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2023 UT App 137 – Lobendahn v. Lobendahn – petition to modify custody

2023 UT App 137  – Lobendahn v. Lobendahn

 

THE UTAH COURT OF APPEALS

MARCUS JAMES LOBENDAHN,

Appellant and Cross-appellee,

v.

LEEYEN MOEVAI LOBENDAHN,

Appellee and Cross-appellant.

Opinion

No. 20210278-CA

Filed November 16, 2023

Fourth District Court, Provo Department

The Honorable Thomas Low

No. 164400262

Luke A. Shaw and Jill L. Coil,

Attorneys for Appellant

Julie J. Nelson, Daniel Ybarra, and Alexandra

Mareschal, Attorneys for Appellee

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

concurred.

CHRISTIANSEN FORSTER, Judge:

 

¶1        Marcus James Lobendahn (Father) appeals the district court’s denial of his petition to modify the parties’ divorce decree. LeeYen Moevai Lobendahn (Mother)[1] also appeals the court’s order denying her request for attorney fees incurred in responding to Father’s petition to modify. We affirm the district court’s order in all respects.

BACKGROUND

¶2        The parties were married in 2008 in Hawaii. Following their marriage, the parties moved to Utah and had two children— a daughter and a son (Son). In May 2015, Father moved to New Jersey for employment purposes, and Mother and the children followed a little while later. Shortly after Mother arrived in New Jersey, Father asked Mother for a divorce and filed for a divorce in Utah. Mother suggested that the children live with Father in the marital apartment while she rented a separate place and cared for the children while Father was at work. Father declined the offer and advised Mother that she and the children should move back to Utah, which they did. The parties’ divorce was finalized through a stipulated decree in Utah in early 2016 while Father still lived in New Jersey. The decree awarded the parties joint legal and physical custody of the children and Father parent-time under section 30-3-37 of the Utah Code with additional time during certain breaks.

¶3        Father moved back to Utah in the fall of 2016, and Mother allowed him parent-time every other weekend, similar to the schedule provided in section 30-3-35 of the Utah Code. In 2017, Father filed a petition to modify based on his relocation, and the parties resolved the petition through a stipulation modifying the decree of divorce. Based upon their agreement, Father would exercise parent-time as provided in section 30-3-35 until he moved within fifteen miles of Mother’s residence in Utah County, at which time his parent-time would increase pursuant to the schedule described in section 30-3-35.1, with some modifications. Father did not move within fifteen miles of Mother and the children at that time but remarried and moved to his wife’s residence in Salt Lake County. Even so, Mother allowed Father to exercise increased parent-time.

¶4      Mother sent a letter to Father in March 2018, notifying him of her intent to remarry and relocate with the children to Washington state. A few weeks later, Father notified Mother that he had signed a lease for an apartment in an area within fifteen miles of her residence in Utah County. Father continued to reside with his wife in Salt Lake County but would stay at the apartment when exercising parent-time with the children. Thereafter, Father filed a motion to restrain Mother from relocating, which the court denied, concluding that Mother’s move to Washington was in the best interest of the children. Mother remarried and moved to Washington in the summer of 2018.

¶5        While the parties were litigating Mother’s relocation, Father filed a second petition to modify. Father argued that he should be awarded primary physical custody of the children, who should live with him in Utah, and that Mother should be awarded parent-time under section 30-3-37 of the Utah Code. Father’s petition alleged that Mother had not been entirely truthful in describing the reasons for her relocation, that the children struggled in school upon moving to Washington, that Mother had been evasive about Father’s proposal to relocate to Washington to live close to the children, that Mother interfered with his parent-time since she had relocated, that Mother had been uncooperative in planning the children’s travel, and that Mother interfered with Father’s participation in Son’s baptism. Father also requested that a custody evaluator be appointed to make recommendations about what custodial arrangement would be in the best interest of the children, and the court granted that request.

¶6        The court appointed a custody evaluator (Evaluator), who began her evaluation in July and completed her work in November 2019. Evaluator interviewed the parties, their respective spouses, and Son, and she observed the children with both parents in their homes. At the time Evaluator conducted her evaluation, the children had lived in Washington with Mother for approximately one year. Evaluator delivered her recommendations to the parties at a settlement conference in April 2020, and completed her report five months later. Evaluator recommended that the parties continue to share joint physical and legal custody but that the children should relocate back to Utah. Evaluator recommended that if Mother did not return with the children, Father should have primary physical custody with statutory visitation for Mother. Later, at the trial on Father’s petition to modify, Evaluator advised that in her opinion—while both parents shared a close, positive relationship with the children and Mother had been the children’s primary caretaker for their entire lives—Mother did not truly support the children’s relationship with Father and the broad benefit of having access to Father outweighed the potential risk that a second relocation adjustment would be hard for the children. And she acknowledged that her relocation recommendation was based on her understanding that if the court ordered the children to relocate back to Utah, Mother would move back to Utah as well. Evaluator also conceded that by the time of trial, the children had lived in Washington for two-and-a-half years and that the delay between her evaluation and the trial could be significant. She agreed that “some of the facts that [she] relied on to make [her] determinations are now out of date.” She agreed that the children had probably changed and matured emotionally, psychologically, socially, and physically and that she had not had any contact with the children in more than a year and a half.

¶7        The court held a trial in March 2021 on Father’s petition to modify. Father’s petition was based on his contention that Mother’s move to Washington was selfishly motivated and harmed the children and that Mother had failed to facilitate Father’s role in the children’s lives and had excluded him from decision-making. Father testified about particular instances that, in his view, demonstrated Mother’s inability to co-parent and unwillingness to facilitate his role in the children’s lives. These included:

·         Son’s difficulty in school after the relocation and resultant disputes between the parties about whether to move him to a different classroom or have him tested for autism;

·        Son’s baptism in July 2019 and Father’s role in that event;

·        Mother’s apparent unwillingness to commit to living in Washington for the long term when Father was contemplating relocating there to be closer to the children;

·         Father’s participation in obtaining passports for the children so they could visit Mother’s ill father in Tahiti and Father’s contention that he did not intend to use these circumstances to coerce Mother into moving back to Utah; and

·         Mother’s alleged interference with Father’s visitation in February 2019.

·         ¶8        Mother testified to her version of the events and issues raised in Father’s testimony. Specifically, Mother testified:

·         That her decision to move from Utah was not to get herself and the children away from Father;

·        That she addressed Son’s difficulties in school following the relocation and how she wanted to have him tested for autism as recommended by his teacher but Father did not want the school to do any testing;

·         That Son’s school difficulties had mostly been resolved by the time of trial and that his recent less-than-stellar report card had more to do with remote learning than continued transition issues;

·         That given Son’s his age and stage of development, she believed it was appropriate to let him choose who would baptize him and where the baptism would take place and that Mother never interfered with Father’s wish to perform the baptism;

·         That Father caused a big scene before the baptism ceremony, which Son overheard, and Father demanded that he perform both the baptism and the confirmation;

·        That when Father considered moving to Washington and asked Mother to commit to remaining in the area, Mother did not think it was wise to promise Father that she would live in Washington forever because of the constant litigation she had already experienced over custody;

·         That the conflict that arose when Mother tried to obtain passports for the children in 2018 to visit her father in Tahiti after he had been diagnosed with cancer required her to file an order to show cause in December 2019 to compel Father to complete an affidavit and sign the passport applications, which he eventually did, but the children’s passports did not arrive in time for them to travel to Tahiti before Mother’s father passed away; and

·         That Father does a good job keeping up with and supporting the children’s interests.

¶9        At the conclusion of the trial, Mother asked the court to award her attorney fees.

¶10      In its written ruling issued after the trial, the court addressed Mother’s alleged failure to facilitate Father’s role in the children’s lives. Regarding Son’s baptism, the court found that Father had adduced no evidence demonstrating that Mother had broached the subject of baptism with Son in an attempt to create contention, or that Son had suffered any psychological harm from Mother’s actions. The court found, however, that the evidence admitted “demonstrates poor judgment on Father’s part,” that the only evidence of conflict surrounding the baptism was created by Father himself, and that the “only harm [Son] suffered was having to overhear Father yelling at [Son’s] bishop . . . inside the closed bishop’s office.”

¶11 Regarding the circumstances surrounding obtaining the children’s passports, the court was extremely critical of Father’s actions. Among other things, it found that Father’s actions were “senselessly cruel” and “among the most reprobate [the] court [had] encountered in a domestic relations case.” It faulted Father for using “the imminent death of a grandparent as a bargaining chip” and found that his behavior “demonstrates that his control over the children’s welfare must be reduced.”

¶12 The court also addressed Mother’s move to Washington, finding that the move did not cause the children harm or interfere with the parties’ ability to co-parent. Specifically, the court determined that both parents had chosen to live in places that did not prioritize proximity to the other parent—Mother moving to Washington to remarry and attend school after living in Utah for more than three years and Father remaining in New Jersey while Mother and the children returned to Utah and then moving to Salt Lake County with his wife rather than moving to a place within fifteen miles of the children (until Mother indicated she would be relocating). Moreover, the court noted that although Father is “untethered,” in that he is employed for a company that allows him to work from home and he could live and work anywhere, he is unwilling to move unless Mother commits to remain in Washington, which she had not done because she eventually wants to work as a pharmacist and may need to move for that career. The court found that Father’s decision to remain in Utah despite his ability to move reflects his choice not to live close to the children.

¶13      As far as the children’s best interest in staying in their current placement, the court found that Mother’s spouse has an extensive family network with whom the children have grown close and share a Pacific Islander heritage. Besides a strong family connection, the children also have close friends in the area, which the court found to be good for the children. And due in part to the length of time spent in Washington, the court found that “[o]verall, the children’s social network is stronger in Washington” than in Utah. The court also determined that no evidence supported Father’s assertion that the move to Washington caused Son to have behavioral issues at school. If anything, Father’s refusal to allow Son to be tested for autism or to allow him to change classrooms when he started having trouble has potentially caused continuing suffering for Son and created stalemates between the parents that Father chose to address in the courts. Father’s proclivity for litigation, which he can afford and which the court found bordered on harassment, caused harm to the children, created unpredictability, and demonstrated less-responsive parenting.

¶14      The court found that both Mother and Father have capacity to parent and to co-parent and have excellent parenting skills. But the court determined that Mother “exhibits greater respect of Father’s role than Father does of Mother’s.” Specifically, the court found that “[w]hen the children ask Mother a question on which Father should be consulted, she tells them ‘I’ll talk to your dad about that and we’ll decide together.’” The court recognized that the children’s bond with Father is very strong, but it agreed with Evaluator that “the children are more bonded with Mother in light of being under her primary care for their entire lifetimes.”

¶15      The court analyzed the custody factors found in section 30­3-10(2) of the Utah Code and made the following determinations:

·        Both parents demonstrate an appropriate understanding of, and responsiveness to, the developmental needs of the children, but Mother’s openness to the advice and assistance of professionals exceeds Father’s.

·        Both parents have an excellent capacity to parent and co-parent and endorse the other’s role in the presence of the children. Except for Mother’s use of inappropriate terms in some of her written communication (which the court believed was on the mend), “both parents appropriately communicate with the other, encourage the sharing of love and affection, and exhibit a willingness to allow frequent and continuous contact with the other parent.” However, Mother exhibits a greater respect for Father’s role in the children’s lives than Father does for Mother’s.

·         Father has relinquished both custody and parent-time in the past.

·         Both parents desire custody and time with the children. Mother has been the primary caretaker and Father has made it a priority to maintain good contact with the children. But “Mother’s commitment to the care and custody of the children exceeds Father’s.”

·         Both parents have always cared for the children financially and are financially responsible, but “Mother has expressed more constant and less evasive financial responsibility than Father.”

·         The children enjoy a strong social and familial network in Washington with their stepfather and his side of the family and have close friends there. The children also enjoy the close proximity of their stepmother and her family and their maternal aunt and grandmother in Utah. Overall, the children’s social network is stronger in Washington.

·         The children are more bonded to Mother because she has always been their primary caretaker.

·        The children have both benefitted and suffered from the sharing of parental responsibilities. Father is very involved and committed to his role. “But Father’s veto-power over decisions regarding the children’s health, education, and welfare” has prevented Son from being tested for autism, prevented Father from honoring Son’s preferences at his baptism, and “prevented the children from traveling to see their dying grandfather in Tahiti.”

·        The parents are generally able to cooperate with each other and make decisions jointly but struggle to reach agreement on significant decisions in the children’s best interest and these frequent stalemates harm the children. Specifically, the court noted that the parents could not communicate effectively to make Son’s baptism conflict-free and they could not agree on how to address Son’s difficulties in school after the relocation or obtain passports for the children. “Given her less affluent status, Mother usually surrenders in the face of disagreement because she cannot afford to take the matter further. Father, however, has substantial funds at his disposal, and has exhibited the ability and willingness to press his concerns in the courts.”

·         Both parents ensure that the children are protected from conflict, except for Father’s refusal to complete the passport paperwork to allow the children to travel to Tahiti, which harmed the children, and allowing Son to overhear the conflict over his baptism.

¶16      After weighing the evidence and the statutory factors, the court concluded that granting Father’s petition and relocating the children back to Utah would not be in their best interest. The court found that the children are doing well in their current circumstances and that they are primarily bonded with Mother as their primary caretaker. “Father has presented no evidence that removing primary custody from Mother would be in the children’s best interests. . . . [Rather,] doing so would be harmful to the children.” The court determined that “the children are happy in Washington, that the parties have successfully mitigated the effects of distance on parent-time, that Father continues to enjoy a healthy relationship and strong bond with the children, and that the current custody arrangement is working well.” The court noted that the trial evidence “establish[ed] that [Father] and Mother have been extraordinarily successful in managing the geographical distance between them,” “that the children do not grasp the gravity of the distance,” and that “all evidence indicates that the children are happy, thriving, and well-adjusted in the current circumstances.” The court found that none of the statutory custody factors favored a change in custody.

¶17 Accordingly, the court denied Father’s petition to modify custody and his request that he be awarded primary custody if Mother did not relocate to Utah. The court ordered joint legal custody to continue but awarded Mother final decision-making authority as to the children’s health, education, and welfare. It also ordered that Mother “should be designated as the parent with the sole legal right to determine the residence of the children.” The court denied Mother’s request for an award of attorney fees because (1) she presented no evidence of her need for such an award and (2) even though Mother had ultimately prevailed, Father’s petition was not frivolous because it had been supported by Evaluator’s recommendation for a change in custody. But the court then explained that it chose to disregard the custody evaluation because it was “outdated and fail[ed] to adequately address the evidence presented at trial.”

ISSUES AND STANDARDS OF REVIEW

¶18 Father now appeals the court’s denial of his petition to modify, including its decision to reject Evaluator’s recommendation. “We review custody determinations under an abuse of discretion standard, giving the district court broad discretion to make custody awards.” Hinds v. Hinds-Holm, 2022 UT App 13, ¶ 26, 505 P.3d 1136 (quotation simplified). We will not disturb a district court’s findings of fact unless they are clearly erroneous. See Robertson v. Robertson, 2016 UT App 55, ¶ 5, 370 P.3d 569. And “[a]lthough a district court is not bound to accept a custody evaluator’s recommendation, the court is expected to articulate some reason for rejecting that recommendation.” R.B. v. L.B., 2014 UT App 270, ¶ 18, 339 P.3d 137.

¶19 Mother cross-appeals and challenges the court’s denial of her request for attorney fees. We review a district court’s attorney fee determination for an abuse of discretion. Jensen v. Jensen, 2009 UT App 1, ¶ 7, 203 P.3d 1020.

ANALYSIS

¶20 Father argues the district court erred in denying his petition to modify. Father’s challenge comprises two parts. First, Father takes issue with the court’s weighing of the evidence and its associated factual findings and conclusions. Second, Father challenges the court’s decision to reject Evaluator’s recommendation. We address each of Father’s arguments in turn. Lastly, we address Mother’s cross-appeal concerning the denial of her request for attorney fees.

I. The Evidence Supports the District Court’s Determination to Deny the Petition to Modify

¶21      Father’s first argument on appeal is that the district court ignored the evidence presented at trial that supported Father’s position that it was in the best interest of the children to move them back to Utah and that he should be awarded primary custody if Mother did not relocate with them. Father also argues that the court viewed the evidence presented from a biased perspective. In the context of determining custody, the district court is to analyze the best interest of the children through the custody factors outlined in section 30-3-10(2) of the Utah Code. Generally, it is within the court’s discretion to consider each custody factor and accord each factor the appropriate weight. See Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. The “court’s discretion stems from the reality that in some cases the court must choose one custodian from two excellent parents, and its proximity to the evidence places it in a more advantaged position than an appellate court.” Tucker v. Tucker, 910 P.2d 1209, 1214 (Utah 1996). Thus, a custody determination “may frequently and of necessity require a choice between good and better.” Hogge v. Hogge, 649 P.2d 51, 55 (Utah 1982).

¶22      While the district court is accorded discretion in weighing the statutory custody factors, “it must be guided at all times by the best interests of the child,” see Tucker, 910 P.2d at 1214, and it “must set forth written findings of fact and conclusions of law which specify the reasons for its custody decision,” see id. at 1215. “Whenever custody is contested, the district court must provide the necessary supporting factual findings that link the evidence presented at trial to the child’s best interest and the ability of each parent to meet the child’s needs.” K.P.S. v. E.J.P., 2018 UT App 5, ¶ 27, 414 P.3d 933.

¶23      Moreover, the factual findings of the district court “will not be disturbed unless they are clearly erroneous” by being “in conflict with the clear weight of the evidence.” Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733 (quotation simplified). And “the existence of conflicting evidence is not sufficient to set aside a [district] court’s finding.” Bond v. Bond, 2018 UT App 38, ¶ 6, 420 P.3d 53 (quotation simplified). Rather, “to successfully challenge a [district] court’s factual findings 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 (quotation simplified).[2] Thus, a party challenging the sufficiency of the evidence to support a custody decision will almost certainly fail to carry its burden of persuasion on appeal if it fails to marshal. See State v. Nielsen, 2014 UT 10, ¶ 42, 326 P.3d 645. In addition, 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.” Shuman v. Shuman, 2017 UT App 192, ¶ 6, 406 P.3d 258 (quotation simplified), cert. denied, 412 P.3d 1257 (Utah 2018).

¶24      On appeal, Father asserts that the district court ignored evidence that was presented to Evaluator and to the court at trial. But on appeal, Father has not wrestled with the evidence that supports the court’s conclusion that most of the custody factors favor Mother, and he has made no attempt to marshal the evidence that supports the court’s factual findings. Father “clearly views the evidence as compelling a different outcome, but it is not within our purview to engage in a reweighing of the evidence, and [Father] has not demonstrated that the evidence underlying the [district] court’s findings is insufficient.” See id. ¶ 9 (quotation simplified). We address Father’s specific challenges to the court’s conclusions below.

A.        Father’s relinquishment of parent-time with the children by voluntarily choosing not to live close to them

¶25      Father complains that the district court misunderstood and ignored the evidence when it determined that Father had made decisions that minimized his parent-time. But Father has not addressed the evidence the court chose to credit nor demonstrated how that evidence was insufficient for the court to conclude that Father had not prioritized living close to the children to maximize his parent-time. That is, the court found the following evidence convincing:

·         While the family lived in New Jersey in 2015, and after Father announced he wanted a divorce, Mother offered to move out of their apartment so the children could remain with Father. Father declined this offer and advised Mother to return to Utah with the children.

·         Father remained in New Jersey for over a year before moving back to Utah.

·         After the parties mediated a settlement in August 2017 wherein Father could exercise more parent-time if he moved within fifteen miles of Mother’s residence, he did not do so. Instead, Father remarried in 2018 and moved to his wife’s residence in Salt Lake County (Mother’s residence was in Utah County).

·         Father rented an apartment within fifteen miles of Mother’s residence in Utah County only after she had announced her intention to relocate to Washington.

·        Father is employed by a company that allows him to work from home and his wife does not work outside the home, so Father’s employment does not necessarily tie him to Utah. Father has even shopped for houses in Washington but requires a commitment from Mother that she will remain there long term before he will move.

·        Evaluator opined that despite Father’s valid professional and financial motives for staying in New Jersey and then in Utah, Father failed to capitalize on the opportunity for more frequent parent-time by living close to the children.

¶26 Father appears to fault the court for not considering dispositive his testimony that he sought and exercised more than the minimum parent-time once he returned to Utah in 2016. Father asserts that this evidence disproves the court’s determination that Father had not prioritized his time with the children. But “Father [doing] what was within his rights . . . to exercise the expanded parent-time” was not persuasive to the court given the evidence listed above. And Father has not challenged any of the factual findings that support the court’s conclusion that he did not make choices for his living situation to be closer to the children. Father simply challenges how the court considered the evidence that supports his position.

¶27 The existence of conflicting evidence in the record is not sufficient to set aside a district court’s findings. See Nebeker v. Orton, 2019 UT App 23, ¶ 16, 438 P.3d 1053. “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.” Kimball, 2009 UT App 233, ¶ 20 n.5 (quotation simplified). The district court’s “mission” is “to consider and weigh all the conflicting evidence and find the facts.” Id. Thus, even though “contrary facts might have been found from all the evidence,” this court defers to the district court’s “pre-eminent role as fact-finder,” and we “take the findings of fact as our starting point, unless particular findings have been shown . . . to lack legally adequate evidentiary support.” Id. Because Father has not directly challenged any of the court’s subsidiary findings supporting its determination that Father made decisions that minimized, rather than maximized, his parent-time, we will not reweigh the evidence.

B.        The circumstances surrounding Son’s baptism

¶28      Father complains that the issue surrounding Son’s baptism “is an issue of legal custody . . . [and] should [have been] discussed between the parents before decisions [were] made.” Father asserts that the district court committed legal error when it failed to rule that a decision about who will perform a child’s baptism is a major parenting decision that should not be left up to a child. Father also takes issue with the court crediting Mother’s testimony about the dispute that occurred before the baptism— and not Father’s testimony that he did not agree with the accounts that he was yelling or losing his cool—to determine that the circumstances of the event demonstrated poor judgment on Father’s part and that Father’s actions caused Son harm.

¶29      On the facts of this case, we cannot fault the district court for its determination that who performs the various parts of a child’s religious ceremonies within the shared religious tradition of both parents (as opposed to whether the ceremonies will be performed at all) is not a major parenting decision requiring the agreement of both parents. Father cites no authority for the proposition that the decision about who performs a religious ceremony is equivalent to decisions concerning a child’s medical care, school attendance, or overall religious practice. Nor has Father challenged any of the factual findings that support the court’s conclusion that Father had failed to demonstrate that Mother’s decision to allow Son to have “input regarding his own baptism was an unhealthy or unwise parenting decision.” Thus, Father cannot show the court erred in considering this decision to be something other than a major parenting decision. And while we understand that Father is unhappy with the court’s conclusion that Father’s behavior before Son’s baptism showed poor judgment on his part rather than ineffective co-parenting on Mother’s part, the evidence in the record supports the court’s conclusion that Mother’s parenting regarding the baptism was not problematic, and we will not reweigh the evidence.

C.        The circumstances surrounding having Son tested for autism

¶30 Father next takes issue with the court’s findings about whether the children have benefitted from the parties’ sharing of parenting responsibilities and about the abilities “of the parents to give first priority to the welfare of the [children] and reach shared decisions in the [children’s] best interest.” See Utah Code § 30-3-10.2(2)(b). Among other things, in determining that Mother should be designated the final decision-maker as to the children’s health, education, and welfare, the court found that Father exhibited an “injudicious use of his veto power over decisions relating to the children’s health” and had “evidenced [a] tendency to act contrary to the children’s interests and to use those interests as leverage against Mother.” But Father’s complaint that the evidence demonstrated that he suggested they not rush into testing Son for autism rather than that he objected to the testing does not diminish the court’s determination that “Father’s veto-power over decisions regarding the children’s health, education, and welfare [] prevented [Son] from being tested for autism at a time when educational professionals believed the test would be helpful to address his needs.” Thus, we agree with Mother that “[e]ven if the court should have used the word ‘delayed’ rather than ‘prevented’” in its finding, Father has not shown how the court’s decision to award Mother final decision-making authority was an abuse of discretion or legal error.

D.        The circumstances surrounding obtaining the children’s passports

¶31 Father next challenges the court’s view of the circumstances surrounding Mother’s attempts to obtain passports for the children in time to visit her cancer-stricken father in Tahiti in 2019. Father argues that the court’s pointed and direct comments about this incident are overly aggressive and suggest that this evidence was the “ultimate basis for [the court’s] ultimate conclusion.” Father asserts that he did not interfere with the passport applications or attempt to condition his facilitation of the passports upon Mother’s promise to return to Utah and suggests that Mother was at fault for not obtaining the passports in time. But, once again, on appeal, Father selectively highlights the evidence he submitted at trial, asserts that the evidence supports a different outcome, and criticizes the court for not crediting his testimony rather than Mother’s. It is not this court’s “purview to engage in a reweighing of the evidence.” Shuman v. Shuman, 2017 UT App 192, ¶ 9, 406 P.3d 258 (quotation simplified), cert. denied, 412 P.3d 1257 (Utah 2018). In fact, when “a foundation for the court’s decision exists in the evidence, [we] may not engage in a reweighing of the evidence.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. On appeal, this court will look to whether the district court’s decision is supported by the evidence and in cases where the appellant has “merely point[ed] to evidence that might have supported findings more favorable to them” rather than “identify[ing] flaws in the evidence relied on by the [district] court that rendered” the court’s findings clearly erroneous, we will not reverse. Shuman, 2017 UT App 192, ¶ 8 (quotation simplified). Because the court’s decision is supported by the record and Father has identified no fatal flaws in the evidence upon which the court relied, we will not reweigh the evidence.

E.         The reasons and representations given for Mother’s relocation to Washington

¶32 Father next challenges the court’s view of Mother’s relocation. Father appears to attack Mother’s honesty and credibility by asserting that the reasons she gave for her move to Washington were not true. But Father did not appeal the court’s order approving Mother’s relocation, and by not directly challenging the district court’s findings about Mother’s move, Father has failed to persuade us that the court’s determination that “Mother’s move to Washington was not contrary to the children’s interests” was an abuse of discretion or legal error since it “is undisputed that the children are thriving and happy there”.

F.         The district court’s custody factor findings

¶33      Father challenges the court’s determination that evaluation of the statutory custody factors favored denying his petition to modify and awarding Mother more decision-making authority. Specifically, Father argues that the court’s analysis of the custody factors is not supported by the evidence with regard to (1) the parents’ commitment to the care and custody of the children, (2) not disrupting a custody arrangement where the children are happy and well-adjusted in their current circumstances, (3) the respect each parent affords the other parent’s role, (4) the parents’ ability to make decisions jointly, and (5) whether it was better to remain in Washington versus returning to Utah.

¶34      But Father does not tie his argument to a particular custody factor or explain how the court’s findings in these areas are critically important to the overall custody determination. Nor does Father explain how the court’s findings on these factors are against the clear weight of the evidence. “Generally, it is within the [district] court’s discretion to determine . . . where a particular factor falls within the spectrum of relative importance and to accord each factor its appropriate weight.” Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. “While the district court is accorded discretion in weighing these factors, it must be guided at all times by the best interests of the child.” Hinds v. Hinds-Holm, 2022 UT App 13, ¶ 30, 505 P.3d 1136 (quotation simplified).

¶35      Father’s argument that the court disregarded the evidence that supports his preferred evaluation of the statutory custody factors is not persuasive. It is not this court’s role to reweigh the evidence to see if we would reach a different conclusion from that of the district court. Father has not demonstrated that the court’s evaluation of the custody factors lacks evidentiary support or that any finding regarding each factor is against the clear weight of the evidence. Given this, we cannot say that the court abused its discretion or committed legal error in concluding that “none of the factors favor a change in custody” or that “[t]he critically important factors—bonding and continuity of placement— strongly favor leaving primary custody with Mother.”

¶36 In sum, Father has not directly challenged any of the court’s specific findings supporting the determinations listed above. Indeed, he simply highlights evidence he claims the district court ignored. Without a direct challenge to any specific finding, we consider the district court’s findings as established and will not reweigh the evidence.

II. The District Court Did Not Abuse Its Discretion When It
Rejected Evaluator’s Recommendation

¶37      Father contends that the district court erred in rejecting the recommendations and testimony of Evaluator. “Courts are not bound to accept the testimony of an expert and are free to judge the expert testimony as to its credibility and its persuasive influence in light of all of the other evidence in the case.” Barrani v. Barrani, 2014 UT App 204, ¶ 4, 334 P.3d 994 (quotation simplified). “This is because . . . the fact-finder is in the best position to judge the credibility of witnesses and is free to disbelieve their testimony . . . even if that testimony comes from an expert witness.” Woodward v. Lafranca, 2016 UT App 141, ¶ 13, 381 P.3d 1125 (quotation simplified), cert. denied, 384 P.3d 570 (Utah 2016). These principles apply to a court’s assessment of the opinions offered by a custody evaluator. Indeed, a “district court is not bound to accept a custody evaluator’s recommendation,” but if a court chooses to reject the evaluator’s opinion, it “is expected to articulate some reason for” doing so. See R.B. v. L.B., 2014 UT App 270, ¶ 18, 339 P.3d 137. In this case, while the court could have perhaps more fully explained its reasons for rejecting Evaluator’s recommendations, in our view the court had sufficient reasons for doing so and adequately explained itself.

¶38      Father first contends that the district court erroneously rejected Evaluator’s recommendations because the court had unreasonable expectations of Evaluator, that it was incumbent on the court to solicit further information from Evaluator through questioning at trial if the court thought her report was insufficient, and that the court should have accepted Evaluator’s recommendation without question because the court did not contest her qualifications and admitted her report into evidence without objection. But the record does not support Father’s complaints, and he does not support his argument with legal citation. The court invited Evaluator to augment her report at trial by “putt[ing] in context or explain[ing] or add[ing] flesh to the bones of the report,” and the court dialogued at length with Evaluator during direct questioning and cross-examination. Father’s complaint that the court discouraged additional testimony or additional explanation from Evaluator because it stated during her examination that “[n]ow that I have received the report, if she’s just going to read it, maybe there’s more effective ways for her to spend her time” is not compelling, especially because Father’s counsel agreed to “expedite the process a bit” by then focusing on Evaluator’s recommendations. Thus, Father does not persuade us that the court abused its discretion or committed legal error in choosing not to ask Evaluator further questions.

¶39      Next, Father takes issue with the court’s decision to reject Evaluator’s recommendation because it was “outdated” at the time of trial.[3] But Father fails to acknowledge that while all the statutory custody factors are equally important, “[a]t the critically important end of the spectrum, when [a] child is thriving, happy, and well-adjusted, lies continuity of placement.” Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. Utah law requires courts to “give substantial weight to the existing joint legal . . . custody order when the child is thriving, happy, and well-adjusted.” Utah Code § 30-3-10.4(2)(c). And here, the court relied heavily on continuity of placement as the basis for rejecting Evaluator’s report. The court found that the evidence presented at trial was “virtually unanimous” in establishing that the children were “happy, well-adjusted, and thriving under [their] current arrangement” and it rejected Evaluator’s contention that relocating the children back to Utah would not be that big of a deal because “[w]e don’t have a child . . . moving into a different developmental phase or a child with specific developmental needs.” Because the court heard the evidence on both sides and it explained why it was rejecting certain evidence, the court did not abuse its discretion or commit legal error. Thus, we see no infirmity in the court’s determination that Evaluator’s report was outdated by the time of trial.

¶40      We are, of course, sensitive to the emotional undercurrents giving rise to Father’s challenges on appeal. This appears to have been a very difficult case for both parties—both of whom love and care for their children. And we acknowledge the district court’s determination that both “parents are well suited to parent the children [who] are surrounded by an unusual amount of love on both sides of the family. . . . All children everywhere deserve to be loved as much as these children are.” But ultimately, the fact that Father disagrees with the court’s decision to deny his petition to modify does not render the district court’s findings inadequate or unsupported by the evidence, nor does it require an outright grant of custody in his favor. See Shuman v. Shuman, 2017 UT App 192, ¶ 10, 406 P.3d 258, cert. denied, 412 P.3d 1257 (Utah 2018).

¶41 In sum, Father has failed to meaningfully address the evidence supporting the district court’s findings or persuasively demonstrate that those findings are against the clear weight of the evidence or legally erroneous. We therefore affirm the district court’s denial of Father’s petition to modify custody and its associated adjustment to the parties’ legal custody arrangement.

III. Mother’s Attorney Fees Request

¶42 Finally, we address Mother’s challenge to the district court’s denial of her request for attorney fees incurred in responding to Father’s petition to modify. Mother asserts entitlement to fees under two different statutes, but we reject both of her arguments.

¶43 First, Mother claims that the court should have awarded her fees pursuant to a statute authorizing a court to award fees in cases where the “action” was “filed or answered frivolously and in a manner designed to harass the other party.” See Utah Code § 30-3-10.4(5). The court determined that whether the litigation was frivolous or filed with the intent to harass was “a very close call” but that Evaluator’s change-of-custody recommendation provided Father with at least some basis to file his petition. We agree. The district court has discretion to determine whether an action was filed frivolously or with an intent to harass, and we will not substitute our judgment for that of the district court unless the action it takes is so flagrantly unjust as to constitute an abuse of discretion. See Wall v. Wall, 700 P.2d 1124, 1125 (Utah 1985). We discern no abuse of discretion in the court’s determination not to award fees under section 30-3-10.4(5) of the Utah Code.

¶44      Second, Mother claims that the court should have awarded her fees under a different statute, one that authorizes courts to order one party to pay fees to the other in order “to enable the other party to prosecute or defend the action.” See Utah Code § 30­3-3(1). The court denied Mother’s request for fees under this statute based on its determination that Mother did not produce evidence of her financial need. When reviewing requests for attorney fees in divorce proceedings, “both the decision to award attorney fees and the amount of such fees are within the [district] court’s sound discretion.” Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 10, 176 P.3d 476 (quotation simplified). However, the party to be awarded attorney fees under this statute has the burden to prove (1) that the payee spouse has a financial need, (2) that the payor spouse has the ability to pay, and (3) that the fees requested are reasonable. See Dahl v. Dahl, 2015 UT 79, ¶ 168, 459 P.3d 276.

¶45 Here, Mother argues that the district court erred in concluding that an award of fees was not warranted when it determined that “Mother did not adduce any evidence of her need for an award of attorney’s fees under section 30-3-3(1).” Mother contends that there was evidence before the court to demonstrate her need and Father’s ability to pay. Specifically, Mother points to the parties’ stipulated order from 2017 that showed the parties’ incomes and the custody evaluation that reported the parties’ incomes in 2020. But Mother did not point to this evidence in connection with her fee request, and we do not think it is incumbent on a district court to comb through the record to find evidence of a party’s need. Rather, the party to be awarded fees has the burden to submit that evidence or at least point the court to that evidence and ask that the court utilize that evidence to determine need.

¶46      Accordingly, we affirm the district court’s conclusion that fees were not warranted in this case.

CONCLUSION

¶47      We conclude that the evidence supports the district court’s findings and conclusions that relocating the children back to Utah would not be in the children’s best interest and supports the denial of Father’s petition to modify. We further conclude that the district court did not abuse its discretion in denying Mother’s request for attorney fees. Affirmed.

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


[1] Mother has remarried and has adopted her husband’s surname, Sahim.

[2] As this court stated in Kimball v. Kimball, 2009 UT App 233, 217

P.3d 733:

After all, it is the [district] court’s singularly important mission to consider and weigh all the conflicting evidence and find the facts. No matter what contrary facts might have been found from all the evidence, our deference to the [district] court’s pre-eminent role as fact-finder requires us to take the findings of fact as our starting point, unless particular findings have been shown, in the course of an appellant’s meeting the marshaling requirement, to lack legally adequate evidentiary support.

Id. ¶ 20 n.5.

[3] In addition to rejecting Evaluator’s report for being outdated, the court rejected the report because it “fail[ed] to adequately address the evidence presented at trial.” Specifically, the court noted that the report “mentions but glosses over Father’s sending the children away from New Jersey, choosing several times thereafter not to live near the children (including now), preventing them from traveling to Tahiti, and declining to engage [Son] regarding his baptism.” Father takes issue with the court’s reasoning on each point, arguing that the court “did not agree with [Evaluator’s] expert view and analysis of the evidence.” But his argument is limited to merely explaining his view of why each of these events happened and why Evaluator did not find them important. Father does not show that the court’s view was unsupported by the evidence. And regardless of these stated reasons, the court’s decision to reject the report because it was outdated was entirely proper.

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In re K.A.S. – 2023 UT App 138 THE UTAH COURT OF APPEALS STATE OF UTAH, IN THE INTEREST OF K.S., A PERSON OVER EIGHTEEN YEARS OF AGE.

STATE OF UTAH, Appellee, v. K.S., Appellant. Opinion No. 20210291-CA Filed November 16, 2023 Third District Juvenile Court, Salt Lake Department The Honorable Mark W. May No. 1108274 Monica Maio, Marina Pena, Sam Pappas, and Hilary Forbush, Attorneys for Appellant Sean D. Reyes and Jeffrey S. Gray, Attorneys for Appellee JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N. MORTENSEN concurred.

TENNEY, Judge:

¶1        K.S., a minor, spent several weeks babysitting the infant child of some family members while they were at work. When the infant’s parents returned home one day, the infant was in pronounced distress. The infant was taken to the hospital, but she died a few days later.

¶2        K.S. was charged in juvenile court with having committed child abuse homicide. At the close of trial, the juvenile court found that K.S. had committed the crime and adjudicated K.S. delinquent as a result. K.S. now appeals that adjudication, arguing that there was insufficient evidence to support it. For the reasons set forth below, we affirm.

BACKGROUND

¶3        A.M., a four-month-old infant, died on May 10, 2019. Several medical experts later testified that the cause of death was a brain injury and that the fatal injury was likely inflicted in a non-accidental manner. The question at the heart of this case is who inflicted the fatal injury.

¶4        A.M.’s parents (Mother and Father) both worked and needed someone to watch their two children (A.M. and a two-year-old son) during the day. After an arrangement with a previous babysitter fell through, Mother and Father learned that K.S., the 16-year-old son of Mother’s cousin, was available to babysit. Although K.S. had no prior child-care experience, he began watching the children in April 2019. Because of K.S.’s lack of experience, Father had to teach him the basics of childcare, including how to prepare a bottle, how to change a diaper, and how to calm A.M. down and “hold her correctly.” K.S. frequently stayed overnight to save on gas, sleeping on a couch in the front room.

¶5        On May 2, Mother and Father took A.M. to the emergency room because A.M. had been sick for a few days. On examination, the ER doctor found “nothing worrisome,” and tests indicated that her heart rate, oxygen saturation, and temperature were all “reassuring.” The ER doctor concluded that A.M. “might have a bug” and sent her home. By May 6, A.M. seemed to be “feeling a little better.”

¶6        K.S. slept over at the house on the night of May 6 to 7, and A.M. was “real fussy” that night. According to her parents’ subsequent accounts, though, A.M. was “crying normal[ly]” and even “cheery, smiling, [and] glowing” by the next morning. Mother left for work by 9:30 a.m.[1] Father later testified that he left for work between 8:30 and 8:45 a.m. (though, as will be discussed below, testimony from an officer suggested that Father didn’t actually leave until 10:55 that morning).

¶7        At some point between 11:36 and 11:56 a.m., K.S. sent Mother a video that showed A.M. experiencing troubling symptoms—specifically, A.M. had a limp arm and labored breathing. K.S. texted, “Is this normal?” After viewing the video, Mother asked her sister (Aunt) to stop by on her lunch break to check on A.M.

¶8        Aunt arrived at about 1:20 that afternoon. A.M. seemed “lethargic” to her, and it seemed like “moving her was upsetting her more, almost like it was causing her pain.” Aunt thought that A.M. might have an ear infection, so she gave her some ibuprofen. After returning to work, Aunt told Mother her concern about the ear infection and encouraged Mother to take A.M. to the hospital after Mother’s shift ended. During her own lunch break an hour later, Mother returned home and checked on A.M., who was “fussy and whiney”; when Mother picked A.M. up, she also observed her legs “dangling down.” Mother was concerned enough to schedule an appointment with a pediatrician, but she made lunch and returned to work without taking further action.

¶9        There was no additional contact between K.S. and the parents until around 7:45 that evening, when K.S. called Mother and reported that A.M still didn’t seem to be feeling better. Mother said she was on her way. After picking Father up from his work, Mother arrived home to find A.M. “pale as a light.” Father performed CPR while Mother called 911. Mother told the 911 dispatcher that A.M. had been “fine throughout the day and stuff.”

¶10 A.M. was first taken to the Intermountain Healthcare hospital, then life-flighted to Primary Children’s Medical Center (Primary Children’s). Doctors at Primary Children’s concluded that A.M. had suffered a severe brain injury.

¶11      Police detained Mother and Father for questioning before allowing them to see A.M. While awaiting the arrival of a detective, Father engaged police officers in light-hearted banter, telling them “a story about getting drunk and . . . dancing on the table,” as well as a story about a woman beating up a man in their apartment complex. Mother and Father eventually met with a detective who questioned them about the events of the day. This detective later testified that, during these interviews, Father told him that he had left for work around 10:55 that morning.

¶12      The following day, K.S. sent Father two text messages. The first said: “im so sorry. . . . if it weren’t for my laziness and wanting to relax [A.M.] wouldn’t be like this and if i had never tossed her up in the air to try and cheer her up.” The second said: “im truly sorry plz tell [Mother] im so so so sorry and i would never intentionally hurt your kids out of anger or frustration.”

¶13      A.M. died two days later. Later that week, Dr. Christensen, the medical examiner, performed an autopsy and determined that the “primary cause” of death was “blunt injuries” to A.M.’s head. Dr. Christensen classified the death as a homicide.

¶14 The State subsequently charged K.S. with child abuse homicide in juvenile court. Over the course of eight days of trial, the court heard testimony from, among others, both parents, several medical experts, and the responding officer.

¶15      Mother and Father testified about the events on May 7 and A.M.’s health in the relevant period. Mother testified that A.M. was “pretty fine” and “cheery, smiling, [and] glowing” before she left for work that morning. Father testified that, after a few days of being fussy, A.M. “was feeling a little better” and that there was “nothing out of the ordinary” that morning. Father testified that he remembered leaving home between 8:30 and 8:45 a.m. so that he could catch the bus.

¶16 The court also heard testimony from three medical experts—Dr. Thorn, Dr. Hatch, and Dr. Christensen—about the nature of A.M.’s injuries and the timing of those injuries.

¶17 Dr. Thorn. Dr. Thorn was an ER doctor who had “extensive training and expertise specialization in the management of head injury,” and he was the doctor who treated A.M. on May 7 at the Intermountain Healthcare hospital. Dr. Thorn testified that A.M.’s symptoms likely resulted from “non-accidental trauma,” which “is a nice way of saying a child . . . was physically abused.” Dr. Thorn also testified that A.M.’s injuries would have required the application of “[e]xtremely violent” force, though he opined that it might have been “possible” that a person might not have “recognize[d] the severity” of the injury that he or she had inflicted.

¶18      On a CAT scan, Dr. Thorn observed two layers of blood in A.M.’s brain, which suggested to him that A.M. had sustained “at least two” discrete injuries. He estimated that the earlier of the two injuries occurred “within days” to “maybe a week” before May 7. Dr. Thorn speculated that the symptoms that prompted A.M.’s visit to the hospital on May 2 had come from the first brain injury, but he acknowledged that “[w]e’ll never know.” With respect to the injuries that led to A.M.’s death, Dr. Thorn testified that the “most severe injury leading eventually to the death” happened anywhere from “sometime within hours” to “almost right before” the video that was taken on May 7. He further testified that there was “some event soon before arrival [at the ER] that had caused” A.M.’s “respiratory depression.” Dr. Thorn felt unable to narrow the timeframe any further, and he expressed doubt that any doctor “would be able to comment as to a more definitive timeframe.” Dr. Thorn also testified that A.M. “was very, very sick at the time that that video was taken.”[2]

¶19 Dr. Hatch. Dr. Hatch was a recent medical school graduate who was completing a post-residency fellowship in child abuse pediatrics at the University of Utah, and he was part of the team that treated A.M. at Primary Children’s. Dr. Hatch testified that it would have required a significant amount of force to cause A.M.’s symptoms, such as “shaking by itself” or shaking combined “with some form of impact, or impact by itself.” He added that “we don’t observe these kinds of injuries from falls” or even from “significant” car accidents. In Dr. Hatch’s view, A.M.’s symptoms “suggest[ed]” that A.M. had “experienced significant force to her head.” He also opined that anyone who was present when the injuries were inflicted “would know that the force was excessive and that an injury was likely” to follow.

¶20 Dr. Hatch thought there were two potentially plausible explanations for the two layers of blood in A.M.’s brain: he thought it was possible that the blood represented two different injuries that were separated by time, and he also thought it was possible that the blood represented a single injury where some of the blood had changed colors when it mingled with cerebral spinal fluid. Thus, in Dr. Hatch’s opinion, A.M. was definitely injured on May 7, and it was possible that she had suffered an earlier brain injury as well.

¶21      As to the question of timing of the May 7 injury, Dr. Hatch testified that “the head injury immediately preceded the development of any symptoms that [A.M.] had. So in this situation where she became unconscious, the injury would immediately precede that.” Continuing, Dr. Hatch testified that the “medical literature would support that in almost all cases with this severe of an injury,” the resulting symptoms would appear “immediately afterward.”

¶22 Dr. Christensen. Dr. Christensen is the chief medical examiner for the Utah Department of Health and, as noted, performed A.M.’s autopsy. Dr. Christensen testified that A.M. had suffered a “traumatic” “axonal injury” to her brain and that the injury was “not consistent with having occurred accidentally.” In his view, the force involved would have been “noticeably violent.”

¶23      Like Dr. Thorn, Dr. Christensen saw signs of both an earlier and a later injury. Dr. Christensen agreed that “some of [A.M.’s] prior symptoms”—including the nausea that led to her May 2 visit to the hospital—could have been “related to a prior head injury.” On questioning from the State, however, Dr. Christensen seemed to agree that the later injury was “the ultimately fatal” one.

¶24      Dr. Christensen testified that in “some cases,” fatal injuries can be inflicted as many as three to ten days before the child actually dies. But Dr. Christensen explained that doctors look to “other aspects of the case as well” when estimating the time at which the injuries were inflicted, such as “what was the child’s behavior at various points along the way.” He said that in this case, he thought the fatal injury “occurred around the time” that A.M. arrived at the hospital. He also testified that with “traumatic axonal injury, you would expect [A.M.] to be symptomatic essentially immediately. I mean very, very quickly. It’s not going to be the kind of thing where she is going to be normal for a few hours . . . . It’s a global insult to the brain that is going to manifest as . . . abnormal behavior very soon after infliction.”

¶25      After the conclusion of the trial, the court entered a single-sentence ruling determining that the State had met its burden of proving that K.S. committed child abuse homicide. K.S. timely appealed.

ISSUE AND STANDARD OF REVIEW

¶26      K.S. argues there was insufficient evidence to support his adjudication for child abuse homicide. In cases tried without a jury (which include juvenile court proceedings), factual determinations “must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the credibility of the witnesses.” Utah R. Civ. P. 52(a)(4); cf. In re Z.D., 2006 UT 54, ¶ 29, 147 P.3d 401 (holding that an “appellate court must launch any review of factual findings from rule 52(a) of the Utah Rules of Civil Procedure and its ‘clearly erroneous’ test”). “The content of Rule 52(a)’s clearly erroneous standard, imported from the federal rule, requires that if the findings (or the trial court’s verdict in a criminal case) are against the clear weight of the evidence, or if the appellate court otherwise reaches a definite and firm conviction that a mistake has been made, the findings (or verdict) will be set aside.” State v. Walker, 743 P.2d 191, 193 (Utah 1987) (quotation simplified).

¶27 The parties agree that we should apply the above-cited standard of review to this case. We pause here to note, however, that the parties have disputed whether we should apply an additional layer of deferential gloss in this case as well.

¶28 It’s well-settled that when an appellate court reviews a jury’s verdict, the court views the evidence and all reasonable inferences in the light most favorable to the verdict. See, e.g.State v. Green, 2023 UT 10, n.2, 532 P.3d 930; State v. Bonds, 2023 UT 1, n.3, 524 P.3d 581; State v. Winfield, 2006 UT 4, ¶ 2, 128 P.3d 1171. But there’s a divergence in Utah’s caselaw about whether an appellate court does the same when reviewing a verdict from a bench trial. On this, some Utah cases say no. See, e.g.In re Z.D., 2006 UT 54, ¶ 35 (“An appellate court must indulge findings of fact made by a jury that support the verdict. No such indulgence is required of findings made by a judge.”); Alta Indus. Ltd. v. Hurst, 846 P.2d 1282, 1284 n.2 (Utah 1993) (holding that “an appellate court does not, as a matter of course, resolve all conflicts in the evidence in favor of the appellee” when findings were made by a judge); Walker, 743 P.2d at 193 (noting that “it is not accurate to say that the appellate court takes that view of the evidence that is most favorable to the appellee” when reviewing findings of the court (quotation simplified)). But other Utah cases—including some from our court that reviewed adjudications from juvenile court delinquency proceedings—say yes. See, e.g.State v. Layman, 1999 UT 79, ¶¶ 12–13, 985 P.2d 911 (holding that when “reviewing a conviction, an appellate court should consider the facts in a light most favorable to the verdict,” and then applying that standard to a ruling from “the trial judge, who was the finder of fact” in the bench trial at issue); In re J.R.H., 2020 UT App 155, ¶ 9, 478 P.3d 56 (applying the “light most favorable” standard to a juvenile court adjudication (quotation simplified)); In re V.T., 2000 UT App 189, ¶ 8, 5 P.3d 1234 (relying on Layman for the proposition that “[w]hen reviewing a juvenile court’s decision for sufficiency of the evidence, we must consider all the facts, and all reasonable inferences which may be drawn therefrom, in a light most favorable to the juvenile court’s determination”); see also In re C.C.R., 2011 UT App 228, ¶ 10, 257 P.3d 1106; In re M.B., 2008 UT App 433, ¶ 5, 198 P.3d 1007.

¶29      We need not resolve this conflict here. Again, the parties at least agree that K.S. can only prevail on his sufficiency challenge if he establishes that the verdict was against the clear weight of the evidence, or, instead, if we reach a definite and firm conviction that a mistake has been made. And the parties further agree that we give “due regard” to the juvenile court’s opportunity to “judge the credibility of witnesses.” Utah R. Civ. P. 52(a)(4). For the reasons set forth below, we affirm the juvenile court’s adjudication under these agreed-upon standards alone. We accordingly leave for another day (and, more likely, another court) the question of how to resolve the tension in the cases about whether the additional deferential gloss that applies to jury verdicts should apply to juvenile court decisions as well.

ANALYSIS

¶30      K.S. argues there was “insufficient evidence that [he], as opposed to someone else, caused the injuries that resulted in A.M.’s death.” We disagree.

¶31      The State’s case against K.S. relied on the interplay between three propositions: (i) A.M. died from an injury to her brain that was caused by violent force; (ii) A.M.’s symptoms would have manifested very quickly after the injury was inflicted; and (iii) K.S. was alone with A.M. immediately prior to the symptoms’ initial appearance. There was competent testimony to support each of these propositions.

¶32 Injury. All three medical experts agreed that A.M. died from a brain injury that was caused by violent force. Dr. Thorn testified that A.M.’s injury would have been caused by “[e]xtremely violent” force or a “violent, blunt act,” such as the “shaking back and forth of a child’s brain.” In his view, this was “not an accidentally dropped child.” Dr. Hatch similarly testified that a significant amount of force would have been required, either “shaking by itself,” or shaking combined “with some form of impact,” or “impact by itself.” He added that doctors “don’t observe these kinds of injuries from falls” or even from “significant” car accidents. Dr. Hatch believed anyone “who witnessed an incident like this occur would know that the force was excessive and that an injury was likely” to follow. Finally, Dr. Christensen testified that the injury was “not consistent with having occurred accidentally” and that the force involved would have been “noticeably violent.”

¶33 Timing of symptoms. There was also testimony from medical experts that A.M.’s symptoms would have manifested very quickly after the force that caused the fatal injury. Dr. Hatch testified that “the head injury immediately preceded the development of any symptoms that [A.M.] had” and that the “medical literature would support that in almost all cases with this severe of an injury,” the resulting symptoms would appear “immediately afterward.” Dr. Christensen similarly testified that with “traumatic axonal injury, you would expect [A.M.] to be symptomatic essentially immediately.” He added: “It’s not going to be the kind of thing where she is going to be normal for a few hours . . . . It’s a global insult to the brain that is going to manifest as . . . abnormal behavior very soon after infliction.”[3]

¶34 K.S. was alone with A.M. Finally, there was testimony establishing that K.S. was alone with A.M. immediately before the symptoms’ initial appearance. Mother and Father both testified that A.M. was in good health that morning. Father stated that after a few days of being fussy, A.M. was “feeling a little better” and that there was “nothing out of the ordinary.” Mother also testified that A.M. was “cheery, smiling, [and] glowing” that morning.

¶35      Mother left for work by 9:30 a.m., and at trial, Father testified that he left for work between 8:30 and 8:45 a.m. (though there was some suggestion that he may have left at 10:55 a.m.). At some point between 11:36 and 11:56 that morning, K.S. sent Mother a video showing A.M. with limp limbs and having difficulty breathing.

¶36      The collective import of these propositions is clear. Since K.S. was alone with A.M. for at least a half hour (if not several hours) before A.M.’s symptoms appeared, and since two medical experts testified that A.M.’s symptoms would have appeared very quickly (if not immediately) after the infliction of the injury, it stands to reason that K.S. caused the fatal injury. This would provide a basis to sustain the adjudication.[4]

¶37 K.S. nevertheless argues that there was insufficient evidence to support the adjudication because of various problems with the above evidence and with other aspects of the State’s case. While we certainly agree that there was conflicting evidence on certain points, the problems that K.S. identifies are not so conclusive that we can overturn the adjudication as a result.

¶38      Much of K.S.’s argument is focused on ambiguities in the record about the critical question of timing. K.S. points out that while Dr. Christensen opined that the symptoms likely manifested soon after the injury, Dr. Christensen also acknowledged that “those things”—apparently meaning medical conclusions about the time at which an injury occurred—“are not precise.” K.S. also relies heavily on Dr. Thorn’s testimony that the injury could have occurred anywhere from “almost right before” the symptoms appeared to “hours” earlier. And K.S. further points to Dr. Thorn’s testimony that he didn’t think “you could find anyone else that would be able to comment as to a more definitive timeframe.”

¶39 But when Dr. Thorn opined that he didn’t think that “anyone else” could provide “a more definitive timeframe,” Dr. Thorn was mistaken. As discussed, the State called two medical experts—Dr. Christensen and Dr. Hatch—who each testified under oath that they thought that A.M.’s symptoms would have appeared very quickly (if not immediately) after the fatal injury was inflicted. And to the extent that there was any conflict between the experts’ conclusions on this, the juvenile court was in a better position than we are to determine which version to believe. See, e.g.In re M.M., 2023 UT App 95, ¶ 35 n.9, 536 P.3d 102, petition for cert. filed, October 25, 2023 (No. 20230944) (recognizing that it “is the role of the juvenile court, not this court, to assess the weight and credibility of expert witnesses and to choose among their testimonies” (quotation simplified)); Knowlton v. Knowlton, 2023 UT App 16, ¶ 59 n.13, 525 P.3d 898 (noting that a trial court “is in the superior position to assess the weight of evidence,” including questions about which expert’s testimony to accept), cert. denied, 531 P.3d 730 (Utah 2023); Woodward v. Lafranca, 2016 UT App 141, ¶ 13, 381 P.3d 1125 (noting that a “fact-finder is in the best position to judge the credibility of witnesses and is free to disbelieve their testimony, even if that testimony comes from an expert witness” (quotation simplified)).

¶40      K.S. also points to testimony showing that Mother left for work by 9:30 a.m., as well as testimony that Father told a detective that he didn’t leave until 10:55 that morning. Since K.S. maintains that the window in which the injury could have been inflicted was several hours long, K.S. posits that Mother or Father could have inflicted the injury before they left for work. But again, on the question of timing, Dr. Christensen and Dr. Hatch both spoke of symptoms appearing very quickly after the fatal injury was inflicted. This testimony, alone, undermines this theory, and the juvenile court was entitled to credit it.

¶41 And there are other problems with this theory too. After all, K.S.’s suggestion that Mother or Father caused the injury that morning or overnight is at odds with their sworn testimonies. Again, both of them testified under oath that A.M. was healthy when they left the house. And it also seems possible (if not probable) that K.S. would have noticed something if Mother or Father had used violent force against A.M. that morning—after all, he’d spent the night there and was at the house all morning. But K.S. never claimed to have heard or witnessed either parent injuring A.M. earlier that day. Thus, to have accepted this theory, the court would have had to discredit the injury-to-symptoms chronology testimony of two medical experts, disbelieve the testimonies of Mother and Father, and then infer that Mother or Father had used violent force against A.M. without K.S. noticing or deciding to comment on it.

¶42 K.S. also points to evidence suggesting that A.M. had sustained a prior brain injury sometime before May 7, and he then argues that this prior injury might have been responsible for A.M.’s death. But while Dr. Christensen and Dr. Thorn both believed that A.M. had suffered multiple injuries, Dr. Hatch thought it was possible that there weren’t two injuries at all. Regardless, even assuming that the earlier injury did occur, K.S. could have inflicted that injury too given that he’d been babysitting for weeks. And more to the point, Dr. Christensen testified that the earlier injury wasn’t the cause of death. Dr. Christensen explained that both the earlier injury and the later injury had caused “subdural hemorrhage[s]” but that a subdural hemorrhage “didn’t ultimately lead directly to the child’s death.” Instead, Dr. Christensen testified that “diffuse axonal injury” in the brainstem created “respiratory compromise” that led to “brain swelling and ultimately death.” And when the prosecutor asked Dr. Christensen whether the “fatal” or “ultimately fatal” injury occurred close in time to A.M. arriving at the hospital, Dr. Christensen agreed with the State’s timeline. He reiterated that after the infliction of the “traumatic axonal injury,” which he had previously identified as the ultimate cause of death, symptoms would appear “essentially immediately.”[5]

¶43                Finally, K.S. points to various problems with the version of

events offered by Mother and Father, including Mother’s decision not to take the baby to the hospital that afternoon, Father’s seemingly odd storytelling while waiting for detectives that night, and certain discrepancies between the parents’ initial statements to officers and their testimonies at trial. We’ve reviewed the record and acknowledge the potential problems identified by K.S. But these problems all go to the perceived credibility (or lack thereof) of Mother and Father, particularly as it relates to their sworn testimonies that they did not injure their child. Our supreme court, however, has directly cautioned the appellate courts to avoid second-guessing lower courts about credibility issues like these. As the court explained in In re Z.D.:

Appellate courts are removed temporally and geographically from trial courts. They do not see juries impaneled or oaths administered to witnesses. They do not view first-hand witnesses’ “tells” of posture, inflection, or mood that strengthen or erode credibility. It is the lot of appellate judges to take their sustenance from the printed page; to peer into the facts as deeply as the flat plane of paper will permit. By the time the trial transcript reaches the hands of the appellate judge, the universal adjective describing its condition is “cold.”

2006 UT 54, ¶ 24, 147 P.3d 401. It’s of course possible that the court could have chosen to disbelieve the testimonies of Mother and Father. But given its adjudication, it’s clear that the court did accept their accounts (or, at least, those portions that suggested that it was K.S., not Mother or Father, who inflicted the fatal injury on A.M.). Without something more, it’s not our place to second-guess that determination.

¶44      In short, this evidentiary picture could certainly have been clearer, and we do see this as something of a close case. But the fact that it’s a close case is the reason we shouldn’t overturn this adjudication. In In re Z.D., our supreme court stressed that an “appellate court must be capable of discriminating between discomfort over a trial court’s findings of fact—which it must tolerate—and those that require the court’s intercession. It must forebear disturbing the ‘close call.’” Id. ¶ 33. And again, under even the standard of review that both parties agree on, K.S. must convince us that the verdict was against “the clear weight of the evidence,” or, instead, we must be left with “a definite and firm conviction that a mistake has been made.” State v. Walker, 743 P.2d 191, 193 (Utah 1987) (emphases added, quotations otherwise simplified).

¶45      On this record, the juvenile court could have sided with K.S. based on certain evidence about the timing of the injuries and who was around A.M. during a potentially relevant window. But the State’s narrower view of the timing window was backed by two medical experts, and its view of who was where and when was backed by sworn testimony as well. And under the State’s evidence, K.S. was the only person who could have caused the fatal injury.

¶46      Unlike members of this court, the juvenile court observed the relevant testimony firsthand. As a result, it was in a better position than we are to evaluate the credibility of that testimony and make determinations about the key facts. While K.S. has highlighted some problems with the State’s case, we don’t see those problems as being so pronounced that the court’s decision was against the clear weight of the evidence, nor are we left with a definite and firm conviction that a mistake has been made. We accordingly see no basis for overturning this adjudication.

CONCLUSION

¶47 There was sufficient evidence to support the juvenile court’s adjudication that K.S. committed child abuse homicide. The adjudication is therefore affirmed.

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

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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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What would happen if a witness in court was asked if they will swear to tell the truth and they said no?

What would happen if a witness in court was asked if they will swear to tell the truth and they said no?

If the witness were unwilling to swear or affirm to tell the truth, the witness would either not be permitted to testify or sanctioned for contempt of court until the witness swears or affirms to tell the truth when called to testify.

Some people may object to “swearing” to tell the truth because their religion or personal morals prohibit swearing oaths, and so every state has a statute that allows such a witness to “affirm” to tell the truth instead of swearing an oath to tell the truth. Here is Utah’s statute:

Any person may, instead of taking an oath, opt to make a solemn affirmation or declaration, by assenting, when addressed in the following form:

“You do solemnly affirm (or declare) that ….” etc., as in Section 78B-1-143.

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

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What happens if you say no to the oath on the witness stand in court?

What happens if you say no to the oath on the witness stand in court?

If you object to being sworn, to taking an oath (as some religions do), then you can “affirm” to tell the truth, the whole truth, and nothing but the truth instead of being sworn to do so.

If you refuse to testify under oath and/or under affirmation, then that can constitute both civil contempt of court and criminal contempt of court. This means you may:

  1. be held in contempt of court for such a refusal, which usually means you will be fined and jailed until you’re willing to tell the truth (and if you refuse to tell the truth to the point that the trial has ended then you will likely be released; and/or
  2. charged with criminal contempt and if convicted (there are defenses to the crime of refusing to testify, and if they apply to you, then you may be off the hook, but you need to assert those defenses at the time you refuse to testify) could be sentenced to another, specific jail term) and/or
  3. not be permitted to testify.

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

https://www.quora.com/What-happens-if-you-say-no-to-the-oath-on-the-witness-stand-in-court/answer/Eric-Johnson-311

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

2019 UT App 205 – THE UTAH COURT OF APPEALS

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

Opinion
No. 20151017-CA
Filed December 12, 2019

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

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

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

BACKGROUND

Marriage and Divorce

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

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

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

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

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

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

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

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

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

Uta’s Final Days

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

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

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

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

September 27, 2011

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

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

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

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

The Crime Scene

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

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

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

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

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

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

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

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

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

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

Wall’s Conduct Following Uta’s Death

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

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

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

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

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

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

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

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

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

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

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

The Investigation

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

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

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

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

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

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

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

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

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

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

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

ISSUES AND STANDARDS OF REVIEW

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

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

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

ANALYSIS

I. Sufficiency of the Evidence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

II. Admissibility of DNA Evidence

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

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

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

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

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

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

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

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

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

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

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

III. Ineffective Assistance of Counsel

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

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

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

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

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

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

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

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

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

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

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

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

. . . .

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

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

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

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

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

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

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

CONCLUSION

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

¶95 Affirmed.

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

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

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

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

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

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

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

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

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