% return is not sufficiently certain for the court to rely on.” It noted the inconsistency of historical returns, Rayna’s discretion to use her distribution for purposes other than investment, and the difficulty of projecting future investment income. Second, the court explained that “[i]t would be inequitable for Glen to be able to keep his share of the investments and retain their income stream to reinvest as he continues to generate professional income, while Rayna would retain only the investments after being compelled to expend her investment income to pay her living expenses.” The court felt that such an order would “wrongly deprive[] Rayna of the full benefit and value of” her distribution and that she should be able to “grow” any investments she would make without the obligation to use that money for providing for her own standard of living. Third, the district court explained that “[i]t was the parties’ regular practice not to spend or live off investment income, but rather to entirely reinvest that income.” Accordingly, the court refrained from applying any amount of potential investment income toward Rayna’s projected earning capacity.

¶51      In determining whether a spouse should receive alimony, the general rule is that a court should first take care of property distribution. See Batty v. Batty, 2006 UT App 506, ¶ 5, 153 P.3d 827 (“[An alimony] evaluation properly takes into account the result of the property division, particularly any income-generating property [the receiving spouse] is awarded, but alimony is not meant to offset an uneven property award. Rather, as a matter of routine, an equitable property division must be accomplished prior to undertaking the alimony determination.”). Then, depending on how the property distribution works out— especially considering income-generating property—the court considers whether alimony will be necessary for a spouse to meet demonstrated needs. See Burt v. Burt, 799 P.2d 1166, 1170 (Utah Ct. App. 1990) (“Alimony is appropriate to enable the receiving spouse to maintain as nearly as possible the standard of living enjoyed during the marriage and to prevent the spouse from becoming a public charge.” (cleaned up)); see also Batty, 2006 UT App 506, ¶ 4 (“In determining alimony, the trial court must consider three important factors: (1) the financial condition and needs of the spouse claiming support, (2) the ability of that spouse to provide sufficient income for him or herself, and (3) the ability of the responding spouse to provide the support. Although a trial court is given considerable discretion in determining an alimony award, failure to consider these factors constitutes an abuse of discretion.” (cleaned up)). And as we held in Eberhard v. Eberhard, 2019 UT App 114, 449 P.3d 202, while the district court must consider all potential sources of income, it is not required to count those sources of income. Id. ¶ 21. This is nothing more than an expression of the rule that a district court has “broad discretion to treat sources of income as the court sees fit under the circumstances.” Id.

¶52      Here, contrary to Glen’s assertion, the district court did, in fact, consider Rayna’s ability to earn income from her distributed investment assets in reaching its determination that she would still require additional alimony to support herself to the level of the marital standard of living. See Dobson v. Dobson, 2012 UT App 373, ¶ 21, 294 P.3d 591 (stating that for the purposes of determining alimony, “the needs of the spouses are assessed in light of the standard of living they had during marriage” (cleaned up)). Given that the district court considered Rayna’s ability to earn income in reaching its determination that she was entitled to alimony, the question before us is whether the circumstances allowed the district court to refrain from counting any future investment income Rayna may receive in its calculation. None of Glen’s arguments attacking the court’s determination persuade us that the court exceeded its discretion here.

¶53 First, Glen argues that the court’s determination that the “ability to obtain a 6% return is not sufficiently certain for the court to rely on” contradicts its other findings. Specifically, he cites a finding that states “Glen’s income has consistently increased” and “[o]ther than general economic uncertainty, there was no evidence at trial that this trend would not continue.” He then claims that this statement contradicts the court’s determination that Rayna would not obtain a return on her investments.

¶54 However, the two findings are not comparable at their roots. Regarding Rayna’s potential income, the court was specifically discussing income resulting from a return on investments; but regarding Glen’s income, the court was noting an increase in his income as a whole, including that income derived from gainful employment and not exclusively income derived from any returns on Glen’s ongoing investments. A projection that Glen’s income as a whole, salary and all, will continue to increase is not incompatible with a determination that a return on investment income is insufficiently certain to rely on.

¶55 As part of this argument, Glen also characterizes an unrelated finding from the court’s ruling as a determination that Rayna’s relevant accounts were “not easily liquidated” and asserts that the court’s statement that Rayna may choose to liquidate a portion of these investments contradicts that finding. But this description of the court’s finding is simply inaccurate— the court noted that the “accounts [were] not liquid,” and it made no statement about whether there would be difficulty in liquidating them. And even if the accounts were difficult to liquidate, it would, again, not be incongruous with the court’s other findings, specifically that Rayna could choose to liquidate, any difficulty notwithstanding.

¶56 Further, Glen asserts that the court unjustifiably determined that both parties should “grow” their investments but that growth on Rayna’s accounts was uncertain. Again, these findings are not incongruous—the district court could reasonably find that a return was uncertain, that requiring Rayna to use any return to provide for her needs would prevent her from increasing the amount invested, and that Rayna deserved the opportunity to have her investment returns be reinvested for potential future growth.

¶57      Second, Glen asserts that the court gave Rayna freedom to reinvest her investment returns while it restricted Glen to using his investment returns to pay for both the taxes owed on his forgiven loans and Rayna’s alimony award. As to the alimony award, we note that Glen has not directed us to anywhere in the record where the district court explained that he must pay for Rayna’s alimony using investment income, and as such, Glen is free to provide for Rayna’s alimony using whatever resources he desires, whether it be his salary, proceeds from a mortgage or other loan, or, indeed, his investment income.

¶58      Third, Glen asserts that the court’s finding that “Lilt was the parties’ regular practice not to spend or live off investment income, but rather to entirely reinvest that income” contradicts its acknowledgment that Glen incurred a tax obligation from the forgiven loans. However, we note that although Glen maintains on appeal that he used the forgivable-loan investment returns to pay tax obligations, Glen has not pointed to the court ever making a finding to that effect, and thus the findings are not inconsistent. Further, although such evidence was before the court, the court also stated that “Glen did not include his own investment income in his Financial Declaration as income available to pay alimony or to otherwise meet his own need.” That fact, the court stated, “demonstrate[d] that neither party considered investment income as income to be spent or expended, but rather as a vehicle to increase savings and net worth.” While a pattern of using investment returns to pay tax obligations may not be completely compatible with a pattern of using returns to “increase savings and net worth,” we do not view this apparent inconsistency as enough to persuade us that the court abused its discretion.

¶59      In sum, Glen has not demonstrated that the court abused its discretion in refusing to count Rayna’s potential investment returns as income toward her ability to meet her living expenses. Accordingly, we affirm the district court on this point.

CONCLUSION

¶60      First, we remand to the district court to apply the correct standard to the evidence regarding investments and savings and to adjust the alimony award based on calculations that account for Rayna’s historical spending on future investments; we also remand to the district court to adjust the alimony award based on calculations that account for Rayna’s historical spending on entertainment. Second, we affirm the district court’s determination that Glen did not own the book of business. Third, we remand to the district court to ensure that Rayna is awarded the $37,500 owed to her due to Glen’s dissipation. Fourth, we affirm the district court’s determination that the relief Rayna requested in her motion to enforce would have required it to amend the decree and that it lacked jurisdiction to do so. And fifth, we affirm the district court’s decision not to include potential investment income in calculating Rayna’s actual income. On remand, we instruct the district court to engage in further proceedings as necessary to effectuate the holdings provided in this opinion.

 

[1] Justice Diana Hagen began her work on this case as a judge of the Utah Court of Appeals. She became a member of the Utah Supreme Court thereafter and completed her work on the case sitting by special assignment as authorized by law. See generally Utah R. Jud. Admin. 3‑108(4).

[2] Due to the parties’ shared surname, we employ their given names.

[3] The parties are appealing an order from a bench trial. “We view the evidence in a light most favorable to the trial court’s findings, and therefore recite the facts consistent with that standard. However, we present conflicting evidence to the extent necessary to clarify the issues raised on appeal.” Kidd v. Kidd, 2014 UT App 26, n.1, 321 P.3d 200 (cleaned up).

[4] The district court’s view, which we endorse, is that Glen spent $75,000 in marital funds on his affair—not a proper marital purpose. Half of that amount was essentially his, but the half belonging to Rayna should properly be restored to her by Glen.

[5] Notwithstanding this general rule, the lower court may, in addition to dealing with motions to enforce the decree address clerical errors and other mistakes “arising from oversight or omission” that the appellate court asks it to address even after an appeal has been filed. See Utah R. Civ. P. 60(a); see also Cheves v. Williams, 1999 UT 86, ¶ 45, 993 P.2d 191 (“We have also recognized exceptions to [the general] rule, in the interest of preventing unnecessary delay, where any action by the trial court is not likely to modify a party’s rights with respect to the issues raised on appeal, or where the action by the trial court is authorized by rule or statute.” (cleaned up)).

[6] Although the district court did not impute income to Rayna based on investment earnings, it did impute to her some income based on an undisputed amount of earning capacity.

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2022 UT App 103 – Divorce Tax Consequences

2022 UT App 103

THE UTAH COURT OF APPEALS

 

LISA PETERSON LABON,

Appellee,

v.

PIOTR ARKADIUSZ LABON, Appellant.

 

Opinion

No. 20200547-CA

Filed August 18, 2022

 

Third District Court, Silver Summit Department

The Honorable Kent R. Holmberg No. 174500142

 

Julie J. Nelson, Alexandra Mareschal, and Jaclyn Jane Robertson, Attorneys for Appellant

Karra J. Porter and Kristen C. Kiburtz, 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 During Peter[1] and Lisa Labon’s marriage, Peter generated a significant income managing the marital assets. Over the years, the ebb and flow of income was tempered by occasionally leveraging—basically borrowing from—two whole life insurance policies. At trial in the divorce action, Peter maintained that he intended to generate income in the same way after the divorce as he had historically done during the marriage. When the trial court divided the marital assets, and particularly the insurance policies, so that Peter could continue to do so, Peter objected and now appeals, claiming that the way the court divided the assets is not equitable and will cause him to suffer substantial negative tax consequences. On review, we conclude that the trial court did not exceed its discretion and therefore affirm.

BACKGROUND[2]

¶2 Peter and Lisa married in 1995. In the early 2000s, Peter made a lot of money, primarily through investing and the financial industry. Around 2008, he stopped working a traditional job and devoted himself to investing and managing the marital assets, thereby generating the household’s income. Lisa was a “full-time stay-at-home wife and mother” throughout the marriage.

¶3 Around 2017, Peter and Lisa experienced irreconcilable differences, and after a twenty-five-year union, they divorced in 2020.

Division of Property

¶4 As relevant here, the division of marital assets consisted largely of Peter receiving various financial instruments and Lisa receiving cash.

¶5 Real Property: After filing for divorce in the trial court, the parties entered into a stipulation, which the court accepted, for the division of a house in Park City, Utah. The proceeds of the sale of the Park City house were split equally, with each party receiving $3,077,000 in cash. Peter used $1,560,000 and Lisa used $1,300,344 to buy individual houses in Park City—properties which the trial court awarded to each as separate property. The parties funded several bank or investment accounts with their “respective remaining proceeds” from the sale of the Park City house. And Lisa used some of her money to establish a business. These assets the court likewise awarded as separate property.

¶6 Cash: The parties had $1,643,277 in cash, the bulk of which came from selling a house in Oregon. The court awarded $61,517 to Peter and $1,581,760 to Lisa.

¶7 Other Property: The court awarded Peter the parties’ $25,000 horse. The parties had already divided a valuable wine collection, numerous vehicles (six going to Peter and two going to Lisa), and other personal property, which the court awarded to the parties as presently held.

¶8 Life Insurance Investments: The parties held two whole life insurance policies, which the court awarded to Peter.[3] One policy (Northwestern Mutual) had a cash value of $1,761,224 but was encumbered by a debt of $1,391,687. The other policy (Pacific) had a cash value of $592,931 and was unencumbered.

¶9 During the divorce proceedings, Peter explained how they used the policies to take out loans: “[W]e borrowed money multiple times during our marriage to make other investments. . . . [W]e borrowed money essentially from ourselves because the life insurance policy was ours.” And even though they paid interest on the loans from their policies, they “received dividends to counteract that,” making the effective interest rate “on these loans . . . 1 percent or less.” Even during the divorce proceedings, Peter had paid off a loan against the Pacific life insurance policy. Peter also explained that this leveraging did not incur taxes because the policies were not surrendered. But he pointed out that “if as . . . a result of these proceedings, the decision is made to surrender those policies to get the cash value, there will be a tax liability associated with them.”

¶10 When asked how he planned to support himself financially going forward, Peter answered, “Well, . . . essentially the same way as I have in the past. . . . I plan to make similar kinds of investments going forward.” He further explained that he was “planning to diversify into other” investment products.

¶11 The court awarded the parties’ whole life insurance investments to Peter:

Given Peter’s unilateral decision to pay off the [life insurance] loan, combined with his testimony that he wants to continue to invest in life insurance, the Court awards the Pacific Life Insurance policy to Peter.

. . . .

Although the Court finds that [the Northwestern Mutual life insurance policy] and the corresponding loans are both marital, the Court awards the asset to Peter in the equitable division of the parties’ marital estate. The Court finds that Lisa did not understand and/or was not given a choice as to whether or not the loans were taken. It is more equitable, therefore, to award the value of the asset and the debt to Peter with an offset to Lisa from another asset.

¶12 Business Ownership: The court also awarded the couple’s business ownership (worth $741,000) in a hedge fund—which was run by Peter’s friend—to Peter. Peter challenged the value of this interest, alleging that a $500,000 loan from his mother enabled him to make the investment in this hedge fund and that this alleged debt was also marital. For context, Peter testified that an earlier incarnation of the hedge fund had produced a 65% return for him in less than two years. And Peter testified that his mother had been earning only 1% on her $500,000 in the way she had it invested, but he offered to invest it for her and give her a 4% return because he would be earning an even greater return on the money invested in the hedge fund. Alternatively, Peter argued that even “if the court [did] not accept his contention that there [was] a $500,000 loan,” the hedge fund “investment was purchased with this $500,000 from his mother” and thus “should not be considered marital property.”

¶13 In contrast, Lisa testified that “she was led to believe, by Peter, that he was investing his mother’s money directly into [the hedge fund]—not that they would be borrowing from Peter’s mother and investing directly themselves.” Rather, she explained that it was her understanding that Peter “was adding his mother to [the hedge fund] as a separate investment.” Lisa maintained that the only discussion was that Peter was “going to get his mother in on the investment,” not a discussion that “he was going to take his mother’s money, put it in that investment, and try to profit off of his mother’s capital.” Accordingly, Lisa’s testimony was that the investment in the hedge fund was their own, not anyone else’s.

¶14 The court found that Lisa’s testimony was “more credible than [Peter’s] on this issue.” The court observed that there was “no promissory note or other evidence of this loan,” that “[n]o documentary evidence of this transaction was presented at trial,” and that “only . . . Peter’s testimony” supported the transaction. It also noted that Peter’s mother had not testified about the loan. Thus, the court rejected Peter’s arguments because (1) “Peter did not present evidence to substantiate this claim other than his own testimony,” (2) the investment was titled in Peter’s name, (3) Peter had not established that the “asset [was] actually in Peter’s mother’s name,” and (4) “Peter did not present evidence tracing the receipt of any money from his mother and the investment of the same sum into” the hedge fund. The court observed,

Without some documentary evidence to support this series of transactions, and given the amount of the sum in question, the court does not find this argument persuasive. The credible evidence presented at trial supports the court’s findings that the [hedge fund] investment is a marital asset and the alleged loan from Peter’s mother has not been established nor traced to the [hedge fund] investment.

In short, the court concluded that Peter had “not met his burden of proof to establish that there [was] a marital debt of $500,000” owed to his mother.

¶15 Equalizing Payment: After the court divided the marital assets and accounted for offsets, it ordered Peter to pay Lisa an equalizing payment of $192,899.

Income and Alimony

¶16 Income: The court determined that Peter could earn $250,000 per year or $20,833 per month. It based this determination on his “historical earnings and his income representations” on his investments. Specifically, the court noted that “although the corpus available for him to manage [would] be reduced, this figure [was] still within his stated 4–10% range [of return on his investment assets] and equates to his investment income over 9 years.” The court found that insofar as working was concerned, the “highest and best use of Peter’s time [was] to continue his work in investing and Peter credibly testified that this was his intention. Based on [Peter’s vocational expert’s] analysis, Peter [was] earning at least double what he could by going to work for someone else in the financial services industry.” The court found Lisa’s earning capacity to be $3,743 per month.

¶17 Alimony: To maintain the marital standard of living, the court found that Peter’s expenses were $29,515 (resulting in a $15,053 monthly shortfall) and Lisa’s expenses were $22,314 (resulting in an $18,344 monthly shortfall).[4] To equalize the shortfall, the court determined that equity favored an alimony award to Lisa of $1,646 per month.

Clarification Hearing

¶18 After the court issued its findings of fact and conclusions of law, it held a “clarification hearing” to identify any “typographical [errors], errors in computation, or any places where the parties felt that there needed to be further clarification by the Court in order to properly articulate the decision.”

¶19 Peter argued that awarding the cash to Lisa and the investments to him left him in a position that would force him to sell both policies to maintain liquidity for his future investments. Peter also noted that there would be “a substantial tax impact if he” had to sell the policies. Peter was “concerned” that for him to continue to invest, he would be subject to “a huge tax loss that [was] not factored into his side of the equation.”

¶20 Lisa responded that Peter was going beyond the scope of the hearing to mount an “informal appeal” by attacking the findings of the trial court. She pointed out that Peter made clear during his testimony that he wanted to continue “to invest in life insurance” and “that’s what [the court] gave him.” She further pointed out it was clear that while investing in life insurance could produce “potentially taxable” events “depending on what [Peter did] with” the insurance policies, “there was no testimony with respect to any specifics” for the court to make any findings on the tax implications of the division, especially given Peter’s desire to keep the insurance assets.

¶21 Subsequently, in its final decree of divorce, the court stated that it could not make any finding about the tax implications of liquidating assets because no credible evidence had been presented on the matter:

There was no credible evidence to permit the court to make any findings as to the tax effect of liquidating any specific asset or even that any specific asset would be liquidated. To meet liquidity needs during the marriage, the parties liquidated some assets and also leveraged the assets they had. It is unclear to the court whether Peter will need to liquidate assets or leverage assets to satisfy his liquidity needs.

¶22      Peter now appeals.

ISSUE AND STANDARD OF REVIEW

¶23 Peter contends that the trial “court erred when it divided the estate, awarding Lisa all the parties’ cash plus alimony, and Peter the parties’ investments, an equalizing payment [owed to Lisa], and an alimony obligation, without considering liquidity, risk, tax consequences, or other obligations.” “District courts have considerable discretion concerning property distribution in a divorce and we will uphold the decision of the district court unless a clear and prejudicial abuse of discretion is demonstrated.” Gerwe v. Gerwe, 2018 UT App 75, ¶ 8, 424 P.3d 1113 (cleaned up).

ANALYSIS

¶24 Peter now argues that the trial court’s division of assets constitutes an abuse of discretion because it should have been “obvious” to the court that a “consequence” of its ruling was that Peter would be forced “to liquidate assets immediately to even pay the equalization payment” to Lisa because the distribution left him with negative cash and her with nearly $1,800,000 in cash. Due to his alleged dearth of cash, Peter argues that the court’s division left him “necessarily” having “to liquidate investments” not only to pay the equalization but “to pay alimony and make up his own spending deficit.” Thus, Peter argues that the court should have anticipated “the immediate and foreseeable consequences of a property distribution—consequences that [would] fall like dominos as a direct result of the property distribution itself.”

¶25 When rendering a decree of divorce, the court is expected to include “equitable orders relating” to the division of “property, debts,” and “obligations.” Utah Code Ann. § 30-3-5 (LexisNexis Supp. 2021). In making this division, the “court should engage in a four-step process”: (1) “distinguish between separate and marital property,” (2) “consider whether there are exceptional circumstances that overcome the general presumption that marital property should be divided equally between the parties,” (3) “assign values to each item of marital property,” and (4) “distribute the property in a manner consistent with its findings and with a view toward allowing each party to go forward with his or her separate life.” Taft v. Taft, 2016 UT App 135, ¶ 33, 379 P.3d 890 (cleaned up).

¶26 And in making the equitable distribution, the court should “generally” consider “the amount and kind of property to be divided.” Burke v. Burke, 733 P.2d 133, 135 (Utah 1987). As concerns the type of property, “[i]n situations where the marital estate consists primarily of a single large asset, such as a business or stock, a common acceptable approach for the court to take is to award the asset to one party and make a cash award to the other party.” Wadsworth v. Wadsworth, 2022 UT App 28, ¶ 79, 507 P.3d 385, petition for cert. filed, May 6, 2022 (No. 20220412). Doing so avoids the obviously undesirable situation that forces former spouses “to be in a close economic relationship which has every potential for further contention, friction, and litigation, especially when third parties having nothing to do with the divorce will also necessarily be involved.” Argyle v. Argyle, 688 P.2d 468, 471 (Utah 1984) (cleaned up).

¶27 Moreover, a court should consider the “tax consequences” associated with the division of marital property if one of the parties “will be required to liquidate assets to pay marital debts.” Morgan v. Morgan, 795 P.2d 684, 690 (Utah Ct. App. 1990). But the court is under “no obligation to speculate about hypothetical future tax consequences.” Id. (cleaned up). Thus, “[w]hen settling property matters, the trial court may decline to consider the speculative future effect of tax consequences associated with sale, transfer, or disbursement of marital property.” Id. at 689. In other words, “[t]here is no abuse of discretion if a court refuses to speculate about hypothetical future tax consequences of a property division made pursuant to a divorce.” Howell v. Howell, 806 P.2d 1209, 1213–14 (Utah Ct. App. 1991); see also Alexander v. Alexander, 737 P.2d 221, 224 (Utah 1987) (stating that a “trial court’s refusal to speculate about hypothetical future consequences” of a taxable event associated with the division of marital property is not, by default, “an abuse of discretion”).

¶28 “Application of the foregoing principles of law to the facts of this case prompts the conclusion that the trial court did not abuse its discretion” when it did not explicitly address the tax consequences of the property division in which it awarded the investments to Peter and the majority of the cash to Lisa. See Burke, 733 P.2d at 135.

¶29 First, Peter expressed a desire during trial to continue to support himself in largely the same manner as he had been doing during the marriage. It was reasonable for the court to find that Peter would continue to support himself and meet liquidity needs by leveraging the investment assets he was awarded. He had done so in the past, and it was reasonable for the court to accept his assertion that he would continue to do so in the future.

¶30 Second, the tax implications of the property division that Peter raises were entirely speculative as presented to the trial court. In short, nothing in the record indicates that Peter would suffer adverse tax consequences as a result of the property division. Indeed, just the opposite is true: the property division was structured in such a way as to avoid tax consequences by awarding Peter certain investment assets so that he could continue to manage them profitably and would not have to liquidate them.

¶31 Notably, the trial court did not order Peter to liquidate any assets. Nor did Peter offer any evidence that he intended to or would need to liquidate any assets, an action that would trigger a tax liability. Indeed, Peter spoke of liquidating the assets in question only in hypothetical terms. He said, “if as . . . a result of these proceedings, the decision is made to surrender those policies to get the cash value, there will be a tax liability.” (Emphasis added.) Nowhere did Peter present evidence to the court that he would necessarily have to liquidate assets after the division of the marital estate. Even at the clarification hearing, Peter spoke about tax implications of liquidation in conditional terms.[5]

¶32 “Tax consequences in this case were speculative as to whether they could be avoided or delayed, and as to amount.” See Howell, 806 P.2d at 1214. And while the “court heard testimony and evidence regarding possible tax implications, [it] did not err in refusing to adjust property distribution because of those theoretical consequences.” See id.

¶33 In sum, the trial court did not abuse its discretion in refusing to make adjustments related to potential tax consequences resulting from the division of marital property because those consequences were theoretical and speculative.[6]

CONCLUSION

¶34 The trial court did not abuse its discretion in awarding the investments to Peter and the cash to Lisa, because it was under no obligation to speculate about the possible tax implications associated with that division of property.

¶35      Affirmed.

 

 

 

 

 

 

[1] As is our custom, we refer to the parties by their given names when they share a surname. And in conformity with the other court documents in this case, we employ the anglicized form of Piotr.

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

[3] “Generally speaking, there are two categories of life insurance: whole life insurance and term life insurance. Term life insurance protects the policyholder for a specified period of time. Whole life policies, by contrast, remain in existence throughout the life of an insured. In general, premiums on term insurance policies pay only for the cost of providing the insurance, while at least some whole life policies have some type of participatory investment or savings feature.” U.S. Bank Nat’l Ass’n v. PHL Variable Ins. Co., Nos. 12 Civ. 6811(CM)(JCF), 13 Civ. 1580(CM)(JCF), 2014 WL 2199428, at *1 (S.D.N.Y. May 23, 2014); see also Life insurance, Black’s Law Dictionary (11th ed. 2019) (defining whole life insurance as “[l]ife insurance that covers an insured for life, during which the insured pays fixed premiums, accumulates savings from an invested portion of the premiums, and receives a guaranteed benefit upon death, to be paid to a named beneficiary” and stating “[s]uch a policy may provide that at a stated time, premiums will end or benefits will increase”).

[4] The court included taxes and adjustments for child support in calculating the shortfalls.

[5] We note that Peter repeatedly refers in the record to unspecified tax loss carryforwards from previous years that he had used to offset tax liabilities in subsequent years. Thus, in addition to the tax consequences being wholly speculative, the possible presence of additional tax loss carryforwards further undermines the idea that Peter would necessarily have to surrender the policies to meet his obligations.

[6] Peter also appears to challenge the court’s factfinding on the existence of the loan from his mother. “But to successfully challenge a trial court’s factual finding on appeal, the appellant must overcome the healthy dose of deference owed to factual findings by identifying and dealing with the supportive evidence and demonstrating the legal problem in that evidence, generally through marshaling the evidence.” Taft v. Taft, 2016 UT App 135, ¶ 19, 379 P.3d 890 (cleaned up). Because Peter has failed to do so, we decline to further consider this aspect of his argument.

Regarding the hedge fund investment, Peter also complains that the trial court assigned Peter “all the risk” when it should have distributed part of the risk to Lisa. Peter’s characterization on appeal of the hedge fund as risky does not comport with his testimony at trial, where he explicitly stated, “I feel [it] will be profitable. . . . [It] is likely to be profitable.” Far from assigning him all the risk, Peter’s own trial testimony appears to have led the trial court to award him an asset that would likely be profitable. Thus, we cannot say the trial court abused its discretion in awarding the hedge fund solely to Peter. See Gardner v. Gardner, 2019 UT 61, ¶ 18, 452 P.3d 1134 (stating that an appellate court will find an abuse of discretion in an award of property “only if no reasonable person would take the view adopted by the trial court” (cleaned up)).

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Redden v. Redden – 2020 UT App 22 – findings, alimony, ability to pay

2020 UT App 22 – THE UTAH COURT OF APPEALS

DEBBIE ANN REDDEN, Appellee,
v.
SPENCER DEAN REDDEN, Appellant.

Opinion
No. 20180852-CA
Filed February 13, 2020

Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 164907729

Douglas L. Neeley, Attorney for Appellant
Jared L. Peterson, Attorney for Appellee

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

POHLMAN, Judge:

¶1 Debbie Ann Redden and Spencer Dean Redden divorced in February 2018. After a bench trial, the district court entered findings of fact and conclusions of law on certain reserved issues surrounding the divorce, including alimony. On appeal, Spencer[1] challenges the court’s alimony determination, arguing that the court exceeded its discretion by disallowing, for alimony purposes, his monthly expenses for student loan payments, vehicle loan payments, and credit card debt. We conclude that the court acted within its discretion in disallowing the credit card debt as a monthly expense. But we conclude that the court exceeded its discretion in disallowing Spencer’s student loan payments and both of his vehicle loan payments in its assessment of Spencer’s monthly needs on the basis that the expenses did not reflect the marital standard of living. Accordingly, we affirm in part, reverse in part, vacate the alimony award, and remand for further proceedings.

BACKGROUND

¶2 Spencer and Debbie married in March 2003. They separated in January 2016 and divorced in February 2018. In the divorce proceedings, the parties submitted to the district court several issues for resolution, including alimony.

¶3 The parties stipulated to assuming the debts each had listed in their respective financial declarations. Spencer listed as debts a federal student loan of $36,475, total credit card debt of $4,756, and total vehicle loan debt of $29,762. Spencer also listed each of these debts as a corresponding line item in his monthly expenses; he claimed as monthly expenses $374 for his student loans, $571 for his credit cards, and $762 for his vehicle loans.

¶4 At the February 2018 bench trial, the court heard evidence about the parties’ respective monthly expenses for alimony determination purposes and, for each party, addressed each claimed line-item expense, often adjusting and ruling on the propriety of the specific line item from the bench. As relevant here, the court specifically inquired about Spencer’s claimed monthly expenses for student loan debt, vehicle loans, and credit card debt.

¶5 With respect to the student loan debt, Spencer testified that the loan was for expenses associated with his bachelor’s degree in information technology, which he had completed in August 2017. He explained that the loans were taken out during the marriage, beginning in 2014, and that he would have to start paying them back within two months following the bench trial.

¶6 For the vehicle loan payments, Spencer stated that the loan payments were for two vehicles: a car, with a payment of approximately $412 per month, and a motorcycle, with a payment of about $350 per month. Spencer explained that both vehicles were marital purchases and that, while Debbie initially had the car and assumed the debt after the parties’ separation, she later asked him to take on the car and the associated debt, which he agreed to do.

¶7 Finally, as to the credit card debt, Spencer testified that the balance represented basic living essentials, such as food and gasoline, and that “a lot of [the debt] was incurred” when the parties separated and he had to furnish his new home. He also explained that he had “maintained a [credit card] balance for quite a few years” due to struggles to “make ends meet” during the marriage. However, when asked by the court whether the balance had continued “from the times when [he was] married to present” or whether the amounts “were incurred after [his] separation,” he responded generally that the balance had “fluctuated,” but he did not provide the court further detail concerning what portion of the balance, if any, had been carried forward from the marriage.

¶8 After the bench trial, the district court entered a memorandum decision and order with respect to the pending issues (the Memorandum Decision). On the issue of alimony, the court made several findings regarding the required alimony factors. See Utah Code Ann. § 30-3-5(8)(a), (e) (LexisNexis 2019)[2] (setting forth the factors the court “shall consider” in determining alimony, including the “financial condition and needs of the recipient spouse,” the “recipient’s earning capacity or ability to produce income,” and “the ability of the payor spouse to provide support,” and providing that a court generally should “look to the standard of living, existing at the time of separation, in determining alimony in accordance with Subsection (8)(a)”).

¶9 Addressing Debbie’s financial condition, needs, and earning capacity, the court found Debbie’s monthly gross income to be $1,257, resulting, after deductions, in a monthly net income of $1,148. And after increasing or reducing certain enumerated expenses listed in Debbie’s financial declaration, the court determined that Debbie’s total adjusted expenses were $2,483 per month, which meant that she had a monthly shortfall of $1,335. See id. § 30-3-5(8)(a)(i)–(ii) (requiring a court determining alimony to consider the recipient spouse’s “financial condition and needs” as well as “earning capacity or ability to produce income”).

¶10 For Spencer, the court found his monthly gross income to be $5,680, with a net income after deductions of $4,688. Undertaking a similar adjustment to Spencer’s claimed expenses, the court set his adjusted monthly expenses at $2,421. However, in reviewing and setting Spencer’s monthly expenses, the court did not mention or appear to account for Spencer’s student loan debt, his vehicle loan debt, or his credit card debt. Rather, subtracting Spencer’s child support obligation and the adjusted monthly expenses from his net income, the court found that Spencer had an “income of $1,170” per month with which to provide alimony. See id. § 30-3-5(8)(a)(iii) (considering the “ability of the payor spouse to provide support” in determining alimony). On this basis, the court determined that Spencer should pay alimony to Debbie in the amount of $1,000 per month for thirteen years, “the time period the parties were married and lived together.”

¶11 Following the entry of the Memorandum Decision, pursuant to rules 59 and 60 of the Utah Rules of Civil Procedure, Spencer moved the court for a new trial and relief from the decision. He argued that the $1,000 monthly award to Debbie was “excessive” and that the court’s calculations with respect to his monthly expenses in particular “cannot be duplicated.” He also pointed out that the court failed to address his vehicle loan and credit card debts in its decision.[3]

¶12 The court denied the motion, issuing a supplemental decision (the Supplemental Decision). The court explained that it “correctly assessed the parties’ needs given the evidence before it” and that it had “appropriately based its decision on the marital standard of living.” With respect to the credit card debt, the court observed that the debt was alleged by Spencer “to have been incurred for family expenses,” concluding that “including this payment in assessing [Spencer’s] need would double count the expenses” and that inclusion “would be appropriate only if corresponding expenses were deducted.” As to the vehicle loan debt, the court concluded, without further explanation, that “exclusion reflects the proper determination of the marital standard of living and the vehicle needs of the parties.”

¶13 In October 2018, the court issued the decree of divorce, accompanied by findings of fact and conclusions of law that, on the issues pertinent to this appeal, largely repeated the findings and determinations it had made in both the Memorandum Decision and the Supplemental Decision. The court generally noted that during the marriage the parties “lived in a home they owned” and “had money for vehicle maintenance and gas, clothing, laundry, auto insurance, utilities, internet, health insurance, entertainment and gifts.” See id. § 30-3-5(8)(e). And the court made the same determinations as to the parties’ respective monthly incomes and expenses as it had before. It also repeated its determination that Spencer would not be “given credit for credit card payments because he incurred these debts for family expenses and to include them would double count his expenses.” And addressing the student loan and the vehicle loan payments, the court stated that Spencer would not be “given credit” for them “because the amount he listed on his Financial Declaration does not reflect the marital standard of living.”

¶14 Spencer appeals.

ISSUES AND STANDARDS OF REVIEW

¶15 Spencer argues that the district court exceeded its discretion when, in determining his alimony obligation, it disallowed a monthly expense for his student loan payments, his vehicle loan payments, and his credit card debt. “We will uphold a trial court’s alimony determination on appeal unless a clear and prejudicial abuse of discretion is demonstrated.” Taft v. Taft, 2016 UT App 135, ¶ 14, 379 P.3d 890 (cleaned up); see also Dobson v. Dobson, 2012 UT App 373, ¶ 7, 294 P.3d 591 (“We review a trial court’s award of alimony for an abuse of discretion and will not disturb a trial court’s 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.” (cleaned up)). In setting alimony, a district court exceeds its discretion if it fails to consider the statutory alimony factors set forth in Utah Code section 30-3-5(8)(a) or if the decision otherwise lacks a reasonable basis. See Osborne v. Osborne, 2016 UT App 29, ¶ 25, 367 P.3d 1036.

¶16 Additionally, the “district court must make adequate findings on all material issues of alimony to reveal the reasoning followed in making the award.” Eberhard v. Eberhard, 2019 UT App 114, ¶ 5, 449 P.3d 202 (cleaned up). “Findings of fact are adequate to support the district court’s financial determinations only when they are sufficiently detailed to disclose the steps by which the district court reached its ultimate conclusion on each issue, and follow logically from, and are supported by, the evidence.” Paulsen v. Paulsen, 2018 UT App 22, ¶ 17, 414 P.3d 1023 (cleaned up); accord Taft, 2016 UT App 135, ¶ 14. We cannot affirm the district court’s alimony determination when it “fail[s] to enter specific, detailed findings supporting its financial determinations.” Rayner v. Rayner, 2013 UT App 269, ¶ 4, 316 P.3d 455 (cleaned up); see also Oldroyd v. Oldroyd, 2017 UT App 45, ¶ 5, 397 P.3d 645 (“The district court abuses [its] discretion when it fails to enter findings of fact adequate to support its financial determinations.”).

ANALYSIS

¶17 Spencer challenges the district court’s alimony determination, specifically its decision to disallow as monthly expenses payments for student loan debt, vehicle loan debt, and credit card debt. He contends that the court’s findings do not sufficiently support the alimony award and that the failure to allow a monthly expense for these debts in considering his ability to provide alimony constituted an abuse of discretion. On this basis, he asks that we vacate the alimony award.

¶18 As to the expenses associated with Spencer’s student loans and the debt for at least one of his vehicles, we conclude that the evidence does not support the court’s determination that those expenses did not reflect the marital standard of living. However, we conclude that the district court’s decision with respect to the credit card debt was proper in light of the evidence presented on that issue during trial. Thus, we affirm in part, reverse in part, vacate the alimony award, and remand for reconsideration of alimony.

I. Alimony Principles

¶19 Before addressing Spencer’s specific challenges to the alimony award, we begin by setting out the applicable principles governing the determination of alimony.

¶20 Alimony awards are generally aimed at “enabling the receiving spouse to maintain, as nearly as possible, the standard of living enjoyed during the marriage, and preventing the receiving spouse from becoming a public charge.” Anderson v. Anderson, 2018 UT App 19, ¶ 29, 414 P.3d 1069 (cleaned up); see also Rule v. Rule, 2017 UT App 137, ¶ 14, 402 P.3d 153. To that end, in crafting an alimony award, a court must consider several factors, including the “financial condition and needs of the recipient spouse,” “the recipient’s earning capacity or ability to produce income,” and “the ability of the payor spouse to provide support.” Utah Code Ann. § 30-3-5(8)(a)(i)–(iii) (LexisNexis 2019); accord Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985); Barrani v. Barrani, 2014 UT App 204, ¶ 21, 334 P.3d 994. In assessing the parties’ needs and their respective abilities to fulfill those needs, courts generally should look to the standard of living established during the marriage. See Rule, 2017 UT App 137, ¶ 15; see also Utah Code Ann. § 30-3-5(8)(e) (instructing courts to, as a general rule, “look to the standard of living, existing at the time of separation,” in setting alimony awards).

¶21 To assist district courts in fashioning alimony awards, this court has described the proper process for setting alimony. First, the court must “assess the needs of the parties, in light of their marital standard of living.” Dobson v. Dobson, 2012 UT App 373, ¶ 22, 294 P.3d 591. Next, the court must determine whether the receiving spouse is “able to meet her own needs with her own income.” Id. If the court finds that the receiving spouse is “unable to meet her own needs with her own income,” the court must then assess whether the payor spouse’s “income, after meeting his needs, is sufficient to make up some or all of the shortfall between [the receiving spouse’s] needs and income.” Id.; see also Utah Code Ann. § 30-3-5(8)(a)(iii) (directing that, as part of the court’s alimony determination, it “shall consider . . . the ability of the payor spouse to provide support”); Rule, 2017 UT App 137, ¶¶ 19–20.

¶22 After undertaking this analysis, it may be that the parties’ combined incomes are simply insufficient to meet both parties’ needs as set by the marital standard of living. In such circumstances, and only after adequately conducting the above analysis, a court has the discretion to apportion the burden of the shortfall between the parties, “so long as the award is equitable and supported by the findings.” Rule, 2017 UT App 137, ¶¶ 19–22; see also Vanderzon v. Vanderzon, 2017 UT App 150, ¶ 43, 402 P.3d 219 (“Because both the propriety of and the calculations necessary for equalization are tied to findings regarding the parties’ respective needs and income, a court must conduct an adequate needs analysis to properly equalize shortfall.”); Mullins v. Mullins, 2016 UT App 77, ¶ 10, 370 P.3d 1283.

II. Spencer’s Needs

¶23 Having set forth the applicable principles, we now turn to Spencer’s specific arguments regarding (A) student loan debt, (B) vehicle loan debt, and (C) credit card debt.

A. Student Loan Debt

¶24 Spencer argues that the court exceeded its discretion when it disallowed his student loan payments in calculating his monthly needs. We agree.

¶25 In setting the alimony award, the court determined that Debbie was unable to meet her adjusted needs—$2,483—with her own net income—$1,148. It therefore proceeded to consider whether Spencer had the ability to provide alimony after meeting his own needs.

¶26 A payor spouse’s debt obligations (even those pertaining to student loans) are recognized needs fairly affecting the payor spouse’s ability to provide alimony. See Willey v. Willey, 866 P.2d 547, 551–52 (Utah Ct. App. 1993) (instructing the court on remand that once it reallocated a marital debt, it should then “consider [the] debt when it reexamine[d] the alimony award on remand, because [the] debt has a direct bearing on” the recipient spouse’s ability to meet her own needs and the payor spouse’s ability to provide alimony); see also Connell v. Connell, 2010 UT App 139, ¶ 12, 233 P.3d 836 (”An adequate analysis of the factor regarding ability to pay must do more than simply state the payor spouse’s income. The court must also consider the payor spouse’s needs and expenditures, such as housing, payment of debts, and other living expenses.” (cleaned up)); Rehn v. Rehn, 1999 UT App 41, ¶ 10, 974 P.2d 306 (same).

¶27 The court declined to allow Spencer’s student loan payments as monthly expenses because it determined that the expense amount did not reflect the marital standard of living. The court did not include additional findings with respect to the student loans or further explain its decision to disallow them. Without more, we are unable to discern the steps by which the court reached this determination, particularly where the only evidence presented at trial is that the student loans were obtained during the marriage. See Paulsen v. Paulsen, 2018 UT App 22, ¶ 17, 414 P.3d 1023; Bakanowski v. Bakanowski, 2003 UT App 357, ¶ 13, 80 P.3d 153.

¶28 In his financial declaration, Spencer included a list of his monthly expenses, and he listed $374 as the monthly expense for his student loan debt. At trial, he testified that the student loans were taken out during the marriage, that he had recently finished his bachelor’s degree in information technology, that his total student loan debt associated with his degree was “around $36,000,” and that the loan payments were due to start within the next two months. Debbie offered no evidence refuting Spencer’s testimony on these points.

¶29 Based on this evidence, Spencer’s student loan payments seem to be an expense consistent with the marital standard of living. The evidence demonstrated that the parties’ marital standard of living included incurring debt to pay for education, even if repayment of that debt had been temporarily deferred. See Rule v. Rule, 2017 UT App 137, ¶ 15, 402 P.3d 153 (explaining the general rule that “alimony should be based upon the standard of living the parties established during the marriage,” which “requires a court to determine the parties’ needs and expenses as an initial matter in light of the marital standard of living rather than, for example, actual costs being incurred at the time of trial”).

¶30 Further, Spencer was assigned responsibility for the entire student loan debt, which, given its size, would affect Spencer’s ability to provide alimony for a number of years. He explained that within two months of the trial he would be required to begin making monthly payments of $374 on the debt. And there was no suggestion from the court during the trial or in its findings that it did not consider Spencer’s account of the debt to be credible. Indeed, there was no evidence before the court suggesting that the loan obligation was not legitimate or that Spencer would not be required to shortly begin repaying it on a monthly basis for a considerable period of time. See Anderson v. Anderson, 2018 UT App 19, ¶ 32, 414 P.3d 1069 (explaining that anticipated monthly expenses are proper to factor into an alimony needs analysis where they reflect the standard of living established during the marriage); Willey, 866 P.2d at 551–52 (concluding that the trial court should consider a marital debt when it reexamined alimony, as it had “direct bearing” on the parties’ needs and resources).

¶31 Thus, the evidence before the court suggested that Spencer’s student loan debt was a legitimate obligation—one incurred during the parties’ marriage—that, within two months of the trial, would become a regular expense directly affecting Spencer’s ability to pay alimony. Without more we are unable to trace the steps through which the court determined that the impending student loan payments were not expenses based on the marital standard of living. See Paulsen, 2018 UT App 22, ¶ 17; Oldroyd v. Oldroyd, 2017 UT App 45, ¶ 11, 397 P.3d 645 (vacating the district court’s ruling with respect to a property division where this court was unable to trace the steps through which the district court reached its conclusion). We therefore reverse the court’s ruling on this issue, remanding to provide the court the opportunity to reconsider its decision to disallow the expense in light of the preceding discussion and to enter adequate findings supporting the ruling it makes.

B. Vehicle Loan Debt

¶32 Spencer next argues that the court exceeded its discretion when it disallowed two vehicle loan payments as monthly expenses affecting his ability to provide alimony. For similar reasons as those discussed with respect to Spencer’s student loan payments, we conclude that the court exceeded its discretion in disallowing both of the vehicle loan payments as a monthly expense affecting Spencer’s needs and his ability to provide alimony.

¶33 The court determined that, like the student loan payments, the vehicle loan payment amounts did “not reflect the marital standard of living” and the “vehicle needs of the parties.” The court provided no other findings or further explanation supporting this determination.

¶34 Without more explanation from the court, its determination on this issue is difficult to reconcile with the evidence presented at trial—at least as to the allowance of a monthly expense for one of the vehicle loan payments. The evidence presented at trial suggested that the vehicles were purchased during the marriage through loans. In his financial declaration, Spencer included a line item of $762 for monthly car loan expenses, and at trial, Spencer testified that the listed amount represented a combined total for a monthly car loan payment and a monthly motorcycle loan payment—about $412 for the car and about $350 for the motorcycle. He also stated that both vehicles were purchased during the marriage through loans, with Debbie specifically acknowledging that she was obligated on the car debt.

¶35 Further, the evidence suggested that it was typical during the marriage for each party to make use of one of the two vehicles. For example, at the time of their separation, each party assumed possession of (and the associated debt on) one of the two vehicles for their separate use. Indeed, as to the car specifically, Spencer explained that when the parties initially separated, Debbie had possession of the car and had assumed the debt (while he retained the motorcycle), but that Debbie later asked him to take the car and the debt, which he agreed to do. And Debbie did not provide evidence otherwise drawing Spencer’s testimony on these points into question. In other words, all the evidence presented on this issue reasonably suggested that the parties’ marital standard of living included each party having use of at least one of the two vehicles during the marriage, both of which were subject to associated loan obligations incurred during the marriage. See Anderson v. Anderson, 2018 UT App 19, ¶ 32, 414 P.3d 1069 (concluding the court properly included a car loan payment in the receiving spouse’s needs where the evidence established that during the marriage the parties’ basic needs included a car for the receiving spouse). And there is no indication in the court’s findings that it disbelieved the parties’ testimony about vehicle use, or the legitimacy or the amount of the debt on either vehicle.

¶36 Moreover, as with the student loan debt, Spencer was assigned the vehicle loan debt. And as explained, all else being equal, marital debts generally constitute legitimate expenses affecting a payor spouse’s needs and ability to provide alimony to the receiving spouse. See Connell v. Connell, 2010 UT App 139, ¶ 12, 233 P.3d 836 (“An adequate analysis of the factor regarding ability to pay must do more than simply state the payor spouse’s income. The court must also consider the payor spouse’s needs and expenditures, such as housing, payment of debts, and other living expenses.” (cleaned up)); Willey v. Willey, 866 P.2d 547, 551–52 (Utah Ct. App. 1993) (explaining that allocated marital debts should be included in assessments of the parties’ needs and abilities to provide alimony).

¶37 Thus, as with the student loan debt, without additional explanation, we are unable to sustain the court’s decision to disallow both vehicle loan payments from Spencer’s monthly expenses. See Paulsen v. Paulsen, 2018 UT App 22, ¶ 17, 414 P.3d 1023. As a result, we reverse the court’s ruling on this issue and remand for reconsideration and entry of adequate findings.

C. Credit Card Debt

¶38 Finally, Spencer argues that the court exceeded its discretion by failing to include his credit card debt in its alimony calculations, claiming that it was reasonably incurred debt “calculated upon the standard of living enjoyed during the marriage.” In this instance, we disagree. As explained below, Spencer’s testimony on this issue was equivocal at best and ultimately failed to provide the court a reasonable basis to conclude the debt should have been included as a separate monthly expense. Accordingly, we affirm the court’s decision on this point.

¶39 In his financial declaration, Spencer listed a monthly expense of $571 for credit card debt. During the hearing, the court questioned Spencer about that debt. Spencer informed the court that he carried a total credit card balance of about $4,700. The court asked Spencer “[w]hat kind of items” he put on his credit card. Spencer responded that he put items like food and gasoline on it, but explained that “a lot of [the debt] was incurred” for replacement household items when the parties separated. The court noted that expenses for food and gasoline were already listed as separate monthly expenses in Spencer’s financial declaration, and it asked Spencer whether his total credit card balance had “continued all the way from the times when you were married to present” or whether his “credit card bills ever reduced down and these amounts were incurred after your separation and you’ve just been carrying the balance.” Spencer responded that he thought he had “maintained a balance for quite a few years” but that his balance had “fluctuated.” When pressed by the court to identify what portion of his present balance he had been carrying since the marriage, rather than provide the court a definite (or an approximate) number, Spencer responded in general terms, stating that “the whole time [the parties] were married [they] struggled to make ends meet.” Ultimately, the court disallowed a monthly expense for the credit card debt because it determined that Spencer had “incurred these debts for family expenses and to include them would double count his expenses.”

¶40 The court did not exceed its discretion in declining to include the credit card debt as a monthly expense in its assessment of Spencer’s needs and ability to provide alimony. While Spencer included the $571 monthly payment as a line-item expense, he did not provide the court with a reasonable basis from which to determine whether the claimed monthly expense (or the debt underlying it) represented needs distinct from those already accounted for (such as food or gasoline), or whether it represented a purely marital debt Spencer had assumed and carried forward. Indeed, when asked at trial to clarify what portion of the balance he had been carrying from the time of the marriage (as opposed to that representing Spencer’s other expenses), Spencer was unable to do so and instead only generally responded that the parties had struggled to make ends meet during the marriage and that the credit card balance had “fluctuated” through the years. See Taft v. Taft, 2016 UT App 135, ¶¶ 16–26, 379 P.3d 890 (concluding that the trial court’s determination with respect to the payor spouse’s financial resources was not error where the evidence at trial “largely left [the court] to its own resources to untangle complex financial issues,” explaining that in such circumstances “the presumption of validity we afford to a trial court when it adjusts the financial interests of parties to a divorce is at its most robust”). Further, Spencer himself conceded that some of the expenses underlying the anticipated ongoing debt included items such as food and gasoline—expenses which, as the court noted, had already been accounted for in Spencer’s monthly expenses.

¶41 Stated another way, Spencer’s testimony with respect to the credit card debt fairly suggested to the court that, rather than representing an expense reasonably incurred during the marriage, the debt was instead the product of a mechanism used to pay various expenses both during and after the marriage, including those (as Spencer conceded) already accounted for in the court’s needs analysis. See Barrani v. Barrani, 2014 UT App 204, ¶ 27, 334 P.3d 994. In these circumstances, where the evidence before the court did not provide a reasonable basis to conclude that the debt was a marital debt apart from needs already factored in, the court acted within its discretion by declining to include the debt as a separate monthly expense in its evaluation of Spencer’s ongoing needs and ability to pay alimony.[4]

CONCLUSION

¶42 We conclude that the district court was within its discretion in declining to include the credit card debt as part of Spencer’s monthly needs. Nevertheless, because the basis for the court’s disallowance of the student loan and both vehicle loan payments is not apparent from the evidence or the court’s findings, we conclude that the court exceeded its discretion in excluding them from its assessment of Spencer’s monthly needs. Accordingly, we reverse the court’s ruling on those two issues, vacate the alimony award, and remand to the district court to reevaluate its alimony determinations and award consistent with this opinion.[5]

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

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

[2] Because the 2018 amendments to the relevant portions of Utah Code section 30-3-5 were stylistic, we cite the current version for convenience.

[3] In his rule 59 and 60 motion, Spencer did not mention the student loans.

[4] Spencer also generally contends on appeal that the court’s alimony award does not follow logically from the evidence. Our review of the court’s findings suggests that some of the court’s alimony calculations are difficult to reconcile with its stated findings. For example, while the court found that Spencer’s adjusted needs were $2,421, that figure does not appear to add up when all of the court’s stated adjustments to Spencer’s claimed needs are included in the calculations. In any event, because we have determined that the court exceeded its discretion in disallowing the student loan and both of the vehicle loan payments as monthly expenses, the court will be required to reconsider its alimony determinations and make additional findings supporting its ultimate award. In doing so, on remand the court should reassess and recalculate Spencer’s needs and generally “conduct an appropriate [alimony] reanalysis, which may include consideration of income equalization if, in the end, [Spencer’s] and [Debbie’s] expenses ultimately exceed the available income.” See Barrani v. Barrani, 2014 UT App 204, ¶ 30, 334 P.3d 994; see also Allred v. Allred, 797 P.2d 1108, 1112 (Utah Ct. App. 1990) (“We do not intend our remand to be merely an exercise in bolstering and supporting the conclusion already reached.”).

[5] Debbie requests attorney fees and costs under rule 33 of the Utah Rules of Appellate Procedure. Rule 33 permits an appellate court to award “just damages, which may include . . . reasonable attorney fees, to the prevailing party” when it determines that the appeal taken was “frivolous or for delay.” Utah R. App. P. 33(a). Damage awards under rule 33 are reserved for only “egregious cases.” Porenta v. Porenta, 2017 UT 78, ¶ 51, 416 P.3d 487 (cleaned up). Spencer has partially prevailed, and his appeal therefore does not present a frivolous case. Accordingly, we reject Debbie’s request.

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Plaia v. Plaia – 2019 UT App 130 – enforcing stipulation, unvested shares, mutual mistake, abuse of discretion

Plaia v. Plaia – 2019 UT App 130

THE UTAH COURT OF APPEALS
MICHAEL ALLEN PLAIA,
Appellee,
v.
ALINA VICTORIA PLAIA,
Appellant.
Opinion
No. 20170948-CA
Filed July 26, 2019
Third District Court, Silver Summit Department
The Honorable Kara Pettit
No. 144500139
Alina Victoria Plaia, Appellant Pro Se
Dean C. Andreasen and Laura D. Johnson, Attorneys for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.
HAGEN, Judge:

¶1        Alina Victoria Plaia appeals the district court’s enforcement of the stipulation (Stipulation) she entered into with her ex-husband Michael Allen Plaia in the course of their divorce proceeding. Alina[1] argues that the Stipulation should be set aside because it distributes non-marital property—shares in a company that employed Alina—to Michael as the result of a mutual mistake and because it inequitably distributes the shares. Because the district court did not abuse its discretion in enforcing the Stipulation and distributing half of the shares to Michael, we affirm.

BACKGROUND[2]

¶2        Michael and Alina married in 2001. In 2009, Alina co­founded Wide Bridge, Inc., an advisory and financial services company. In 2010, Alina, Michael, and their two children moved from New Jersey to Utah, although Alina continued to travel to New York for her work with Wide Bridge. In 2012, Alina acquired a company named Luxoft as a client for Wide Bridge. As compensation for Alina’s work on Luxoft’s initial public offering (IPO), Luxoft and Alina entered into an engagement letter, which Alina asserts “provided for a grant of up to 29,412 shares of [Luxoft] to [Alina], the CEO and Co-founder of [Wide Bridge], subject to other terms and conditions.”[3] Alina assisted Luxoft with its IPO in June 2013, and she became its Vice President of Global Communications.

¶3        Of the 29,412 shares, Alina “was issued and received 5,886 . . . in February 2014, pursuant to a restricted share award agreement.” The restricted share award agreement provided that the 5,886 shares would vest on June 15, 2014, subject to Alina’s satisfaction of the “Criteria of Long Service Condition” or “CLS.”

The CLS required Alina’s continued “employment or service as a consultant” for Luxoft through the vesting date. According to email correspondence between Luxoft and Alina dated April 1, 2015, the 5,886 shares were delivered in 2014,[4] with the expectation that Alina would receive the remaining 23,526 shares between 2015 and 2017.

¶4        In July 2014, Michael filed a petition for divorce in Utah. Alina subsequently filed for divorce in New Jersey. In her disclosures of the parties’ marital assets, Alina listed “Luxoft Holding via Morgan Stanley 29,412 shares at $32 (5,886 vested).”[5]

¶5        Each represented by counsel, Alina and Michael entered into mediation and on October 2, 2014, they signed the Stipulation, in which the parties agreed as follows:

During the course of the marriage, the parties acquired an interest in a business known as Wide Bridge, Inc. with Luxoft as their primary client. With the exception of the Luxoft shares awarded to [Michael] herein, [Alina] is awarded all the parties[’] interest, accounts and assets in Wide Bridge, Inc. and shall assume, and pay all debt associated with the parties’ interest in Wide Bridge, Inc., holding [Michael] harmless therefrom. After receipt of the Luxoft shares awarded to [Michael], [Michael] hereby waives all interest in Wide Bridge, Inc.

The Stipulation further provided that Michael and Alina were to receive one-half each of 23,526 unvested Luxoft shares and 5,886 vested shares. The Stipulation also equally divided the shares that Michael owned in his employer’s company but it awarded Michael all the 2014 distributions Michael received from those shares. Regarding the shares that Alina and Michael agreed to divide equally as marital property, the Stipulation provided that “[e]ach party will sell the shares of stock, stock option and units awarded to the other party and will ensure the other party receives documentation of what the shares sold for and the funds from said sale.”

¶6        Subsequently, Alina sought to set aside the Stipulation on various grounds, and the divorce proceeded to a bench trial in 2017. At trial, Alina argued that Michael was not entitled to any of the of 23,526 Luxoft shares that vested after September 1, 2014, because Michael did not provide any “assistance and or contribution” to Alina as she continued to acquire shares after that date. Because she had already stipulated that Michael would receive one half of all the shares, Alina also argued that the court should set aside the Stipulation as “she did not realize she had not yet earned all” of the shares at the time she entered into the Stipulation. According to Alina, “[a]t the time of the Stipulation, both parties were under the impression that Alina had already earned 23,526 shares of unvested stock” but, in reality, the shares “were not only unvested, they were unearned altogether.” In support of this contention, Alina testified that she was required to renegotiate with Luxoft after she entered into the Stipulation with Michael to receive any more of the 23,526 shares to which she mistakenly believed she was already entitled and that she still had not received as many shares as she had expected to receive by the date of trial. Alina also argued that “awarding Michael half of 23,526 shares would be unfair and inequitable, especially in light of the fact that he pocketed 100% of his 2014 distribution from his employer.”

¶7        After trial, the district court entered findings of fact and conclusions of law, stating that “no mutual mistake has been demonstrated to warrant setting aside the [Stipulation]” because Alina “was not mistaken as to the existence of the [Luxoft] stock options” and had not presented sufficient evidence to support her contention that the parties mistakenly believed the unvested Luxoft shares were marital property or that the parties had not worked together to secure the shares.

¶8        Based on its findings of fact and conclusions of law, the district court entered a divorce decree in October 2017. Alina, now representing herself, appeals.

ISSUES AND STANDARDS OF REVIEW

¶9        Alina argues that the district court erred by enforcing the Stipulation and awarding Michael one half of the Luxoft shares in the parties’ divorce decree. “[D]istrict courts have considerable discretion concerning property distribution in a divorce proceeding and their determinations enjoy a presumption of validity. Thus, we will uphold the decision of the district court on appeal unless a clear and prejudicial abuse of discretion is demonstrated.” Dahl v. Dahl, 2015 UT 79, ¶ 119 (quotation simplified). The district court’s decision to enforce, reject, or modify “a stipulation related to property division in a divorce proceeding is [also] reviewed for an abuse of discretion.” Jensen v. Jensen, 2008 UT App 392, ¶ 6, 197 P.3d 117. A district court abuses its discretion in dividing marital property if “the court misunderstood or misapplied the law, the evidence presented on property values clearly preponderates against the findings, or the court’s distribution results in such a serious inequity as to constitute an abuse of discretion.” Morgan v. Morgan, 795 P.2d 684, 689 (Utah Ct. App. 1990).

¶10      Alina contends that the district court abused its discretion for two reasons: 1) the court incorrectly determined that Alina and Michael were not mutually mistaken as to whether all the Luxoft shares were marital property at the time the parties entered into the Stipulation, and 2) the district court inequitably awarded Michael one half of the Luxoft shares when he did not contribute to their vesting. These issues involve factual determinations and conclusions of law. “A district court’s factual findings are reviewed deferentially under the clearly erroneous standard, and its conclusions of law are reviewed for correctness with some discretion given to the application of the legal standards to the underlying factual findings.” Erickson v. Erickson, 2018 UT App 184, ¶ 12, 437 P.3d 370 (quotation simplified).[6]

ANALYSIS

¶11      In divorce actions, “[i]t is the court’s prerogative to make whatever disposition of property . . . it deems fair, equitable, and necessary for the protection and welfare of the parties.” Pearson v. Pearson, 561 P.2d 1080, 1082 (Utah 1977). And when parties to a divorce action stipulate to the division of property, “the governing principle in our law is that contracts between spouses are enforceable and generally subject to ordinary contract principles so long as they are negotiated in good faith and do not unreasonably constrain the divorce court’s equitable and statutory duties.” Ashby v. Ashby, 2010 UT 7, ¶ 21, 227 P.3d 246 (quotation simplified). Alina argues that the district court erred in enforcing the Stipulation because the parties were mutually mistaken as to the status of her stock options and the Stipulation’s distribution of property was inequitable.[7] We address each argument in turn.

I. Mutual Mistake

¶12      Alina argues she and Michael mistakenly believed at the time they entered into the Stipulation that the Luxoft shares were marital property.[8] “The governing principle in our law is that contracts between spouses are enforceable and generally subject to ordinary contract principles so long as they are negotiated in good faith and do not unreasonably constrain the divorce court’s equitable and statutory duties.” Ashby v. Ashby, 2010 UT 7, ¶ 21, 227 P.3d 246 (quotation simplified). However, “when both parties, at the time of contracting, share a misconception about a basic assumption or vital fact upon which they based their bargain,” they may be entitled to rescind their stipulation. See Bergmann v. Bergmann, 2018 UT App 130, ¶ 14, 428 P.3d 89 (quotation simplified). A party to a stipulation is entitled to rescind it “when, at the time [a stipulation was] made, the parties ma[de] a mutual mistake about a material fact, the existence of which is a basic assumption of the contract.” Deep Creek Ranch, LLC v. Utah State Armory Board, 2008 UT 3, ¶ 17, 178 P.3d 886 (quotation simplified). But “if the parties harbor only mistaken expectations as to the course of future events and their assumptions as to facts existing at the time of [a stipulation] are correct, rescission is not proper.” Id. (quotation simplified). A party seeking to rescind a stipulation on the basis of mutual mistake bears the burden of showing mutual mistake of fact by clear and convincing evidence. Mabey v. Kay Peterson Constr. Co., 682 P.2d 287, 290 (Utah 1984).

¶13      Here, Alina contends that she and Michael “were both under the impression the shares were likely earned by Alina . . . and [would] vest over 3 years.” In support of this contention, Alina testified at trial that she and Michael understood that she would receive “all of the shares” Luxoft had agreed to assign to her “right after” Luxoft’s IPO, which occurred in June 2013, but instead, she did not receive any shares until October 2014, after she had entered into the Stipulation. She further testified that as a result of her not receiving the entirety of the shares to which she believed she was entitled, she “went back to Luxoft” in February 2015 to negotiate her receipt of the remaining 23,526 shares and entered into a new agreement separate from the one she negotiated with Luxoft during her marriage to Michael.

¶14      After considering Alina’s testimony and other evidence presented at trial, the district court concluded that Alina was not entitled to rescind the Stipulation. In reaching this conclusion, the court acknowledged that Alina “testified to her being ‘mistaken’ or that she didn’t understand, and referenced continuing discussions with Luxoft,” but the court ultimately determined that the evidence demonstrated that Alina knew at the time she entered into the Stipulation, “that the shares . . . would vest over time [because] the Stipulation refers to vested and unvested shares” and the Stipulation also states that “each party will sell the shares of stock, stock options and units awarded to the other party as soon as possible.” The court also relied on the sworn disclosure of marital property that Alina made in her case information statement in the New Jersey divorce action—filed August 1, 2014—in which Alina “declared she had income from Luxoft stock that was ‘vested, not sold,’” stated that she received stock options annually, and declared ownership of all 29,412 Luxoft shares. Because Alina was aware that she would take possession of the remainder of the shares after separating from Michael, the court concluded that “[n]o mutual mistake has been demonstrated to warrant setting aside the parties’ agreement.”

¶15      We agree with the district court that Alina has not shown by clear and convincing evidence that she is entitled to rescind the Stipulation due to mutual mistake. Alina testified—in contrast to her present assertion to the contrary—that she learned as early as June 2013, when all the shares did not vest immediately after Luxoft’s IPO, that the Luxoft shares would not vest all at once. She was also given notice that not all of the 29,412 shares would vest at the same time that she received 5,886 of the shares in June 2014, several months before she stipulated to the award of one half of all the 29,412 shares to Michael. And as the district court noted, Alina’s understanding that the additional shares would not vest until after her separation from Michael but that she was nevertheless entitled to more shares annually is also reflected in her sworn declaration in the New Jersey divorce action where she claimed ownership of all 29,412 shares.

¶16      Alina argues that the shares were not only “unvested” but “unearned” and that the district court failed to appreciate the distinction. However, she has not established that, at the time of the Stipulation, she and Michael mistakenly believed that the shares were fully earned and required no post-separation efforts. Although Alina failed to introduce her original engagement letter dated November 1, 2013, which “provided for a grant of up to 29,412 shares,” the restricted share award agreement relating to the initial 5,886 shares provided that vesting was subject to Alina’s compliance with the CLS, a condition that required Alina’s continued “service as a consultant” to Luxoft on the vesting date of June 15, 2014. Because that agreement pre­dated the Stipulation, the parties presumably knew that future vesting would be subject to the CLS condition and thus post-separation efforts on Alina’s part were a condition of the remaining shares vesting. This evidence supports the district court’s conclusion that the parties were not mistaken as to the status of the remaining 23,526 shares.

¶17      In light of Alina’s testimony, the terms of the agreements between Alina and Luxoft admitted into evidence, Alina’s sworn declaration of ownership of the shares, and the discretion given to the district court’s “application of the legal standards to the underlying factual findings,” see Erickson v. Erickson, 2018 UT App 184, ¶ 12, 437 P.3d 370 (quotation simplified), we cannot say that the district court erred in rejecting Alina’s argument that the Stipulation was unenforceable based on mutual mistake.

II. Inequitable Division of Marital Assets

¶18      Alina also argues that, because the district court concluded that Michael was entitled to an award of one half of the Luxoft shares in accordance with the Stipulation, the court’s distribution of property was inequitable. She contends that, except for the 5,886 shares that had vested by the time of the Stipulation and the couple’s separation, Michael did not and will not contribute to the vesting of the remaining shares to which she is entitled and that, because the Stipulation awarded Michael the entirety of his distribution from shares he owned in 2014, the Stipulation awards Michael more of the marital property than is equitable. “In the division of marital property, the trial court has wide discretion, and, while the appellate court is not necessarily bound by its findings, the findings are presumed valid and will not be disturbed unless the record indicates . . . manifest injustice or inequity.” Colman v. Colman, 743 P.2d 782, 789 (Utah Ct. App. 1987). “Generally, in a divorce proceeding each party is presumed to be entitled to . . . fifty percent of the marital property,” but “this presumptive rule of thumb . . . does not supersede the trial court’s broad equitable power to distribute marital property.” Bradford v. Bradford, 1999 UT App 373, ¶ 26, 993 P.2d 887 (quotation simplified). When the parties have stipulated to the division of property, “[t]he court need not necessarily abide by the terms of [the stipulation],” but such terms should “be respected and given great weight” by the court. Pearson v. Pearson, 561 P.2d 1080, 1082 (Utah 1977).

¶19      Reviewing the Stipulation’s award of one half of the Luxoft shares to Michael, the district court concluded that “the parties’ Stipulation [was not] so inequitable or lopsided to warrant setting [the Stipulation] aside under equitable principles.” The court based its conclusion on its finding that Alina was aware before entering into the Stipulation that vesting of the remaining unvested shares would require “post-separation and post-trial efforts” and nevertheless stipulated to the award of one half of all vested and unvested Luxoft shares to Michael. The court also found that the couple had “worked together for years with the ultimate goal of a big payoff from the investment of time and energy into the Luxoft endeavor.” “Because we lack the advantage of seeing and hearing witnesses testify,” the district court’s “findings of fact are presumed to be correct.” See Baker v. Baker, 866 P.2d 540, 542–43 (Utah Ct. App. 1993) (quotation simplified). Here, Alina has not demonstrated that these findings “are so lacking in support as to be against the clear weight of the evidence.” Id.

¶20      In light of these findings, Alina has not shown how the court’s ultimate division of property constituted an abuse of discretion resulting in “manifest injustice or inequity.” See Colman, 743 P.2d at 789. The district court was required to give the Stipulation “great weight,” see Pearson, 561 P.2d at 1082, and Alina specifically agreed that “the Stipulation is fair and reasonable.” Alina has not met her burden of showing that, despite her earlier statement, the Stipulation was so inequitable that the district court erred in accepting the terms to which she agreed. Accordingly, we conclude that the district court did not err in determining that the Stipulation equitably distributed the parties’ marital property.

CONCLUSION

¶21      The district court did not exceed its discretion in concluding that there was no mutual mistake at the time the parties entered into the Stipulation as to whether all the Luxoft shares were marital property and that distributing the shares in accordance with the Stipulation was equitable. We therefore affirm.

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

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[1] Because both parties share the same surname, we refer to them by their first names with no disrespect intended by the apparent informality.

[2] “We view the evidence and all the inferences that can reasonably be drawn therefrom in a light most supportive of the trial court’s findings.” Baker v. Baker, 866 P.2d 540, 543 (Utah Ct. App. 1993) (quotation simplified).

[3] Alina did not offer into evidence the engagement letter, dated November 1, 2013. The terms of the engagement letter must be gleaned from an amended agreement, dated May 12, 2015, which recited that the engagement letter “provided for a grant of up to 29,412 shares” of Luxoft to Alina.

[4] There is some ambiguity in the record as to whether the 5,886 shares vested in June 2014 or later in October 2014.

[5] In addition to filing a divorce petition in New Jersey, Alina filed a motion to dismiss the Utah divorce action claiming that Utah lacked subject matter jurisdiction. The district court determined that it had jurisdiction over the divorce proceeding, and Alina does not challenge that ruling on appeal. The New Jersey court dismissed the New Jersey petition.

[6] Alina also appeals the district court’s award of parent-time and child support relating to the parties’ two children. She contends that the court’s award of parent-time did not accurately reflect the recommendations of the custody evaluator. Although the court awarded parent-time and calculated child support in accordance with the custody evaluator’s recommendations, Alina objected that the conditions of parent-time were not made sufficiently clear in the divorce decree. After Alina filed her opening brief, the district court issued an additional order, clarifying that it intended to award Michael a minimum of 124 days of parent-time. Alina acknowledges in her reply brief that this clarification addressed “exactly what [she] asked for the Court of Appeals to review.” She further concedes that “[a]t this juncture, she only asks the Court of Appeals to affirm that the minimum time awarded to Michael should be based on 2/3 of the amount of non-school overnights during each school year and not to be tied to a particular number, to avoid confusion.” Because Alina has not appealed the district court’s order clarifying the decree, we cannot reach this issue.

[7] Alina contends that there are three additional reasons that the district court erred in declining to set aside the Stipulation and in dividing the marital property. First, she argues that the shares were actually property of Wide Bridge and therefore not marital property. Second, she argues that the district court “abuse[d] its discretion in ordering a sale of Luxoft stock immediately upon vesting, thereby incurring tax expenses at a personal tax rate instead of corporate.” Third, she argues that it is impossible for her to comply with the decree because she did not receive all the Luxoft shares identified in the Stipulation. Because the first two arguments were not “presented to the district court in such a manner that the court had a meaningful opportunity to rule” on them, they are unpreserved and we decline to consider them. See Dahl v. Dahl, 2015 UT 79, ¶ 207. Her third argument regarding impossibility rests on events allegedly occurring after the entry of the divorce decree and therefore it must be raised, if at all, in the context of a petition to modify.

[8] To the extent Alina also argues that the Stipulation should be rescinded under the doctrine of unilateral mistake, see Guardian State Bank v. Stangl, 778 P.2d 1, 5 (Utah 1989) (holding that a contract may be rescinded or reformed on the basis of unilateral mistake when one party is aware of the other party’s mistake and such mistake is “produced by fraud or other inequitable conduct by the nonerring party”), this argument is neither preserved nor supported by citations to evidence in the record, 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.”).

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