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Tag: decree of divorce

Can I petition for annulment if my husband already filed for dissolution of marriage?

I will answer this question based up on the law of the state of Utah, which is the jurisdiction in which I practice divorce and family law.

Yes, you can, IF you qualify for an annulment. If your spouse files for divorce, you can countersue for annulment IF, and only if, you qualify for an annulment.

Before we go any further with this question understand this (because many people don’t understand this): divorce or annulment is not an option for everyone. Some people who are married cannot quality for an annulment. All valid marriages can be terminated by divorce. Not all marriages can be annulled.

What factors must be met to qualify for annulment? Black’s Law Dictionary ((11th ed. 2019), Bryan A. Garner, Editor in Chief) explains it this way:

An annulment establishes that the marital status never existed. So annulment and dissolution of marriage (or divorce) are fundamentally different: an annulment renders a marriage void from the beginning, while dissolution of marriage terminates the marriage as of the date of the judgment of dissolution. Although a marriage terminated by annulment is considered never to have occurred, under modern ecclesiastical law and in most states today a child born during the marriage is not considered illegitimate after the annulment.

To obtain an annulment one must establish that the marriage was void from its inception. While a divorce ends a marriage, an annulment usually has the effect of declaring that no marriage occurred and so it is effective retroactively, meaning it never happened as a matter of law.

One cannot obtain an annulment except on the grounds recognized by law for an annulment. There are different grounds in different jurisdictions, but some of the common grounds are: fraud, coercion, bigamy (already married to someone else at the time of the second purported marriage), being under the age of consent, marriage between close relatives (parent and child, siblings, in some jurisdictions, first cousins), mental incapacity, intoxication, knowing one is infertile but concealing the fact at the time of the marriage, being impotent and concealing that at the time of the marriage, intoxication, refusal to engage in sexual intercourse, misrepresentation as to religion, having a sexually transmitted disease at the time of marriage, and the woman was pregnant by another man at the time of marriage).

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

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Nelson v. Nelson – 2023 UT App 38 – Claim Preclusion and Child Support

2023 UT App 38

THE UTAH COURT OF APPEALS

STASHIA NELSON,

Appellee,

v.

ISAAC SCOTT NELSON,

Appellant.

Opinion

No. 20210345-CA

Filed April 13, 2023

First District Court, Logan Department

The Honorable Brian G. Cannell

No. 154100713

Sara Pfrommer, Ronald D. Wilkinson, and Nathan S. Shill, Attorneys for Appellant

Jacob A. Watterson and James C. Jenkins, Attorneys for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which

JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY concurred.

LUTHY, Judge:

¶1        This case raises issues regarding the claim preclusion

branch of the doctrine of res judicata in the context of divorce proceedings. Two years after Stashia and Isaac Nelson divorced, their circumstances had changed enough that Isaac[1] asked the district court to modify their divorce decree to give him shared physical custody of their children and to lower his monthly child support obligation. Isaac was behind in his support payments, and in response to his petition, Stashia asserted that Isaac’s “claims [were] barred, in whole or in part, because of [his] unclean hands in not being current in his child support obligation.”

¶2        The parties engaged in mediation and were able to agree on a new custody and parent-time arrangement and on a reduced monthly child support obligation for Isaac going forward. They presented their agreement to the court, and it entered a modified divorce decree that incorporated the terms of the agreement.

¶3        Stashia then initiated a separate proceeding to collect the child support that Isaac had failed to pay under the original decree. Isaac argued that all child-related financial matters, including his child support arrears, had been resolved in the proceeding to modify the divorce decree and that Stashia was therefore barred under the claim preclusion branch of the doctrine of res judicata from collecting the unpaid support. The court disagreed and ordered Isaac to pay past-due support. In response, Isaac filed a certificate of readiness for trial on an issue that he had not raised previously, namely, whether the reduction in his monthly support obligation should be backdated to when he filed his petition to modify the divorce decree. The district court ruled that there were no issues to certify for trial and entered judgment against Isaac for unpaid support in the amount of $2,835.40 plus interest. Isaac appeals.

¶4        We see no error in the conclusion that claim preclusion does not bar Stashia’s claim for unpaid child support. We also see no error in the district court’s ruling that there were no issues to certify for trial. We therefore affirm.

BACKGROUND

The Parties’ Marriage and Divorce

¶5        Isaac and Stashia married in 2007 and together had two children. Stashia later initiated divorce proceedings, during which the parties reached an agreement that was incorporated into a divorce decree in March 2016.

¶6        The divorce decree provided for the parties’ joint legal custody of the children, while giving Stashia sole physical custody and Isaac parent-time. The decree also ordered Isaac to pay $768 per month in child support, based on Stashia having sole physical custody of the children and on her lack of employment at the time.

Isaac’s Petition to Modify the Divorce Decree

¶7        In June 2018, Isaac petitioned to modify the divorce decree, based on “substantial and material changes in the circumstances of the parties.” In support of modifying the decree’s custody order, Isaac alleged that he had a more “stable residence” and “flexible work schedule” than when the parties divorced; that he was also more able to “provide additional familial support” because he had recently remarried; and that Stashia, on the other hand, had violated several of the custody and parent-time provisions in the divorce decree. Based on these allegations, Isaac requested “increased parent time” and “joint physical custody.”

¶8        In support of modifying the decree’s child support order, Isaac alleged that Stashia had become employed full time and that her increased income, along with the parties’ joint physical custody of the children, if the court awarded it, merited a reduction in his child support obligation.

¶9        In her answer to Isaac’s petition, Stashia alleged, among other things, that Isaac was “not current in his child support obligation.” She then asserted, as one of several affirmative defenses, that Isaac’s “claims [were] barred, in whole or in part, because of [his] unclean hands in not being current in his child support obligation.”

¶10 During discovery, the parties exchanged financial declarations outlining their incomes, assets, and expenses, but neither party produced documents or information regarding Isaac’s past child support payments or alleged arrears.

¶11      In October 2018, the parties participated in mediation and stipulated to a temporary modification of the divorce decree. The stipulation, the terms of which were incorporated into an order, contained temporary parent-time provisions and an agreement to participate in a custody evaluation. It did not mention or modify child support, and it concluded by saying: “All issues not specifically addressed herein that have been raised or could have been raised by the parties are, hereby, reserved.”

¶12      After the agreed-upon custody evaluation was completed, the parties again participated in mediation, in May 2019. Later the same day, the district court commissioner held a settlement conference at which the parties orally presented stipulated terms to be incorporated into an amended divorce decree.

¶13      As to custody, the parties’ attorneys told the commissioner that the parties had agreed to “a joint legal, joint physical custody arrangement,” and the attorneys then explained the details of that arrangement. As to child support, they said that the parties had agreed that “[c]hild support would be 600 per month effective June 1st, 2019.” The attorneys then said that the parties had agreed that “all prior orders that are not specifically modified here . . . would remain in full force and effect.”

¶14 Toward the end of the settlement conference, the commissioner asked Isaac and Stashia if they were “willing to accept those terms as a final resolution of the issues that [were] currently pending in [the] matter.” Each responded, “Yes.”

¶15 In October 2019, the court issued an amended divorce decree incorporating the terms the parties had orally agreed to during the settlement conference. The amended decree sets forth the parties’ custody arrangement; contains provisions regarding parent-time; restates the parties’ parenting plan; provides that Isaac’s “child support obligation shall be modified to $600.00 per month effective June 1, 2019”; contains provisions regarding claiming the minor children for tax purposes; and states the parties’ responsibilities regarding medical and childcare expenses. It then provides: “This order shall be a consolidated order on custody, parent-time, and child related financial matters.”

Stashia’s Motion for an Order to Show Cause

¶16 In February 2020, Stashia filed a motion for an order to show cause,[2] alleging that Isaac owed child support arrears that had accrued between September 2016 and February 2020.

¶17 Isaac opposed Stashia’s request for unpaid child support. He noted that in response to his petition to modify the original divorce decree, Stashia “had raised the issue that [Isaac] had child support arrearage.” He pointed to the parties’ statements during the May 2019 settlement conference that they were willing to accept the terms outlined at that conference “as a final resolution of the issues that [were] currently pending in [the] matter.” (Emphasis omitted.) And he pointed to the language of the amended decree that says that the amended decree is “a consolidated order on custody, parent-time, and child related financial matters.” The district court commissioner “reviewed the pleadings on file and . . . considered the evidence and arguments presented” and disagreed with Isaac, finding that “[Stashia] did not waive [Isaac’s] child support arrears at the [May 2019] mediation between the parties or by stipulating to the Amended Decree of Divorce.”

¶18      Isaac objected to the commissioner’s recommendation. He argued that, based on “the principles of the ‘claim preclusion’ prong of the doctrine of res judicata,” the modification proceedings and amended divorce decree had “a preclusive effect” on a claim for child support arrears that accrued before entry of the amended decree. The district court overruled Isaac’s objection and entered judgment against Isaac for child support arrears “in an amount to be determined . . . based on the accountings submitted by the Parties.” After the parties submitted their accountings, the court found that Isaac’s child support arrears totaled $2,835.40.[3]

Isaac’s Certificate of Readiness for Trial

¶19      Isaac then filed, in March 2021, a certificate of readiness for trial, in which he asserted: “This case is ready for trial on the reserved issue of [whether] the June 1, 2019 child support adjustment should be backdated to the date of the filing of the Petition to Modify (June 2018).” Isaac had not previously asked the court to backdate the modified child support order to June 2018.

¶20      The district court ruled that “[t]here [were] no issues to certify for trial” and entered judgment against Isaac in the amount of $2,835.40 plus interest. Isaac now appeals.

ISSUES AND STANDARDS OF REVIEW

¶21      Isaac asks us to reverse the district court’s judgment against him for unpaid child support. He contends that Stashia’s claim for unpaid child support is barred by the claim preclusion branch of res judicata.[4] Ultimately, “[w]hether a claim is barred by res judicata is a question of law that we review for correctness.” Gillmor v. Family Link, LLC, 2012 UT 38, ¶ 9, 284 P.3d 622.

¶22      Part of our claim preclusion analysis in this case, however, requires a determination of the intended scope of ambiguous language in the stipulated amended divorce decree. Where the language of a written stipulation is ambiguous, “the trial court ordinarily considers extrinsic evidence in an effort to resolve the ambiguit[y] and will make findings of fact to resolve any disputed evidence.” Christensen v. Christensen, 2018 UT App 53, ¶ 6, 420 P.3d 106 (footnote omitted). When a court looks outside the four corners of a written stipulation to determine its intended scope, that determination presents a question of fact, “which we review for clear error.” Fuller v. Bohne, 2017 UT App 28, ¶ 9, 392 P.3d 898, cert. denied, 398 P.3d 51 (Utah 2017).

¶23      Isaac also asks us to reverse the district court’s ruling, in response to his filing of a certificate of readiness for trial, that “[t]here [were] no issues to certify for trial.” The legal effect of a certificate of readiness for trial is a question of law, and “[w]e review questions of law for correctness, giving no deference to the ruling of the court below,” see Madsen v. Washington Mutual Bank FSB, 2008 UT 69, ¶ 19, 199 P.3d 898.

ANALYSIS

I. Stashia’s Claim for Unpaid Child Support
Is Not Barred by Res Judicata.

¶24 Isaac contends that the district court erred in allowing Stashia to bring a claim for unpaid child support. As we have noted, the substance of his argument is that Stashia’s claim for unpaid support is barred by the claim preclusion branch of res judicata. See supra note 3. This court has previously observed that, indeed, “[t]he principles of res judicata apply fully in the context of divorce proceedings.” Krambule v. Krambule, 1999 UT App 357, ¶ 13, 994 P.2d 210 (citing Jacobsen v. Jacobsen, 703 P.2d 303, 305 (Utah 1985)), cert. denied, 4 P.3d 1289 (Utah 2000). But this observation merits explanation.

¶25 Both res judicata and the law of the case doctrine can operate to give an earlier decision on a particular claim or issue preclusive effect when the same claim or issue is raised again. See Utah State Bar v. Rasmussen (In re Discipline of Rasmussen), 2013 UT 14, ¶¶ 17–18, 299 P.3d 1050. A key difference between the two doctrines, however, is that generally “[r]es judicata applies as between multiple cases while the law of the case doctrine applies to successive proceedings within one case.” State v. Waterfield, 2014 UT App 67, ¶ 39 n.12, 322 P.3d 1194, cert. denied, 333 P.3d 365 (Utah 2014).

¶26 This distinction could suggest that in a single divorce case—over which a district court has continuing jurisdiction to enter orders modifying the original decree, see Utah Code § 30-3-5(5)—only the law of the case doctrine would ever apply. To the contrary, however, we have held that res judicata applies as between “[original] divorce actions and subsequent modification proceedings.” Smith v. Smith, 793 P.2d 407, 410 (Utah Ct. App. 1990). Accordingly, in Krambule v. Krambule, 1999 UT App 357, 994 P.2d 210, cert. denied, 4 P.3d 1289 (Utah 2000), we concluded that a petition to modify a divorce decree to require an ex-husband to pay support for a child conceived through artificial insemination without the ex-husband’s knowledge was “barred under the principles of res judicata” since that claim “could and should have been asserted in the original divorce action.” Id. ¶ 16. And in Throckmorton v. Throckmorton, 767 P.2d 121 (Utah Ct. App. 1988), we upheld on res judicata grounds the denial of a petition to modify a divorce decree to give an ex-wife an interest in her ex-husband’s retirement benefits, which had not been included in the original decree. See id. at 123.

¶27 In other words, we treat an original divorce proceeding and each subsequent proceeding to modify the divorce decree as separate “cases” for res judicata purposes. At the same time, we treat a divorce proceeding leading to a decree or an amended decree and any subsequent proceeding to enforce that decree or amended decree as successive proceedings within the same case. Thus, in this second context, we apply the law of the case doctrine. See Robinson v. Robinson, 2016 UT App 32, ¶¶ 26–29, 368 P.3d 147 (holding, in a proceeding to enforce a stipulated divorce decree, that law of the case barred a husband from relitigating a factual issue decided previously), cert. denied, 379 P.3d 1185 (Utah 2016).[5]

¶28      This appeal is somewhat unusual in that the “first case” for

purposes of res judicata is the modification proceeding and the “second case” is the order to show cause proceeding to enforce the child support order from the original decree. But because the order to show cause proceeding is based on the original decree, it is a separate “case” from the modification proceeding that resulted in the amended decree. We therefore apply the principles of res judicata as we analyze the potential preclusive effect of the amended decree in the order to show cause proceeding.[6]

¶29      “The doctrine of res judicata embraces two distinct branches: claim preclusion and issue preclusion.” Macris & Assocs., Inc. v. Neways, Inc., 2000 UT 93, ¶ 19, 16 P.3d 1214. “[C]laim preclusion corresponds to causes of action[;] issue preclusion corresponds to the facts and issues underlying causes of action.” Oman v. Davis School Dist., 2008 UT 70, ¶ 31, 194 P.3d 956.

¶30      “Claim preclusion . . . is premised on the principle that a controversy should be adjudicated only once.” Pioneer Home Owners Ass’n v. TaxHawk Inc., 2019 UT App 213, ¶ 41, 457 P.3d 393 (cleaned up), cert. denied, 466 P.3d 1073 (Utah 2020). It “bars a party from prosecuting in a subsequent action a claim that has been fully litigated previously.” Hansen v. Bank of N.Y. Mellon, 2013 UT App 132, ¶ 5, 303 P.3d 1025 (cleaned up). “Whether a claim is precluded from relitigation depends on a three-part test.” Mack v. Utah State Dep’t of Com., 2009 UT 47, ¶ 29, 221 P.3d 194.

First, both cases must involve the same parties or their privies. Second, the claim that is alleged to be barred must have been presented in the first suit or be one that could and should have been raised in the first action. Third, the first suit must have resulted in a final judgment on the merits.

Id. (cleaned up).

¶31 Here, it is undisputed that Stashia and Isaac were the parties to both the proceeding on Isaac’s petition to modify the divorce decree—the “first case”—and the proceeding on Stashia’s subsequent claim for unpaid child support under the original decree—the “second case.” It is also undisputed that Isaac’s petition to modify the divorce decree resulted in a final judgment on the merits, in the form of the amended divorce decree. Thus, we focus our analysis on the second requirement of the claim preclusion test: whether Stashia presented or was required to present her claim for unpaid child support during the proceeding on Isaac’s petition to modify the decree.

A. Stashia did not present a claim for unpaid child support in the modification proceedings.

¶32 The second requirement of the claim preclusion test is satisfied if the claim at issue was presented in a prior action. See Mack, 2009 UT 47, ¶ 29. Isaac argues that Stashia’s answer to his petition to modify the divorce decree presented a claim for unpaid child support. Specifically, he points to Stashia’s allegation that Isaac was “not current in his child support obligation” and to her assertion, as an affirmative defense, that Isaac’s “unclean hands in not being current in his child support obligation” should bar modification of his support obligation.[7]

¶33      However, while Stashia alleged that Isaac was in arrears in

his child support payments, neither that allegation nor the affirmative defense based on that allegation presented a “claim.” “An original claim, counterclaim, cross-claim or third-party claim must contain a short and plain: (1) statement of the claim showing that the party is entitled to relief; and (2) demand for judgment for specified relief.” Utah R. Civ. P. 8(a). Stashia’s answer to Isaac’s petition to modify the divorce decree did not allege how much Isaac owed in unpaid child support or make a demand for relief. We cannot, therefore, say that Stashia’s affirmative defense presented a claim for res judicata purposes. See Airfreight Express Ltd. v. Evergreen Air Center, Inc., 158 P.3d 232, 237 (Ariz. Ct. App. 2007) (holding that “affirmative defenses are not claims” for purposes of “[t]he doctrine of claim preclusion”); cf. Norman A. Koglin Assocs. v. Valenz Oro, Inc., 680 N.E.2d 283, 288 (Ill. 1997) (“A counterclaim differs from an . . . affirmative defense. A counterclaim is used when seeking affirmative relief, while an . . . affirmative defense seeks to defeat a plaintiff’s claim.”).

¶34      This is consistent with our analysis in Berkshires, LLC v. Sykes, 2005 UT App 536, 127 P.3d 1243. In that case, the plaintiffs were poised to purchase and develop multiple parcels of land when the defendants recorded a document purporting to grant an easement that would significantly hinder the anticipated development. Id. ¶ 4. The plaintiffs sued “for slander of title and interference with economic relations, claiming that [the defendants] had intentionally fabricated the [e]asement [d]ocument.” Id. ¶ 6. Late in the litigation, the defendants moved for partial summary judgment, asserting that as a matter of law under the undisputed evidence “Hope Lane, a road running [across the parcels at issue], was a public road.” Id. ¶ 9. The trial court denied the motion on the ground that the defendants had not presented a claim for Hope Lane to be declared a public road because their “original answer merely stated that ‘[a]s a separate and affirmative defense, [the] [d]efendants . . . allege that Hope Lane is a public road,’ without making any further affirmative claim for relief.” Id. (first alteration and omission in original).

¶35 On appeal, the defendants argued that the trial court improperly refused to treat their Hope Lane affirmative defense as a counterclaim. See id. ¶¶ 16–17. We said that among the factors a court could consider when deciding whether to treat an affirmative defense as a counterclaim was “whether the defense as argued or articulated in the pleadings sufficiently states a claim for relief and a demand for judgment as required by rule 8(a) of the Utah Rules of Civil Procedure.” Id. ¶ 18. In concluding that the trial court had not abused its discretion by refusing to treat the Hope Lane affirmative defense as a counterclaim, we explained:

At the heart of the matter here is whether Plaintiffs should have recognized that Defendants’ statement “Hope Lane is a public road” was in reality a counterclaim, though labeled an affirmative defense. Here, the statement on its face is not readily identifiable as a counterclaim; it requests no relief and does not demand judgment. . . . Defendants did not properly plead a counterclaim . . . .

Id. ¶ 19. In sum, although it was in a different context, we have previously concluded that an affirmative defense that requests no relief and does not demand judgment does not present a claim. Our reaching the same conclusion here in the res judicata context “is not much of a jurisprudential leap.” Atkinson v. Stateline Hotel Casino & Resort, 2001 UT App 63, ¶ 19 n.6, 21 P.3d 667.

B. The district court’s finding that the amended divorce decree did not preclude Stashia’s claim for unpaid child support was not clearly erroneous.

¶36      Even if a party does not present a claim in her pleadings or otherwise during litigation, she might still agree to settle that unpled claim with the intent to foreclose its future litigation. If such an agreement becomes the basis of a stipulated decree, the second requirement of claim preclusion is met, and claim preclusion may apply to the settled but unpled claim. See Keith v. Aldridge, 900 F.2d 736, 741 (4th Cir. 1990) (holding, in the context of a “consent judgment,” that “[i]f the parties intended to foreclose through agreement litigation of a claim, assertion of that claim in a later suit, whether or not formally presented in the earlier action, is precluded”); 18A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4443 (3d ed. April 2022 update) (“[Following a consent judgment,] [i]f it is clear that the parties agreed to settle claims that were not reflected in the original pleadings, preclusion may extend to claims that were not even formally presented.”).[8]

¶37      Isaac relies on this principle. He contends that the amended

divorce decree, which was the product of a settlement agreement and stipulation, “expressly and unambiguously resolved” any claim for child support arrears that predated the amended decree. In support, he points to the provision of the amended decree that states: “This order shall be a consolidated order on custody, parent-time, and child related financial matters.” (Emphasis added.) Isaac interprets the phrase “child related financial matters” to mean that the amended decree was an order resolving all child related financial matters, including his child support arrears. But this is not the only plausible reading of this provision.

¶38 The amended decree addresses several child-related financial matters explicitly: the modified child support award, income tax deductions related to the children, health insurance and medical expenses for the children, and childcare expenses. It never mentions child support arrears. Thus, the phrase “child related financial matters” can plausibly be read as encompassing only the child-related financial matters explicitly addressed in the amended decree. Because this provision of the amended decree supports two plausible readings, it is ambiguous. See Moon v. Moon, 1999 UT App 12, ¶ 19, 973 P.2d 431 (“Language in a written document is ambiguous if the words may be understood to support two or more plausible meanings.” (cleaned up)), cert. denied, 982 P.2d 89 (Utah 1999).

¶39 “Ordinarily, we interpret a divorce decree as we would any other written instrument, construing it in accordance with its plain meaning and according no deference to the district court’s interpretation.” Christensen v. Christensen, 2018 UT App 53, ¶ 6,

420 P.3d 106. “But where, as here, the agreement is ambiguous, the trial court ordinarily considers extrinsic evidence in an effort to resolve the ambiguit[y] and will make findings of fact to resolve any disputed evidence . . . .” Id. (footnote omitted).

¶40      The district court here considered extrinsic evidence to determine whether Stashia’s claim for unpaid child support was encompassed within the amended decree, and it made a factual finding that the claim for unpaid child support was not encompassed within the decree. Among the evidence considered were the oral representations the parties made during their May 2019 settlement conference and a declaration provided by Isaac, both of which Isaac directed the court to when he opposed Stashia’s motion for an order to show cause. The district court considered this evidence and found that Stashia did not waive her claim for unpaid child support.

¶41      When, as here, a court looks outside the four corners of a stipulated judgment to determine its intended scope, that determination is a determination of fact, which we review for clear error. See Noel v. James, 2022 UT App 33, ¶ 11, 507 P.3d 832 (“The scope of a stipulation presents a question of fact, which we review for clear error.” (cleaned up)); Fuller v. Bohne, 2017 UT App 28, ¶ 9, 392 P.3d 898 (same), cert. denied, 398 P.3d 51 (Utah 2017). And “[f]indings of fact are clearly erroneous only if no reasonable factfinder could review the evidence presented and arrive at the disputed finding.” Blackhawk Townhouses Owners Ass’n Inc. v. J.S., 2018 UT App 56, ¶ 23, 420 P.3d 128.

¶42      We see no clear error in the district court’s finding that the parties’ amended decree was not intended to be preclusive of Stashia’s claim for child support arrears. Isaac’s child support arrears were not mentioned at all during the May 2019 settlement conference. A reasonable factfinder might therefore believe it a stretch to assume that when Stashia and Isaac told the commissioner they were “willing to accept [the] terms [that had been outlined in the settlement conference] as a final resolution of the issues that [were] currently pending in [the] matter,” they would have thought that those issues included Isaac’s alleged child support arrears.

¶43 Moreover, after the parties said that the modified child support obligation would become effective June 1, 2019, they told the commissioner that “all prior orders that are not specifically modified [as outlined in the settlement conference] . . . would remain in full force and effect.” A reasonable view of this evidence is that when the parties accepted the terms of the stipulation “as a final resolution of the issues that [were] currently pending in this matter,” these were the terms that they intended to accept: that the child support order prior to June 1, 2019, as well as any outstanding obligations under it, “would remain in full force and effect.”

C. Stashia was not required to present her claim for unpaid child support in the modification proceeding.

¶44      Even if a claim was not presented or settled in an initial action, the second requirement of the claim preclusion test can be met by showing that the subsequently raised claim “could and should have been raised in the first action.” Mack v. Utah State Dep’t of Com., 2009 UT 47, ¶ 29, 221 P.3d 194 (cleaned up). A subsequent claim could and should have been brought in an earlier action “if [both claims] arise from the same operative facts, or in other words from the same transaction.” Id. ¶ 30. To determine if two claims arise from the same transaction, a court may consider “whether the facts [of each] are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations.” Gillmor v. Family Link, LLC, 2012 UT 38, ¶ 14, 284 P.3d 622 (cleaned up). But “no single factor is determinative.” Id. (cleaned up). “Therefore, every consideration need not be addressed or considered in every case.” Id.

¶45      Here, Isaac’s claims for modification of the divorce decree were not related in origin to Stashia’s later claim for unpaid child support. Isaac’s claims to modify the divorce decree originated from alleged changes to his work and home life since the entry of the original decree (including his recent remarriage), alleged violations by Stashia of the divorce decree’s custody and parent-time provisions, and Stashia’s recent full-time employment. In contrast, Stashia’s claim for unpaid child support originated from Isaac’s alleged failure to abide by the divorce decree’s child support order. These differing origins suggest that the parties’ respective claims do not arise from the same transaction. See In re Marriage of Potts, 542 N.E.2d 179, 181–82 (Ill. App. Ct. 1989) (observing that “[t]here [was] no significant evidentiary overlap” between a father’s claim for unpaid child support and the mother’s claim for modification of the support obligation and, thus, holding that res judicata did not bar the father’s separate action for unpaid support); Zickefoose v. Muntean, 399 N.W.2d 178, 180–81 (Minn. Ct. App. 1987) (concluding that a stipulation to amend a divorce decree to reduce the father’s child support obligation was “a totally different and distinct action” from the mother’s later “motion to compel payment of child support arrearages” and, thus, that res judicata did not bar the mother’s later action for arrearages).

¶46 Additionally, neither Isaac nor Stashia conducted discovery related to Isaac’s alleged child support arrears during the modification proceeding, which suggests that it was not their expectation that Isaac’s claims for modification of the original decree and Stashia’s claim for unpaid child support under the original decree would be treated as a single trial unit.

¶47      Moreover, Utah Code section 78B-12-210(9)(a) provides for the filing of a petition to modify a child support order based on a substantial change of circumstances, while our rules require a motion—previously a motion “for an order to show cause,” see Utah R. Civ. P. 7(q) (2020), and now “a motion to enforce order,” see Utah R. Civ. P. 7B—to recover unpaid child support. By providing different procedures for modifying a child support order and enforcing a child support order, our code and rules also implicitly recognize that these two types of actions generally do not arise from the same transaction. Cf. In re P.D.D., 256 S.W.3d 834, 842, 844 (Tex. App. 2008) (reasoning in part that because the Texas Family Code “does not require their joinder,” actions for “delinquent child support” and actions for “modification of . . . future child support obligations” are “separate and definable questions” and the one is not barred by the other under a “transactional approach” to res judicata).

¶48      The differing origins of Isaac’s and Stashia’s respective claims, the apparent expectations of the parties, and the procedural scheme set forth in our code and rules demonstrate that Isaac’s claim for modification of the original child support order and Stashia’s claim for enforcement of the original order did not arise from the same transaction. Thus, Stashia was not required to present her claim for unpaid child support during the proceeding on Isaac’s petition to modify the divorce decree.

¶49      Because Stashia neither presented nor settled her claim for unpaid child support during the proceeding on Isaac’s petition to modify the divorce decree, and because she was not required to present her claim for unpaid child support during that proceeding, the doctrine of claim preclusion does not apply to bar Stashia’s claim.[9]

II. The District Court Did Not Err by Concluding that There
Were No Issues to Certify for Trial.

¶50      Isaac also argues that “[t]he district court erred when it

refused to allow [him] to counter Stashia’s Order to Show Cause with his request to retroactively apply the child support modification.” His request to retroactively apply the child support modification took the form of a certificate of readiness for trial filed nearly a year and a half after the modification proceeding to which it related had concluded. Because the modification proceeding had concluded, and because Isaac filed no rule 59 or 60(b) motion to alter or relieve him from the resulting judgment—i.e., the amended divorce decree, with its June 1, 2019 effective date for the modified support order—Isaac’s certificate of readiness for trial landed in a legal vacuum and had no legal effect.[10] With no pending proceeding to which retroactive application of the modified support order applied, the district court was correct to conclude that “[t]here [were] no issues to certify for trial.”

CONCLUSION

¶51      Stashia did not present an affirmative claim for child support arrears during the modification proceeding. The district court did not clearly err in finding that Stashia’s claim for those arrears was not encompassed within the modified divorce decree. And Stashia’s claim for those arrears did not arise out of the same transaction as the claims Isaac made in his petition to modify the decree. Accordingly, Stashia’s claim for unpaid child support is not barred by res judicata. Additionally, the district court’s ruling in response to Isaac’s certificate of readiness for trial—that there were no issues to certify for trial—was not in error.

¶52 Affirmed.

 

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[1] As is our practice, because the parties share the same last name, we use their first names, with no disrespect intended by the apparent informality.

[2] The “motion to enforce order” procedure outlined in rule 7B of the Utah Rules of Civil Procedure has now “replace[d] and supersede[d] the prior order to show cause procedure” in the context of “domestic relations actions, including divorce.” Utah R. Civ. P. 7B(a), (i), (j). A similar “motion to enforce order” procedure outlined in rule 7A now applies in the context of other civil proceedings. See id. R. 7A. In recommending rule 7B, the Utah Supreme Court’s Advisory Committee on the Rules of Civil Procedure left untouched rule 101(k), which addresses motion practice before district court commissioners and still recites requirements for “[a]n application to the court for an order to show cause.” Id. R. 101(k). The committee may wish to revise rule 101(k) to conform rule 101(k)’s provisions to those of rule 7B.

 

[3] Our resolution of this appeal makes determining the portion of this amount that accrued before entry of the amended divorce decree unnecessary.

[4] Isaac does not always frame his argument in terms of “claim preclusion” or “res judicata.” In one section of his principal brief, he asserts that the claim for unpaid child support was “resolved” by the amended divorce decree. In another, he argues that “the issues to which the parties have stipulated [have] become ‘settled’ and ‘not reserved for future consideration.’” And at one point he does explicitly invoke “the ‘claim preclusion’ prong of the doctrine of res judicata.” Regardless of their phrasing, each of these arguments is, in substance, an argument for application of the doctrine of res judicata. See infra ¶¶ 26-28; Mel Trimble Real Estate v. Monte Vista Ranch, Inc., 758 P.2d 451, 453 (Utah Ct. App.) (explaining that res judicata “bars the relitigation . . . of a claim for relief previously resolved” (emphasis added)), cert. denied, 769 P.2d 819 (Utah 1988); Res judicata, Black’s Law Dictionary (abridged 6th ed. 1991) (defining res judicata as “a thing or matter settled by judgment” (emphasis added)).

Because Isaac never uses the terms “issue preclusion” or “collateral estoppel” and never cites a case applying that branch of res judicata, and because he did not do so in the district court, we address only the claim preclusion branch of res judicata. See generally 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (“Issues that are not raised at trial are usually deemed waived.”); State v. Sloan, 2003 UT App 170, ¶ 13, 72 P.3d 138 (declining to address an inadequately briefed issue).

[5] Application of res judicata in the divorce context might be seen as “distinguish[able]” from its application in other contexts in another way as well. See Smith v. Smith, 793 P.2d 407, 410 (Utah Ct. App. 1990). That is because in the divorce context the preclusive effect of res judicata can be avoided based on “the equitable doctrine that allows courts to reopen [prior] determinations if the moving party can demonstrate a substantial change of circumstances.” Id. In fact, some prior determinations in divorce cases may be reopened on a showing of a material change of circumstances that is less than substantial. See, e.g.Miller v. Miller, 2020 UT App 171, ¶ 18, 480 P.3d 341 (observing that “when modifying parent-time (as opposed to custody), the petitioner is required to make only some showing of a change in circumstances, which does not rise to the same level as the substantial and material showing required when a district court alters custody” (cleaned up)). Though this might be seen as a distinguishing feature of res judicata in the divorce setting, it is consistent with our statement that “[t]he principles of res judicata apply fully in the context of divorce proceedings,” Krambule v. Krambule, 1999 UT App 357, ¶ 13, 994 P.2d 210, cert. denied, 4 P.3d 1289 (Utah 2000), because a decision based on a changed set of material facts is not a decision on the same question as the one presented previously.

[6] We are not alone in this approach. See, e.g.In re Marriage of Potts, 542 N.E.2d 179, 180–82 (Ill. App. Ct. 1989) (applying res judicata principles to hold that, under the facts of the case, an amended divorce decree that modified a child support obligation did not bar a claim for child support arrears that accrued under the prior decree); Zickefoose v. Muntean, 399 N.W.2d 178, 180–81 (Minn. Ct. App. 1987) (same).

[7] “The doctrine of unclean hands expresses the principle that a party who comes into equity for relief must show that his conduct has been fair, equitable, and honest as to the particular controversy in issue.” Goggin v. Goggin, 2013 UT 16, ¶ 60, 299 P.3d 1079 (cleaned up).

[8] “In Utah, . . . the rules of claim preclusion are ‘virtually identical’ to the federal rules . . . .” Haik v. Salt Lake City Corp., 2017 UT 14, ¶ 9, 393 P.3d 285 (citation omitted).

[9] The district court expressed its ruling against Isaac’s claim preclusion argument by finding that Stashia “did not waive” her claim for unpaid child support. Our ruling is that Stashia neither waived nor forfeited her right to assert that claim. “Though principles of waiver and forfeiture are often used interchangeably, the two concepts are technically distinct.” Reller v. Argenziano, 2015 UT App 241, ¶ 30, 360 P.3d 768 (cleaned up). “Forfeiture is the failure to make the timely assertion of a right, whereas waiver is the intentional relinquishment or abandonment of a known right.” Id. (cleaned up). Stashia did not waive her known right to bring a claim for unpaid support since, as we have concluded, she did not intentionally relinquish it through settlement or otherwise. Nor did she forfeit that right by the issue of failing to timely assert it since, as we have concluded, she was not required to present her claim during the modification proceeding. See id. ¶ 31 (holding that failure to timely amend a complaint to assert a claim for retroactive child support amounted to a forfeiture). We leave for another day the question of whether or how a claim for unpaid child support may be settled without running afoul of the statutory limitation on the waiver of child support claims. See generally Utah Code § 78B-12-109(1) (“Waiver and estoppel [of child support] shall apply only to the custodial parent when there is no order already established by a tribunal if the custodial parent freely and voluntarily waives support specifically and in writing.”); Cahoon v. Evans, 2011 UT App 148, ¶ 3, 257 P.3d 454 (holding that Utah Code section 78B-12-109 “rules out waiver and estoppel in all instances where there is a child support order already in place”).

[10] Isaac makes no attempt to address this procedural reality. Instead, he uses the certificate of readiness for trial as a vehicle to argue that he stipulated to a June 1, 2019 effective date for the modified child support order only “[i]n exchange” for Stashia giving up the right to pursue her claim for child support arrears. But the district court found that the parties did not intend such an exchange, and we have affirmed that finding. See supra ¶¶ 36–43.

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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.

 

 

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McQuarrie v. McQuarrie – 2021 UT 22 – termination of continuation of alimony

MCQUARRIE v. MCQUARRIE – 2021 UT 22

In the Supreme Court of Utah.

Melvin C. MCQUARRIE, Appellant,

v.

Janette Colledge MCQUARRIE aka Janette Kendall, Appellee.

No. 20190902-SC

Heard March 5, 2021

Filed June 17, 2021

 

On Petition for Writ of Certiorari to the Utah Court of Appeals

Third District, Salt Lake

Honorable Robert P. Faust

No. 084904419

Attorneys:

Julie J. Nelson, Erin B. Hull, James A. McIntyre, Richard R.

Golden, Salt Lake City, for appellant

David L. Arrington, Douglas B. Thayer, Melinda H. Birrell, Lehi,

for appellee

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in

which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE

AND JUSTICE PETERSEN joined

Associate Chief Justice Lee, opinion of the Court:

*1 ¶1 As a general rule, a stipulated divorce decree is interpreted in accordance with the law of contract interpretation—with the goal of discerning the intentions of the parties, as reflected in the ordinary meaning of the terms of the decree as a whole. But that general rule is subject to a specific statutory exception. If a divorce decree calls for payment of alimony, the payment is presumed to terminate upon remarriage of the receiving spouse, and the presumption is rebutted only if the divorce decree “specifically provides otherwise.” Utah Code § 30-3-5(9) (2015).

¶2 As the district court and the court of appeals in this case noted, the divorce decree at issue included provisions that, taken as a whole, could be interpreted to suggest that the parties contemplated that alimony would continue upon remarriage. But that is insufficient. Under the above-quoted statute as interpreted in our case law, the presumption that alimony terminates upon remarriage is rebutted only by a “specific[ ]” alimony provision that expressly “provides otherwise.” There was no such specific, express provision in the decree at issue here. And we reverse the decision of the court of appeals on that basis.

I.

¶3 Melvin McQuarrie and Janette Colledge McQuarrie (now known as Janette Kendall) married in 1980 and divorced in 2008. The district court entered a divorce decree detailing the terms of their mediated stipulation for divorce.

¶4 Under paragraphs 9 and 10 of the stipulated decree, Melvin1 was required to pay alimony to Janette in two phases. First, during the period in which Melvin was required to pay child support, he was required to make a $2,000 monthly alimony payment (subject to cost-of-living increases) “until the first of any of the following occurrences: a. [Melvin’s] death; or b. [Janette’s] death.” Second, after the child support obligation ended, Melvin was required to make an increased alimony payment to Janette “until the first of any of the following occurrences: c. [Melvin’s] death; d. The expiration of 372 months from the signing of the decree of divorce; or e. [Janette’s] death.”

¶5 The alimony provisions of the decree do not explicitly address the effect of Janette’s remarriage. But other provisions of the decree do refer to the possibility of her remarriage, either expressly or by implication.

¶6 In paragraph 11, the decree requires Melvin to pay $1 million to an annuity underwriter of Janette’s choice, with Janette “irrevocably designated as the beneficiary of the annuity during her lifetime with the power to designate any blood relative as the beneficiary of any death benefit provided by the annuity.” The power to designate a beneficiary of a death benefit is expressly limited, however. “[I]n the event [Janette] remarries, she may not designate her spouse or his children as beneficiaries, even if she were to adopt them.” The expressed “intention of the parties” was “that the annuity is solely for the benefit of [Janette] and no one else.” It was “anticipated that the annuity [would] provide a stream of income to [Janette] for her lifetime sufficient to supplement what [Melvin] pays as alimony.”

¶7 A footnote to the annuity provision states that Janette is “ordered to be responsible for her utilities, maintenance, taxes and insurance on the marital home” (which was awarded to Janette) after she “is eligible to receive the annuity.” It also provides for a meeting, to be held every three years, to allow the parties “to review their respective standard of living” and to make any necessary “upward” adjustment of “alimony beyond the” Consumer Price Index. “The standard of living [was] ordered to be equal.” And the meeting was aimed at facilitating an exchange of information of relevance to the assessment and equalization of the parties’ standard of living. Each party was required “to update any new documentation to the mediation binder, including new property holdings/assets, increased earnings, bonuses, and/or royalties, and business to debt ratio.” Melvin and Janette were to meet “without spouses or attorneys,” but “if necessary,” they could “agree upon a mediator” to be present.

¶8 The decree also makes reference to remarriage in a few provisions addressing division of property. It states that Melvin is required to “pay the first deed of trust” on the marital home and to pay for “utilities, lawn care, snow removal, upkeep, maintenance, [and] a housekeeper” for the home, while providing that Melvin is relieved of the latter responsibilities (but not the payment of the first deed of trust) if Janette remarries. It also requires Melvin to purchase or lease a car for Janette every five years, but provides that that obligation ceases if Janette remarries. And it orders Melvin and Janette to “enter into a prenuptial agreement prior to any remarriage,” while prohibiting them from divesting assets to future spouses and restraining them from disclosing the terms of the decree to such spouses.

¶9 Janette remarried in 2014. Later that year, she filed a petition to modify the divorce decree, asserting that Melvin had defrauded her in failing to disclose certain assets and misrepresenting the value of the marital home. She also filed a motion seeking to have Melvin held in contempt for failing to make certain payments required under the decree.

¶10 Melvin filed a counter-petition to modify the decree. In the counter-petition, Melvin asserted that Janette’s remarriage constituted a “substantial and material change in the parties’ circumstances” justifying a termination of the alimony obligation. Citing Utah Code section 30-3-5(9) (2015), Melvin contended that the alimony obligation terminated as a matter of law upon Janette’s remarriage because the decree did not “specifically provide” that alimony would continue after her remarriage.

¶11 The district court denied both parties’ motions. In denying Melvin’s motion, the court considered “all the language in” the decree and concluded that the alimony provisions “were not something that would be terminated or eliminated based upon the remarriage” of Janette. And it held that the decree “language specifically provides that the alimony/child support payments would continue beyond remarriage and were structured to provide the appropriate division of the marital assets” to Janette.

¶12 Melvin challenged that decision on appeal, again citing Utah Code section 30-3-5(9) (2015) and again asserting that his alimony obligation terminated because the divorce decree did not “specifically provide” that the alimony payment was to continue after Janette’s remarriage. The court of appeals affirmed. See McQuarrie v. McQuarrie, 2019 UT App 147, 450 P.3d 1133. It acknowledged that “[a]limony is presumed to terminate upon the remarriage of the receiving spouse” and noted that this presumption “is now codified in” Utah Code section 30-3-5(9) (2015). Id. ¶ 28 (citation omitted). But it did not elaborate on the requirement of a decree provision that “specifically provides” that alimony payments are to continue after remarriage. Like the district court, it turned instead to the terms of the decree “as a whole.” Id. ¶ 31. And it stated that its role was to “ascertain the intentions of the parties” to the decree with regard to the payment of alimony. Id. ¶ 29 (citation omitted). Citing not just the alimony provisions but the terms of other provisions of the divorce decree, the court of appeals concluded that the decree “specifically provides that alimony would survive Janette’s remarriage.” Id. ¶ 31.

¶13 The court noted that the decree provided that Melvin’s obligation to provide a car allowance and to pay certain household expenses would terminate upon Janette’s remarriage. Id. It also credited the footnote calling for a meeting between the parties to review their standard of living and make any necessary adjustment to alimony payments—noting that that provision prohibited the attendance of the parties’ “spouses,” which the court viewed as an acknowledgement of the possibility that both Melvin and Janette might have remarried at a time when they would be meeting to discuss an adjustment to alimony payments. Id. ¶ 33. And it cited other provisions of the decree referring to the possibility of Janette’s remarriage—including the prohibition on naming a future spouse as beneficiary of the annuity and the requirement that Melvin continue to pay the mortgage on Janette’s home even if she were to remarry. Id. ¶ 35.

¶14 As to the alimony provisions themselves, the court of appeals noted that they identified Janette’s death, but not her remarriage, as an event that would terminate the alimony payment. In the court of appeals’ view, these provisions would be “meaningless” if they were interpreted to allow for termination of alimony upon Janette’s remarriage. Id. ¶ 32.

¶15 On these grounds, the court of appeals concluded that “the parties considered Janette’s potential remarriage and specifically agreed on how that event would affect their respective rights and obligations” under the decree. Id. ¶ 35. It held that “the only ‘reasonable’ interpretation” of the decree “as a whole is that alimony terminates only as expressly provided”—upon Janette’s death, Melvin’s death, or 372 months from the date of execution of the decree. Id. The cited “provisions,” in the court’s view, “strengthen an inference that the parties intentionally omitted remarriage” from the list of events that would terminate Melvin’s alimony obligation. Id. ¶ 31. And on that basis, the court of appeals held that the decree as a whole “specifically provides” that alimony was to continue despite Janette’s remarriage. Id. ¶ 36.

¶16 Melvin filed a petition for writ of certiorari, which we granted. We review the court of appeals’ decision de novo, according no deference to its decision. State v. Lujan, 2020 UT 5, ¶ 18, 459 P.3d 992.

¶17 We consider first Melvin’s challenge to the court of appeals’ determination that the divorce decree “specifically provides” for payment of alimony after remarriage. We then take up a further request made by Melvin—that we enter an order disgorging the alimony payments he has made in the period after Janette’s remarriage. We reverse the court of appeals, decline to enter an order of disgorgement, and remand to the district court for any further proceedings that that court may deem appropriate.

II.

¶18 As a general rule, a stipulated divorce decree is interpreted as if it were a contract between the parties. Parties to a divorce are bound by the terms of their stipulated agreement. See Thayer v. Thayer, 2016 UT App 146, ¶ 17, 378 P.3d 1232; see also Higley v. McDonald, 685 P.2d 496, 499 (Utah 1984) (parties bound by terms of stipulated agreement in property boundary dispute). And the court’s goal in interpreting such a document is to credit the agreed-upon terms of the stipulation under “established rules of contract interpretation.” Thayer, 2016 UT App 146 ¶ 17, 378 P.3d 1232 (citation omitted). In so doing, a court should consider each provision of a decree “in relation to all others, with a view toward giving effect to all and ignoring none.” Id. (citation omitted).

¶19 We see a basis for the court of appeals’ decision under this standard of interpretation. Several of the terms of the divorce decree make reference to the possibility of Janette’s remarriage. And the alimony provisions themselves list conditions other than remarriage (death of one of the parties or expiration of a 372-month period) as grounds for termination of Melvin’s alimony obligation. With this in mind, we can see why the court of appeals found a basis for an “inference that the parties intentionally omitted remarriage” from the list of events that would terminate Melvin’s alimony obligation. By stating that alimony would terminate upon Melvin’s or Janette’s death or after a period of 372 months, it is entirely possible that the parties to the decree were contemplating that there were no other events (such as Janette’s remarriage) that would cut off the alimony payment.

¶20 This inference, moreover, may be strengthened by other provisions of the decree. A key provision, as the court of appeals noted, is the footnote calling for a meeting—without “spouses”—to review the parties’ standard of living and make any necessary alimony adjustments. That provision implicitly seems to contemplate the possibility of an alimony adjustment made after Janette remarried, since it prohibits the attendance of “spouses” (plural).

¶21 For these reasons, we likely would be affirming the court of appeals if we agreed that the effect of remarriage on the alimony payment were a matter of discerning the parties’ likely intentions as reflected in the terms of the divorce decree interpreted as a whole. But that is not the standard. By statute, a party’s obligation to make alimony payments is distinct from other terms and conditions of a divorce decree. If a decree sets forth an obligation to pay alimony, the payment obligation is legally presumed to terminate upon remarriage of the receiving spouse. See Utah Code § 30-3-5(9) (2015). And the presumption is rebutted not by a showing of the parties’ contrary intentions as evidenced by the terms of the divorce decree as a whole, but by a specific proviso to the contrary in a provision addressed to the payment of alimony. See id.

¶22 This follows from the governing text of the controlling statute. “Unless a decree of divorce specifically provides otherwise, any order of the court that a party pay alimony to a former spouse automatically terminates upon the remarriage or death of that former spouse.” Id. The statute prescribes the presumptive effect of the terms of an “order of the court that a party pay alimony to a former spouse.” Such terms are to be interpreted to “automatically terminate[ ] upon the remarriage or death” of the former spouse. This presumption is rebuttable. But the rebuttal must be in the manner set forth by statute: The “decree of divorce” must “specifically provide[ ] otherwise.”

¶23 A divorce decree “specifically provides otherwise” only if there is a provision that speaks directly to the alimony payment in terms that explicitly prescribe a payment obligation that persists despite remarriage. This is clear from the language and structure of the statute. A divorce decree “specifically” overrides the statutory presumption only where it speaks specifically to the alimony payment obligation. And it “provides otherwise” only in a provision of the decree that contradicts the presumption—in stating otherwise (contrary to the statutory presumption) that alimony will continue despite remarriage.

¶24 This interpretive standard is reinforced in Utah case law. In Lord v. Shaw, we considered a divorce decree stating that “alimony [was] to run for a period of three years,” entered under a statute essentially identical to the provision at issue here. 682 P.2d 853, 855 (Utah 1984)), (citing Utah Code § 30-3-5(2) (Supp. 1983)), abrogated on other grounds by Bailey v. Sound Lab, 694 P.2d 1043 (Utah 1984). After remarriage, the receiving spouse asserted a right to continued alimony during the agreed-upon three-year period. She contended that the parties understood that alimony was to continue “for three years regardless of her marital status.” Id. And she asserted that the three-year period was aimed at “assist[ing] her with her education, which would take three years.” Id.

¶25 In Lord we nowhere refuted the receiving spouse’s assertions about the parties’ intentions under the divorce decree, or denied the inference that could be drawn from the decree’s proviso that alimony would continue “for a period of three years.” But we noted that the duty to pay alimony is presumed to terminate upon remarriage unless the divorce decree “specifically provides otherwise.” Id. (citing Utah Code § 30-3-5(2) (Supp. 1983)). And we held that the decree did not “provide for an exception to the general rule that alimony terminates upon remarriage” because it did not include a specific proviso calling for payment of alimony after the receiving spouse’s remarriage. Id.

¶26 The divorce decree at issue in this case is admittedly more detailed than the one presented in Lord. And in some ways, the decree at issue here may provide an even stronger basis for an inference that the parties may have contemplated the possibility of alimony payments continuing after remarriage of the receiving spouse. But the controlling statute does not provide for rebuttal of the underlying presumption by inference. It requires a specific proviso that alimony continues after remarriage. And the absence of such proviso is as controlling here as it was in Lord.

¶27 In so holding, we are not requiring the inclusion of talismanic phrases or magic words. We are simply following the dictates of the statute as interpreted in the case law. And we are accordingly holding that the presumption that alimony terminates upon remarriage is not rebutted by inference but only by a specific proviso that such payments will continue after the receiving party remarries.

¶28 Janette warns of the possibility of a “trap” for the “unwary” if “technical” words are required to rebut the statutory presumption. And she asserts that there is “no discussion” in the legislative history indicating that the legislature “intended” to “require elevated precision in language or the placement of such language in a dedicated ‘proviso.’ ”

¶29 We accept some of the threshold premises of Janette’s arguments. But we do not view them as undermining our holding.

¶30 As to the first point, we again emphasize that the governing standard does not require any particular precision or use of technical language. It just requires a specific proviso that alimony payments are to continue despite remarriage. Perhaps some parties to a divorce will be unaware of the governing legal standard. But the statute states the governing standard. And the public is charged with knowledge of its terms and conditions—ignorance of the law is no excuse. See In re Adoption of B.Y., 2015 UT 67, ¶ 19 n.3, 356 P.3d 1215.

¶31 On the second point, we concede that the requirement of a “dedicated ‘proviso’ ” is nowhere articulated in the legislative history. But “[l]egislative history is not law.” Graves v. N. E. Servs., Inc., 2015 UT 28, ¶ 64, 345 P.3d 619. The law is set forth in the statutory text that was voted on by the legislature. See id. ¶¶ 64–65 (stating that the law is the “statutory text” as “duly enacted” by the legislature). And we cannot foreclose an interpretation of the text on the ground that there is no evidence that it was considered openly on the legislative record. Such a decision would invert the premises of the legislative process, giving “primacy to legislative history, and only secondary significance to the duly enacted statute.” Id. ¶ 65 (explaining that this would “turn a core principle of statutory construction on its head”).

¶32 Janette’s objections ultimately are matters to be taken up, if at all, by the legislature. Perhaps that body could be persuaded that the effect of remarriage on an alimony clause should be a matter controlled purely by an inquiry into the likely intentions of the parties to the divorce decree. And if the legislature so concluded, it certainly could amend the operative statute, and thereby subject alimony provisions to a contract-based standard of interpretation.

¶33 But that is not our law as now written. And we see some wisdom in the law as it stands. The statutory presumption is a gap-filler. It sets a legal presumption based on an educated guess about the likely intentions of the parties to most divorce actions. And it facilitates the process of finalizing the divorce decree by setting a presumptive rule that remains in place unless expressly repudiated.2

¶34 The statutory presumption seems rooted in a fair guess about the likely intentions of the parties to most divorce decrees. And the standard, as stated in our law, provides a clear background rule that parties can negotiate around. If the parties wish to depart from the background presumption, they must do so explicitly in a proviso stating that alimony payments are to continue after remarriage. If they fail to “specifically” so “provide,” the statutory presumption is retained.

¶35 We reverse the court of appeals on this basis. The divorce decree in this case does not include a specific provision stating that alimony is to continue despite remarriage. The alimony provision identifies events other than remarriage that will trigger the termination of alimony. And that, combined with other references to remarriage in the decree, could be viewed to support an inference that the parties contemplated that alimony would continue despite the receiving spouse’s remarriage. But such an inference is insufficient under our law. And we conclude that Melvin’s alimony obligation terminated by operation of law because the decree did not “specifically provide[ ] otherwise.”

III.

¶36 In addition to seeking reversal of the decision of the court of appeals, Melvin asks us to enter an order disgorging the alimony payments he has made to Janette after her remarriage. We decline to consider the disgorgement question in the absence of any analysis of the matter in the proceedings below. Instead, we reverse and remand the matter to the district court for any further proceedings the district court may deem appropriate.

¶37 In remanding, we are taking no position on the propriety or availability of any request for disgorgement or of the proper direction of any further proceedings on remand. We leave the matter to the sound discretion of the district court, with appropriate input from the parties.

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MacFarland v. MacFarland – 2021 UT App 58

021 UT App 58 

THE UTAH COURT OF APPEALS 

BRUCE RAY MCFARLAND, Appellant and Cross-appellee, 
v. 
NICOLE S. MCFARLAND, Appellee and Cross-appellant. 

Opinion 

No. 20190541-CA 
Filed June 4, 2021 

Second District Court, Farmington Department 

The Honorable David J. Williams 

No. 084701533 

Jacob K. Cowdin and A. Douglas Anderson, Attorneys for Appellant and Cross-appellee 

Angilee K. Dakic and Ryan C. Gregerson Attorneys for Appellee and Cross-appellant 

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

HARRIS, Judge: 

¶1 Bruce Ray McFarland (Bruce) and Nicole S. McFarland (Nicole)1 divorced in 2009 pursuant to a stipulated divorce decree, but soon thereafter began to ignore many of the decree’s important provisions. However, neither party brought any matter to the attention of the district court for some eight years, until Bruce filed a petition to modify in 2017, and Nicole followed up with a request that the court hold Bruce in contempt. Both parties now appeal the court’s ruling on those requests and, for the reasons discussed herein, we affirm in part, reverse in part, and remand for further proceedings. 

BACKGROUND 
The Divorce Decree 

¶2 In 2008, after almost sixteen years of marriage, Bruce and Nicole separated, and Bruce filed a petition for divorce. Soon thereafter, the parties negotiated a resolution to the divorce proceedings, and filed papers memorializing their agreement. In February 2009, the court entered a decree of divorce (the Decree) that incorporated the parties’ stipulated agreement. With regard to alimony and the house in which they lived while they were married (the Home), the parties’ agreement was straightforward: Bruce was ordered to pay $1,700 per month in alimony to Nicole, beginning in November 2008 and continuing until Nicole “remarries, cohabits, dies, for a term equal to their marriage, or further order of the Court,” and Nicole was awarded the Home, including the obligation to make the mortgage payments. 

¶3 But the parties’ agreement regarding custody and child support was unusual. Bruce was to have overnight custody of the parties’ four children every week from Sunday evening until Friday morning, with the parties each enjoying weekend overnight custody on an alternating basis. During the modification proceedings at issue here, Nicole acknowledged that the arrangement entitled her to fewer than 30% of the overnights; indeed, the district court found that this arrangement resulted in Bruce having “24 overnights per month with the children,” leaving Nicole with just six, and neither party takes issue with that finding. But despite the fact that Bruce was awarded more than 70% of the overnights, see Utah Code Ann. § 30-3-10.1(2)(a) (LexisNexis 2009) (defining “joint physical custody” as any arrangement in which “the child stays with each parent overnight for more than 30% of the year”), the parties labeled their arrangement “joint . . . physical custody,” perhaps because the arrangement contemplated that Nicole would pick the children up from school every day and care for them until eight o’clock p.m., at which point Bruce was to retrieve the children so that they could “stay with him overnight.” 

¶4 With regard to child support, the parties agreed to calculate the amount using the sole custody worksheet, even though they labeled their arrangement as joint custody, and agreed that Bruce—and not Nicole, notwithstanding the fact that Bruce had the lion’s share of the overnights—would be considered the “Obligor Parent” on the worksheet. Using these parameters, the parties agreed that Bruce would pay Nicole monthly child support equating to one-half of what the worksheet said Bruce would owe if he were the Obligor Parent, an amount the parties computed to be $739.73 per month at the time the Decree was entered, when all four children were still minors.2  

Post-Divorce Events and Conduct 

¶5 Soon after the court entered the Decree, both parties began to ignore many of its provisions. For instance, Nicole made no mortgage payments on the Home. And Bruce made only one alimony payment (in January 2009) and three child support payments (in December 2008, and January and February 2009), but after that made no payments of either kind. 

¶6 In addition, with Nicole’s permission, Bruce moved back into the Home in April 2009. After that point, although Bruce made no payments denominated as alimony or child support, he did resume paying the mortgage on the Home, a payment that happened to be $1,728 per month, only slightly more than Bruce’s alimony obligation. When Bruce first moved back in, he and Nicole lived separately for a time, but beginning in September 2009, and lasting until April 2010, Bruce and Nicole resumed cohabiting as a couple, which included sharing familial expenses and reinitiating sexual relations. It is not a matter of dispute in this case that, during that seven-month period, the parties were cohabiting, as that term is used in relevant statutes and case law. See Myers v. Myers, 2011 UT 65, ¶ 17, 266 P.3d 806 (identifying the “hallmarks of cohabitation, including participation in a relatively permanent sexual relationship akin to that generally existing between husband and wife and the sharing of the financial obligations surrounding the maintenance of the household” (quotation simplified)); see generally Utah Code Ann. § 30-3-5(10) (LexisNexis 2017) (stating that alimony “terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person”). 

¶7 In April 2010, Nicole enlisted in the military, and left Utah for basic training. Over the next seven years, Bruce resided in the Home with the children, and provided all necessary childcare and financial support, including making the monthly mortgage payments on the Home. Nicole served two tours of duty overseas with the military, and visited the children or took them on vacation periodically while on leave. But other than these short visits, Nicole exercised no custody or parent-time, and provided no significant financial support to the children. Eventually, in 2015, Nicole remarried. 

¶8 For the seven years following Nicole’s enlistment, both parties seemed content with their arrangement and, even though both were materially violating the terms of the Decree, neither filed so much as a single document with the court. In particular, neither party sought to modify the terms of the Decree, and neither party sought contempt sanctions against the other. 

The Post-Divorce Filings 

¶9 The parties’ tacit arrangement came to an end in 2017 when Bruce sought to refinance the Home. Because Nicole had been awarded the Home in the Decree, Bruce asked Nicole to deed him the Home to facilitate the refinance. Nicole refused to authorize the refinance unless Bruce paid her half the equity, asserting that she owned the Home and that any mortgage payments made by Bruce constituted “either rent or alimony payments” that he owed her. Then, in June 2017, Bruce filed a petition to modify, followed by a motion for temporary orders in February 2018, bringing three separate provisions of the Decree to the court’s attention. First, Bruce requested that alimony be terminated, dating back to 2009. Second, Bruce asked the court to modify the Decree to award him sole physical and legal custody of the two remaining minor children, and asked that he be awarded child support payments from Nicole going forward. And finally, Bruce asked the court to modify the Decree to award him the Home, alleging that he assumed the mortgage to avoid foreclosure because Nicole had “abandoned the property when she joined the military.” While the petition and motion for temporary orders were pending, Bruce completed a refinance of the Home, apparently finding a way to close the transaction without Nicole’s authorization. 

¶10 Nicole responded by filing two orders to show cause, asking the court to hold Bruce in contempt in three respects: 

(1) for failing to make alimony payments; (2) for failing to make child support payments; and (3) for occupying the Home and for refinancing it without her authorization. Nicole asked the court to enter judgment in her favor for alimony and child support arrears, as well as for “the amount that [Bruce] cashed out when he refinanced” the Home, and asked the court to order that she obtain immediate “use and possession” of the Home. 

¶11 After a hearing, a domestic relations commissioner certified a number of issues as ripe for an evidentiary hearing before the district court, including the following: (1) whether Bruce should be held in contempt for failing to pay alimony and, if so, the amount of arrears at issue; (2) whether Bruce should be held in contempt for failing to pay child support and, if so, the amount of arrears at issue; (3) whether Bruce should be held in contempt for refinancing the Home without Nicole’s consent; and (4) whether Bruce should be held in contempt for occupying and refusing to vacate the Home. All of the issues certified by the commissioner were framed as contempt or temporary order issues; the commissioner apparently did not envision that the hearing would be a final dispositive hearing on Bruce’s petition to modify. 

¶12 In anticipation of the evidentiary hearing before the district court, both parties filed papers outlining their positions. Citing section 30-3-5(10) of the then-applicable Utah Code, Bruce argued that he did not owe any alimony arrears because his obligation to pay alimony terminated in 2009 due to “the cohabitation relationship” that the two established when they moved back into the Home together. Citing Scott v. Scott, 2017 UT 66, ¶¶ 10, 26–27, 26 n.7, 423 P.3d 1275, Nicole argued in response that, under the applicable statute as interpreted by our supreme court, a party attempting to terminate alimony for cohabitation must file a motion or petition “during [the] alleged co-habitation.” 

¶13 Regarding child support, Bruce asserted that he should not be required to pay Nicole for any point after 2009, because the children had been almost entirely in his care since then. In particular, Bruce argued for the applicability of section 78B-12108 of the Utah Code, which provides that child support payments generally “follow the child,” and that changes in child support obligations can, under certain circumstances, occur “without the need to modify” the governing decree. See Utah Code Ann. § 78B-12-108(1), (2) (LexisNexis 2017). Bruce’s arguments in the pretrial briefing were entirely defensive—that is, he asserted that he should not be required to make child support payments to Nicole after 2009, but at no point did he assert an entitlement to child support arrears from Nicole regarding any time period prior to the filing of his petition to modify. 

The Hearing and Subsequent Ruling 

¶14 At the ensuing evidentiary hearing, the court heard live testimony from Bruce, Nicole, Bruce’s father, and the parties’ adult daughter. At the conclusion of the evidence, the court took the matter under advisement, and asked the parties to submit written closing arguments in the form of post-trial briefs. 

¶15 In her closing brief, Nicole attempted to rebut Bruce’s cohabitation claim with two arguments. First, Nicole asserted that the governing statute, as interpreted in Scott, required Bruce to have requested termination of alimony during the period of cohabitation. Second, Nicole argued that, even if Bruce’s request was timely, no cohabitation occurred because Bruce, the payor spouse, did not qualify as “another person” within the meaning of the governing statute. See Utah Code Ann§ 30-3-5(10) (LexisNexis 2017) (stating that alimony terminates if “the former spouse is cohabitating with another person”). For his part, while he attempted to rebut all of Nicole’s claims, Bruce again made no affirmative claim to child support arrears running in his direction. 

¶16 A few weeks later, the court issued a written ruling. With regard to alimony, the court found Bruce in contempt for failing to make payments. First, the court concluded that the mortgage payments Bruce made were just that—mortgage payments on a house Bruce lived in—and could not be considered alimony, and it found that Bruce had not paid any alimony since 2009. Second, the court determined that, even if all of the hallmarks of cohabitation were present between September 2009 and April 2010, cohabitation had not occurred because “‘cohabitation’ does not include meeting the elements of cohabitation with the ex-spouse.” Accordingly, the court concluded that Bruce’s alimony obligation had not terminated in 2009 when the parties moved back in together, and that Bruce was in contempt for not paying alimony between 2009 and Nicole’s remarriage in 2015. Based on those findings, the court computed the alimony arrearage amount to be “$150,744.50 plus post-judgment interest,” and ordered Bruce to pay that amount. 

¶17 With regard to child support, the court found that Bruce was not in contempt. The court accepted Bruce’s argument that, pursuant to section 78B-12-108 of the Utah Code, the child support obligation was to follow the children, and concluded that, pursuant to subsection (2) of that statute, which the court found applicable, Bruce was relieved of his child support obligation dating back to 2009, even though he did not file a petition to modify until 2017. In addition, the court offered its view that, even if section 78B-12-108 were inapplicable, “it would not be equitable to require” Bruce to pay child support to Nicole for time periods in which he cared for the children. On those bases, the court determined that Bruce had no obligation to pay child support to Nicole after 2009. But the court did “not find that [Nicole] was required to pay child support payments to [Bruce] after leaving for military service,” noting that, in its view, Bruce had not made any such affirmative claim, and instead had raised only defensive claims regarding any obligations he might have to Nicole. 

¶18 With regard to the Home, the court declined to find Bruce in contempt for not vacating the Home, refusing to quitclaim it to Nicole, or refinancing it. However, the court made no ruling on altering the Decree’s provision that originally awarded the Home to Nicole, stating simply that Bruce “shall be allowed, on a temporary basis, to remain” in the Home “until the matter is brought forth and certified” by the commissioner as ripe for an evidentiary hearing. 

ISSUES AND STANDARDS OF REVIEW 

¶19  Both parties appeal the district court’s ruling, raising two main issues for our review. First, Bruce challenges the court’s determination that his alimony obligation was not terminated by cohabitation. In advancing this argument, Bruce relies entirely on Utah’s alimony statute, and asserts that the court’s interpretation of that statute was incorrect. See Utah Code Ann. § 30-3-5(10) (LexisNexis 2017) (stating that a payor spouse’s obligation “terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person”).3 “The proper interpretation and application of a statute is a question of law which we review for correctness . . . .” Veysey v. Veysey, 2014 UT App 264, ¶ 7, 339 P.3d 131 (quotation simplified). 

¶20 Next, both parties challenge the court’s child support rulings. Nicole takes issue with the court’s determination that Bruce did not owe her child support payments, pursuant to the terms of the Decree, after 2009. And Bruce asserts that the court erred by declining to order Nicole to pay child support arrears to him. Because the parties’ arguments center on interpretation and application of section 78B-12-108 of the Utah Code (Section 108), we review the district court’s decision for correctness. See Veysey, 2014 UT App 264, ¶ 7.4 

ANALYSIS 
I. Alimony 

¶21 We first address Bruce’s claim that his alimony obligation terminated by operation of statute when the parties cohabited in 2009 and 2010. Because Bruce’s position is directly foreclosed by our supreme court’s decision in Scott v. Scott, 2017 UT 66, 423 P.3d 1275, we reject his challenge to the district court’s ruling. 

¶22 At all relevant times during the events precipitating this appeal, Utah’s alimony statute provided that alimony obligations “to a former spouse terminate[] upon establishment by the party paying alimony that the former spouse is cohabitating with another person.” Utah Code Ann. § 30-3-5(10) (LexisNexis 2017) (emphasis added).5 In Scott, our supreme court was asked to interpret the same version of this statute. See 2017 UT 66, ¶ 3. After noting the statute’s use of present tense language—“is cohabitating”—the court interpreted the statute as requiring “the paying spouse to establish that the former spouse is cohabiting at the time the paying spouse files the motion to terminate alimony.” See id. ¶¶ 23, 33. While the Scott opinion was not published until 2017, the statutory language the court was interpreting in that case had been in effect at all times relevant to this case. See supra note 5. That is, Scott did not introduce a new rule that was effective only prospectively; rather, it provided an interpretation of statutory text that had already been in effect for several years. See DIRECTV, Inc. v. Imburgia, 577 U.S. 47, 56 (2015) (“[J]udicial construction of a statute ordinarily applies retroactively.”); see also Rivers v. Roadway Express, Inc., 511 U.S. 298, 311–12 (1994) (stating that “the principle that statutes operate only prospectively, while judicial decisions operate retrospectively, is familiar to every law student” (quotation simplified)). 

¶23 Under the circumstances presented in this case, any cohabitation between Bruce and Nicole ceased sometime in early 2010. But Bruce did not file his petition to modify until 2017. It is therefore undisputed that the cohabitation to which Bruce points had long since ceased by the time he filed his petition to modify. Thus, under the statute then in effect (as interpreted by Scott), that petition was filed some seven years too late. Accordingly, Bruce cannot now complain that his alimony obligation should be terminated, by operation of statute, due to the parties’ long-since-concluded cohabitation. Bruce has therefore not carried his burden of demonstrating error in the district court’s ruling that Bruce’s alimony obligation lasted until Nicole’s 2015 remarriage,6 or in the court’s rulings holding Bruce in contempt for failing to pay alimony from 2009 through 2015 and ordering him to pay past-due alimony.7 

  1. Child Support

¶24 Next, we address the parties’ respective challenges to the district court’s child support rulings. As noted, Nicole takes issue with the court’s ruling that Bruce’s child support obligations to her, as set forth in the Decree, ended in 2009, and that therefore Bruce could not be held in contempt for not meeting those obligations. Building on that same ruling, Bruce takes issue with the court’s reluctance to go a step further and order Nicole to pay him child support arrearages dating to 2009. We begin our analysis by discussing some of the broad overarching principles governing modification of child support orders, including a discussion of Section 108 in particular. We then address the parties’ respective challenges, in turn, beginning with Nicole’s. 

A 

¶25 In general, decrees in domestic relations cases are binding final judgments that may be modified “only under certain conditions.” Kielkowski v. Kielkowski, 2015 UT App 59, ¶ 21, 346 P.3d 690; see also Robertson v. Stevens, 2020 UT App 29, ¶¶ 6–7, 461 P.3d 323 (explaining that once “judgment is entered” in a divorce case, “the court’s power to modify the judgment is limited” (quotation simplified)). While there are several tools that can generally be used to modify final judgments, see, e.g., Utah R. Civ. P. 60(b), one tool that is specific to family law cases is the petition to modify, see id. R. 106(a) (stating that, in most cases, “proceedings to modify a divorce decree . . . shall be commenced by filing a petition to modify”); see also Ross v. Ross, 2019 UT App 104, ¶ 11, 447 P.3d 104 (“[R]ule 106 establishes a general rule . . . that any changes to divorce decrees must be brought about by the filing of a petition to modify.”). Parties in family law cases may use this tool, in accordance with applicable statutes and rules, to seek modification of various provisions of decrees, including child support provisions. See Utah Code Ann. § 78B-12-210(9)(a) (LexisNexis 2017) (“A parent . . . 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.”); see also id. § 30-3-5(3) (“The court has continuing jurisdiction to make subsequent changes or new orders for the custody of a child and the child’s support, maintenance, health, and dental care, and for distribution of the property and obligations for debts as is reasonable and necessary.”); id. § 30-3-5(8)(i)(i) (“The court has continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantial material change in circumstances . . . .”). 

¶26 But in general, modifications to a decree’s provisions regarding child support payments may date back only to “the month following service” of the petition to modify “on the parent whose support is affected.” See id. § 78B-12-112(4); see also McPherson v. McPherson, 2011 UT App 382, ¶ 17, 265 P.3d 839 (stating that “the statute does limit the time period during which retroactive modification is available”). That is, as concerns child support provisions, parties are generally barred from obtaining modifications that date back further than the first day of the month after the month in which the petition to modify was served on the opposing party. 

¶27 One potential exception to this general rule appears in Section 108, a statutory provision entitled “Support Follows the Child.” See Utah Code Ann. § 78B-12-108 (LexisNexis 2017). That section, in relevant part, reads as follows: 

 Obligations ordered for child support and medical expenses are for the use and benefit of the child and shall follow the child. 

 Except in cases of joint physical custody and split custody as defined in Section 78B-12-102, when physical custody changes from that assumed in the original order, the parent without physical custody of a child shall be required to pay the amount of support determined in accordance with [calculation guidelines found in other code sections] without the need to modify the order for . . . the parent who has physical custody of the child. 

Id. (emphasis added). Thus, Section 108 contains an overarching mandate that child support payments “shall follow the child,” and provides that, under certain limited circumstances, child support obligations can change “without the need to modify” the child support provisions in the governing decree. Id.see also Hansen v. Hansen, 2012 UT 9, ¶ 13, 270 P.3d 531 (stating that, under certain circumstances, Section 108 “allows redirection of child support [payments] without modification of the support order”). In this way, Section 108 constitutes an exception to the general rule that modifications to child support provisions may date back only to the month following service of the petition to modify on the opposing party: where Section 108 applies, it may allow modification of child support awards even further back in time. 

¶28 But this exception comes with distinct statutory limits. Indeed, our supreme court has noted that Section 108 “contains two provisions: (1) a general statement that support shall follow the child and (2) a specific provision providing guidelines for redirection of child support to a new physical custodian.” Hansen, 2012 UT 9, ¶ 7. And the court has already foreclosed any argument that subsection (1)’s general statement—that child support “shall follow the child”—operates by itself “to redirect support payments any time anyone provides any shelter or sustenance to a child.” See id. ¶ 10. Instead, the specific requirements of subsection (2) operate to “modif[y] the general statement in subsection (1),” and those specific requirements serve as the prerequisites for entitlement to a retroactive change in child support that dates back further than the date of a duly served petition to modify. See id. ¶ 11. 

¶29 Under the provisions of subsection (2), a litigant can obtain a change in a child support provision even “without the need to modify the order” itself, but only if two conditions are met: (a) there must be a change in “physical custody . . . from that assumed in the original order,” and (b) the case must not be one involving “joint physical custody.” See Utah Code Ann. § 78B-12-108(2). 

B 

¶30 Bruce asserts that Section 108 applies here, and allows him to obtain retroactive modification, dating all the way back to 2009, of the Decree’s child support provisions, even though he did not seek modification of either the custody provisions or the child support provisions until 2017. The district court agreed with Bruce’s interpretation of Section 108, and determined that Bruce was not in contempt for failure to pay Nicole child support between 2009 and 2017 because he had been caring for the children during that time and because child support should “follow the children.” (Citing Utah Code Ann. § 78B-12-108.) 

¶31 Nicole challenges the court’s interpretation of Section 108. We agree with Nicole because, for two independent reasons, Section 108 is inapplicable here. First, this is not a case in which physical custody ever legally changed “from that assumed in the original order.” See Utah Code Ann. § 78B-12-108(2) (LexisNexis 2017). And second, even assuming that some sort of de facto change of parent-time occurred in 2010 when Nicole joined the military, that change did not constitute a change in physical custody under the operative definition of that term. See id. §§ 30-3-10.1(3)(a), 78B-12-102(15) (each defining “joint physical custody” for its respective chapter). 

1 

¶32 In order for Section 108’s exception to apply, the situation must involve a change in “physical custody . . . from that assumed in the original order.” See id. § 78B-12-108(2). The term “physical custody,” as used in this statute, is a “legal term of art” that “involve[s] much more than actual possession and care of a child.” See Hansen, 2012 UT 9, ¶¶ 12, 15, 19. “A physical custodian also has a legal responsibility to provide supervision and control.” Id. ¶ 15 (emphasis added). 

¶33 Given this definition, a change in “physical custody” cannot occur without some sort of “formal legal process[].” Id. ¶¶ 19, 24. In most cases, this occurs by court order following the filing of a petition to modify. See id. ¶¶ 21, 25. In other “rare circumstances,” this can occur “by statute without the need for a hearing or court order.” Id. ¶ 25. But in any event, 

child support should be redirected only to those persons or entities who acquire the rights and responsibilities of the child’s new “physical custodian” under the law. Usually that will happen only after adjudication and a formal order, but in all cases it requires fulfillment of the statutory procedures and standards for a change in physical custody. The actual provision of sustenance and support is insufficient. 

Id. 

¶34 In this case, no one disputes that Bruce assumed all responsibility for “sustenance and support” of the children after April 2010. See id. But in this context, provision of additional sustenance and support to the children beyond that anticipated in the Decree is not enough to effectuate an actual, legal change in physical custody. See id. Bruce took no steps—at least not until 2017—to follow the “formal legal processes” typically used to effectuate an actual change of physical custody. See id. ¶ 24. And Bruce makes no argument that this case presents any “rare circumstances” in which custody can change by operation of statute, even in the absence of a petition to modify. See id. 

¶35 Thus, no change in “physical custody”—in an actual legal sense, as required by the “term of art” definition of the statutory phrase, see id. ¶ 12 (quotation simplified)—occurred in April 2010, or at any time prior to the filing of Bruce’s petition to modify. Because physical custody did not change, Section 108’s narrow exception to the usual retroactivity rules governing modification of child support orders does not apply here, and therefore it does not enable Bruce to seek changes to the Decree’s child support obligations dating any further back than 2017. 

2 

¶36 Moreover, even if we were to assume, for purposes of argument, that a change in “physical custody” could theoretically be effectuated merely by a parent’s provision of additional sustenance and support beyond that required by the governing child support order, no such change occurred on the facts of this case. We have previously stated that “[c]ustody and parent-time are conceptually distinct.” See Ross v. Ross, 2019 UT App 104, ¶ 14 n.3, 447 P.3d 104. By statutory definition, there are two kinds of physical custody—sole physical custody and joint physical custody—with the dividing line based on the number of overnight visits enjoyed by each parent. See Utah Code Ann. §§ 30-3-10.1(3)(a), 78B-12-102(15) (both stating that “joint physical custody means the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support” (quotation simplified)). Because either parent, in any given case, could be awarded sole physical custody— defined as having at least 70% of the overnights—there are three possible physical custody arrangements: (a) Parent 1 has sole custody; (b) Parent 2 has sole custody; and (c) the parents share joint custody. When a change occurs that causes one parent to obtain enough additional overnights to move from one category to another (e.g., from 25% of overnights to 35%, or from 65% to 75%), there has been a change in physical custodySee Ross, 2019 UT App 104, ¶¶ 16–17, 17 n.5. But when a change occurs in which one parent obtains a few additional overnights but not enough to move from one category to another, the change constitutes only a change in parent-time, and not a change in physical custody, as that term is statutorily definedSee id. ¶ 16 (noting that, in relocation cases, a parent need not file a petition to modify if scheduling changes necessitated by the proposed relocation would not change the statutory custody designation, and would change only parent-time). 

¶37 In this case, the parties started out with an arrangement, under the Decree, in which Bruce had twenty-four overnights each month and Nicole had only six. Although the parties described that arrangement, in the Decree, as a joint custody arrangement, the label the parties assigned to the arrangement is inconsequentialSee Stephens v. Stephens, 2018 UT App 196, ¶ 29, 437 P.3d 445 (stating that the “designation of ‘joint physical custody’ or ‘sole physical custody’” used in a decree “is not as important as whether the custody arrangement [actually] exceeds the statutory threshold for joint physical custody” (quotation simplified)). And here, despite the parties’ label, their arrangement was actually a sole custody arrangementSee Utah Code Ann. § 78B-12-102(15). As noted, the district court made a specific (and unchallenged) finding on this point, and correctly concluded that, because the Decree awarded Nicole only “approximately 20% of the overnights,” it described a sole custody arrangement. 

¶38 Thus, the more recent arrangement, following Nicole’s departure into the military, did not result in a change of custody. After Nicole left, Bruce went from about 80% of the overnights to nearly 100% of the overnights. Thus, Bruce had sole physical custody of the children under the original arrangement, and he maintained sole physical custody of the children after Nicole left. See id. In this situation, while Nicole’s departure did result in practical (if not official) changes to the parties’ division of parent-time, it did not effectuate any change in physical custody, under the statutory definition of that term. 

¶39 Section 108 applies only in instances where “physical custody changes.” See id. § 78B-12-108(2). For both of the reasons just discussed, no change in physical custody occurred here, and therefore Section 108 cannot provide Bruce an escape from the usual rule that modifications to a domestic decree’s child support provisions cannot date back any further than the month following service of the petition to modify. See id. § 78B-12112(4). We therefore sustain Nicole’s challenge to the district court’s interpretation of the relevant statutes. 

3 

¶40 The district court’s ruling also included an alternative basis for declining Nicole’s request that Bruce pay child support arrearages. Specifically, the court stated as follows: 

Finally, and regardless [of] whether [Section 108] applies here, it would not be equitable to require [Bruce] to pay child support arrearages to [Nicole] in this case. Even if that statute does not apply directly, subsection (1) is instructive of the legislature’s intent that child support “is for the use and benefit of the children.” . . . It would not be equitable to acknowledge that [Bruce] was the sole provider after moving back into the [Home] and especially after [Nicole] entered the military, acknowledge that [Nicole] provided very little, if any, support to the children since that time, but nonetheless require [Bruce] to pay the alleged child support arrearages requested by [Nicole]. 

¶41 We do not necessarily disagree with the court’s sentiment (although we note that, in a big-picture sense at least, there are equities on the other side of the equation too: we can see wisdom in a bright-line rule requiring parties to file petitions to modify child support provisions, and in limiting parties’ ability to obtain changes to decrees that date back any further than the month following service of the relevant petition to modify). Looking just at the facts of this case, there does seem to be something intuitively inequitable about requiring Bruce to pay child support arrearages to Nicole. And we acknowledge that district courts are often given wide discretion to apply equitable principles in family law cases. See Harmon v. Harmon, 491 P.2d 231, 232 (Utah 1971) (“In order to carry out the important responsibility of safeguarding the interests and welfare of children, it has always been deemed that the courts have broad equitable powers.”). 

¶42 But our legislature has enacted a number of statutes that govern certain aspects of family law cases, and we are aware of no principle of law that allows courts to override statutes, in particular cases, simply out of generalized equitable concerns. See Martin v. Kristensen, 2021 UT 17, ¶ 53 (stating that courts have “no equitable power to override” statutory mandates due to generalized concerns of “public policy and equity”). At a minimum, the district court has not adequately explained how its equitable concerns, in this situation, allow it to supersede statutory mandates or interpretations of those statutes by our supreme court. For instance, the district court’s reliance on subsection (1) of Section 108 as being “instructive of the legislature’s intent” that child support obligations shall “follow the child[ren]” appears misplaced, given our supreme court’s explanation, in Hansen v. Hansen, that “[s]ubsection (1)’s general directive cannot possibly be interpreted unqualifiedly . . . to redirect support payments any time anyone provides any shelter or sustenance to a child,” and that subsection (1) is “modifie[d]” by the “specific limitation[s]” found in subsection (2). See 2012 UT 9, ¶¶ 10–11, 270 P.3d 531. And as we have noted, supra ¶¶ 30–39, the prerequisites of subsection (2) are not satisfied here. Apart from the language in subsection (1), the court does not otherwise explain how generalized equitable considerations, no matter how weighty, can justify modification of a child support order back beyond the month following service of the petition to modify, given our legislature’s clear directive that such orders may be modified “only from the date of service of the pleading on the obligee.” See Utah Code Ann. § 78B-12112(4). 

¶43 We observe that there may well be specific doctrines of equity or discretion that could apply in this situation to temper Nicole’s requests. Nicole presented her request in the context of an order to show cause seeking contempt, a legal doctrine that has its own elements and requirements, see Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988) (setting forth the required showing for a contempt finding), in which courts are afforded discretion in selecting an appropriate sanction once contempt is found, see Utah Code Ann. § 78B-6-310(1) (LexisNexis 2018) (stating that, “[i]f the court finds the person is guilty of the contempt, the court may impose a fine” or other punishment (emphasis added)); id. § 78B-6-311(1) (stating that a court “may order” the contemnor to pay the aggrieved party “a sum of money sufficient to indemnify and satisfy the aggrieved party’s costs and expenses” (emphasis added)). Alternatively, various equitable doctrines may apply in situations like this, depending on the circumstances. See, e.g.Soter’s, Inc. v. Deseret Fed. Sav. & Loan Ass’n, 857 P.2d 935, 939–40 (Utah 1993) (discussing the doctrine of waiver and its elements); Veysey v. Veysey, 2014 UT App 264, ¶ 16, 339 P.3d 131 (discussing the doctrine of laches and its elements); Bahr v. Imus, 2009 UT App 155, ¶ 6, 211 P.3d 987 (discussing the doctrine of equitable estoppel and its elements). We express no opinion as to the applicability of any such doctrine to the facts of this case. But the district court did not ground its child support ruling—that Bruce should not be required to make child support payments—in its post-contempt sentencing discretion or in any specific equitable doctrine; instead, as we interpret its order, it concluded that, due to unspecified equitable considerations, Bruce should be relieved from any obligation to make payments in the first place. In our view, the court has not adequately explained how equitable considerations can override statutory commands in this case. 

¶44 Accordingly, we reverse the district court’s determination that Bruce was not “required to pay child support payments to [Nicole] after [Nicole left] for military service,” and we remand the matter for further proceedings on Nicole’s request that Bruce be held in contempt for failing to make child support payments. 

C 

¶45 Finally, given our conclusion regarding Nicole’s challenge to the district court’s child support ruling, we can readily dispose of Bruce’s challenge to that same ruling. As an initial matter, we agree with the district court’s conclusion that Bruce made no affirmative claim, before the district court, to any child support arrears dating back further than the service of his petition to modify. On that basis alone, the district court was justified in not awarding him any. But more substantively, for the reasons already explained, we find no merit in Bruce’s argument that Section 108 operates to allow him to look all the way back to 2009 for modification of the Decree’s child support provisions. 

CONCLUSION 

¶46 The district court correctly determined that Bruce’s alimony obligation was not terminated—at least not under the alimony statute—by the parties’ cohabitation in 2009 and 2010, because the statute required Bruce to file a petition seeking termination while the cohabitation was still occurring, and he did not do so. Accordingly, the district court did not err by holding Bruce in contempt for failing to pay alimony after 2009, and in ordering Bruce to pay past-due alimony through 2015, and we affirm those orders. 

¶47 However, the district court erred in its interpretation of Section 108, and erred in concluding that Section 108 operated to relieve Bruce of his obligation, under the Decree, to continue to pay Nicole child support after 2010. In this case, neither Section 108, nor generalized equitable concerns, operates to relieve Bruce of that obligation, and neither allows Bruce to obtain a modification of his child support obligations dating back any further than the month following service of his petition to modify. Accordingly, we reverse the district court’s determination to the contrary, and remand the case for further proceedings, consistent with this opinion, on Nicole’s request for contempt relating to child support and on Bruce’s petition to modify. 

 

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Utah Divorce Case Timeline Summary

Utah Divorce Case Timeline Summary

The greatest influence on how long a divorce case takes is usually how much and how severely the parties fight over the issues. The more they fight and the more things they fight over, the longer and more expensive the divorce process is. But here is a general timeline for a Utah divorce, step by step.

Bottom line: Generally speaking, a contested divorce will likely take between 15 months to 24 months. Bitterly contested divorce cases can take many years. An uncontested divorce can take as little as 45-60 days to complete from the date of filing, if the parties agree on everything.

Timeline

What happens first?

  1. Complaint or petition for divorce is filed (“complaint for divorce” and “petition for divorce” are interchangeable terms). The person who files is the “petitioner”.

What happens next?

  1. Your spouse is served with the summons and a copy of the complaint/petition for divorce. Your spouse is the “respondent”.

When?: The respondent has 21 days to file an “answer” to your complaint. Your spouse will likely not only answer your divorce complaint but also counters through you which is known as a counterclaim.

You will then have 21 days to respond to the counterclaim after it is served on you (and if you have an attorney the counterclaim will be sent to your attorney, and your attorney should provide you with a copy of it).

What happens next?

  1. Financial declaration and initial disclosures. After the complaint have been filed with the court and served on your spouse and after the parties have responded to each other’s respective complaint and counterclaim for divorce they have to exchange what are known as financial declarations and initial disclosures.

Financial declaration. The financial declaration requires you to identify

      • Whether you are employed and if so, by whom and what you earn from employment.
      • Other forms of income other than income from a job (unearned income).
      • Monthly expenses
      • Business interests, if you have any
      • Financial Assets. A description of your financial assets
      • Real Estate. Identifying any interests in real estate that you own
      • Personal Property. A description of your personal property, such as vehicles, boats, trailers, major equipment, furniture, jewelry, and collectibles
      • Debts Owed. A list of your debts and obligations, what you owe, and who your creditors are.

Initial Disclosures. Your initial disclosures require you to disclose:

      • each individual likely to have discoverable information supporting your claims or defenses
      • each fact witness you may call at trial
      • a copy of all documents, data compilations, electronically stored information, and tangible things in your possession or control that you may offer at trial
      • a copy of all documents to which you refer in your pleadings

When?: The petitioner must serve her financial declaration and initial disclosures 14 days after the answer is filed (that’s a lot of work in a fairly short time, so don’t dillydally if you’re the petitioner). The respondent is required to serve his financial declaration and initial disclosures 28 days after the answer is filed.

What happens next?

  1. Temporary orders. After the answer and counterclaim have been filed with the court, it is typical for the parties to request what are known as “temporary orders” from the court. Temporary orders are put in place to ensure that the leaves and affairs of the family are maintained during the pendency of the divorce action. So temporary orders can include things like responsibility for the mortgage and other expenses associated with the house and family. They can include temporary orders of child custody and parent time and child support and spousal support. Temporary orders can include other provisions as well, depending upon the circumstances and needs of your family.

When?: You soonest you could file for temporary orders is when you file your petition/complaint for divorce. Most people file after the petition/complaint for divorce is filed.

After the motions are file the court usually schedules a hearing within 1 to 3 months of the date the motion was filed.

What happens next?

  1. Discovery. Discovery is the process By which the parties request documents and other evidence from each other to help them get a better understanding of the issues, and to determine what issues are really disputed and which ones aren’t or can’t be disputed. Discovery is used to help the parties gain a better understanding of the issues and to help each party build its strongest case against the other party.

When?: You are allowed 180 days for discovery. The discovery period starts the day after the last day that initial disclosures and financial declarations are due from the respondent.

If you have children and you and your spouse are fighting over child custody: a custody evaluation may be ordered. A custody evaluation is supposed to take 4 months. They almost always take longer. Sometimes the custody evaluation won’t be completed by the time discovery closes. Be prepared for this possibility.

What happens next?

  1. Divorce Orientation and Education Courses. If the divorcing couple has minor children then divorce orientation and education courses are mandatory for both parties. You can learn about and sign up for those courses using this link: https://www.utcourts.gov/specproj/dived/

When?: You can take the divorce orientation and education courses any time, even before you file for divorce. Most people sign up for and complete the courses around the time after the answer and the reply to counterclaim have been filed and served.

You cannot obtain a decree of divorce without completing the divorce orientation and education courses or having the requirement to attend them waived (and for most people it’s probably more trouble than it’s worth to try to get the courses waived).

What happens next?

  1. Mediation. You must go to mediation before the case can go trial. Most divorce actions settle and most settle in mediation. If neither party wants to go to mediation or there are circumstances (such as domestic violence) that would not make mediation feasible or worthwhile, the parties can move to waive the mediation requirement.

When?: You can go to mediation any time, even before you file for divorce, although if you go to mediation before you or your spouse file(s) for divorce the court may make you go to mediation again before you will be allowed to go to trial.

So bear in mind that you can go to mediation at any point in the case.

You cannot obtain a decree of divorce without engaging in mediation or having the mediation requirement waived (and for most people it’s probably more trouble than it’s worth to try to get the courses waived).

What happens next?

  1. Trial. If the parties do not settle their case (whether in mediation or on their own), then the case goes to trial.

When?: After discovery has closed (after 180-day discovery period has elapsed), then the case can be certified for trial.

It usually takes at least 2 or 3 months from the time a party requests a trial date to get a trial date. All told, it takes about a year to a year and a half to go from filing for divorce to trial.

It usually takes at least 2 or 3 months from the time a party requests a trial date to get a trial date.

All told, it takes about a year to a year and a half to go from filing for divorce to trial.

What happens next?

  1. After trial, the court will make its decisions as to the issues that were argued over and “tried” in court and then the Decree of Divorce is prepared and the court signs it.

When?: Usually 30 to 60 days after trial.

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Christensen v. Christensen – 2018 UT App 53 – interpretation of plain meaning of decree

2018 UT App 53

THE UTAH COURT OF APPEALS

JACQUELINE E. CHRISTENSEN,
Appellee,

v.

JOHN D. CHRISTENSEN,
Appellant.

Opinion

No. 20151084-CA
Filed March 29, 2018

First District Court, Logan Department
The Honorable Kevin K. Allen
No. 064100474

Jonathan P. Thomas, Attorney for Appellant Raymond N. Malouf, Attorney for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGE MICHELE M. CHRISTIANSEN concurred. JUDGE DAVID N. MORTENSEN concurred in the result.

ORME, Judge:

¶1 John D. Christensen (Husband) appeals the district court’s order, in which the court refused to reduce Husband’s alimony obligation to Jacqueline E. Christensen (Wife). We affirm.

¶2 Husband and Wife divorced in 2008. The divorce decree requires Husband to pay Wife $1,100 per month in alimony. The stipulated decree also provides:

When [Wife] becomes eligible to receive Social Security, alimony will be adjusted to equalize the Social Security incomes of both of the parties. For example, if [Husband]’s monthly Social Security incomes is $2,000.00 and [Wife]’s monthly Social Security incomes is $1,000.00, such shall require an alimony payment of $500.00 to [Wife] to equalize the monthly Social Security incomes of the parties.

¶3 Wife became eligible to receive Social Security benefits in 2015. Soon thereafter, Husband filed a motion, seeking to equalize the parties’ Social Security income and to reduce his alimony obligation. At the time of his motion, neither party was actually receiving Social Security income.

¶4 Following a hearing, the district court’s commissioner concluded that equalizing Social Security incomes would be premature because neither party had actually started receiving Social Security income. Husband timely objected to the commissioner’s ruling, and the district court held a hearing on the objection. The district court concluded that the language of the divorce decree did not entitle Husband to reduce his alimony payment nor did it contemplate Social Security equalization until both parties began receiving Social Security benefits. Husband appeals.

¶5 On appeal, “the burden of persuasion falls squarely on an appellant.” Jensen v. Skypark Landowners Ass’n, 2013 UT App 48, ‘1 7, 299 P.3d 609. See Utah R. App. P. 24(a)(8). Specifically, the appellant must “convince us that the trial court committed error.” Nelson v. Liberty Acquisitions Servicing LLC, 2016 UT App 92, ‘1 12, 374 P.3d 27 (citation and internal quotation marks omitted). As hereinafter explained, Husband has failed to demonstrate that the district court’s interpretation of the divorce decree was erroneous as a matter of law.

¶6 Ordinarily, we interpret a divorce decree as we would any other written instrument, construing it in accordance with its plain meaning and according no deference to the district court’s interpretation. See Gardner v. Gardner, 2012 UT App 374, ¶¶ 14, 24, 294 P.3d 600. But where, as here, the agreement is ambiguous,[1] the trial court ordinarily considers extrinsic evidence in an effort to resolve the ambiguities and will make findings of fact to resolve any disputed evidence, to which findings we defer. See, e.g., Lyngle v. Lyngle, 831 P.2d 1027, 1030 (Utah Ct. App. 1992) (“[W]hen a divorce decree is ambiguous extrinsic evidence as to the parties’ intention may be received and considered.”) (citation and internal quotation marks omitted). In this case, however, neither party recognized the ambiguity within the provision at issue, requested an evidentiary hearing, or endeavored to introduce extrinsic evidence to clarify their intent and aid the court in interpreting the provision. Instead, Husband and Wife each proceeded as though the meaning of the divorce decree was clear on its face and capable of construction as a matter of law. To be sure, each advanced a different interpretive theory. As teed up by the parties, then, the question for the district court was which of the two interpretations reflected the plain meaning of the decree. Thus, we review the district court’s interpretation of the divorce decree without the benefit of findings of fact based on extrinsic evidence as to what the parties intended.

[1.] The ambiguity is threefold: Was the contemplated adjustment to be triggered when Wife first became eligible for Social Security benefits or only when one or both of the parties actually started receiving Social Security benefits? Would the so-called alimony contemplated in the provision be in addition to any regular alimony then being received by Wife, or would this alimony supplant any regular alimony being received by Wife? Why was the allocation of Social Security benefits treated as a matter of alimony rather than as the more straightforward allocation of retirement benefits?

¶7 Husband argues that the language of the divorce decree is “very specific.” He first claims that equalization of Social Security benefits should have occurred when Wife became eligible to receive income from Social Security, not when she actually chose to start receiving it. In support of his position, Husband points to this language in the decree: “When [Wife] becomes eligible to receive Social Security, alimony will be adjusted to equalize the Social Security incomes of both of the parties.”

¶8 While we think that Husband’s interpretation is plausible, Husband has not shown that the district court’s acceptance of the contrary interpretation advanced by Wife was wrong as a matter of law. The latter portion of the same sentence, with our emphasis, indicates that “the Social Security incomes” will be equalized—not the potential incomes. Additionally, the example set forth in the decree itself suggests that receiving income from Social Security is a prerequisite to equalization. The decree states that “if [Husband]’s monthly Social Security incomes is $2,000.00 and [Wife]’s monthly Social Security incomes is $1,000.00, such shall require an alimony payment of $500.00 to [Wife] to equalize the monthly Social Security incomes of the parties.” This language focuses on the income each party receives from Social Security, and it does not allude to equalizing Social Security income that is merely theoretical, i.e., benefits that a party might be entitled to receive but has not yet opted to receive.[2]

[2.] Deferring Social Security benefits is not necessarily a bad idea. As we understand it, the longer one puts off receiving Social Security income, the greater one’s benefit will be once payment starts. See Retirement Planner: Delayed Retirement Credits, Social Security Administration, https://www.ssa.gov/planners/retire/ delayret.html [https://perma.cc/7KUS-5GWR].

¶9 Husband also claims that the provision mandating the equalization of Social Security benefits constituted an alimony payment that would supplant, rather than supplement, his existing alimony obligation. His interpretation relies on the same portion of the decree, which instructs that “alimony will be adjusted to equalize the Social Security incomes of both of the parties.” Husband asserts that a contrary interpretation would require him to use his other retirement funds to pay alimony even though those funds were awarded to him as separate property.

¶10 Again, although Husband’s interpretation is plausible, he has not established that the district court’s contrary interpretation, in accordance with the interpretative theory advanced by Wife, was erroneous as a matter of law. There is no language in the decree that expressly indicates that the equalized Social Security payment replaces Husband’s prior alimony obligation. If anything, the word “adjusted” suggests just the opposite. Additionally, while we are not certain why the equalization of Social Security income is classified as alimony,[3] the example included in the decree states, with our emphasis, that such equalization will serve as “an alimony payment.” This could be construed as contemplating an additional, rather than the exclusive, alimony payment. And Husband’s interpretation would essentially create a self-activating provision that would automatically reduce his alimony obligation without considering the parties’ needs and circumstances. Husband’s argument concerning his retirement benefits is likewise unconvincing. As we have stated before, having to use separate property to pay alimony does not foreclose a party’s obligation to pay alimony. See Jensen v. Jensen, 2007 UT App 377, y[y[ 8–10, 173 P.3d 223.

[3.] It was suggested at oral argument by the author of this opinion that this characterization gave Husband the benefit of deducting the “alimony” payments on his federal income tax return and also created the possibility that the payment obligation might end if Wife remarried. To these observations, counsel for Husband responded, “[Y]ou’re overthinking it.”

¶11 This is clearly a situation where more care in drafting the stipulated decree would have obviated the present dispute. And as indicated, it would have been an appropriate case for the district court to have conducted an evidentiary hearing, received extrinsic evidence, and issued findings of fact regarding the intentions of the parties. On appeal, we would likely have been persuaded by the argument that the district court erroneously interpreted an ambiguous document as though it were unambiguous and could be interpreted as a matter of law―had that objection been preserved below and briefed on appeal. We may even have been receptive to an argument that such an interpretative approach constituted plain error and could be reviewed even absent the claim’s preservation below. See, e.g., State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346 (providing that the preservation rule applies to every claim unless a party can demonstrate that plain error occurred). But Husband has not raised this argument on appeal, and as we have consistently stated, we will not consider plain error sua sponte. See, e.g., State v. Blubaugh, 904 P.2d 688, 700–01 (Utah Ct. App. 1995).

¶12 The district court decided the issue as it was presented by the parties. Husband has not demonstrated that, in doing so, the district court erred as a matter of law.

¶13 Affirmed.[4]

[4.] Wife seeks an award of attorney fees incurred on appeal. “Ordinarily, we award appellate attorney fees and costs when a party was awarded fees and costs below and then prevails on appeal.” Tobler v. Tobler, 2014 UT App 239, ¶ 48, 337 P.3d 296. Because the district court expressly declined to award Wife attorney fees below, and because she has not persuaded us that an exception to this general rule is merited, we likewise deny her request for fees.

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