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Tag: contract

Holt v. Holt – 2024 UT App 6 – reasonable time rule

Holt v. Holt – 2024 UT App 6

THE UTAH COURT OF APPEALS

RHONDA S. HOLT, Appellee,

v.

CHRISTOPHER JOHN HOLT, Appellant.

Opinion

No. 20220090-CA

Filed January 11, 2024

Third District Court, Salt Lake Department

The Honorable Andrew H. Stone

No. 044902588

Ben W. Lieberman, Attorney for Appellant

Matthew A. Steward and Katherine E. Pepin,

Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which

JUDGES MICHELE M. CHRISTIANSEN FORSTER and

DAVID N. MORTENSEN concurred.

ORME, Judge:

¶1       Christopher and Rhonda Holt’s divorce was finalized in 2004 after the entry of a stipulated settlement agreement and the district court’s entry of a divorce decree. Per the divorce decree, Rhonda[1] was awarded a commercial property in which she operated a salon and Christopher was awarded an equity interest in the property redeemable “when the property is sold.” From the time the court entered the divorce decree, Rhonda operated the salon and did not sell the property or satisfy Christopher’s outstanding interest.

¶2        Years later, Christopher petitioned the district court asking that it require Rhonda to sell the property and satisfy his equity interest, first on the rationale of modifying the divorce decree and later on the rationale of enforcing it. He contended that because “Utah law implies a reasonable time under the circumstances,” the court should compel Rhonda to sell the property. The district court ultimately determined that Rhonda had no obligation to sell the property and declined to impose any deadline by which she had to do so. But under Utah law, a reasonable time for performance will be implied if a contract fails to include a specific time for performance. And on the facts of this case, we conclude that a reasonable time for Rhonda’s performance extends to the time when she ceases to operate a salon on the property.

BACKGROUND

¶3        Christopher and Rhonda were married in 1988. In 2004, Rhonda filed a complaint for divorce, and soon after, the district court granted Rhonda’s motion for default judgment. The court then entered a divorce decree based on the parties’ Stipulation and Settlement Agreement (the stipulation). The record reflects that when the stipulation was entered, each party was represented by counsel. Christopher’s counsel withdrew after the stipulation was filed, just prior to entry of the decree.

The Stipulation and the Decree

¶4        The stipulation included an integration clause indicating that it was the parties’ final agreement. Specifically, it was “a complete settlement of all rights either party may have in the other’s property” and any “valid” modification or waiver of the stipulation’s terms must be “in writing and signed by both parties before a notary public.” The stipulation provided that neither party would receive alimony. Pursuant to the stipulation, the district court entered findings of fact and conclusions of law and a divorce decree that mirrored the provisions of the stipulation.

¶5        At the heart of this matter is section 9(B) of the decree. First, it awarded Rhonda the salon property and ordered Christopher to “execute a quit claim deed” in her favor. Second, it reserved for Christopher “an equitable lien for one-half of the net equity in the property when the property is sold.” Third, it defined net equity as “the gross selling price less realtor commissions and normal closing costs.” And fourth, it reiterated that Christopher “shall only be entitled to his equity when the property is sold.” The preceding section—section 9(A)—awarded Rhonda the parties’ home “free and clear from any claim by” Christopher and instructed that Christopher was to “execute a quit-claim deed in favor of” Rhonda within ten days following entry of the decree. It is noteworthy that section 9(B), in contrast to section 9(A), did not include a specific timeframe related to Rhonda’s satisfaction of Christopher’s equity interest in the property.

The Petition to Modify the Decree

¶6        In October 2018, over fourteen years after the decree was entered, Christopher filed a petition to modify the decree, claiming “a material and unforeseeable substantial change of circumstances.” Specifically, the petition indicated that “the parties did not anticipate that fourteen years would pass” during which Christopher’s equity interest in the property would go unpaid. Christopher sought an order compelling Rhonda to either sell or refinance the property and to satisfy Christopher’s outstanding interest.

¶7        In response, Rhonda moved to dismiss the petition on the ground that Christopher had failed to support his assertion of a material and unforeseeable change in circumstances warranting the requested modification of the decree. Rhonda acknowledged that Christopher would be entitled to have his equity interest in the property cashed out, but she argued that under the plain language of the decree, he was entitled to payment only when the property was sold, which had not yet occurred. Rhonda noted that the parties’ circumstances had not materially changed since the court entered the decree in 2004—she had not sold or refinanced the property and she continued to operate her salon on the property. Quoting Land v. Land, 605 P.2d 1248 (Utah 1980), Rhonda argued that “when a decree is based upon a property settlement agreement, forged by the parties and sanctioned by the court, equity must take such agreement into consideration.” Id. at 1250–51. She noted our Supreme Court’s position that “[e]quity is not available to reinstate rights and privileges voluntarily contracted away simply because one has come to regret the bargain made.” Id. at 1251. Rhonda asserted that the decree does not impose a deadline by which she had to sell the property and “clearly withholds distribution” of Christopher’s interest in the property until it is sold. Thus, she maintained that Christopher “failed to demonstrate that there has been a substantial change in circumstances that was not [contemplated] by the parties at the time the decree was entered.”

¶8        In his opposition to the motion to dismiss, Christopher claimed that he was not represented by counsel during the divorce action and thus was not involved in drafting the decree.[2] He also claimed that he relied on representations Rhonda made both before and after entry of the decree that she would refinance or sell the property “in the very near future to pay him out.” Christopher asserted that prior to the divorce, the parties had received an $84,000 loan from his parents to purchase the property and that when his parents passed away some years later, $84,000 was taken out of his inheritance to pay the obligation. Christopher argued that under the plain language of the decree and under Rhonda’s suggested interpretation of section 9(B), he “could die and not receive any benefit from the agreement” and he could potentially lose his interest in the property if Rhonda were to pass away or transfer the property to someone else, thereby avoiding the satisfaction of Christopher’s equity interest.

¶9        Rhonda responded that the petition before the court was one to modify the decree based on a theory of material change of circumstances—not one to enforce the decree. She argued that this was really a situation of unilateral mistake on his part, and she reiterated her position that hindsight and dissatisfaction with a prior stipulation are not adequate grounds for relieving parties of their contractual obligations. Rhonda again acknowledged her obligation to pay Christopher his share of the equity when the property is sold, but she pointed out that the decree did not specify a sale deadline. She also noted that it would have been very easy to incorporate such a date into the stipulation and the decree if that had been the parties’ intention. To support this position, Rhonda pointed out that section 9(A) of the decree imposed a ten-day deadline for Christopher’s delivery of a quitclaim deed to the parties’ home, while section 9(B), which dealt with the sale of the salon property, included no provision concerning the time for performance.

¶10      Christopher requested that the court hold an evidentiary hearing concerning Rhonda’s motion to dismiss. But the district court denied this request and also denied Rhonda’s motion to dismiss. Eventually, a trial date was set. And at the ensuing bench trial,[3] at which both Christopher and Rhonda testified, the district

court granted Rhonda’s motion for a directed verdict and dismissed the petition on the ground that Christopher had failed to provide sufficient evidence to support the petition.[4]

The Motion to Enforce the Decree

¶11      In July 2021, Christopher filed a motion to enforce the decree in a renewed effort to compel Rhonda’s sale of the salon property. Christopher argued that under the principles articulated in New York Avenue LLC v. Harrison, 2016 UT App 240, 391 P.3d 268, cert. denied, 393 P.3d 283 (Utah 2017), the decree’s lack of an “expressly-stated time[] for performance” signified that the court should impose a “reasonable time under the circumstances” by which Rhonda had to sell the property and that such a time had already passed. See id. ¶ 32 (quotation simplified).

¶12      In response, Rhonda argued that the motion to enforce was simply Christopher’s attempt to get a “third bite at the apple.” Similar to her response to the petition to modify, Rhonda argued that Christopher failed to present sufficient credible evidence to support his contention that the parties’ intent was anything other than to afford Christopher his interest in the property when Rhonda sold it. She contended that because the salon on the property was her “sole source of income,” the parties deliberately omitted any specific performance deadline, providing instead— and explicitly emphasizing—that Christopher would be entitled to payment for his interest when, and only when, the property was sold. Rhonda asserted that it would therefore be inappropriate for the court to impose a reasonable time by which she had to sell the property when the decree’s plain language was straightforward and explicitly did not include one.

¶13 In October 2021, Commissioner Russell Minas heard argument on the motion. The commissioner concluded that “[b]ecause there [was] no deadline provided by the parties, Utah law implies a reasonable time under the circumstances,” see id., which he determined to be “until [Rhonda] ceases to use the Property to operate a business.” The commissioner thereafter issued his recommendation in the matter. See Utah R. Civ. P. 108(a) (“A recommendation of a court commissioner is the order of the court until modified by the court.”).

¶14 Christopher subsequently filed an objection to the recommendation pursuant to rule 108 of the Utah Rules of Civil Procedure. See id. (“A party may file a written objection to the recommendation within 14 days after the recommendation is made in open court[.]”). Christopher acknowledged that the commissioner correctly determined that the reasonable-time rule articulated in New York Avenue applied to this case. But he challenged the commissioner’s application of the rule. He argued that the “reasonable time under the circumstances is determined by looking to the intention of the parties at the time of the formation of the contract” and that in so doing, it is clear the reasonable-time threshold had already passed because neither the stipulation nor the decree intended for Rhonda “to retain the Property and all equity so long as she operated a business.” Rhonda yielded to the commissioner’s interpretation of a reasonable time, arguing that the commissioner correctly defined a reasonable time under all the circumstances.

¶15 The district court heard argument on Christopher’s objection.[5] The court overruled Christopher’s objection from the bench and modified the commissioner’s recommendation. The court concluded that a reasonable time for performance should not be implied here because, per the language of the decree, Rhonda’s deadline to sell the property was whenever she chose to sell it and that “it would be inappropriate for the Court to impose a date by which the Property must be sold.”

¶16      Christopher appeals.

ISSUES AND STANDARDS OF REVIEW

¶17 Christopher primarily argues that the district court erred in concluding that the reasonable-time rule was inapplicable here. “We interpret a divorce decree according to established rules of contract interpretation.” Mitchell v. Mitchell, 2011 UT App 41, ¶ 5, 248 P.3d 65 (quotation simplified), cert. denied, 255 P.3d 684 (Utah 2011). Accordingly, we review the district court’s interpretation of the decree for correctness. See Mintz v. Mintz, 2023 UT App 17, ¶ 14, 525 P.3d 534, cert. denied, 531 P.3d 730 (Utah 2023).

¶18 Christopher also argues that the court “exceeded the scope” of his objection when it addressed “matters not before the court.” The scope of a court’s review of a commissioner’s recommendation turns on the correct interpretation of the applicable rule of civil procedure. Cf. Zions Bancorporation, NA v. Schwab, 2023 UT App 105, ¶ 12, 537 P.3d 273 (holding that the district court’s “statutory interpretation” is reviewed “for correctness”) (quotation simplified); Bermes v. Summit County, 2023 UT App 94, ¶ 28, 536 P.3d 111 (stating that a district court’s “interpretation of a set of statues or ordinances” is reviewed “for correctness”) (quotation simplified), cert. denied, 2023 WL 9058850 (Utah 2023).

ANALYSIS

I. Reasonable Time Under the Circumstances

¶19      Christopher first challenges the district court’s conclusion that “it would be inappropriate for the Court to impose a date by which the property must be sold.” He asserts that the court’s conclusion is incorrect, that the reasonable-time rule is applicable here, that a reasonable time has long since elapsed, and that Rhonda should be compelled to sell the property and satisfy his equity interest. We determine that the district court’s conclusion was incorrect and conclude that the reasonable-time rule is applicable in this matter. We then determine what constitutes a reasonable time for Rhonda’s performance under the circumstances.

¶20 A stipulated divorce decree represents an enforceable contract between divorcing spouses, and so “we interpret the parties’ decree according to established rules of contract interpretation.” Thayer v. Thayer, 2016 UT App 146, ¶ 17, 378 P.3d 1232 (quotation simplified). Of course, “the cardinal rule in contract interpretation is to give effect to the intentions of the parties as they are expressed in the plain language of the contract itself,” and “we construe a contract to give effect to the object and purpose of the parties in making the agreement.” New York Avenue LLC v. Harrison, 2016 UT App 240, ¶ 21, 391 P.3d 268 (quotation simplified), cert. denied, 393 P.3d 283 (Utah 2017). Key to the issue before us, our principles of contract interpretation further provide “that if a contract fails to specify a time of performance the law implies that it shall be done within a reasonable time under the circumstances,” id. ¶ 32 (quotation simplified), which analysis entails a question of fact, see iDrive Logistics LLC v. IntegraCore LLC, 2018 UT App 40, ¶ 55, 424 P.3d 970, cert. denied, 425 P.3d 803 (Utah 2018).

¶21 The parties agree on the basic meaning of the terms contained in section 9(B) of the decree. They accept that under section 9(B), Rhonda was awarded ownership of the property, Christopher was required to “execute a quit claim deed” in Rhonda’s favor while reserving for himself “an equitable lien for one-half of the net equity of the property when the property is sold,” and that Christopher would “only be entitled to his equity when the property is sold.” Further, both parties acknowledge that section 9(B) does not include a date by which the property was required to be sold. Based on this understanding, Christopher argues that the district court’s conclusion was incorrect, that the reasonable-time rule does apply, and that Rhonda should be compelled to sell the property immediately, a reasonable time having long since come and gone, or else his interest “could remain trapped forever.”

¶22 Christopher asserts that under our decision in New York Avenue, the district court should be required to apply the reasonable-time rule based on the reality that section 9(B) did not include a specified time of performance. In that case, a seller contracted with a buyer for the sale of certain real estate. 2016 UT App 240¶ 3. Due to unforeseen complications, the transaction was not settled on the date intended by the contract. Id. ¶¶ 5–6. The buyer, still desiring to be bound by the terms of the contract, elected to begin making monthly settlement extension payments to the seller, as provided for in the contract, thus advancing the contract’s intended settlement date to the last day of the month associated with the buyer’s settlement extension payment. Id. ¶ 6. While the contract provided terms to extend the settlement date, it failed to specify a final date regarding the ultimate settlement of the contract or to define the maximum number of settlement extensions available to the parties. Id. ¶ 5. After numerous settlement extensions, the seller sought to terminate the contract. Id. ¶¶ 8–9. Following a summary judgment hearing, the district court determined that the contract entitled the buyer to extend the settlement deadline indefinitely, “so long as valid tender of the extension payment was made.” Id. ¶ 12 (quotation simplified).

¶23 On appeal, we held, in relevant part, that because the contract did “not limit the number of extension payments,” it did “not provide a date by which [seller] must perform its core obligation to complete the purchase of the Property.” Id. ¶ 34. Accordingly, we noted “that if a contract fails to specify a time of performance the law implies that it shall be done within a reasonable time under the circumstances.” Id. ¶ 32 (quotation simplified). And we concluded that the district court erred in granting summary judgment that countenanced an indefinite extension of the time for performance. Id. ¶¶ 29, 32.

¶24 Similar to the seller in New York Avenue, Christopher is concerned that if we conclude that the reasonable-time rule does not apply to section 9(B) of the decree, there exists a possibility that Rhonda could opt to never sell the property and thereby retain all of the equity indefinitely. In reviewing the conclusions of the court, we must evaluate the plain language of section 9(B) of the decree to determine if the district court correctly held that the reasonable-time rule did not apply.

¶25 Based on the plain language of section 9(B), it is obvious that nowhere in its four sentences is there any provision regarding a specific date by which Rhonda must sell the property. Rhonda argues on appeal that it would be improper for the court to impose a reasonable time for performance because, unlike the contract at issue in New York Avenue, section 9(B) did not intend to “create an obligation” for the sale of the property. She further contends that sale of the property is a condition precedent, and thus, she is not required to sell the property but that if she does, Christopher would then be entitled to receive his share of the equity. We are not persuaded by Rhonda’s argument. The intent of the decree was to “resolve all issues between” the parties. Therefore, while section 9(B) was not intended to be a sales agreement, it was also not intended to allow Rhonda to indefinitely prevent the satisfaction of Christopher’s interest. See Brady v. Park, 2019 UT 16, ¶ 53, 445 P.3d 395 (“When we interpret a contract we first look at the plain language of the contract to determine the parties’ meaning and intent.”) (quotation simplified). Accordingly, we agree with Christopher that a reasonable time for performance should be implied. Thus, we conclude that the district court incorrectly determined that the reasonable-time rule was inapplicable here. We next determine what the reasonable time should be, and here we part ways with Christopher and endorse the view adopted by the commissioner.

¶26      Due to the nature of these proceedings and Christopher’s decision not to request transcripts of the prior hearings, we are unable to consider the parties’ presentations before the commissioner or the district court, including not only the arguments they made but also any evidence they introduced or evidentiary proffers they made. Even so, Christopher contends that “[a] reasonable time is defined by the parties’ intentions at the time the contract is formed, not when the dispute arises,” and that because the parties did not intend for his interest to remain unsatisfied this long, a reasonable time has long since elapsed. Conversely, Rhonda contends that “[t]he language of the Decree demonstrates that the Parties intended for [her] to be able to operate her business from the Property to support herself indefinitely.”

¶27 In consideration of what constitutes a reasonable time under the circumstances, we must discern the parties’ intentions from the language of their contract—the stipulated decree—and the relevant circumstances, but in the absence of whatever evidence might have been adduced or proffered at the hearings as we have not been favored with the transcripts. We are mindful that neither party was awarded alimony in this case, meaning Rhonda’s livelihood depended on her continued ability to operate her salon business. And it is significant that not only was no time for Rhonda‘s performance specified, but it was emphasized that Christopher shall be entitled to his equity only “when the property is sold.” The conclusion is inescapable, as determined by the commissioner, that the intention of the parties, as reflected in the language they employed, was that Rhonda’s obligation to sell the property and cash out Christopher would be triggered when she ceased to operate the salon business. That occurrence would equate to the reasonable time for her performance under the unique circumstances of this case.

II. Scope of District Court Review

¶28      Christopher next challenges the district court’s expansive consideration of the commissioner’s recommendation, arguing that the court “exceeded the scope” of his objection by addressing “matters not before the court.” We disagree with Christopher’s position. A plain reading of rule 108(f) of the Utah Rules of Civil Procedure requires the district court to make “independent findings of fact and conclusions of law based on the evidence.” And our jurisprudence makes clear that a district court has plenary responsibility for “what is essentially its own order.” Somer v. Somer, 2020 UT App 93, ¶ 12, 467 P.3d 924 (quotation simplified). Accordingly, we conclude that the court did not exceed the scope of its authority in reviewing the commissioner’s recommendation without being confined to the contours of the objection made by Christopher.

¶29      “We interpret court rules, like statutes and administrative rules, according to their plain language.” Day v. Barnes, 2018 UT App 143, ¶ 12, 427 P.3d 1272 (quotation simplified). Rule 108 provides a procedure by which a party may object to a commissioner’s recommendation and request that the district court review the recommendation. Within this framework, subsection (a) first indicates that a commissioner’s recommendation “is the order of the court until modified by the court” and that “[a] party may file a written objection to the recommendation.” Utah R. Civ. P. 108(a) (emphasis added). Next, subsection (b) explains that any objection “must identify succinctly and with particularity the findings of fact, the conclusions of law, or the part of the recommendation to which the objection is made and state the relief sought,” and it also provides that the accompanying memorandum of support “must explain succinctly and with particularity why the findings, conclusions, or recommendation are incorrect.” Id. R. 108(b). Lastly, subsection (f) directs that “[t]he judge will make independent findings of fact and conclusions of law based on the evidence, whether by proffer, testimony or exhibit, presented to the judge, or, if there was no hearing before the judge, based on the evidence presented to the commissioner.” Id. R. 108(f) (emphasis added). Thus, the plain language of the rule “does not provide for an appeal-like review of a commissioner’s decision, but instead requires independent findings of fact and conclusions of law based on the evidence.” Day, 2018 UT App 143, ¶ 16 (quotation simplified).

¶30 In the case at hand, after the commissioner made his recommendation, Christopher filed an objection wherein he explained that while the commissioner “correctly found” that the reasonable-time rule applied to section 9(B) of the decree, he erred because the recommendation was not based on evidence that, at the time the decree was entered, the parties intended that Rhonda would “retain the Property and all equity so long as she operated a business.” After a hearing on Christopher’s objection, the court modified the recommended order based on its independent determination that it would be “inappropriate” to apply the reasonable-time rule and “to impose a date by which the Property must be sold.” Christopher now argues that the court’s decision to modify the recommendation concerning the reasonable-time rule “exceeded the scope” of his objection because, as the objecting party, he “was entitled to define the scope of his objection, and he did so narrowly.”

¶31 We reject this argument. As just explained, when faced with an objection to a commissioner’s recommendation, the responsible district court judge is expected to make “independent findings of fact and conclusions of law based on the evidence.” Utah R. Civ. P. 108(f) (emphasis added). We have previously explained that because a commissioner’s recommendation is “the order of the district court until modified by that court,” “it would make little sense that the district court would be limited in reviewing what is essentially its own order.” Day, 2018 UT App 143, ¶ 18 (quotation simplified). Therefore, while rule 108 provides that the objecting party must proceed with “particularity” concerning the basis of the objection, Utah R. Civ. P. 108(b), that same particularity does not circumscribe the authority of the reviewing court and does not limit the reviewing court’s ability to make its own findings and conclusions, see id. R. 108(f). Thus, notwithstanding Christopher’s “narrowly” defined objection, the court’s modification of the commissioner’s recommendation did not exceed the appropriate scope of review in a procedural sense, even though we conclude that the court’s substantive conclusion was incorrect.

CONCLUSION

¶32 The district court erred because the reasonable-time rule should have been applied in this case, and the reasonable time to be imputed is essentially the time as determined by the commissioner, namely when Rhonda ceases operating her salon on the property. We remand so the court can adjust its order accordingly. At the same time, we conclude that the court did not exceed the scope of its review authority under rule 108.

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


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

[2] Christopher, then represented by new counsel, may have been confused about this because the decree was entered on the basis of his default. But the record in this case demonstrates that Christopher was represented by counsel right up until the time the decree was entered on the basis of his stipulated default.

[3] With no transcript of the bench trial submitted by Christopher, we rely on the minutes of the proceedings found in the record. Cf. In re A. Dean Harding Marital & Family Trust, 2023 UT App 81, ¶ 85, 536 P.3d 38 (stating that “when an appellant fails to provide an adequate record on appeal, we presume the regularity of the proceedings below”) (quotation simplified).

[4] In May 2021, Christopher appealed, requesting that this court review the dismissal of the petition to modify and “all subsidiary rulings and orders leading to final judgment,” but he moved to voluntarily dismiss this appeal shortly thereafter, which motion this court granted.

[5] As with the bench trial, Christopher did not request a transcript of this hearing and we therefore rely on the minutes of the proceedings found in the appellate record to understand what occurred during the hearing. See supra note 3. While it perhaps is not always necessary to include a transcript of hearings in the appellate record, we have previously determined that a transcript “is necessary in cases where the court issued an oral ruling at the conclusion of the hearing and where the court’s eventual written order is silent with regard to the matter being challenged.” In re A. Dean Harding Marital & Family Trust, 2023 UT App 81, ¶ 86, 536 P.3d 38“In such cases, a transcript of the hearing is necessary for us to effectively review the challenged issue” because without it “we do not know what evidence or argument the court relied on in rendering any decision.” Id. While we do have a spartan description of the hearing included in the court’s minutes, which is not without utility, we discourage parties from relying wholly on the court’s minutes when a transcript is readily available.

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Thayne v. Thayne – 2022 UT App 122 – Change of Circumstances

2022 UT App 122

THE UTAH COURT OF APPEALS

STEPHANIE THAYNE,

Appellee,

v.

DEVIN THAYNE,

Appellant.

Opinion

No. 20200598-CA

Filed November 3, 2022

Second District Court, Ogden Department

The Honorable Ernest W. Jones

No. 204900701

Devin Thayne, Appellant Pro Se

David C. Blum, Attorney for Appellee

SENIOR JUDGE RUSSELL W. BENCH authored this Opinion, in which JUDGE GREGORY K. ORME and JUSTICE JILL M. POHLMAN concurred.[1]

BENCH, Senior Judge:

¶1        Devin Thayne appeals the district court’s order granting Stephanie Thayne’s motion to dismiss his petition to modify child and spousal support. We agree with the reasoning of the district court and affirm.

BACKGROUND

¶2        Devin and Stephanie[2] were married in June 2010 and separated in April 2019. At the time of their separation, the parties lived in California, and their divorce proceedings therefore commenced in California. As part of their divorce proceedings, a hearing was held on December 10, 2019. At the hearing, the parties came to an agreement regarding custody and visitation schedules of their three minor children, and the court entered a stipulation and order addressing those issues that same day. At this time, both parties were anticipating a relocation to Utah, and the stipulation recognized this “period of transition” and noted, “Further order as to custody will be addressed in Utah . . . if necessary.”

¶3        At the December hearing, the parties also stipulated as to other issues, including property division, spousal support, and child support. This stipulation mentioned the impending move to Utah and the likelihood that, due to the move, “[Devin’s] annual income of $141,000 will decrease to approximately $90,000– $100,00 per year.” The stipulation also provided that Devin would pay $840 per month in spousal support, beginning January 1, 2020, and continuing for, at most, only four years (roughly half the length of the nearly nine-year marriage), and that Stephanie was “to make reasonable efforts to become self-supporting within a reasonable period of time.” Additionally, the stipulation provided that Devin would maintain health insurance for the children and that “upon [Stephanie’s] employment,” she would also provide health insurance for the children “if available at no or reasonable cost through her employment.”

¶4        The parties did, as planned, move to Utah in December 2019, and Devin’s income did resultingly drop to $90,000. Thereafter, on February 18, 2020, the California court entered a judgment of dissolution (the Judgment). The Judgment incorporated the parties’ stipulations made at the December hearing and finalized the divorce.

¶5        About two months later, on April 22, 2020, Devin filed a petition to modify the Judgment in Utah. Devin argued that “his dramatic reduction in income” amounted to a “substantial and material change in circumstances” that warranted a change to the previously ordered spousal support and child support amounts. Devin argued the changes were also warranted by a change in Stephanie’s income, stating, “[U]pon information and belief, Stephanie has initiated employment or other means to generate a regular and consistent income.” Additionally, Devin’s petition to modify raised issues surrounding the mechanics of the children’s visitation, arguing that the Judgment “fails to detail how the parties are to exchange the minor children” considering that the two older children were in school and the youngest child was not yet school-aged. He requested that he be allowed to return all three children in the morning instead of having to wait to return the youngest child at noon, as provided for in the Judgment.

¶6        Stephanie responded with a motion to dismiss or, alternatively, a motion for summary judgment. She argued that Devin’s petition to modify rested on changes in circumstances that were foreseeable when the Judgment was entered and that, therefore, his petition must be dismissed.

¶7        The district court granted Stephanie’s motion to dismiss in its entirety. The court determined that there was no indication that the Judgment was not already calculated based on Devin’s anticipated reduction in salary to $90,000–$100,00 per year. The court explained,

The order was finalized and entered after the move and the initial payments were set to be made while the parties already were to live in Utah. It stretches the imagination of the Court to the breaking point to believe that the California court would enter an order fully expecting income to have dropped before even the first payment would be made.

As to spousal support, the court recognized that “differences in earning potential . . . should be given some weight in fashioning the support award” and that this factor was presumptively already considered by the California court making the award. (Quotation simplified.) And as to visitation, the court pointed out that the issue was addressed in the Judgment, which specifically provided that the children would be delivered “at school or if no school at noon.” The court therefore determined that it did not find a “significant unforeseen change in circumstances” to support modification. (Emphasis added.) Devin now appeals.

ISSUE AND STANDARD OF REVIEW

¶8        Devin argues that the district court erroneously dismissed

his petition to modify, which dismissal was based on its determination that the facts alleged in the petition did not show an unforeseen substantial change in circumstances that would warrant modification. “We review a decision granting a motion to dismiss for correctness, granting no deference to the decision of the district court.” Miller v. Miller, 2020 UT App 171, ¶ 10, 480 P.3d 341 (quotation simplified).[3]

ANALYSIS

¶9        A party may seek changes to an award of spousal or child support when there has been a substantial change of circumstances not addressed in the divorce decree. See Utah Code Ann. § 30-3-5(11)(a) (LexisNexis Supp. 2022) (“The court has continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantial material change in circumstances not expressly stated in the divorce decree or in the findings that the court entered at the time of the divorce decree.”); id. § 78B-12-210(9)(a) (“A parent, legal guardian, or the office may at any time petition the court to adjust the amount of a child support order if there has been a substantial change in circumstances.”). But the changes in circumstances that Devin raises in his petition that have occurred since the stipulation was drafted in December 2019—namely, his decreased income and Stephanie’s availability for employment—were foreseen and addressed in that stipulation. Furthermore, these changes in circumstances that Devin raises had already occurred by the time the Judgment incorporating that stipulation was eventually entered in February 2020.

¶10 The Judgment orders Devin to pay “child support in the amount of $2,160 per month” and “spousal support in the amount of $840 per month” commencing in January 2020, shortly after relocation. And in the same section, the Judgment clearly recognizes Devin’s impending income reduction: “[Devin] anticipates that [his] annual income of $141,000 will decrease to approximately $90,000–$100,000 per year due to the relocation of himself and his employment from California to Utah.” Thus, the Judgment anticipated Devin’s lowered income, and we agree with the district court that it is implausible that the California court would have made support awards based on Devin’s old income when it recognized that a much lower income would be in effect before any payments became due.

¶11      This same support section of the Judgment also anticipates Stephanie’s future employment. The Judgment limits the maximum length of spousal support to four years[4] and states, “[Stephanie] is placed under a Gavron Admonition to make reasonable efforts to become self-supporting within a reasonable period of time.”[5] Further, the Judgment clarifies that “upon [Stephanie’s] employment[,] [she] shall obtain health insurance for the parties[’] minor children if available at no or reasonable cost through her employment.” In fact, even Devin’s petition to modify recognized that the Judgment addresses Stephanie’s future employment:

[U]pon information and belief, Stephanie has initiated employment or other means to generate a regular and consistent income. Indeed, the Judgment indicates Stephanie was required to make efforts to secure full-time employment. As such, Stephanie either has secured regular employment or now possesses the ability to secure gainful full-time employment. At a minimum, Stephanie should be imputed income at a reasonable amount considering her education, training, certificates, employment history, and any other factors reasonably considered by the Court.

So Stephanie’s return to employment was clearly anticipated in the Judgment.[6]

¶12      Thus, the Judgment addressed both the anticipated drop in Devin’s income and the possibility of Stephanie’s return to employment and accounted for them when ordering child and spousal support amounts. And therefore, these employment changes do not amount to unanticipated changes that would warrant a modification of the support amounts. Therefore, we see no error in the district court’s determination that even when viewing the alleged facts in Devin’s favor, no substantial change in circumstances had occurred that was not addressed in the Judgment; and consequently, we see no error in the dismissal of Devin’s petition to modify.

¶13      Devin, however, points to language in the stipulation that he argues implies that the Judgment was “a very loose order intended only to last until more was known in Utah.” First, he points to a general provision at the close of the Judgment stating, “The issues of child custody and visitation, child support and spousal support are transferred to the county in which the parties’ minor children will be residing in Utah effective immediately upon entry of this judgment.” But we do not agree that this language is an indication that the support awards should be revisited upon relocation; instead, where the parties had already relocated upon entry of the Judgment, the language simply demonstrates an awareness that any unanticipated issues or changes of circumstances that might arise in the future (in the nearly fifteen years before the children would all become adults) would be appropriately dealt with in Utah instead of California.

¶14 Second, Devin relies on language in the child custody stipulation that mentions relocation and then states, “Further orders as to custody will be addressed in Utah upon parties’ move, if necessary.” However, this mention (and in particular its “if necessary” limitation) simply clarifies what would happen if changes were warranted in the future and is not an indication that the California court expected the divorce decree to be modified upon relocation. Furthermore, this reference specifically mentions only the modification of child custody, which is largely unrelated to the income changes raised in Devin’s petition to modify.

¶15 Third, Devin points to the Judgment’s failure to address the issue of how the children would be claimed on the parties’ taxes as evidence that the Judgment was intended to be only temporary. But, again, this omission does not suggest that the California court expected that its support awards would be recalculated upon arrival in Utah.

¶16      Devin also raises contract principles to argue that the intent of the parties regarding future modification should have been considered by the district court when determining if modification was appropriate. But even assuming the intent of the parties would be relevant, there was no ambiguity in the stipulated agreement suggesting that immediate modification was intended after relocation to Utah, nor was there any indication that this remained an open question. Although Devin tries to introduce additional materials that he argues show such an intention, even under contract principles those materials would not be considered because of the unambiguous nature of the parties’ stipulation.[7] See Bakowski v. Mountain States Steel, Inc., 2002 UT 62, ¶ 16, 52 P.3d 1179 (“When interpreting a contract, a court first looks to the contract’s four corners to determine the parties’ intentions, which are controlling. If the language within the four corners of the contract is unambiguous, then a court does not resort to extrinsic evidence of the contract’s meaning, and a court determines the parties’ intentions from the plain meaning of the contractual language as a matter of law.” (quotation simplified)).[8]

CONCLUSION

¶17      We do not see an error in the district court’s determination that the changes in circumstances Devin raises were already addressed by the original Judgment. And as a result, we see no error in the court’s denial of Devin’s petition to modify.[9] We therefore affirm.

 

 

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

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What are marriages that are exempted from marriage license requirements?

What are marriages that are exempted from marriage license requirements?

Technically speaking, the only marriage that could be considered “exempt” from a marriage license requirement (meaning free from the requirement to obtain a marriage license as a condition of marrying) would be a common law marriage (in jurisdictions where common law marriage is still allowed and recognized).

To understand what a common law marriage is, you would need to understand what it is not. A common law marriage is not a “solemnized” marriage. A “solemnized” marriage is a marriage performed according to a formal, official, legally recognized marriage ceremony by one vested with authority by the state to perform marriages.

A common law marriage is a marriage that, unlike a solemnized marriage, which arises upon the completion of the formal, legally recognized wedding ceremony, is recognized by the law retroactively, long after two people have been living together in a conjugal relationship (i.e., living in a relationship like that of a married couple without being formally and legally and lawfully wedded). Not all states in the U.S.A. recognize common law marriage. The state where I practice family law (Utah) does.

Here are the requirements for having a relationship recognized as a common law marriage as they are provided in Utah Code § 30-1-4.5:  A marriage which is not solemnized according to this chapter shall be legal and valid if a court or administrative order establishes that it arises out of a contract between a couple where both are of legal age, capable of giving consent, legally capable of entering a solemnized marriage, have cohabited, mutually assume marital rights, duties, and obligations, and hold themselves out as and have acquired a uniform and general reputation as spouses. The determination or establishment of a marriage under this section must occur either during the relationship or within one year following the termination of that relationship.

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

https://www.quora.com/What-are-marriages-that-are-exempted-from-marriage-license-requirements/answer/Eric-Johnson-311

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How can I protect my assets before getting married without prenup?

How can I protect my assets before getting married without prenup?

Short answer: One option (not a very good one, frankly, but about the best there is under the circumstances as you describe them in your question) is: 1) own no major/valuable property before you are married (in other words, your spouse would probably not seek (and the court would probably not award to your spouse any part of) things like your clothes and personal effects, so you could live in a house and drive a car you lease and thus have no such “big ticket” items that could be sold and the proceeds of sale awarded to your spouse in divorce; 2) save nothing in the bank or in investments and retirement accounts, so that there is nothing like in which your spouse could try to claim an interest; and 3) ensure that you do not earn more than your spouse does, so that your spouse cannot make an easy argument for alimony.

Your real question may be this instead: How can I prevent losing too much (being treated unfairly) financially in divorce? If that is your question, it is a very good and very common one.

After all, most reasonable people would agree that what a couple acquires together during marriage is considered “their” property, “our” property, instead of “there’s yours and there’s mine”.

For example:

  • A couple marries and buys a house together in which they live for years. Sure, it may have been that one spouse worked full time while the other stayed home to take care of the kids and the house, but they’re a team, partners (in both a legal sense and a practical sense).
  • Saving up for retirement. It’s common for one spouse to be better able to pursue a career and advance in it (thus making more money for retirement) when the other spouse stays home with the children (at least while they are quite young) and keeps house. Both spouses understand that one hand washes the other.

The decision to purchase the house and the decision to have one spouse be the primary breadwinner and the other the children’s primary caretaker was made together, for mutual benefit. The spouse with the full-time job knew in advance that he/she would be sharing the house and retirement funds with his/her spouse and worked for the money needed to fund these things. It’s understood that these things are marital property that would be divided equally in the event of divorce. It makes sense.

But there are other issues that aren’t so clear cut. Many people—mostly husbands, but a growing number of wives—have this sense that:

  • “divorce should not result in my being financially exploited”;
  • “divorce should not result in being robbed of what was mine before marriage and what I acquired for myself during marriage”;
  • “I shouldn’t have to continue to support a spouse financially if I’ve done nothing to make divorce necessary; if my spouse wants out of the marriage and files for divorce, then he/she should do so with the understanding and expectation that with the end of the marriage comes the end of any and all of my obligations to support my spouse due to the fact that he/she is no longer my spouse”;
  • spouses who:
    • don’t carry their fair share of the weight during the marriage, who don’t do their best to contribute, and/or become financially dependent upon the other spouse as a result of being lazy (as opposed to spouses who are or become, due to disabilities beyond their control, financially dependent on the other spouse); and/or
    • abuse the other spouse and/or children, commit adultery, or waste marital resources (e.,, refuse to uphold their marital responsibilities with impunity)

are moochers in divorce when they demand that the people to whom they are no longer married nevertheless keep supporting them financially. There is something inherently unfair in that concept.

In response to these questions and concerns the best answers for me personally are:

  • If I am truly worried that my marriage could end in divorce to a gold digger, the solution does not lie in trying to figure out a way to protect my assets but in not marrying the suspected gold digger.
  • I did not marry to keep tabs on how much I have to lose in divorce. Yes, there are risks in trusting my spouse with my welfare (both physical and emotional), but the opportunity to enjoy a happy marriage is worth the risk to the right person. Now please understand: I get that sometimes you can do everything right and marry someone who was great but who later changed and turned on you. That’s sad, but not enough of a reason to avoid marriage, in my opinion. Well-rounded married people are generally much happier than well-rounded single people. Don’t deny yourself the joys and blessings of marriage out of the fear of divorce. There is no meaning to success without the risk of and the fight against failure.
  • There is no more reliable and cost-effective way to protect your assets in divorce than with a well-drafted prenuptial agreement. Warning: even the most well-drafted prenuptial agreements are not iron-clad, but they are better than nothing (far better) if you are concerned about protecting yourself from being raped and pillaged financially in divorce.

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

https://www.quora.com/How-can-I-protect-my-assets-before-getting-married-without-prenup/answer/Eric-Johnson-311

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2020 UT App 21 – UTAH COURT OF APPEALS – common law marriage

2020 UT App 21 – THE UTAH COURT OF APPEALS

JULIE RIVET, Appellant,
v.
LOUIS HOPPIE, Appellee.

Opinion
No. 20181018-CA
Filed February 13, 2020

First District Court, Logan Department
The Honorable Brian G. Cannell
No. 164100697

Marlin J. Grant, Attorney for Appellant Paul H. Gosnell, Attorney for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES KATE APPLEBY and JILL M. POHLMAN concurred.

MORTENSEN, Judge:

¶1 During a years-long relationship, and after four marriage proposals, Julie Rivet and Louis Hoppie never formally married. Toward the end of the relationship, Rivet petitioned the district court to recognize a common-law marriage between her and Hoppie. After three hearings, the district court ruled that Rivet “failed to establish a common-law marriage under Utah Code Ann. Section 30-1-4.5.” Specifically, the district court concluded that although Rivet met four of the elements required to establish the existence of a common-law marriage, she did not satisfy the final elements requiring the parties to hold themselves out as a married couple and to acquire a uniform and general reputation as husband and wife. We affirm.

BACKGROUND

¶2        Rivet and Hoppie began their relationship in 2009. In September 2015, the parties “ceased cohabitating” but did not officially terminate the relationship until sometime in 2017. In December 2016, Rivet petitioned the district court to recognize the relationship as a common-law marriage.

¶3        During the first evidentiary hearing, Rivet moved to admit two contested exhibits: (1) an affidavit from Rivet’s former attorney concerning statements made by Hoppie in their discussion on how to resolve the petition (Exhibit 2) and (2) a collection of written statements by members of the parties’ community expressing their opinions regarding the parties’ relationship status (Exhibit 10). Hoppie challenged the exhibits as hearsay. Rivet conceded the statements contained in the exhibits were hearsay, but suggested that the hearing was informal and that the statements could be considered. The court asked Rivet’s counsel if there was “something . . . that says I can rely on [the] documents,” explaining that if there was support for their admission, the court would allow it. Rivet did not engage with the court on the question or provide a theory under which the exhibits could be admitted. The court excluded the exhibits as hearsay. Later, during the same hearing, Rivet referenced Exhibit 2 to refresh the recollection of a witness, prompting an objection from Hoppie. The court interjected, “I haven’t received [Exhibit 2] as evidence. . . . [I]t refreshed [the witness’s] recollection.” Rivet then stated she sought to introduce Exhibit 2 only for that purpose, after which the court reiterated, “I’m not going to receive [Exhibit 2] at this stage.” Rivet simply responded, “Okay.” The court further indicated that Rivet’s former attorney could be called to testify at a later hearing. But Rivet never called her former attorney to testify.

¶4        Rivet also sought to introduce Exhibit 10, comprising the responses of several individuals to the query: “In your opinion did Julie Rivet and Lou Hoppie appear to be living together the same as a married couple? And, represent themselves in public and social gatherings as such?” The court responded, “It’s technically hearsay. . . . So I’m not going to receive it . . . . We’ll reserve the issue and allow for those witnesses to be brought before the Court.” Rivet offered no response.

¶5        For the duration of the hearing, the parties presented conflicting evidence concerning the nature of the relationship, including testimony from their friends. At the conclusion of the hearing, Rivet asked whether she needed to call the individuals represented in Exhibit 10 as witnesses. The court responded, “It’s your burden. I’m not going to tell you how to present it to me. . . . You’re going to have to put on your case and live with it.”

¶6        During the second evidentiary hearing, Rivet called only one of the seventeen individuals identified in Exhibit 10 to testify. Additional testimony was offered by Hoppie’s son, Hoppie’s insurance agent, and the parties themselves.

¶7        Also during the second hearing, Rivet twice tried to reference a portion of Exhibit 2. Both times, the court told Rivet it would not admit the exhibit, and the court later explained that its decision to exclude Exhibit 2 was based on rule 408 of the Utah Rules of Evidence, which bars, in some circumstances, the admission of evidence connected with compromise offers and negotiations. Throughout the hearing, the parties presented additional evidence, including tax documents showing Hoppie’s filing status as single during a period of the relationship, bank statements showing the parties maintained separate financial accounts, and insurance documents identifying Hoppie as single and Rivet as married.

¶8        During the third hearing, the court heard additional argument from Rivet and Hoppie and acknowledged receiving a trust document executed by Hoppie referencing Rivet as “beneficiary.” The court then ruled and concluded that Rivet did not prove the elements of a common-law marriage by a preponderance of the evidence. The court later issued a memorandum decision finding that Rivet and Hoppie “cohabitated with one another, and assumed marital rights, duties, and obligations thus establishing the elements of Utah Code Ann. Section 30-1-4.5(1)(a)–(d).” But the court also found that the parties merely “held themselves out as being in a committed relationship . . . . [T]hey did not hold themselves out as husband and wife, nor did they acquire a uniform or general reputation as husband and wife as required by Utah Code Ann. Section 30-1-4.5(1)(e).” Accordingly, the court denied Rivet’s requested relief and dismissed her petition. Rivet appeals.

ISSUE AND STANDARD OF REVIEW

¶9        On appeal, Rivet contends that the district court’s “findings were insufficient to support [Hoppie’s] position” that there was no common-law marriage.[1] In substance, Rivet does not contest the adequacy of the court’s findings, but the sufficiency of the evidence supporting some of its findings. Additionally, Rivet’s framing of the issue flips the script. It was Rivet, as the petitioner, who bore the burden of proving the elements of a common-law marriage. See Hansen v. Hansen, 958 P.2d 931, 935 (Utah Ct. App. 1998) (stating that a claimant “must prove each of six different elements to establish” a common-law marriage). “We do not reverse a [district] court’s findings of fact unless they are clearly erroneous.” Kelley v. Kelley, 2000 UT App 236, ¶ 18, 9 P.3d 171 (cleaned up). Furthermore, when a party fails to challenge factual findings “we assume that the record supports the findings . . . and proceed to a review of the accuracy of the lower court’s conclusions of law and the application of that law in the case.” Heber City Corp. v. Simpson, 942 P.2d 307, 312 (Utah 1997) (cleaned up); see also Hansen, 958 P.2d at 936–37.

ANALYSIS

¶10 Rivet contends that certain of the court’s findings are clearly erroneous because of how the court weighed the evidence. Although Rivet enumerates several findings as clearly erroneous, she substantively challenges only a few of those. See Hahn v. Hahn, 2018 UT App 135, ¶ 20, 427 P.3d 1195 (declining to address inadequately briefed issues under rule 24(a)(8) of the Utah Rules of Appellate Procedure). Consequently, Rivet fails to adequately challenge pertinent findings that independently support the district court’s conclusion that Rivet failed to establish the final elements of a common-law marriage: that the parties “hold themselves out as and have acquired a uniform and general reputation as husband and wife.” Utah Code Ann. § 30-1-4.5(1)(e) (LexisNexis 2019).[2]

¶11 This court has indicated that a partial or divided reputation of marriage is insufficient to meet the requirements of section 30-1-4.5(1)(e). See Hansen v. Hansen, 958 P.2d 931, 936 (Utah Ct. App. 1998). A partial or divided reputation of marriage may be shown when “the parties’ closest friends [do] not consider the [parties] married” and the parties are “not consistent in holding themselves out as married to the rest of the world.” Id. Such circumstances “negate[] the establishment . . . of the statutory requirement that the couple acquire[] a uniform and general reputation as husband and wife.” Id. (cleaned up).

¶12 The district court made unchallenged findings that negated the establishment of section 30-1-4.5(1)(e). In particular, the court found the following:

  1. During the course of the relationship the parties held themselves out as being in a committed relationship, however, they did not hold themselves out as husband and wife, nor did they acquire a uniform or general reputation as husband and wife . . . .

. . . .

  1. . . . [Rivet’s witness] also stated . . . that neither party wore wedding rings . . . and that the parties never referred to each other as “husband” or “wife” but instead referred to each other by the first names. . . . [The witness] while testifying . . . claimed that they held themselves out as husband and wife. However, when pressed for examples of the parties holding themselves out as a married couple he could provide none, and admitted that his belief they were married was based merely on an assumption.
  2. [Hoppie’s] witnesses each testified that they knew the parties were not married . . . [and n]ever observed either party refer to themselves as “husband,” “wife,” or “spouse.”
  3. [Another witness] testified that [Hoppie] never requested changing his status to married . . . or listing [Rivet] as a spouse. . . . [H]e did not believe [Hoppie] had a reputation of being a married individual. . . . [H]e did not believe the parties were married because of discussions they had with him in his office, and . . . [Hoppie] was always opposed to bringing [Rivet] onto other legal documents or referring to her as a spouse.

¶13 The unchallenged findings indicate at least some of the parties’ friends and family did not consider them to be married and the parties did not consistently represent themselves to be husband and wife. Those facts negate the establishment of the statutory requirements under Hansen. Accordingly, the unchallenged findings adequately support the district court’s conclusion that Rivet “failed to establish a common-law marriage under Utah Code Ann. Section 30-1-4.5.” Therefore, the district court accurately applied the law in denying Rivet’s petition.

CONCLUSION

¶14 The district court correctly concluded that Rivet failed to establish a common-law marriage in light of its findings indicating that the parties did not hold themselves out as, and did not acquire a uniform and general reputation as, husband and wife. We therefore affirm the district court’s dismissal of the petition.[3]

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

———————————————————–

[1] Rivet also contends that the court erred by not admitting Exhibits 2 and 10 into evidence, arguing that they were admissible under four separate rules of evidence. We decline to address the argument because Rivet did not preserve these issues. While Rivet offered Exhibits 2 and 10, she provided no justification for their admission, much less the four legal theories she presents for the first time on appeal. See State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443 (“When a party fails to raise and argue an issue in the [district] court, it has failed to preserve the issue . . . .”). We also decline to review Rivet’s appeal of the district court’s exclusion of Exhibit 2 because Rivet does not challenge the court’s alternative basis for its decision under rule 408 of the Utah Rules of Evidence. And when an appellant “fails to challenge the [district] court’s alternative basis for its decision,” the reviewing court generally may not consider the issue sua sponte. Deseret First Fed. Credit Union v. Parkin, 2014 UT App 267, ¶ 13, 339 P.3d 471 (citing Allen v. Friel, 2008 UT 56, ¶ 7, 194 P.3d 903).

[2] The statutory provision in effect at the relevant time does not differ in any material way from the current provision. We therefore cite the current version of the Utah Code for the reader’s convenience.

[3] Hoppie seeks attorney fees incurred on appeal under rule 33 of the Utah Rules of Appellate Procedure, arguing that Rivet’s appeal is frivolous “[g]iven the findings in Hansen v. Hansen, . . . and the clear record supporting the trial court’s findings.” Rule 33 permits an award of damages, including attorney fees, for appeals “not grounded in fact, not warranted by existing law, or not based on a good faith argument to extend, modify, or reverse existing law.” Utah R. App. P. 33(b). “The sanction for bringing a frivolous appeal is applied only in egregious cases, lest there be an improper chilling of the right to appeal erroneous lower court decisions.” Marroquin v. Marroquin, 2019 UT App 38, ¶ 36, 440 P.3d 757 (cleaned up). While Rivet’s arguments are ultimately unpersuasive, they were not so egregious as to warrant an imposition of rule 33 sanctions. We therefore decline to award Hoppie attorney fees.

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