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Tag: bifurcate

What is a motion to bifurcate a divorce in Utah? Why should I care to know?

What is a motion to bifurcate a divorce in Utah, and why should I care to know?

By Brian N. Godfrey, Legal Assistant

A motion to bifurcate to dissolve your marriage means that the court declares your marriage ended, but all the other remaining issues of your divorce action, such as child custody and division of marital assets and responsibility for marital debt remain to be resolved either by settlement or trial, if it comes to that.

Why would anyone want to dissolve the marriage first and leave the other issues to be resolved later? I’ll tell you why based upon my personal experience and the experience of others we’ve helped obtain a bifurcation.

I got a bifurcation in my divorce. My ex filed for divorce against me and I countersued her for divorce, so we both wanted to be divorced from each other, and the court knew that. In my motion to bifurcate I informed that court that my wife and I were separated a while and that I was ready to move on with my life as a single person again, without having any legal burdens and responsibilities of being married to a woman who didn’t want to be married to me either. People in that situation may want to start dating or maybe even have met someone new and want to get re-married. Luckily, my bifurcation was granted because my ex agreed with it. It’s hard to imagine how a bifurcation could harm anyone. Even if my ex-wife hadn’t wanted a bifurcation or didn’t care one way or the other, it was a relief to me. I’ve seen the same thing in the lives of our clients in the law office where I work.

A surprising number of people argue that a bifurcated divorce would “slow down the divorce case” although this is a patently ridiculous argument to make. “Why on earth would someone want to have a bifurcation and not just finish the entire thing all at once?” they say. I can think of many situations. In my own experience, getting out of my marriage was a real accomplishment that helped me know my divorce was moving forward, not stalling! It was a big and meaningful first step that encouraged me to continue efforts to finalize the rest of my divorce.

There is one good reason for opposing a bifurcation, but even that can be worked around. If you or your spouse receive medical or health insurance benefits due to your status as a spouse. Dissolving the marriage by bifurcation would strip you of your status as a spouse which would cause you to lose your insurance coverage. But unless you are someone who is hard to cover or cannot get affordable insurance on your own, bifurcation doesn’t mean you can never get replacement insurance. We’ve even worked around the insurance issue by having the party who requested the bifurcation offer to pay for his or her spouse’s new insurance coverage for a few months until new coverage is in place.

Claiming that a bifurcation will inevitably slow a divorce case down or unavoidably puts it at serious risk of slowing down or never being completed is bunk. And it’s obvious why: because if either spouse were to try to abandon the divorce case after bifurcation then the other spouse could pipe up to the court and complain and get the case moving. And if both you and your spouse were to try to abandon your divorce case after bifurcation the court can get the case moving.

So unless you know of a truly good reason against bifurcation that I don’t, it is impossible to convince me that a bifurcation that dissolves your marriage up front is “harmful” to anyone or “slows down the process” because for me, it did just the opposite.

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

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

2019 UT App 207 – THE UTAH COURT OF APPEALS

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

Opinion
No. 20180713-CA
Filed December 19, 2019

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

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

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

HARRIS, Judge:

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

BACKGROUND

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

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

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

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

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

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

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

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

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

ISSUE AND STANDARDS OF REVIEW

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

ANALYSIS

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

A

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

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

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

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

¶15         The change-in-circumstances requirement is itself comprised of two parts. In order to satisfy it, “the party seeking modification must demonstrate (1) that since the time of the previous decree, there have been changes in the circumstances upon which the previous award was based; and (2) that those changes are sufficiently substantial and material to justify reopening the question of custody.” Hogge v. Hogge, 649 P.2d 51, 54 (Utah 1982). In this context, however, our case law has drawn something of a distinction between adjudicated custody decrees and stipulated custody decrees, recognizing that “an unadjudicated custody decree” is not necessarily “based on an objective, impartial determination of the best interests of the child,” and therefore the res judicata policies “underlying the changed-circumstances rule [are] at a particularly low ebb.” See Taylor, 2011 UT App 272, ¶ 14 (quotation simplified). In Zavala, we clarified that the change-in-circumstances requirement still applies even in cases involving stipulated (as opposed to adjudicated) custody orders, although we acknowledged that, in some cases, “a lesser showing” of changed circumstances may “support modifying a stipulated award than would be required to modify an adjudicated award.” See 2016 UT App 6, ¶ 17.

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

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

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

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

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

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

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

B

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

1

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

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

2

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

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

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

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

3

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

4

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

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

CONCLUSION

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

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

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Hartvigsen v. Hartvigsen – 2018 UT App 238 – alimony, marital property

2018 UT App 238

THE UTAH COURT OF APPEALS

DANIELLE MARIE HARTVIGSEN,
Appellant,
v.
RICHARD MYERS HARTVIGSEN,
Appellee.

Opinion No. 20160069-CA
Filed December 28, 2018

Fourth District Court, Provo Department
The Honorable Lynn W. Davis
No. 064402132

Danielle Marie Hartvigsen, Appellant Pro Se[1]
Richard Myers Hartvigsen, Appellee Pro Se

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

CHRISTIANSEN FORSTER, Judge:

¶1        This is an appeal from a district court’s division of property and award of alimony in the aftermath of a contentious divorce between Danielle Marie Hartvigsen and Richard Myers Hartvigsen.[2] Danielle contends that the court abused its discretion when it imputed income to her, declined to accept her claimed expenses at face value, and credited Richard’s unrebutted testimony about his intent to convey real property to himself and Danielle as joint tenants. Danielle also contends that she was denied due process. We affirm.

BACKGROUND

¶2        Danielle and Richard married in 1995 and separated in 2005. Danielle filed for divorce in 2006, and in 2007 the district court entered a bifurcated decree of divorce, granting the divorce but reserving all other issues for later decision. After extensive litigation, a trial was held in 2012, and a supplemental decree of divorce was entered awarding Danielle a total property award of more than $1 million and alimony of $1,000 per month. Danielle filed several post-trial motions, including a motion for new trial which were denied in December 2015. Danielle appeals.

ISSUES AND STANDARDS OF REVIEW

¶3        Danielle first argues that the district court’s alimony award was insufficient because the court exceeded its discretion by imputing income to her and in assessing her needs. We “review a district court’s alimony determination for an abuse of discretion” and will not disturb its alimony ruling “as long as the court exercises its discretion within the bounds and under the standards [set by Utah appellate courts] and has supported its decision with adequate findings and conclusions.” Dahl v. Dahl, 2015 UT 79, ¶ 84 (quotation simplified).

¶4        Danielle next argues that because Richard transferred a home that he purchased before marriage to the couple as joint tenants, the district court erred in determining that the home should be considered Richard’s separate property. “Generally, district courts have considerable discretion concerning property distribution in a divorce proceeding and their determinations enjoy a presumption of validity.” Id. ¶ 119 (quotation simplified). Accordingly, we will reverse only when “a clear and prejudicial abuse of discretion is demonstrated.” Id. (quotation simplified). In reviewing the district court’s decision, “we will not set aside findings of fact, whether based on oral or documentary evidence, unless they are clearly erroneous, and we give due regard to the district court’s superior position from which to judge the credibility of witnesses.” Id. ¶ 121.

¶5        Finally, Danielle asserts that the district court erred in refusing to grant her motion for new trial because misstatements by Richard in the pretrial phase precluded her from obtaining funds necessary to hire an attorney and resulted in a denial of due process. “Generally, we afford trial judges wide latitude in granting or denying rule 59 motions . . . . Consequently, we generally disturb a trial court’s grant or denial of a rule 59 motion only if it constitutes an abuse of discretion.” Sanpete Am., LLC v. Willardsen, 2011 UT 48, ¶ 28, 269 P.3d 118. Furthermore, we will not reverse a denial of a motion for new trial unless the appellant can demonstrate a reasonable likelihood that the outcome would have been different in the absence of the alleged error. See Pullham v. Kirsling, 2018 UT App 65, ¶ 38, 427 P.3d 261.

ANALYSIS
I. Alimony

¶6        Danielle first asserts that the district court’s alimony award should be reversed because the court abused its discretion in imputing income to her and in calculating her needs.[3]

However, in light of the supporting evidence and the district court’s articulated findings, Danielle’s various arguments fail to convince us that the court abused its discretion.

  1. Imputation of Income

¶7        Danielle first contends that “imputing income to [her] as a practicing attorney was an abuse of discretion” because she “had not worked as an attorney for nearly 19 years” and because “there was no competent evidence that a person with her experience could obtain employment as an attorney.”

¶8        In calculating an alimony award, a court must consider, among other things, the recipient’s ability to produce income. See Utah Code Ann. § 30-3-5(8)(a)(ii) (LexisNexis Supp. 2010)[4]. When an individual “has no recent work history or [his or her] occupation is unknown, income shall be imputed at least at the federal minimum wage for a 40–hour work week.” See id. § 78B­12-203(7)(c) (LexisNexis 2012). The court may impute greater income upon entering “specific findings of fact as to the evidentiary basis for the imputation.” Id. (governing the imputation of income for child support purposes).[5] Such imputation “shall be based upon employment potential and probable earnings as derived from employment opportunities, work history, occupation qualifications, and prevailing earnings for persons of similar backgrounds in the community, or the median earning for persons in the same occupation in the same geographical area as found in the statistics maintained by the Bureau of Labor Statistics.” Id. § 78B-12-203(7)(b).

¶9        The court heard extensive evidence related to Danielle’s ability to produce income, including her education and the range of potential salaries for individuals with similar educational achievements. Danielle earned a juris doctor from Stanford Law School in 1988 and a master’s degree in wildlife biology from Brigham Young University in 1996. She received scholarships for both her legal and wildlife biology education. Danielle was admitted to the Utah State Bar in 1990 and worked at two law firms immediately after that. Her employment at the later firm was terminated in 1993.

¶10 A vocational expert retained by Richard testified that there were “260 annual openings for attorneys in the state of Utah metro area”[6] and that the entry-level annual salary for an attorney in the Provo/Orem area at the time of trial was between $61,318.40 and $70,886.40. The expert did not know how many applicants there were for the 260 attorney positions but admitted that the competition was “keen.” The expert also testified that the entry-level annual salary for a wildlife biologist began at $40,788.80. Danielle did not present any contrary expert testimony.

¶11      The court ultimately imputed $50,000 in annual income to Danielle, identifying this sum as an “average” based on the vocational evaluator’s testimony that Danielle could earn between $40,788.80 and $70,886.40. The court also made several findings about Danielle’s ability to work as an attorney. For example, it found that Danielle’s “lack of success as a lawyer was due to her failure to keep up with billable hours” but that “[t]his does not mean [she] is incapable of employment in a law job.” The court pointed to evidence of Danielle’s demonstrated negotiating and organizational capabilities, finding that her “testimony about her inability to be employed is not credible and she is fully employable.” The court also noted the half­hearted efforts Danielle made to seek assistance from the Utah Department of Rehabilitation and to pursue mediation training and employment, ultimately finding that her “efforts to become self-sufficient have been inadequate.”

¶12      On appeal, Danielle raises several objections to the district court’s income imputation, namely that the vocational expert’s testimony failed to establish that she could obtain employment as an attorney, that the court erred in concluding that her efforts to obtain employment had been inadequate, and that the court failed to judge her ability to earn against “persons of similar backgrounds in the community.” See id. § 78B-12-203(7)(b).

¶13 Danielle first argues that “[t]here was no competent evidence that [she] could obtain employment as an attorney,” because “there was no evidence concerning the number of qualified applicants” for the available positions. She concedes that the vocational expert testified that there were “260 annual openings for attorneys” but highlights the expert’s admission that he did not know how many applicants there were for those jobs. She suggests that in the absence of evidence of the number of applicants, the evidence of the existence of job openings was insufficient to support the court’s findings.

¶14 Danielle cites no authority supporting this proposition. Nor does this argument seem reasonable on these facts. Imputation, by definition, contemplates a degree of speculation. Indeed, the statute allows courts to impute income “based upon employment potential and probable earnings.” See id. § 78B-12­203(7)(b) (emphases added). And “[n]either the statute nor any case law of which we are aware requires trial witnesses to identify a position with a specific employer that meets a spouse’s employment needs.” Bond v. Bond, 2018 UT App 38, ¶ 11, 420 P.3d 53.

¶15 Perhaps more importantly, Danielle did not present any evidence that the number of applicants overwhelmed the number of available jobs such that she had no reasonable likelihood of securing employment as an attorney.[7] Thus, the only affirmative evidence before the court was that there were 260 job openings for lawyers in the Utah metro area each year and that “the entry level wage for an attorney” in the area was between $61,318.40 and $70,886.40. While the expert noted that the job market was tight, there was no evidence suggesting that the odds of Danielle securing one of the 260 jobs were so low as to make her ability to earn the imputed income improbable. We think the unrebutted evidence before the district court was sufficient to support the finding that, in light of her education, Danielle could reasonably be expected to earn $50,000 annually as an attorney. See Dahl v. Dahl, 2015 UT 79, ¶ 121 (noting that it is the province of the fact finder to weigh competing evidence and that “we will not set aside findings of fact . . . unless they are clearly erroneous”).

¶16      Danielle also challenges the court’s finding that her efforts to obtain employment were inadequate. Although not required to impute income, a finding of “voluntary unemployment or underemployment may be relevant when considering whether a party is concealing income or shirking in his or her efforts to earn income.” Reller v. Argenziano, 2015 UT App 241, ¶ 33, 360 P.3d 768 (quotation simplified). Danielle asserts that she was not voluntarily or willfully unemployed because she had applied for jobs in 1993 but had been unsuccessful in finding employment as an attorney.

¶17 According to Danielle, the court’s analysis should be limited to considering what she did “immediately after termination, not 19 years later.” However, she again does not provide any authority to support this proposition. Danielle asserts that she “applied for 2 jobs per week for up to a year after she was fired in January of 1993.” But her inability to secure employment as an attorney in 1993 is not dispositive of her ability to do so nineteen years later. Danielle’s termination and unsuccessful job search nearly two decades before the court’s ruling simply do not demonstrate clear error in the finding that she “has made no credible efforts to become employed or self-sufficient in the seven years since the parties’ separation.”

¶18      Danielle also argues that it was unreasonable for the court to determine that she could find work as an attorney when she had not worked as an attorney for the past nineteen years. In support of this assertion, she cites Spencer v. Utah State Bar, 2012 UT 92, 293 P.3d 360, in which the Utah Supreme Court enforced the Utah State Bar’s requirement that an out-of-state applicant to the Utah Bar have practiced for three out of the preceding five years in order to be admitted without taking the Utah bar examination. See id. ¶¶ 16–18. Danielle argues that like the attorney in Spencer, she does not satisfy the three-out-of-the-last-five years rule and therefore is incapable of finding employment as an attorney in Utah. But that rule applied to out-of-state attorneys who wished to practice in Utah without taking and passing the Utah bar examination. See id. ¶¶ 9–13. In contrast, Danielle did take and pass the Utah bar examination. And there is no rule preventing attorneys who have passed that examination from activating their licenses and practicing law simply because they have not practiced law recently. Indeed, the absence of a rule to that effect suggests the opposite; it appears that in the view of the Utah State Bar, attorneys are presumptively competent to practice law in Utah, even if they have not practiced law recently, so long as they have passed the Utah bar examination and are eligible to be licensed.

¶19 Finally, Danielle argues that the court “did not properly apply [the] legal standard” for imputation of income because it failed to consider “prevailing earnings for persons of similar background in the community.” See Utah Code Ann. § 78B-12­203(7)(b). Danielle asserts that the “similar background” requirement means that the court should have considered only the prevailing earnings of “attorney[s] who had been fired from their only law jobs, had not been able to find a job while applying for 2 per week for a year [after termination,] and hadn’t worked in that occupation for over 19 years.” Danielle provides no reasoned analysis to support her assertion.

¶20 It is a well-recognized canon of statutory interpretation that “we presume that the legislature used each word advisedly.” Bylsma v. R.C. Willey, 2017 UT 85, ¶ 64 n.115, 416 P.3d 595 (quotation simplified). Here, the legislature employed the term “similar” rather than “identical” or “same.” We presume that this choice reflects the legislature’s intent not to limit a consideration of prevailing earnings to individuals with identical backgrounds. We therefore see no error in the district court’s consideration of the prevailing earnings of “persons of similar background” as opposed to “persons of identical background.” See Utah Code Ann. § 78B-12-203(7)(b).

¶21      Further, Danielle fails to acknowledge the ways in which the district court did take her background into account and even demonstrated leniency in its imputation. Although Danielle had several years of work experience as an attorney—albeit dated experience—the court based its imputation on salaries for entry-level attorneys. And even then, the court imputed only $50,000 of annual income to Danielle, more than $10,000 less than the low end of the vocational expert’s estimate of attorney salaries. Thus, Danielle’s assertion that the court failed to assess her potential income based on others of similar backgrounds is not supported by the record.

¶22 In short, none of the objections Danielle raises demonstrate that the district court exceeded its discretion in imputing income to her.

  1. Determination of Need

¶23 Danielle next contends that the district court abused its discretion in determining the amount of her needs. In calculating an alimony award, courts are required to consider, among other things, “the financial condition and needs of the recipient spouse.” Utah Code Ann. § 30-3-5(8)(a)(i) (LexisNexis Supp. 2010). Generally, courts are expected to assess need based on the standard of living existing at the time of the parties’ separation. See id. § 30-3-5(8)(c).

¶24 In evaluating Danielle’s needs, the court found that her “monthly needs . . . are overstated and bear no relation to her historical needs or standard of living as of the date of separation” and that her “claimed need exceeds [Richard]’s take-home income earned during the parties’ marriage.” The court called out a number of expenses that it considered to be overstated. It also found that Danielle’s “testimony regarding finances and expenses is not credible,” that “[s]he failed to provide any credible evidence regarding expenses,” and that her evidence contradicted itself. The court contrasted this with Richard’s testimony regarding the marital standard of living, which it deemed to be “credible, detailed and specific.”

¶25      We defer to the factfinder’s advantaged position to weigh conflicting evidence and testimony, and we will not set aside findings of fact so long as evidence supports them. See Dahl v. Dahl, 2015 UT 79, ¶ 121; Bonnie & Hyde, Inc. v. Lynch, 2013 UT App 153, ¶ 18, 305 P.3d 196. Danielle’s evidence of her financial needs was largely limited to her testimony and was generally unsupported by documentation. Yet, rather than address the district court’s credibility determination, on which its assessment of her needs largely rested, Danielle asks us to reconsider the reasonableness of her expenses. We decline to do so, because she has failed to demonstrate that the district court exceeded its discretion in its credibility determination, or even to address that determination. Moreover, in fashioning an alimony award, Danielle fails to address the district court’s consideration of the extensive support Richard provided Danielle from the date of the parties’ separation to the trial, the large property settlement Danielle received in the divorce, and the court’s finding that Danielle wrongly diverted marital funds from the parties’ joint accounts at the time of their separation.

¶26 Because the district court did not exceed its discretion in imputing income to Danielle and in calculating her need, we decline to disturb its alimony award.

  1. Richard’s Intent and Presumption of Gift

¶27 Danielle next contends that the district court erred by ruling that certain real property, owned solely by Richard before the marriage, remained his individual property despite being subsequently conveyed to Richard and Danielle as joint tenants. While a “transfer of otherwise separate property to a joint tenancy with the grantor’s spouse is generally presumed to be a gift,” Bradford v. Bradford, 1999 UT App 373, ¶ 22, 993 P.2d 887, it “is not conclusive [evidence] that a gift has been made.” Jesperson v. Jesperson, 610 P.2d 326, 328 (Utah 1980). Generally, the gift must be “coupled with an evident intent to do so [to] effectively change[] the nature of that property to marital property.” Bradford, 1999 UT App 373, ¶ 22. And “[t]he trial judge has wide discretion in the division of marital property (a matter of equity) and [the court’s] findings will not be disturbed unless the record shows there has been an abuse of discretion.” Jesperson, 610 P.2d at 328.

¶28 The two cases cited above are illustrative of the central role intent plays in dividing marital property. In Jesperson, the district court found that despite the fact that the parties’ property was held in joint tenancy, “there was no intention by Plaintiff to create a one-half property interest in Defendant, nor any expectation by Defendant that he had received a one-half property interest.” Id. The Utah Supreme Court upheld the district court’s finding in light of the court’s “wide discretion in the division of marital property.” Id. In contrast, in Bradford, this court held that real property that a husband had conveyed to himself and his wife as joint tenants was marital property because the husband himself testified that he “intended at that time to give a one-half interest in the home to his wife” and nothing in the record indicated otherwise. See Bradford, 1999 UT App 373, ¶ 24.

¶29      In this case, Richard owned the property in question prior to the marriage but then conveyed it to himself and Danielle as joint tenants. At the divorce trial, Richard was asked why the house had been retitled jointly:

Q. Okay. You heard [Danielle] testify that the Woodland Hills house was titled jointly. How did that occur?

Ahhh, I believe it was several months after we were married she demanded that I put her name on the deed for the Woodland Hills house. She claimed that if I wouldn’t do that she was going to leave me and leave the marriage.

Q. So you acquiesced in that?

A. I did.

Q. Did you intend for your premarital contribution to be a gift to her?

A. No, I didn’t.
. . .

Q. Do you consider your premarital contribution [of the Woodland Hills house proceeds] to be a gift to [Danielle]?

A. No, I don’t.

Q. Do you consider it a gift to the marriage?

A. No.

¶30      The court explained in its ruling on Danielle’s motion for new trial that “there was no evidence of intent by [Richard] to change the nature of his separate property contributions to marital property” and that the court had therefore exercised its equitable discretion to award Richard his premarital property.[8] In light of Richard’s testimony that he added Danielle’s name to the deed for the property only because Danielle threatened to leave him if he did not and the lack of any additional evidence, apart from the transfer itself, indicating that Richard intended to make a gift of the property, we conclude that the district court did not exceed its discretion in determining that Richard’s property retained its premarital character.

III. Due Process

¶31 Finally, Danielle contends that she “was denied due process by [Richard’s] misstatements to the court regarding financial matters, which resulted in [Danielle] having inadequate support to employ counsel” because the district court refused to release funds from the estate to her. She claims that this was a denial of due process and that the district court therefore should have granted her motion for new trial.

¶32 First, we are skeptical of Danielle’s claim that the funds she had prior to trial were insufficient for her to hire legal counsel. Danielle concedes that in addition to her temporary alimony award,[9] the court released $10,000 to each party on two separate occasions. And the parties further stipulated to a release of another $10,000 to each party. We also doubt Danielle’s claim that she was utterly helpless in preparing for trial without an attorney, as she is herself an attorney, having both graduated from Stanford Law School and passed the Utah bar examination.

¶33 In any event, Danielle has failed to adequately brief this issue. See Utah R. App. P. 24(a)(8) (“The argument must explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal.”). She claims to have been denied due process but fails to discuss any legal standards regarding due process. Her argument appears to assume that she had a due process right to representation by counsel in the divorce proceedings, but she provides no legal support for that proposition. See, e.g., State v. Young, 853 P.2d 327, 354 (Utah 1993) (noting that there is generally “no right to counsel in a civil case”).[10] She also makes cursory reference to the “doctrine of unclean hands” but fails to discuss this doctrine or explain how it applies in the context of her due process argument. Instead of supporting her due process claim with reasoned legal analysis, Danielle peppers her brief with conclusory statements asserting that various actions by Richard and the court “denied her due process.” The rest of her argument consists of a list of complaints regarding the limitations she faced in preparing her case without an attorney in light of her claimed disabilities.

¶34 Essentially, Danielle’s argument asks us to hold that she was denied due process simply because she was not able to prepare her case in the manner that she would have preferred and because the court’s rulings did not come out in her favor. This does not establish an adequate basis for a due process claim, and we therefore conclude that Danielle has failed to carry her burden of persuasion on this issue.[11]

CONCLUSION

¶35 The district court’s factual findings supporting its imputation of income to Danielle and its assessment of her needs were supported by sufficient evidence and not clearly erroneous. Similarly, the court did not exceed its discretion by crediting Richard’s testimony regarding his separate premarital property and awarding him a credit for the value of that property. Further, we reject Danielle’s due process claims because she has failed to adequately brief them.[12] Accordingly, we affirm the district court’s findings and conclusions and its denial of Danielle’s motion for new trial.[13]

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

 

[1] Assisted by Leslie W. Slaugh.

[2] As is our practice in cases where both parties share a last name, we refer to the parties by their first names with no disrespect intended by the apparent informality.

[3] Danielle also challenges the court’s calculation of Richard’s income. Specifically, she claims that the court should have considered Richard’s W-2 for 2004. Danielle has not demonstrated that this argument was preserved. See Utah R. App. P. 24(a)(5). In fact, it does not appear that the disputed W-2 was admitted into evidence by the district court; we have not been able to locate the W-2 in the record on appeal, and Danielle does not provide a record citation to where the W-2 may be found. We therefore do not address this claim further. See id. R. 24(a)(8); id. R. 24(a)(12)(C); id. R. 24(e).

[4] Because the language of some statutes have changed, we cite to the version of the statutes in effect at the time of trial.

[5] “Although this section of the Utah Code addresses imputation for the purposes of child support, it is also relevant to imputation in the alimony context.” Fish v. Fish, 2010 UT App 292, ¶ 14 n.5, 242 P.3d 787.

[6] The expert explained that the term “state of Utah metro area” referred to the region between Provo and Ogden.

[7] Danielle cites one case for the proposition that, when determining “a recipient’s ‘income and resources,’ [the government] must ensure that any such income or resources ‘actually exist,’ be not ‘fictitious’ or ‘imputed,’ and ‘be actually on hand or ready for use when it is needed.’” See Heckler v. Turner, 470 U.S. 184, 200 (1985). But that case concerned public assistance from the government, not alimony. Moreover, the quoted language was describing a Social Security Board “policy statement applicable to various aid programs” and was not a legal holding by the Court. Id.

[8] Danielle was also awarded premarital assets in the amount of $8,482.

[9] At the outset of the divorce proceedings, the commissioner made a temporary award of $3,915 per month, of which half was child support and half was alimony. In arriving at this amount, the commissioner imputed to Danielle an after-tax income of $1,850 per month.

[10] We note that Danielle does not allege the court refused to allow her to be represented by counsel at her own expense. In such a case, our analysis would be different.

[11] Danielle also includes three claims regarding the adequacy of the record in her briefing of this issue. In all three, she essentially argues that a new trial should be granted due to the district court’s failure to record certain post-trial proceedings. We reject these claims because Danielle did not show “that the issue was preserved” or provide a “statement of grounds for seeking review of an issue not preserved.” See Utah R. App. P. 24(a)(5). Moreover, as the appellant, Danielle bears the burden of establishing a record adequate to support her claims on appeal. See, e.g., Reperex, Inc. v. May’s Custom Tile, Inc., 2012 UT App 287, ¶ 13, 292 P.3d 694; see also Utah R. App. P. 11(e)(2). This burden entails either providing a transcript of the relevant hearings or, where no transcript can be made, reconstructing the proceedings through the participants’ affidavits. See id. R. 11(g); see also Ajinwo v. Chileshe, 2018 UT App 39, ¶ 3, 420 P.3d 51. Danielle has not done the latter, and thus unable to carry her burden on appeal of showing prejudicial error.

[12] Danielle requests an award of fees on appeal. As she has not prevailed on appeal, we deny this request. See Leppert v. Leppert, 2009 UT App 10, ¶ 29, 200 P.3d 223. Also, Danielle is a pro se litigant and therefore not entitled to fees. See White v. White, 2017 UT App 140, ¶ 37, 402 P.3d 136.

[13] To the extent that we have not addressed other points or subpoints raised in Danielle’s briefs, we have determined that they lack merit and decline to separately analyze them. See Lucas v. Wells Fargo Bank, NA, 2013 UT App 117, ¶ 14 n.4, 302 P.3d 1240; see also Centennial Pointe Owners’ Ass’n v. Onyeabor, 2009 UT App 325U, para. 1 n.1 (declining to address some of a pro se appellant’s “inadequately briefed arguments”); Delta Delta Delta v. Theta Phi House Corp., 2009 UT App 133U, para. 5 n.1 (“Other issues raised by [the appellant] are without merit, and we decline to analyze them in detail.”).

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