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Tag: discretion

Lamb v. Lamb, 2024 UT App 16 – divorce, custody, business, home equity

2024 UT App 16

THE UTAH COURT OF APPEALS

JOSEPH EARL LAMB,

Appellee,

v.

SONYA ELIZABETH LAMB,

Appellant.

Opinion

No. 20210787-CA

Filed February 8, 2024

Third District Court, Salt Lake Department

The Honorable Robert P. Faust

No. 174904728

Mary Deiss Brown, Attorney for Appellant

Gregory G. Skordas, Gabriela Mena, and Allison R.

Librett, Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which

JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1 Joseph Earl and Sonya Elizabeth Lamb’s divorce was decided at a bench trial.[1] As relevant here, Joseph was awarded custody of their children, ownership of a family business, and half the equity of the marital home. Sonya now challenges the court’s custody determination and the award of the business. She also challenges the manner in which the court determined the equity in the marital home. We affirm the district court’s rulings in all aspects.

BACKGROUND[2]

¶2        Joseph and Sonya married in 2007 and separated in July 2017. We address separately each of the district court’s determinations with which Sonya takes issue.

The Custody of the Children

¶3        Joseph and Sonya have three children, all of whom were minors when they divorced in August 2021. In November 2017, at a hearing for temporary orders, Sonya’s counsel told the court that Sonya had been the children’s primary caregiver “until recently.” Sonya also admitted that she was arrested in July 2017 and was facing charges for possession and use of drugs, but she asserted that she had “taken responsibility,” had “stopped using drugs,” was “sober and more than capable of caring for the children and continuing on as their primary caregiver,” and had “been attending Narcotics Anonymous and Al-Anon meetings.” Sonya asserted that Joseph had a “serious drug addiction problem.” Joseph claimed that Sonya had vacated the marital home shortly before her arrest, and he revealed that he obtained a protective order against her. The court acknowledged the allegations both sides made against the other but noted that Joseph currently had the children in his care and was living in the marital home. The court then determined that Joseph should maintain “custody of the children on a temporary basis.”

¶4        Apparently, the children remained in the temporary custody of Joseph until the parties’ divorce trial, where the court received the testimony of a “reunification therapist” (Family Therapist), who had been hired by the parties after the custody evaluator had been “unable to perform an evaluation due to the children spending less than minimum time” with Sonya.

¶5        Based on the testimony of Family Therapist, which we recount when relevant in our analysis below, the court found that “unification” between Sonya and the two older children was “lacking” because of acrimonious relationships. The court noted that Family Therapist had testified that progress in reunification therapy would “influence what possible custody” Sonya might have in the future relative to the older children. The court determined that it was “in the best interest of the children that reunification therapy” continue to allow Sonya the opportunity “to reunify her relationship with the children.”

¶6        Accordingly, the court found that it was in the children’s best interest that Joseph be “awarded sole physical custody and final decision making authority,” with both parties being awarded joint legal custody. With regard to the youngest child, the court awarded supervised parent-time to Sonya one night a week. The court awarded Sonya no parent-time with the older two children. The court noted that supervised parent-time for Sonya would “be flexible” and might “increase after the current reunification issues” and Sonya’s “medical issues” were addressed. The court also stated that Sonya’s “non-use of cannabis” needed to be verified because marijuana use was “a contributing factor” that brought on her mental health episodes.

The Business

¶7        During their union, the parties were financially supported, at least in part, by a business that distributed supplies to gas stations. During the divorce proceedings, Joseph maintained that he was in the process of purchasing the business from his father but that he did not have the money to pay for it. Joseph explained that he drew a salary for his work with the business. In contrast, Sonya maintained that she and Joseph agreed to buy the business in 2010 and that they completed paying off the business in 2016. Sonya claimed that she and Joseph signed a document “to take over the business” but that she did “not have the document.” Sonya did produce a different document that explicitly stated the business was being sold only to Joseph.

¶8        The district court awarded the business to Joseph, along with all its debts and obligations. In addition, the court, apparently recognizing that the business was possibly still owned by Joseph’s father, ordered that any money Joseph borrowed against the marital home to purchase the business would “not be used to reduce the total equity in the home” so as to reduce Sonya’s share of the home’s value. In making this award to Joseph, the court was clear that it was basing its decision “on the testimony” provided by Joseph.

The Marital Home

¶9        Based on a Zillow estimate[3] provided by Sonya, the court determined the value of the marital home to be $998,659, but the equity in the home was reduced by mortgages and liens on the property. Joseph testified that three mortgages, totaling $402,000, were on the property.[4] And the home was additionally encumbered by eleven liens. Two of these liens, totaling $2,414, were attributed to Sonya and Joseph. The remaining nine, totaling $256,521, were tax liens and civil judgments incurred by the previous owner of the home.[5]

¶10      The court received evidence that when Joseph and Sonya purchased the home in November 2009, it was subject to some existing debt. Joseph testified as follows:

Counsel: “Was there anything particular about that purchase [of the home]?”

Joseph: “We didn’t have the credit or the means to get into a home at the time, so my brother is a real estate agent and he’s good friends with [the previous owner] and said, ‘Hey, this house is available. If you like it, I can probably get you into it.’ And so we took him up on that and (inaudible) that we had to take on (inaudible).”

Counsel: “So there were other debts on that house when you purchased it?”

Joseph: “Yes        I didn’t know about all of them at the time, but yes.”

Counsel: “What are those debts?”

Joseph: “There’s a lot of tax liens from [the previous owner] throughout the years. There’s a couple of (inaudible) from Sonya and I, medical bills that weren’t paid. . . .”

Counsel: “And have you paid off the tax liens? The liens on the house?”

Joseph: “No.”

Thus, in a somewhat unusual arrangement, the parties appear to have purchased the home subject to certain liabilities, even if they did not know the precise extent of those liabilities. Presumably, these liabilities would have been offset by a reduction in the purchase price, making the home more affordable.

¶11      Adding the mortgages and liens together for an amount of $660,935, the court determined that equity in the home was $337,724. The court ordered Joseph to pay Sonya $168,862 as her share of that equity.

¶12      Sonya appeals.

ISSUES AND STANDARDS OF REVIEW

¶13 Sonya identifies multiple ways in which she believes the district court erred. But “[f]or the sake of brevity,” we “consolidate these grounds” and “set out in the opinion only so much . . . as we deem necessary to a decision of the questions involved herein.” Patterick v. Carbon Water Conservancy Dist., 145 P.2d 503, 505 (Utah 1944), overruled on other grounds by Timpanogos Plan. & Water Mgmt. Agency v. Central Utah Water Conservancy Dist., 690 P.2d 562 (Utah 1984).

¶14      Sonya first contends that the district court abused its discretion in making custody and parent-time decisions because it lacked sufficient information to make those decisions. “We review custody determinations deferentially, and so long as the district court’s discretion is exercised within the confines of the legal standards we have set, and the facts and reasons for the decision are set forth fully in appropriate findings and conclusions, we will not disturb the resulting award.” Kingston v. Kingston, 2022 UT 43, ¶ 20, 532 P.3d 958 (cleaned up).

¶15      Sonya next contends that the district court’s findings were “entirely inadequate to explain” its reasoning for awarding ownership of the business to Joseph. “We review the legal sufficiency of factual findings—that is, whether the trial court’s factual findings are sufficient to support its legal conclusions— under a correction-of-error standard, according no particular deference to the trial court.” Brown v. Babbitt, 2015 UT App 161, ¶ 5, 353 P.3d 1262 (cleaned up).

¶16      Lastly, Sonya argues that the district court’s “procedures and decisions regarding the division of equity in the marital home were illogical and manifestly unjust.” “Determining and assigning values to marital property is a matter for the trial court, and an appellate court will not disturb those determinations absent a showing of clear abuse of discretion.” Mintz v. Mintz, 2023 UT App 17, ¶ 12, 525 P.3d 534 (cleaned up), cert. denied, 531 P.3d 730 (Utah 2023).

ANALYSIS

  1. A Note on Briefing

¶17      Sonya’s briefing is plagued by significant deficiencies and does not comply with the Utah Rules of Appellate Procedure for appropriate briefing. First, excluding the cases cited for the standards of review, Sonya cites only a single case in her opening brief, and she does so in a perfunctory fashion—making only a shallow attempt to explain its relevance to the issues. Sonya continues this trend in her reply brief, where she cites no cases at all. In this regard, she falls far short of appellate expectations. “A party may not simply point toward a pile of sand and expect the court to build a castle. In both district and appellate courts, the development of an argument is a party’s responsibility, not a judicial duty.” Salt Lake City v. Kidd, 2019 UT 4, ¶ 35, 435 P.3d 248; see also Utah R. App. P. 24(a)(8) (“The argument must explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal.”); id. R. 24(b)(3).

¶18      Second, in her statement of the case, Sonya fails to include a single citation to the record. This is in contravention of our clearly stated rule. See Utah R. App. P. 24(a)(6) (“The statement of the case must include, with citations to the record: (A) the facts of the case, to the extent necessary to understand the issues presented for review; (B) the procedural history of the case, to the extent necessary to understand the issues presented for review; and (C) the disposition in the court or agency whose judgment or order is under review.” (emphasis added)). We note that Sonya somewhat more adequately cites the record in the argument section of her brief, but that is not what the Utah Rules of Appellate Procedure require, and by ignoring the rules to suit her briefing preferences, she does little to bolster judicial efficiency.[6]

¶19      We point out these deficiencies not to ridicule, disparage, or shame counsel, but to provide warning that future briefing of this nature will likely be deemed inadequate and that any arguments on the merits may not be substantively considered by this court. This court receives hundreds of briefs each year. They vary in quality and in their adherence to the rules. We recognize that members of the bar have a lot on their plates and occasionally miss a typo or overlook a citation. But wholesale disregard of briefing rules is quite beyond the pale and can have unwelcome consequences for attorneys (and their clients) who choose this risky path. See Ostler v. Department of Public Safety, 2022 UT App 6, ¶ 27, 505 P.3d 1119 (“We . . . retain discretion to not address an argument that is inadequately briefed.” (cleaned up)); accord State v. Schwenke, 2007 UT App 354U, para. 2; State v. Garner, 2002 UT App 234, ¶¶ 8–13, 52 P.3d 467. And we hasten to point out that the risk of ignoring briefing requirements should come as no surprise to any attorney in Utah owing to our multiple references to the issue over the years. See Trees v. Lewis, 738 P.2d 612, 612–13 (Utah 1987) (stating that the merits of a dispute need not be reached if an appellant “has not supported the facts set forth in [a] brief with citations to the record” as required by rule 24(a)(6) of the Utah Rules of Appellate Procedure); State v. Price, 827 P.2d 247, 249 (Utah Ct. App. 1992) (“We have routinely refused to consider arguments which do not include a statement of the facts properly supported by citations to the record.”); Koulis v. Standard Oil Co. of Cal., 746 P.2d 1182, 1184 (Utah Ct. App. 1987) (“If a party fails to make a concise statement of the facts and citation of the pages in the record where those facts are supported, the court will assume the correctness of the judgment below.”). That we have exercised our discretion to address the merits of the issues on appeal here should not be taken as an imprimatur sanctioning inadequate briefing but as a conduit to raise awareness of the risk of ignoring the rules.

¶20 We take this occasion to recall the advice offered by our supreme court several decades ago:

If the questions involved in a case are of sufficient importance to justify asking this court to decide them, they are worthy of the careful consideration of counsel presenting them. It is the duty of attorneys practicing in this court to present to the court the authorities supporting their views and to assist the court in reaching a correct conclusion.

State v. Thomas, 1999 UT 2, ¶ 13, 974 P.2d 269 (cleaned up). With that, we remind counsel of their responsibility to assist the judiciary in advancing jurisprudence through diligent advocacy, adherence to our rules, and competent representation.

  1. Custody and Parent-Time
  2. Disclosure

¶21      Sonya argues that the district court erred in admitting Family Therapist’s testimony when Joseph had not timely disclosed him as an expert witness pursuant to rule 26 of the Utah Rules of Civil Procedure, which requires disclosure “within 14 days after the close of fact discovery.” Utah R. Civ. P. 26(4)(C)(i). Sonya’s briefing on this point leaves much to be desired. She entirely ignores what happened at trial, instead substituting her own retrospective take on what she believes should have happened without attempting to explain why her timeliness argument should now be considered. Providing some persuasive caselaw—which may or may not exist—would have gone far to support her argument. But like the rest of her briefing, this part is inadequate.

¶22      A review of the record shows that Sonya did not object to Family Therapist’s testimony on the grounds of untimely disclosure. Instead, Sonya argued that Family Therapist had “far exceeded any kind of mandate,” that he had not signed confidentiality waivers, and that allowing his testimony created patient privacy and ethical violations. In her objection at trial, rule 26 was mentioned only in passing and not in a way that would suggest she was objecting on timeliness grounds. It certainly would not have been clear to opposing counsel that a rule 26 timeliness issue was being raised such that he would have known to argue a harmlessness or good-cause defense for the failure to disclose, which would have been an easy argument to make given that both Joseph and Sonya had jointly retained Family Therapist and Sonya knew about Family Therapist several years before trial. And it would not have been clear to the district court that it was being asked to rule on a timeliness-based objection. For these reasons, Sonya did not preserve any such objection for appellate review. See State v. Centeno, 2023 UT 22, ¶ 57, 537 P.3d 232 (“It is well established that we will not address the merits of an unpreserved issue absent a showing that an exception to the preservation rule applies.”).

  1. Hearsay

¶23 Sonya additionally argues that Family Therapist’s testimony, insofar as he testified as a fact witness, “was inadmissible hearsay and based entirely on his conversations with the parties and their children as their reunification therapist.” Sonya’s hearsay argument is difficult to follow and poorly briefed. Instead of analysis in support of her hearsay argument, she provides scant and unsupported assertions.

¶24      Sonya objected below to Family Therapist’s testimony on the grounds that it was hearsay. But the court ruled that it was not hearsay, concluding that Family Therapist’s testimony was not offered “for the truth of the matter asserted.” Rather, the court ruled that the “focus of [the] questioning” was, first, to allow the court “to find out how [the children were] doing, if they’re capable of going forward” and, second, to identify the present “obstacles” to “structuring visitation with [Sonya].” On appeal, Sonya makes no attempt to engage with the court’s reasoning, instead limiting her analysis to a blanket assertion that “it [was] evident” Family Therapist was “allowed to testify as an expert, offering hearsay, opinions and recommendations in [a] manner that simply is not permitted by the Rules of Civil Procedure.” Such superficial and undeveloped argument is simply not persuasive, most especially because it does not address the alleged error in the court’s reasoning. It is well settled that appellants who fail to “address the district court’s reasoning” also fail to carry their “burden of persuasion on appeal.” See Federated Cap. Corp. v. Shaw, 2018 UT App 120, ¶ 20, 428 P.3d 12; see also Spencer v. Spencer, 2023 UT App 1, ¶ 27, 524 P.3d 165; Bad Ass Coffee Co. of Haw. v. Royal Aloha Int’l LLC, 2020 UT App 122, ¶ 48, 473 P.3d 624.

  1. Custody Factors

¶25 Sonya next argues that the court did not address the custody factors outlined in section 30-3-10 of the Utah Code, making its custody findings insufficient. More specifically, Sonya argues that the court’s factual findings were deficient due to the court’s reliance on the testimony of Family Therapist in making those findings.

¶26 Section 30-3-10 states that in “determining any form of custody and parent-time . . . , the court shall consider the best interest of the child and may consider . . . other factors the court finds relevant,” including factors for each parent articulated in the code. Utah Code § 30-3-10(2) (emphasis added). These factors a court may consider are “not on equal footing.” Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. Instead, “it is within the trial court’s discretion to determine, based on the facts before it and within the confines set by the appellate courts, where a particular factor falls within the spectrum of relative importance and to accord each factor its appropriate weight.” Id. (emphasis added). “And where significant evidence concerning a particular factor is presented to the district court, findings that omit all discussion of that evidence must be deemed inadequate.” Twitchell v. Twitchell, 2022 UT App 49, ¶ 21, 509 P.3d 806. Thus, to “ensure that the trial court’s custody determination, discretionary as it is, is rationally based, it is essential that the court set forth in its findings of fact not only that it finds one parent to be the better person to care for the child, but also the basic facts which show why that ultimate conclusion is justified.” Id. ¶ 24 (cleaned up).

¶27      Here, the factors about which the court received significant evidence concerned Sonya’s ability to function as a parent, which the court received as testimony from Family Therapist. As we have explained above, Sonya’s challenges to the admissibility of Family Therapist’s testimony fail, and we accordingly conclude that the district court acted well within its discretion in relying on his testimony.

¶28      Regarding Sonya’s ability to parent the two older children, Family Therapist testified that they were “very angry” with Sonya and “announced that they would never see or talk to her again.” Their anger was due to their religious sensibilities and Sonya’s announcement that she was pregnant by a man other than their father during the pendency of the divorce.

¶29      With regard to Sonya’s parenting, Family Therapist stated that the youngest child was very frightened after “his last visit with [Sonya] when she was struggling psychiatrically.” Moreover, Family Therapist also testified the youngest child was beginning to see himself as Sonya’s “partner,” resulting in the child “becoming parentified.”[7]

¶30 Family Therapist further indicated that while he was unaware of Sonya’s “current condition or functioning,” Sonya had been “hospitalized and diagnosed with some issues.” He asserted that “safety” needed to be addressed, meaning that Sonya required a psychiatric evaluation to demonstrate that her “situation” was “under control.” He also indicated that Sonya needed to work on “being forthright with medications.” Sonya, by her own admission, had “suffered an isolated manic episode” related to bipolar disorder and “called the police for assistance” because she was suffering from “visual and auditory hallucinations.”

¶31    Sonya’s briefing on this point misses the mark because it entirely relies on the assumption that Family Therapist’s testimony was inadmissible, an assumption we conclude is without foundation. See supra ¶¶ 21–24. She does not explain why, in light of Family Therapist’s admissible testimony, the court’s consideration of the statutory custody factors was insufficient. Sonya’s briefing makes no attempt to explain why the court is not allowed to rely on the evidence it receives when making custody decisions.

¶32 Moreover, Sonya does not identify any “significant evidence,” see Twitchell, 2022 UT App 49, ¶ 21, as to the other factors in section 30-3-10 that the court received but left unaddressed. Instead, her briefing advances an argument that is entirely conclusory and unsupported by record citation or legal authority:

Although § 30-3-10 gives broad discretion to the court as to the relevance and appropriate weight to give each factor, the district court in this case simply did not have any information that would allow it to make findings as to most of the statutory factors. For instance, the district court did not know who the primary caretaker of the children during the marriage was. The district court did not know anything about the marriage. The district court would not permit any testimony relevant to Joseph’s moral character or his history of drug abuse and sexual proclivities. The Court would not allow any testimony as to Joseph’s inability and unwillingness to co-parent with Sonya. At the end of the day, the Court simply sidestepped its responsibility as an independent factfinder and deferred to [Family Therapist].

This might be a good argument if Sonya had supported it with citations to the record and to legal authority. As this argument stands before us, we are unable to verify what it asserts. But we suspect that Sonya might be indulging in hyperbole here. Indeed, Sonya’s assertion that “the district court did not know anything about the marriage” is patently false. Our review of the record indicates that the court, in fact, knew quite a bit about the marriage, such as its financial situation, issues related to the children, and the problems that led to its demise, to name just a few topics within its familiarity. And with regard to Joseph’s alleged use of illegal drugs, we found only one instance (subsequently echoed by Sonya’s attorney) in the record where Sonya asserted before the district court that Joseph had a “cocaine habit.” But the district court was free to “disregard such testimony if it [found] the evidence self-serving and not credible,” since the factfinder “is in the best position to judge the credibility of witnesses.” See Clark v. Clark, 2023 UT App 111, ¶ 37, 537 P.3d 633 (cleaned up). An isolated allegation made in passing certainly does not amount to “significant evidence,” see Twitchell, 2022 UT App 49, ¶ 21, especially given the district court’s role as the factfinder to judge the credibility of witnesses, see Ouk v. Ouk, 2015 UT App 104, ¶ 14, 348 P.3d 751. And as to the other statutory custody factors that Sonya asserts the court left unaddressed, she has not pointed us to any significant evidence that the court received with respect to those factors.

¶33      Thus, unlike the situation in Twitchell, where we concluded “that the district court exceeded its discretion by failing to include in its findings any discussion of the evidence relating to the abuse allegations against [the mother], her alleged neglect of [the child,] and her moral character, as well as the effect that evidence had on its best-interest analysis,” see 2022 UT 49, ¶¶ 22–23, 25, here there simply wasn’t significant evidence presented regarding section 30-3-10’s other custody factors. This lack of evidence—insofar as there was a lack—was not the court’s fault; it was Sonya’s fault for not presenting it. After all, a court cannot be faulted for failing to consider evidence that was not presented to it. In contrast, given the substantial evidence the court did receive about the serious mental health issues Sonya faced, we conclude that the district court did not abuse its discretion in its consideration of the statutory factors when determining that awarding physical custody to Joseph was in the best interest of the children.

¶34 In sum, Sonya has failed to show that the district court abused its discretion in accepting and relying on the testimony of Family Therapist in making custody determinations or that the district court did not properly address the statutory factors in determining custody of the children.

III. Ownership of the Business

¶35      Both parties agree that the district court concluded that the business was not a joint marital asset. The district court awarded the business to Joseph “[b]ased on [Joseph’s] testimony.” Along with awarding the business to Joseph, the court stated that Joseph was “responsible for payment of the purchase price of the business.”

¶36      Sonya’s briefing on this point is challenging because it consists largely of recounting financial matters pertaining to the marriage but unrelated to the ownership of the business. She then asserts, with no discernible effort to explain why, that the “findings/conclusions were entirely inadequate to explain the Court’s reasoning for giving ownership” of the business to Joseph. Her argument is difficult to follow, but its essence, insofar as we can tell, appears to be that the court erred in believing Joseph’s testimony over hers.

¶37 We disagree with Sonya that the court erred in crediting Joseph’s testimony regarding the ownership of the business over Sonya’s. Again, the court stated in its factual findings that its award of the business to Joseph was “[b]ased on [his] testimony.” In making this credibility determination, the court acted well within its discretion. “[W]here there exists evidence sufficient to support a court’s rulings regarding a divorcing couple’s finances, that ruling will be upheld on appeal, even if evidence was presented that might have cut the other way.” Clarke v. Clarke, 2023 UT App 160, ¶ 27. This is because “the fact-finder is in the best position to judge the credibility of witnesses and is free to disbelieve their testimony. Even where testimony is uncontroverted, a trial court is free to disregard such testimony if it finds the evidence self-serving and not credible.” Ouk v. Ouk, 2015 UT App 104, ¶ 14, 348 P.3d 751 (cleaned up); see also Kimball v. Kimball, 2009 UT App 233, ¶ 20 n.5, 217 P.3d 733 (“[I]t is the trial court’s singularly important mission to consider and weigh all the conflicting evidence and find the facts.”).

¶38      Here, the district court was in the best position to judge the credibility of the parties. It clearly found Joseph’s testimony regarding the ownership of the business to be more credible. Sonya has provided no reasoned argument—apart from her assertion that she disagrees with it—as to why the district court’s conclusion that the business was not marital property was erroneous. Accordingly, Sonya has failed to meet her “burden on appeal to show that no reasonable person would take the view adopted” by the district court, and we therefore conclude that the district court did not err in awarding the business, along with its liabilities, to Joseph. See Ouk, 2015 UT App 104, ¶ 14.[8]

  1. Equity in the Marital Home

¶39      Sonya’s final claim is that the district court abused its discretion in dividing equity in the marital home. “In divorce actions, a district court is permitted considerable discretion in adjusting the financial and property interests of the parties, and its actions are entitled to a presumption of validity.” Gardner v. Gardner, 2019 UT 61, ¶ 18, 452 P.3d 1134 (cleaned up). Thus, in such proceedings,

we will reverse only if (1) there was a misunderstanding or misapplication of the law resulting in substantial and prejudicial error; (2) the factual findings upon which the award was based are clearly erroneous; or (3) the party challenging the award shows that such a serious inequity has resulted as to manifest a clear abuse of discretion. Because we can properly find abuse only if no reasonable person would take the view adopted by the trial court, appellants have a heavy burden to show that an alleged error falls into any of these three categories.

Id. (cleaned up).

¶40      Sonya’s claim focuses on three aspects of the court’s valuation of the home: (1) the mortgage amount, (2) the use of the Zillow estimate, and (3) the amount of the liens on the home. We address each in turn.

¶41      The Mortgage Amount. Sonya complains that the district court, based on Joseph’s testimony, should have used $298,000 as the amount owing on the mortgages rather than $402,000, an adjustment that would have benefitted her by increasing the equity she would have received. “Generally, the marital estate is valued at the time of the divorce decree or trial. However, in the exercise of its equitable powers, a trial court has broad discretion to use a different date, such as the date of separation, when circumstances warrant. If the trial court uses a date other than the date of the divorce decree, it must support its decision with sufficiently detailed findings of fact explaining its deviation from the general rule.” Rothwell v. Rothwell, 2023 UT App 50, ¶ 39, 531 P.3d 225 (cleaned up), cert. denied, 537 P.3d 1011 (Utah 2023). In response to Sonya’s motion for amended findings, the court explained, “[Joseph’s] statement of the mortgage balance of $298,000 was referring to the total amount of all three (3) mortgages. The Court also took that into evidence taking into account that it was [Joseph’s] best estimate according to what his monthly mortgage payments are and how much was deducted from the principal each month.” We understand this to mean that the court took into consideration that it was through Joseph’s extraordinary post-separation payment efforts that the mortgage amount had been reduced. Moreover, Sonya concedes in her reply brief that it was within the district court’s discretion to use the earlier mortgage total. Accordingly, we see no abuse of discretion in the court’s use of the date of the separation to determine the amount of the mortgages.

¶42      The Zillow Estimate. Sonya next complains that the home should have been valued at about $260,000 more than was indicated by the Zillow estimate the court used. The glaring problem with this aspect of Sonya’s complaint is that it was her counsel’s idea to use the Zillow estimate. In open court, her counsel looked up the estimate and announced it to the court. And the court proceeded to base its calculations on the very data Sonya’s counsel supplied. We simply will not countenance Sonya’s assertion that the district court erred in proceeding to use the estimate that Sonya herself, through counsel, provided. Sonya invited any error in this regard. See Somer v. Somer, 2020 UT App 93, ¶ 14, 467 P.3d 924 (“Where a party makes an affirmative representation encouraging the court to proceed without further consideration of an issue, an appellate court does not consider the party’s objection to that action on appeal.” (cleaned up)). In her briefing on appeal, Sonya points to nothing in the record that would have allowed the court to value the home using anything other than the Zillow estimate. Sonya does not challenge that the court acted on the only information it had and that Sonya herself provided. Accordingly, “given the absence of any expert financial testimony, . . . the paucity of assistance the parties offered the court,” and the representations made by Sonya’s counsel regarding the marital home’s value, we conclude that “the court in this instance made findings within its discretion and supported by the evidence it was given.” Clarke v. Clarke, 2023 UT App 160, ¶ 55.

¶43      The Liens. Sonya argues that the district court abused its discretion in counting third-party liens against the equity in the home. Given the evidence the court received, we see no error on the part of the court in this regard. Indeed, there was evidence to support the court’s determination that the third-party liens should be included in the calculation of the home’s equity. Joseph testified that when he and Sonya purchased the home, they did so knowing that they were assuming responsibility for some of the previous owner’s debts. This is an admittedly odd arrangement, but Joseph testified that they were willing to accept it because they were not in a financial position to purchase the home otherwise. Sonya offered no testimony or other evidence to contradict Joseph’s assertion, and she still points to nothing presented at trial that contradicted this evidence. Accordingly, we conclude that the factual findings that included the liability associated with the third-party liens were not clearly erroneous and that the court did not abuse its discretion in calculating the home’s equity.

CONCLUSION

¶44      Sonya has not demonstrated that the district court abused its discretion in its custody determination, in awarding the business to Joseph, or in its division of equity in the marital home. Affirmed.

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


[1] Because the parties share a surname, we refer to them by their given names.

[2] As addressed below, neither party’s briefs included sufficient citations to the record. This shortcoming has necessitated us combing the record to establish some semblance of a background, something we are not obligated to do. See State v. Wright, 2019 UT App 66, ¶ 47 n.6, 442 P.3d 1185 (explaining the parties’ duty to cite the record in appellate briefs), cert. denied, 456 P.3d 391 (Utah 2019). Accordingly, our recitation of the facts is necessarily minimal as we limit it to what is essential to resolve the issues on appeal.

[3] Neither party produced an appraisal of the home or an appraisal witness at trial, leading the court to ask the parties, “Does anybody have any valuation [of the home] at all?” Sonya’s counsel answered, “Well, we could do it [with] Zillow.” At this point, while in court, Sonya’s counsel looked up the value and reported, “According to Zillow as of today, the estimated value is $998,659.” No objection was lodged at trial to the court receiving this information. “Zillow is a commercial website that provides, among other things, an estimated market value for many residential properties.” Chaudry v. Chaudry, No. 1794, 2021 WL 2910977, at *9 n.7 (Md. Ct. Spec. App. July 12, 2021).

[4] This number reflected the amount owing at the time of separation. At the bench trial, Joseph testified that the amount was currently about $298,000.

[5] Joseph’s counsel provided a LexisNexis report as evidence of the liens on the home. This report was admitted as evidence with no objection.

[6] Nor did Joseph’s counsel provide a single citation to the record in his brief. This shortcoming is most unhelpful. While an appellee is not required to file a brief, see, e.g.AL-IN Partners, LLC v. LifeVantage Corp., 2021 UT 42, ¶ 19, 496 P.3d 76, we observe that if a brief is filed, it would behoove counsel to provide record citations. After all, and at the risk of stating the obvious, record citations are required because in their absence it’s difficult, and at times impossible, to figure out what the parties are referencing.

[7] “Parentification is often referred to as growing up too fast. Typically, it occurs when a child takes on parental responsibility for their siblings or even their parents, taking care of a sibling or parent physically, mentally, or emotionally. This can damage a child’s mental well-being and lead to long-term mental health conditions such as depression and anxiety.” Amber Felton, What Is Parentification, Web MD, https://www.webmd.com/parenting /what-is-parentification [https://perma.cc/N6TT-Y7QN].

[8] Sonya also argues that the district court violated her constitutional due process rights by its “ongoing interference” with her counsel’s presentation of her case. Quite frankly, apart from a litany of complaints about the court requiring counsel to keep her questioning relevant, the contours of her argument on appeal are difficult to discern, and she fails to cite a single case in support of the argument. Accordingly, we decline to consider her due process argument because it is inadequately briefed. See Utah R. App. P. 24(a)(8) (“The argument must explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal.”); see also Orlando Millenia, LC v. United Title Services of Utah, Inc., 2015 UT 55, ¶ 30 n.3, 355 P.3d 965 (“The briefing on this claim . . . is inadequate. [The appellant’s] briefing on this issue fails to cite any authority and makes no attempt to connect the law to the facts of this case.”).

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Widdison v. Widdison – 2022 UT App 46 – custody modification

Widdison v. Widdison – 2022 UT App 46
 

THE UTAH COURT OF APPEALS 

NICOLE WIDDISON,
Appellant, 

LEON BRYANT WIDDISON, 

Appellee. 

Opinion 

No. 20200484-CA 

Filed April 7, 2022 

Third District Court, Salt Lake Department 

The Honorable Robert P. Faust 

No. 144906018 

Julie J. Nelson and Alexandra Mareschal, Attorneys
for Appellant 

Todd R. Sheeran, Attorney for Appellee 

JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred. 

TENNEY, Judge: 

¶1 By statute, a district court must ordinarily find that a material and substantial change in circumstances occurred before modifying the custody provisions in a divorce decree. In this appeal, we’re asked to answer two main questions about this statute. 

¶2 First, if a decree is silent about whether one of the parents has legal custody of a child, is the district court later required to find that there was a material and substantial change in circumstances before determining whether that parent has legal custody in the first instance? We conclude that a material and substantial change in circumstances is not required in such a scenario. 

¶3 Second, in situations where the custody modification statute is applicable, can a custodial parent’s attempt to sever a years-long relationship between the noncustodial parent and a child legally qualify as a material and substantial change? We conclude that it can. 

¶4 Based on these two conclusions, we affirm the modifications at issue. 

BACKGROUND [10]
The Divorce Decree 

¶5 Nicole and Bryant Widdison were married in June 2004. They had two children during their marriage, Daughter and Son. Bryant is Daughter’s biological father, but Nicole conceived Son with another man during a brief separation from Bryant. Nicole and Bryant reconciled before Son’s birth, however, and Bryant was in the delivery room when Nicole gave birth to Son. Bryant is listed on Son’s birth certificate, and Son bears Bryant’s surname. 

¶6 Nicole and Bryant divorced in July 2015. Daughter was ten years old at the time, and Son was about three and a half. The divorce decree (the Decree) was largely based on a stipulation between Nicole and Bryant. 

¶7 In the portions relevant to this appeal, the Decree provided: 

  1. Physical Custody: Nicole shall have physical custody of both said minor children. Bryant will remain on Son’s birth certificate unless or until he is challenged by some other legitimate party who prevails in a court of law.

. . . . 

  1. Legal Custody: The parties shall have “joint legal custody” of Daughter.

. . . . 

  1. Parent-Time/Visitation: Bryant shall be entitled to reasonable parent-time with Daughter. Reasonable parent-time shall be defined as the parties may agree. However, if the parties are not able to agree, Bryant shall be entitled to the following parent-time:

. . . . 

2) . . . Bryant may have two (2) overnights each week to coincide with the days that he is off work with the parties’ oldest child, Daughter[,] during the school year. . . . During the Summer months Bryant may have three overnights every other week and two overnights on the alternating weeks. . . . As for the youngest child, Son, parent-time will be at Nicole’s sole discretion . . . . 

3) Bryant shall also be entitled to holidays and summer parent-time as articulated in U.C.A. § 30-335 . . . . 

. . . . 

  1. Child Support: . . . Based on [the parties’] incomes, and a sole custody worksheet (even though the parties have a different parent-time arrangement and with the benefit and consent of counsel after being informed and involved), Bryant shall pay Nicole child support in the amount of $450.00 each month for the one female child (Daughter). . . . Any reference to a financial obligation[] or child support in this document shall be interpreted as applying only to the older child (Daughter).

(Emphases added.) 

¶8 As noted, the Decree gave Nicole “sole discretion” over whether Bryant could spend parent-time with Son. During the first three years after the divorce, Nicole “regularly and consistently allowed Son to exercise time with Bryant.” Her usual practice was to allow Son to accompany Daughter whenever Daughter visited Bryant. Since the Decree entitled Bryant to spend a little over 30 percent of the time with Daughter, this meant that Bryant spent a little over 30 percent of the time with Son during those years too. 

The Modification Petitions 

¶9 In November 2016, the State filed a petition to modify the Decree to require Bryant to pay child support for Son. The State’s petition noted that Son was born during Nicole and Bryant’s marriage, and it asserted that Bryant was Son’s presumptive legal father under Utah Code § 78B-15-204(1)(a) (LexisNexis 2018)11, which states that a “man is presumed to be the father of a child if,” among others, “he and the mother of the child are married to each other and the child is born during the marriage.” The State noted that “[n]o child support has been ordered for this child.” It accordingly asked the court to “find[] Bryant to be the legal father of Son” and order him to pay child support for Son. 

¶10 In his answer to the State’s petition, Bryant agreed that he “is the presumptive father” of Son and expressed his “desire[]” to “be treated as the natural father of Son” “for all intents and purposes.” Bryant also asked the court for an order granting him joint legal and physical custody of Son, as well as a “clarification of his rights and duties, namely parent-time with Son.”12  

¶11 In September 2018, Bryant filed his own petition to modify the Decree. There, Bryant asserted that he “has been the only father figure that Son has known,” and he argued that he “should be presumed and considered the legal father of Son.” Bryant also argued that “[t]here has been a significant, substantial and material change in circumstances that has occurred since the parties’ Decree of Divorce concerning custody, parent-time, and child support, such that modification of the Decree of Divorce is in the best interests of the minor children.”13  

Motion for Temporary Relief 

¶12 About two months after Bryant filed his petition to modify, Nicole suddenly cut off Bryant’s parent-time with Son. After she did, Bryant filed a motion for temporary relief, asking the court to award him “his historical/status quo parent time with both the minor children” until his petition to modify was resolved. 

¶13 The matter went before a court commissioner, and a hearing was held in which Bryant and Nicole and their respective attorneys were present. During the hearing, the commissioner heard how often Son accompanied Daughter during her visits with Bryant. At the close of the hearing, the commissioner ordered Nicole to “immediately resume Bryant’s historical/status quo parent time with both minor children” and to “allow Son to follow the parent-time schedule of Daughter, consistent with the historical parent-time exercised by Bryant.” 

¶14 Nicole objected to the commissioner’s recommendation, but the district court overruled that objection. The court instead agreed to temporarily “modify the stipulation to reflect what the parties themselves were actually doing regarding parent time.” The court surmised that “reducing the visitation the parties themselves were doing” might “be harmful to the child.” The court continued that it “could also be argued that such visitation is helpful and beneficial to the child, especially since both children will be doing visitation together and parents have the right of visitation with their children.” Nicole was thus ordered to give Bryant “the same parent-time with Son, consistent with Bryant’s parent time with Daughter,” while Bryant’s petition to modify was pending. 

The Relocation Proceedings 

¶15 A short time later, Nicole requested an expedited phone conference with the court, explaining that the company she worked for was requiring her to relocate to California. After a hearing, the commissioner recommended that “[t]he children . . . remain in Utah until the Court changes the Order regarding custody and parent time.” 

¶16 During the hearing, the commissioner further noted that “[c]onspicuously absent from Nicole’s argument [was] anything—from this Court’s perspective—showing she’s considering the child’s perspective.” In particular, the commissioner explained that 

Son has shared time with the older sibling going to Bryant’s home. Nicole has regularly and consistently allowed this child to exercise time with Bryant. In [November] of 2018, Nicole disagreed. And I agree, she does have the discretion to make decisions with regard to Son. From the child’s perspective, however, one child goes with Dad and the other doesn’t, because Bryant stepped on Nicole’s toes. She says, I’m establishing boundaries; you don’t get to see this child. That’s fine if this child is a car or a refrigerator. Son [is] a person who has Bryant’s surname, who has been exercising time—from what I can see—[a] full seven years. 

The commissioner further explained that “there’s been enough of a change, enough consistency for this younger child, that he has followed the older child, has the same surname [as Bryant], [Bryant’s] name’s on the birth certificate that has not been changed, to follow [Daughter’s parent-time] schedule.” 

¶17 Nicole did not object to the commissioner’s recommendation, and she hasn’t relocated in the meantime. 

The District Court’s Ruling on Bryant’s Petition to Modify 

¶18 A bench trial was held in November 2019 to settle the issues raised in Bryant’s petition to modify and Nicole’s request to relocate. The district court later entered an order titled “Amended Findings of Fact and Conclusions of Law on Petitioner’s Relocation Request,” which addressed both the relocation request and the broader issues regarding Bryant’s legal and physical custody. 

¶19 In its order, the court first concluded that the petition to modify was “appropriate in that there have been material changes in circumstances warranting modification of the parties’ Decree in the children’s best interests, which have not previously been adjudicated.” The court did not, however, more specifically identify what those “changes in circumstances” were. 

¶20 Second, the court concluded that Nicole had “failed to rebut the presumption of paternity that exists in this case.” In the court’s view, Nicole had not shown by a “preponderance of the evidence that it would be in the best interest of Son to disestablish the parent-child relationship that has been created and substantiated by both of the parties over many years.” The court then “enter[ed] an adjudication that Bryant is the father of Son” and modified the Decree to “impose as to Son parental obligations” on Bryant, “including the obligation to pay child support for Son.” 

¶21 Third, the court “award[ed] Bryant joint legal custody of Son on the same terms as the Decree provide[d] for Daughter.” 

¶22 And finally, the court ruled that Nicole was “free to relocate.” If she did, the court awarded Bryant parent-time with both children under the terms set forth in Utah Code section 303-37(6) (Supp. 2021). If Nicole stayed in Utah, however, the court awarded Bryant “parent time with Son on the same terms as was occurring with Daughter.” 

¶23 That same day, the court issued a separate “Order Modifying Decree of Divorce.” This order reiterated that Bryant is “adjudicated to be the legal father of both Daughter and Son,” that Bryant now bore “all parental obligations in accordance with Utah law,” including the “obligation to pay child support” for both children, and that Bryant had “joint legal custody of both children on the same terms set forth in the [original] Decree with respect to Daughter.” The court further repeated the parent-time schedule that was set forth in its ruling on the relocation request—i.e., it awarded Bryant parent-time with Son on the same terms that he had with Daughter. It then declared that, “[e]xcept as modified by this Order, the parties’ Decree remains in full force and effect.” 

ISSUES AND STANDARDS OF REVIEW 

¶24 Nicole challenges the district court’s decisions to give Bryant (1) legal custody of Son and (2) parent-time with Son. We review a district court’s decision to modify a divorce decree, as well as a court’s parent-time determination and custody award, for abuse of discretion. See Stephens v. Stephens, 2018 UT App 196, ¶¶ 20–21, 437 P.3d 445; MacDonald v. MacDonald, 2017 UT App 136, ¶ 7, 402 P.3d 178. 

¶25 As discussed below, we regard one portion of the ruling in question as a determination of custody in the first instance. “A district court’s award of custody is reviewed for abuse of discretion.” Taylor v. Elison, 2011 UT App 272, ¶ 8, 263 P.3d 448. As also discussed below, another portion of Nicole’s argument turns on whether the circumstances at issue can legally qualify as a change in circumstances. We review that decision for correctness. See Toone v. Toone, 952 P.2d 112, 114 (Utah Ct. App. 1998) (“[I]n this case, we are presented with a question of law regarding what constitutes a substantial change of circumstances, which is reviewed for correctness.”). 

ANALYSIS 

¶26 “While there are several tools that can generally be used to modify final judgments, one tool that is specific to family law cases is the petition to modify.” McFarland v. McFarland, 2021 UT App 58, ¶ 25, 493 P.3d 1146 (quotation simplified); 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.” McFarland, 2021 UT App 58, ¶ 25. 

¶27 “On the petition of one or both of the parents,” the governing statute allows a court to “modify or terminate an order that established joint legal custody or joint physical custody” if “the circumstances of the child or one or both parents . . . have materially and substantially changed since the entry of the order to be modified” and the modification “would be an improvement for and in the best interest of the child.” Utah Code Ann. § 30-3-10.4(1) (LexisNexis 2019). This is a “bifurcated procedure,” Hogge v. Hogge, 649 P.2d 51, 53 (Utah 1982), and Utah courts have consistently referred to it as a “two-step” process, Doyle v. Doyle, 2011 UT 42, ¶ 24, 258 P.3d 553. See also Becker v. Becker, 694 P.2d 608, 610–11 (Utah 1984). Notably, it’s also a sequential process, in that a court cannot “reopen[] the custody question until it has first made a threshold finding of substantially changed circumstances.” Doyle, 2011 UT 42, ¶ 25 (quotation simplified).14  

¶28 As explained above, the district court made a number of changes to the Decree, and Nicole now challenges two of them on appeal: the decision to award Bryant legal custody of Son and the decision to grant Bryant parent-time with Son. We address each in turn.

I. Legal Custody

¶29 Nicole first challenges the district court’s decision to award Bryant joint legal custody of Son. Nicole claims that, “[u]nder the decree, [she] had sole . . . legal custody of Son,” and she then argues that under the two-step process described above, the district court erred by granting legal custody to Bryant without first providing any “analysis regarding a change in circumstances.” In her view, “[t]he district court disregarded the custody . . . arrangements from the decree and awarded joint [legal] custody of Son as if the decree had never been entered.” 

¶30 Nicole’s argument, however, is based on a false premise— namely, that the Decree had awarded her sole legal custody of Son. But it hadn’t. The Decree had a separately enumerated “Legal Custody” subsection. That subsection stated that “[t]he parties shall have ‘joint legal custody’ of Daughter.” (Emphasis added.) This provision said nothing about Son, and no other provision in the Decree purported to establish whether Nicole had legal custody of Son (let alone sole legal custody), or instead whether Bryant did (or didn’t) have any form of legal custody of Son himself. Instead, on this, the Decree was silent.15  

¶31 But the court was legally required to make a legal custody determination for Son. The Utah Code states that courts “shall enter . . . an order of custody”—both legal and physical—when a “married couple’s marriage is declared void or dissolved.” Utah Code Ann. § 30-3-10(1) (2019) (emphasis added). The term “shall,” of course, has long been regarded as a command. See, e.g., Lay v. Lay, 2018 UT App 137, ¶ 12, 427 P.3d 1221.16  

¶32 The Decree’s silence impacts how we view Nicole’s arguments on appeal. Again, the Decree is silent about whether Bryant (or any other putative father) had legal custody of Son, and it likewise said nothing about whether Nicole (or any other mother) had legal custody of Son. So the question here is whether the court could correct this oversight without having to first determine that there had been a sufficient change in circumstances to warrant modification. 

¶33 We conclude that a change in circumstances was not required for the court to correct the Decree in this manner. As noted, the change-in-circumstances requirement is set forth in Utah Code section 30-3-10.4. This requirement “serves multiple interests.” Doyle, 2011 UT 42, ¶ 25. “First, because a custody decree is predicated on a particular set of facts, that decree is res judicata,” so “the changed-circumstances requirement prevents an unnecessary drain on judicial resources by repetitive litigation of the same issue when the result would not be altered.” Miller v. Miller, 2020 UT App 171, ¶ 17, 480 P.3d 341 (quotation simplified). “Second, the changed-circumstances requirement protects the custodial parent from harassment by repeated litigation.” Id. (quotation simplified). And third, “the requirement protects the child from ‘ping-pong’ custody awards,” id. (quotation simplified), thus emphasizing “the importance of a stable and secure homelife for children who are shifted from one parent figure to another” and ensuring that custody issues are not frivolously or infinitely “reopen[ed],” Hogge, 649 P.2d at 53–54 (quotation simplified). 

¶34 None of these concerns are implicated here. To the contrary, since the question of whether Bryant had legal custody of Son was unaddressed in the Decree, there was nothing for the court to “reopen” or change. Id. at 53. Thus, properly understood, Nicole isn’t really challenging a decision to modify a prior determination that Bryant should (or shouldn’t) have legal custody of Son. Rather, what Nicole is actually challenging is a decision that, in effect, decided legal custody in the first instance. Because of this, we conclude that no change in circumstances could reasonably be required. After all, if it were true that a court couldn’t correct an omission of a required determination without pointing to a change in circumstances, divorce decrees like this one would be left indeterminate about key issues such as who had legal custody of a child. And the effect of such omissions would be felt by both the children and the parents, all of whom would be left without the guidance and certainty that custody determinations are intended and required to provide. We decline to create, let alone endorse, such an approach. 

¶35 Our determination thus leaves the remaining question of whether the court exceeded its discretion when it awarded joint legal custody of Son to Bryant in the first instance. We conclude that it didn’t. 

¶36 “Under both the United States Constitution and the constitution of [Utah], a parent possesses a fundamental liberty interest in the care, custody, and management of the parent’s child.” Utah Code Ann. § 80-4-104(1) (Supp. 2021). Because of this, legal custody is linked to the fact of parentage. Our supreme court, for example, has held that a father has “legal custody of [his] [c]hild by virtue of his paternity,” In re adoption of B.B., 2017 UT 59, ¶ 81, 417 P.3d 1, and the same would of course be true for mothers by virtue of their maternity. Indeed, by statute, Utah law “presume[s] that a parent automatically enjoys legal custody” of his or her child, and this is so because of “the fundamental liberty interest of a parent concerning the care, custody, and management of the parent’s child.” Id. (quotation simplified). The legislature has also established “a rebuttable presumption that joint legal custody” “is in the best interest of the child.” Utah Code Ann. § 30-3-10(3) (2019). 

¶37 Here, Son was born during Nicole and Bryant’s marriage, so Bryant was legally “presumed to be” Son’s father. Id. § 78B15-204(1)(a) (2018). And while this presumption of paternity can be overcome, the district court concluded that it was not. Instead, in the same ruling at issue on appeal, the court declared Bryant to be Son’s legal father, and Nicole has not challenged that paternity decision on appeal. 

¶38 As also noted, however, Bryant’s now-established paternity of Son presumptively gave him joint legal custody of Son too, based in part on Bryant’s own constitutional interests in the care and raising of Son, who is his child. See In re adoption of B.B., 2017 UT 59, ¶ 81. In her arguments to us, the only reason that Nicole gives for overcoming this presumption is the fact that the initial Decree was silent about whether Bryant had legal custody of Son. But as we’ve explained, that omission was a legal error. And when the district court was alerted to that error, it appropriately fixed it. Once the court did, the result was that Bryant—who was present at Son’s birth, was listed on Son’s birth certificate, and has acted as Son’s father since birth—was now Son’s legal father, which meant that he was presumptively entitled to legal custody of Son too. 

¶39 In short, under these circumstances, no change in circumstances was required, and we see no abuse of discretion in the court awarding legal custody of Son to Bryant in the first instance.

II. Physical Custody

¶40 Nicole next challenges the district court’s decision to modify the Decree’s provisions regarding parent-time with Son. As set forth below, we first clarify (A) the nature of the modification, (B) the district court’s reasons for it, and (C) the standard of review applicable to Nicole’s particular challenge. We then hold that (D) the change in circumstance at issue can legally support a modification of custody. 

A. The Nature of the Modification

¶41 The Decree was silent about legal custody of Son, but it wasn’t silent about physical custody. Instead, it affirmatively gave Nicole “physical custody of both said minor children”—i.e., both Daughter and Son. And while the Decree then set forth a delineated parent-time schedule for Daughter, it left Bryant’s parent-time with Son to “Nicole’s sole discretion.” 

¶42 In the ruling at issue, the district court modified this. The court removed Nicole’s “sole discretion” over parent-time for Son and set forth two alternative parent-time schedules. If Nicole remained in Utah, Bryant would have parent-time with Son “on the same terms as was occurring with Daughter.” If she moved to California, however, Bryant would have one weekend per month with both children as well as additional time with them during the summer. See Utah Code Ann. § 30-3-37(6) (2019). 

¶43 Although this ruling was couched in terms of parent-time, the parties have both suggested in their briefing that this amounted to a modification of physical custody of Son. We agree. 

¶44 Physical custody and parent-time “are conceptually distinct.” Ross, 2019 UT App 104, ¶ 14 n.3. “Physical custody has long been understood to involve much more than actual possession and care of a child,” instead implicating the right and “legal responsibility to provide supervision and control” of a child. Hansen v. Hansen, 2012 UT 9, ¶ 15, 270 P.3d 531. By contrast, the term “parent-time” more narrowly refers to the amount of time that a parent is entitled to spend with the child. See generally Utah Code Ann. §§ 30-3-34 to -36 (2019 & Supp. 2021) (setting forth minimum, optional, and equal parent-time schedules as well as parent-time considerations for special circumstances). 

¶45 That said, the terms are intertwined because, “[b]y statutory definition, there are two kinds of physical custody— sole physical custody and joint physical custody,” and “the dividing line” between the two is largely “based on the number of overnight visits enjoyed by each parent.” McFarland, 2021 UT App 58, ¶ 36. When a child “stays with each” of his or her “parent[s] overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support,” each of the parents has joint physical custody of the child. Utah Code Ann. § 30-3-10.1(3)(a) (2019). But when a child stays with one parent overnight for less than 30% of the year, the parent who has over 70% of the overnights is considered to have sole physical custody of the child. See id.; Utah Code Ann. § 78B-12-102(15) (Supp. 2021); McFarland, 2021 UT App 58, ¶ 36. 

¶46 Here, the Decree did not specifically determine whether Nicole had “sole” or “joint” physical custody of either of the children. But at least with regard to Son, the Decree effectively awarded Nicole sole physical custody because it gave her “sole discretion” whether Son would spend any parent-time with Bryant at all. And, critically for this appeal, the Decree also awarded Bryant what amounted to joint physical custody of Daughter. After all, the dividing line is 30% of the overnights, and 30% of the 365 days in a year is roughly 110. In the proceedings below, the commissioner reviewed the Decree and determined that the parent-time schedule gave Bryant more “than the 110 overnights,” which accordingly meant that Bryant had “joint physical custody” of Daughter. Thus, when the district court later equalized Bryant’s parent-time with Son to match the parent-time he had with Daughter, it in effect modified the Decree to give Bryant joint physical custody of Son too.17  

B. The Basis for the District Court’s Change-in-Circumstance

Determination 

¶47 As noted, the district court determined that “there have been material changes in circumstances warranting modification of the parties’ Decree in the children’s best interests, which have not previously been adjudicated.” But the court did not specifically delineate what those changes were. Because of this, Nicole initially asks us to reverse the modification based on the court’s failure to provide any “analysis as to why a custody modification was justified” under the required change-in-circumstances test. 

¶48 We acknowledge that the district court’s ruling on this could have been more clear. But even so, “a trial court’s failure to make explicit findings supporting its decision does not, alone, warrant reversal so long as the basis for the trial court’s ruling is readily apparent from the record.” In re A.S., 2014 UT App 226, ¶ 7, 336 P.3d 582; cf. State v. Pecht, 2002 UT 41, ¶ 34, 48 P.3d 931 (explaining that “where the record as a whole sufficiently” indicates the basis for the court’s ruling, “an absence of written findings will not invalidate the trial court’s conclusions”). 

¶49 Here, the court expressly concluded that there had been a change in circumstances, so the court was plainly cognizant of the requirement and believed that it had been met. And from our review of the record, we believe that the basis for the court’s determination is sufficiently apparent. In its ruling regarding the temporary orders, the court temporarily “modif[ied] the stipulation to reflect what the parties themselves were actually doing regarding parent time.” The court surmised that “reducing the visitation the parties themselves were doing” might “be harmful to the child” and that “visitation is helpful and beneficial to the child, especially since both children will be doing visitation together and parents have the right of visitation with their children.” It thus ordered Nicole to give Bryant “the same parent-time with Son, consistent with Bryant’s parent time with Daughter,” while Bryant’s petition to modify was pending. This initial decision demonstrated two key things: (1) the court intended to equalize Bryant’s parent-time with Daughter and Son, and (2) it more specifically intended to prevent Nicole from “reducing” Bryant’s parent-time with Son. 

¶50 The court’s ruling on Nicole’s relocation request (which, again, accompanied the modification ruling) was consistent with these goals. There, the court ruled that Bryant should be declared Son’s father—a determination that, again, Nicole has not challenged on appeal. Notably, in doing so, the court expressed its intention to not allow Nicole to “disestablish the parent child relationship” between Bryant and Son “that has been created and substantiated by both of the parties over many years.” 

¶51 Together, these orders reflect the court’s intention to formally recognize and now protect Bryant’s relationship with Son. From all this, we believe it is “readily apparent from the record,” In re A.S., 2014 UT App 226, ¶ 7, that the change in circumstances found by the court to support modification included: (i) the changes in Bryant’s relationship with Son (namely, the three years of additional parent-time bonding, as well as Bryant’s new status as Son’s legally recognized father), and (ii) Nicole’s recent attempts to cut off Bryant’s access to Son. 

C. Standard of Review

¶52 Nicole next argues that Bryant’s further-developed relationship with Son and her decision to cut off parent-time between the two could not legally qualify as a change in circumstances under the custody modification statute. As noted in the Standard of Review section above, supra ¶ 25, we regard this as a legal question that is reviewed for correctness. In light of our past caselaw, this warrants some explanation. 

¶53 This court has previously held that a district court’s “determination regarding whether a substantial change of circumstances has occurred is presumptively valid, and our review is therefore limited to considering whether the [district] court abused its discretion.” Nave-Free v. Free, 2019 UT App 83, ¶ 8, 444 P.3d 3 (quotation simplified); accord Christensen v. Christensen, 2017 UT App 120, ¶ 10, 400 P.3d 1219; Doyle v. Doyle, 2009 UT App 306, ¶ 7, 221 P.3d 888, aff’d, 2011 UT 42, 258 P.3d 553. We reaffirm our adherence to this general rule here. 

¶54 On occasion, however, we have held that the abuse-of-discretion standard applies to a district court’s “ultimate determination regarding the presence or absence of a substantial change in circumstances.” Peeples v. Peeples, 2019 UT App 207, ¶ 11, 456 P.3d 1159 (emphasis added); accord Harper v. Harper, 2021 UT App 5, ¶ 11, 480 P.3d 1097. But when we have been presented with an argument that didn’t challenge the court’s “ultimate determination” of whether certain facts constituted a material and substantial change in circumstances, but instead contended that particular facts or developments simply couldn’t be legally considered as part of the court’s analysis, we have treated those questions as questions of law for which we give the district court’s ruling no appellate deference. 

¶55 Our decision in Toone v. Toone, 952 P.2d 112 (Utah Ct. App. 1998), is illustrative. There, after a divorce had been finalized, federal laws regarding military pensions changed; and if those new laws were applied to the parties’ divorce, they would have allowed the ex-wife a larger share of her ex-husband’s military pension. See id. at 113–14. The ex-wife accordingly filed a petition to modify, asserting that the change in laws amounted to a change in circumstances that justified modification of the divorce decree. Id. We disagreed. See id. at 114. Notably, while reaffirming the rule that a district court’s “modification determination” is reviewed “for an abuse of discretion,” we regarded the particular question before us as being “a question of law regarding what constitutes a substantial change of circumstances, which is reviewed for correctness.” Id. 

¶56 Another case proceeded similarly. In Davis v. Davis, 2011 UT App 311, ¶ 6, 263 P.3d 520, we construed a party’s argument that certain events “could not be used as evidence” in the change-in-circumstances analysis as a legal question that we reviewed for correctness. 

¶57 This distinction, though perhaps subtle, is important, and it accords with how standards of review operate. The “primary function of a standard of review is to apportion power and, consequently, responsibility between trial and appellate courts for determining an issue.” State v. Levin, 2006 UT 50, ¶ 19, 144 P.3d 1096 (quotation simplified). In this sense, the standard of review determination “allocate[s] discretion between the trial and appellate courts” based on an assessment of “the relative capabilities of each level of the court system.” Id. (quotation simplified). 

¶58 Again, the statute in question here requires a court to determine whether there was a material and substantial change in circumstances. See Utah Code Ann. § 30-3-10.4(2)(b)(i) (2019). The evaluation of whether a particular change was material or substantial enough calls for a weighing of facts and circumstances. District courts are in a better position than we are to do such weighing, which is why those ultimate determinations receive discretionary deference. But if a party instead makes a threshold argument that a particular kind of fact or development can’t legally be used in the weighing at all, that argument essentially asks us to establish the permissible boundaries of the district court’s discretionary decision-making authority. Such a question is legal in nature, which is why that aspect of the ruling is reviewed for correctness. 

¶59 In her opening brief, Nicole argues that the change in circumstances identified by the district court “is not the sort of ‘change’ that justifies modification under Utah law.” (Emphasis added.) In her reply brief, Nicole similarly asserts that the district court “did not find[] changed circumstances that qualify under Utah law.” (Emphasis added.) She accordingly asks us to review the district court’s decision for correctness, rather than an abuse of discretion. So viewed, we don’t understand Nicole to be challenging the court’s weighing of the permissible facts. Rather, we understand Nicole to be making a legal argument about whether the court could even consider the change in relationship between Son and Bryant in the intervening years and Nicole’s subsequent, unilateral decision to cut off their parent-time as a material change in circumstances. Because her argument is legal in nature, we review this aspect of the ruling for correctness. 

D. The Change in Circumstances

¶60 Properly understood, the question, then, is whether the change in circumstances identified above can legally qualify as a change in circumstances under Utah law. We conclude that it can.18  

¶61 As noted, the statute requires a determination that “a material and substantial change in circumstance has occurred.” Utah Code Ann. § 30-3-10.4(2)(b)(i) (2019). A chief “goal” of this required determination is to give children “some measure of certainty and stability” after their parents or guardians have separated. In re E.H., 2006 UT 36, ¶ 2, 137 P.3d 809. Indeed, the supreme court has suggested that children are “entitled” to “permanence and stability” moving forward. Id. ¶ 16. 

¶62 For good reason. The “emotional, intellectual, and moral development of a child depends upon a reasonable degree of stability in the child’s relationships to important people and to its environment.” Elmer v. Elmer, 776 P.2d 599, 602 (Utah 1989). Both the supreme court and this court have recognized that stability is paramount with respect to “custody arrangements.” Hogge, 649 P.2d at 54; see also Kramer v. Kramer, 738 P.2d 624, 626 (Utah 1987) (recognizing that “stable custody arrangements are of critical importance to the child’s proper development”); Taylor v. Elison, 2011 UT App 272, ¶ 22, 263 P.3d 448 (recognizing the “general policy of maintaining custodial stability to the extent it is reasonable and wise to do so while [a child’s] parents seek to resolve their differences” and that “it is generally in the best interests of the child to remain with his or her existing custodial parent”). 

¶63 This stability interest is one of the driving forces behind the change-in-circumstances requirement, which “provide[s] stability to children by protecting them from ‘ping-pong’ custody awards.” Chaparro v. Torero, 2018 UT App 181, ¶ 39, 436 P.3d 339 (quotation simplified). “Absent such a requirement, a decree of divorce would be subject to ad infinitum appellate review and readjustment.” Foulger v. Foulger, 626 P.2d 412, 414 (Utah 1981). Thus, the understood “rationale” for this requirement is “that custody placements, once made, should be as stable as possible unless the factual basis for them has completely changed.” Kramer, 738 P.2d at 627 (quotation simplified). 

¶64 But this leads to the problem that the district court was confronted with here. Again, the parent-child relationship between Bryant and Son had existed since birth, had solidified in the several-year period after the divorce, and had just now been officially recognized as a matter of law. Despite this, Nicole had recently invoked her authority under the Decree to cut off Bryant’s access to Son entirely, thus amounting to something akin to complete custodial interference. 

¶65 The legislature, however, has recognized that “each divorcing, separating, or adjudicated parent is entitled to . . . frequent, meaningful, and continuing access with the parent’s child consistent with the child’s best interest,” Utah Code Ann. § 30-3-32(2)(b)(ii) (Supp. 2021) (emphases added), and that, absent evidence of abuse or harm to the child, “it is in the best interests of the child to have both parents actively involved in parenting the child,” id. § 30-3-32(2)(b)(iii) (emphasis added). True, such relationships can be altered or even severed by operation of law. But here, the Decree was the product of a stipulation, not a court determination, and no court has ever determined that it was not in the best interests of Son to have a relationship with Bryant. 

¶66 Given that Bryant has now been adjudicated to be Son’s father, we believe that the court could legally conclude that this change, coupled with Nicole’s concomitant attempt to undermine their ability to have any relationship at all, warranted a modification of the Decree to protect the father-son relationship moving forward. 

¶67 Nicole, however, resists this conclusion. She argues that her decision “to allow (or not allow) parent-time” is not “the type of change in circumstances that justifies modification under Utah law.” We disagree. 

¶68 As a starting point, we note that Nicole’s argument has no support in the controlling statutory text. Section 30-3-10.4(2)(b)(i) requires a court to find that “a material and substantial change of circumstance has occurred.” There is nothing in the text of this statute that creates the limit suggested by Nicole—i.e., the statute doesn’t prevent a district court from concluding that a custodial parent’s efforts to cut off a years-developed relationship between a child and the noncustodial parent qualifies as such a change. 

¶69 Nicole nevertheless points to two cases that, in her view, support her proposed limitation. But we don’t find either case to require a different result here. 

¶70 First, Nicole relies on a passage from Doyle in which the supreme court “adopted a general rule” under which “the asserted change” in circumstances must be related to the “parenting ability or the functioning of the presently existing custodial relationship,” rather than the “parenting of the noncustodial parent.” 2011 UT 42, ¶ 41 (quotation simplified). 

¶71 But while Doyle referred to this as a “general rule,” it never said it was an “exclusive” one. Indeed, in the very next sentence, Doyle recognized “an exception to the general rule” that was based on a prior Utah case. Id. Doyle itself thus shows that this “general rule” is subject to judicially recognized exceptions. 

¶72 Moreover, section 30-3-10.4(1)(a) itself provides that, in a petition to modify, the petition or affidavit must “allege[] that admissible evidence will show that the circumstances of the child or one or both parents . . . have materially and substantially changed since the entry of the order to be modified.” (Emphasis added.) By allowing a modification to be based on a change in the circumstances of “the child or one or both parents,” the legislature directly contemplated that a change in circumstances of any of the parties—the child or either parent—can provide the basis for a modification. So while Doyle’s statement provides some guidance, we do not understand it to be an inviolable limitation of the sort proposed by Nicole. 

¶73 Second, Nicole claims that in Crouse v. Crouse, 817 P.2d 836 (Utah Ct. App. 1991), we adopted a rule under which a noncustodial parent’s strengthened relationship with a child cannot qualify as a change in circumstances for purposes of a subsequent modification request. We disagree with Nicole’s interpretation of Crouse. 

¶74 In Crouse, the mother had been given primary physical custody of the children after the divorce, but she had then allowed the children to “spen[d] almost equal time” with their father in the ensuing years. Id. at 837. Based in part on this allowance of extra time, the father later requested a modification of the decree to give him “primary physical custody” over the children. Id. The district court denied his modification request, and we affirmed that decision. Id. at 837, 840. 

¶75 Nicole points to a passage from our affirmance in which we recognized that the “fact that Mrs. Crouse has been generous in sharing physical custody with Mr. Crouse is not a ground to change physical custody; if anything, it supports leaving primary physical custody with Mrs. Crouse, as it shows that she has lived up to the responsibilities of a custodial parent.” Id. at 839. 

¶76 In contrast to Nicole, however, we don’t read this passage as having determined that, as a matter of law, a district court cannot consider such facts in its analysis. It’s significant that we were affirming the district court’s denial of a petition to modify in Crouse. It’s also significant that the same section of the opinion began with a reminder that a “trial court’s decision concerning modification of a divorce decree will not be disturbed absent an abuse of discretion,” id. at 838, and that we then referred to the court’s “discretion” three more times in that section, id. at 838– 39. Thus, properly understood, Crouse was not establishing rules about the facts that a court could legally consider. Rather, Crouse was giving deference to the district court’s determination that the facts before it were not enough to satisfy the requisite standard. 

¶77 Moreover, we also note that the district court’s use of its discretion in Crouse was consistent with the understood purpose behind the change-in-circumstances requirement. The mother there had originally been awarded primary physical custody, and after she let the children “spen[d] almost equal time” with their father over a period of a few years, the father asked the court to grant him “primary physical custody” as a result. Id. at 837. In this sense, the father’s request, if granted, would have created instability in the children’s lives by changing their primary caregiver. 

¶78 The opposite is true here. Again, Bryant had acted as Son’s father since birth. After Nicole then allowed Son to continue developing this relationship with Bryant over the course of several post-divorce years, Nicole changed her mind and decided to cut off their relationship, thus essentially leaving Son fatherless. Put simply, the effect of our decision here is consistent with Crouse, not inconsistent with it. There, we affirmed a district court decision that preserved stability in the children’s lives. And here, we’re likewise affirming a district court decision that preserved stability in the affected child’s life. 

¶79 In sum, the statute does not impose the limitation proposed by Nicole, and we think that doing so ourselves would be inconsistent with Utah caselaw, the importance of parent-child relationships, the protections given to those relationships by constitution and statute alike, and the modification statute’s recognized goal of promoting stability in children’s lives. We therefore conclude that a district court can legally determine that a unilateral attempt by a custodial parent to sever a child’s years-developed relationship with his or her noncustodial parent can constitute a substantial and material change in circumstances, thereby allowing the court to proceed to the best interests step of the modification analysis. We accordingly affirm the district court’s conclusion that a change in circumstances occurred here. 

¶80 Having done so, we add two cautionary notes to this decision. First, Nicole suggests that a ruling like this one will essentially penalize a custodial parent for being generous with the noncustodial parent’s ability to exercise parent-time. We’re sensitive to this concern. But again, a district court can’t proceed to the best-interests step of the analysis based on just any change in circumstances. Rather, the court must first determine that the change is “material and substantial.” Utah Code Ann. § 30-3-10.4(2)(b)(i). Whether a particular increase or decrease in parent-time is enough to qualify will be circumstance-dependent, and we have no need to more specifically cabin the district courts’ discretionary authority here. But in light of Nicole’s concern, we do note that the change in question in this case was from something akin to 30% of the time to 0%. We’re simply holding that a court can regard such a dramatic alteration of the existing parent-child relationship to be a material and substantial change in circumstances. 

¶81 Second, we again note that, even when a district court concludes that a change in circumstances has occurred, this does not mean that the court must modify the decree. Again, this is a two-step analysis, and under the second step, a court can only modify a decree if it finds that the modification “would be an improvement for and in the best interest of the child.” Id. § 30-3-10.4(2)(b)(ii). Thus, even in a circumstance like this one, a district court could still determine that modification is not appropriate if it concludes that the proposed modification would not be in the best interests of the child. 

¶82 In this sense, our decision today does not restrict the district courts’ options. Rather, it keeps them open. We simply hold that, in a case like this one, a district court can determine that a material and substantial change in circumstances has occurred—not that it must, and not that it must then make any particular ruling regarding the best interests of the child.19  

CONCLUSION 

¶83 For the foregoing reasons, we affirm the district court’s decision to give Bryant joint legal and physical custody of [decision ends here inexplicably]. 

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

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Hinds v Hinds-Holm – 2022 UT App 13 – child custody award factors

Hinds v Hinds-Holm – 2022 UT App 13

THE UTAH COURT OF APPEALS

BRADLEY HINDS,
Appellee,
v.
RACHEL HINDS-HOLM,
Appellant.

Opinion

No. 20200586-CA

Filed January 27, 2022

Third District Court, Salt Lake Department

The Honorable James T. Blanch

No. 174905091

Theodore R. Weckel, Attorney for Appellant
Jonathan G. Winn, Attorney for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.

MORTENSEN, Judge:

¶1        Bradley Hinds (Father) and Rachel Hinds-Holm (Mother) married and had a son (Child). After the parties divorced, the district court awarded custody of Child to Father. Mother challenges the court’s discretion in weighing the statutory custody factors and the court’s denial of her motion to continue the trial. We affirm.

BACKGROUND[1]

¶2        Father and Mother married in May 2015. Within a few weeks of the wedding, they experienced marital difficulties, and Mother left the family home. But after discovering Mother was pregnant, the parties reconciled, and Child was born in February 2016.

¶3        Father, who was in the military, was transferred to New Mexico, where Mother and Child joined him. For a period of about fifteen months, Mother and Father shared the parental duties of raising Child. However, Father contended that Mother interfered in his relationship with Child by not including him in medical decisions, not supporting his family’s relationship with Child, and giving contact with her mother (Grandmother) priority over his involvement with Child.

¶4        In June 2017, Father reported an incident of domestic violence. Father alleged “that he was physically assaulted by [Mother] and [Grandmother] resulting in a bruise on his arm, that he called the police, that base personnel intervened, and that the incident was investigated as domestic violence perpetrated by [Mother].” Mother claimed that “she was yelled at and verbally abused by [Father] during that episode.” While the report from the military labeled Mother as the perpetrator, it determined that the incident “did not meet the criteria for physical maltreatment and entry into” the military’s database. (Cleaned up.)

¶5 Mother then left New Mexico with Child to live with Grandmother in Utah. Thereafter, Father had difficulty reaching Mother and was unable to have contact with Child until September 2017, shortly after he filed for divorce in Salt Lake City, Utah. Under a temporary custody agreement reached by the parties and approved by the court, Mother was awarded sole physical custody, and the parties shared joint legal custody. Pursuant to this arrangement, “[t]he parties were ordered to cooperate with each other in terms of making decisions about the minor child, his health care, his education, and other decisions relating to the parties’ joint exercise of legal custody.”

¶6        However, on at least two occasions, Mother “declined to follow either something she and [Father] agreed to or something she was ordered to do by” the court commissioner. In December 2017, Father filed for an order to show cause in which he raised multiple issues regarding payment of certain expenses and Mother’s failure to follow court orders about joint custody arrangements.

¶7        In early April 2018, the parties attended mediation but were unable to reach an agreement. About a week later, Mother’s first attorney withdrew “as a result of [Mother’s] conduct that appear[ed] to be in bad faith.”

¶8        Mother hired a second attorney, and the parties attended a hearing on Father’s first motion for an order to show cause in May 2018. The court commissioner ruled in Father’s favor, ordering Mother to, among other things, involve Father in daycare and medical decisions regarding Child and to follow parent-time orders.

¶9        In September 2018, the commissioner ruled in Father’s favor on a second motion for an order to show cause, which also concerned matters of parent-time and shared expenses. In that order, the commissioner warned Mother about the consequences of future violations: “The Court admonishes [Mother] that if a third Order to Show Cause is raised before the Court for her inability to facilitate [Father’s] ordered parent-time, the Court will sentence [Mother] to five days of jail for every count of contempt for parent-time which is missed.” The commissioner also ordered Mother to respond to all discovery requests.

¶10      In September 2018, Mother’s second attorney withdrew as counsel. That attorney stated that she was “incredibly frustrated” with Mother and Mother was “acting in bad faith.”

¶11 Later that month, the court ordered that a custody evaluation be conducted by a licensed clinical social worker (Evaluator). The court ordered the parties to “cooperate as reasonably requested by” Evaluator, including participating in appointments and “[s]ubmission of any documents, names of collateral contacts, and other pertinent material for review during the first month of the evaluation process.” Mother did not comply with the evaluation order. Specifically, she (1) did not timely return the completed evaluation agreement; (2) did not timely provide the initial parenting questionnaire; (3) did not fully complete the parenting questionnaire when she did return it; (4) was dismissive concerning the information requested by Evaluator; (5) provided no helpful information by merely answering “yes” or “no” to Evaluator’s questions or by telling Evaluator, “Ask [Father], this is [Father’s] responsibility not mine”; (6) was slow in providing information; and (7) failed to provide Evaluator all the information requested.

¶12 In December 2018, Mother hired a third attorney for the limited purpose of “settling and preparing the final documents.”

¶13      In May 2019, as relevant here, the commissioner certified for trial the determination of physical custody, legal custody, and parent-time. The commissioner also heard Mother’s request to reopen discovery to appoint a rebuttal expert to Evaluator, but the commissioner “declined to rule on it and reserved the issue to be raised by [Mother] before” the judge. Moreover, the commissioner ordered Mother to “complete the outstanding discovery requests,” as the commissioner had ordered in September 2018, and “provide her responses” to Father within twenty-one days. Subsequently, the parties agreed to proceed by informal trial, see Utah R. Jud. Admin. 4-904, and the matter was referred back to the commissioner. A trial was scheduled for September 4, 2019.

¶14      In August 2019, Father filed a third motion for an order to show cause, alleging that Mother was not observing ordered parent-time and had failed to include Father in medical decisions. On August 28, Mother requested that the trial be continued, which the commissioner granted, resulting in a new trial date of November 5. In early September, Mother informed the commissioner that she no longer agreed to the informal trial, and the commissioner recommended that the parties contact the district court for a trial date. Mother’s third attorney withdrew in January 2020.

¶15 After the court scheduled a trial for March 9, Mother hired a fourth attorney on February 11. But he moved for permission to withdraw just fifteen days later, stating, “This withdrawal is done at the request of [Mother], her having knowledge of pending trial date on March 9, 2020. There has been a complete breakdown of attorney-client relationship which makes it impossible for counsel to be provided. [Mother] has indicated that she is planning to represent herself Pro Se at trial.” On February 27, the court entered an order granting the motion, stating that the pending trial of March 9 would not be continued.

¶16 On the morning of trial, Mother, proceeding pro se, informed the court that she had filed a motion to continue on February 26 but that the court clerks informed her that the motion had never been received. She then made an oral motion to continue so that she could retain counsel. The judge noted that Mother’s fourth attorney “represented . . . that [Mother] wanted him to withdraw, that it was at [Mother’s] request that he was withdrawing, . . . that [Mother] understood that the trial would not be continued, and that [Mother] understood that [she] would be representing [herself] at the trial.” Mother responded that when she asked him to withdraw, she thought she would still “be able to have [someone] that would be able to advocate and be there for” her. The court denied the motion.

¶17 At trial, as a threshold matter, the parties agreed that a joint custody arrangement “was not feasible” or in Child’s best interest. Thus, Mother and Father differed only as to which of them should receive sole legal and physical custody. Because the parties lived more than 1,000 miles apart and had an acrimonious relationship, the court determined that joint custody was, indeed, not feasible.

¶18 The court heard testimony from Father, Mother, and Evaluator. Evaluator provided extensive testimony concerning the best interest of Child in light of the statutory factors. Evaluator opined it was in Child’s best interest for Father to be awarded sole legal and physical custody of Child, with Mother receiving parent-time.

¶19 The court was “persuaded” (1) that Evaluator “did a thorough and careful evaluation that included an appropriate analysis of all the pertinent factors” and (2) “by a preponderance of the evidence that [Evaluator’s] expert opinions [were] in the best interests of the minor child in this case.”

¶20 In reaching the conclusion that it was in Child’s best interest that Father be awarded sole legal and physical custody, the court noted that it had not “delegate[d] decision-making responsibility” to Evaluator but had conducted “an independent analysis on the custody factors” set forth in Utah Code section 30-3-10(2) and applied “the evidence presented at trial” to arrive at a determination of Child’s best interest. The court then proceeded to address the custody factors.

¶21      The court found the following factors weighed in favor of Father:

·         Domestic violence, see Utah Code Ann. § 30-3-10(2)(a) (LexisNexis 2019): Despite the evidence being in dispute, the court determined that this factor weighed in favor of Father based on Father’s resulting injury, military documents listing Mother as the perpetrator, and Evaluator’s investigation into the incident.

·         Developmental needs of Child, see id. § 30-3-10(2)(b): Even though both parties unquestionably loved Child, the court reasoned that this factor weighed in favor of Father because evidence was presented that Mother was “not interested in [Child] having an emotional father-son attachment to [Father], and to [the] contrary [had] taken steps to prevent or interfere with such an attachment.” The court noted that there was no evidence that Father “would interfere” with Child’s relationship with Mother. The court concluded that it was “manifestly in [Child’s] best interests to have an emotional bond and supportive parent-child relationship with both parents” and that goal was more likely to be achieved if custody was awarded to Father than if it was awarded to Mother.

·         Parent’s capacity and willingness to function as a parent, see id. § 30-3-10(2)(c): Overall, this factor weighed “very strongly” in favor of Father. The court agreed with Evaluator that if Father “were awarded sole custody, he would cooperate better in terms of facilitating parent-time with [Mother] than she would in facilitating parent-time with him.” The court also found that there had “been a frustrating pattern throughout the pendency of this action of [Mother] agreeing to do things, or being ordered to do things, and then almost immediately refusing to follow through with agreements she made or Court orders she was given.”

·         Wishes and concerns of Child, see id. § 30-3-10(2)(p): While Mother tried to portray in her testimony that Child did not like Father, the court expressed concern that any dislike Child had toward Father was “the product of [Mother] instilling negative feelings in the mind of [Child] against [Father].” And given the court’s impression that Mother was attempting to manipulate Child, it found that this factor militated in favor of Father.

·         Any other relevant factor, see id. § 30-3-10(2)(r): This factor tilted to Father, the court concluded, because if Father was “awarded sole legal and physical custody, he [would] likely cooperate to the extent necessary to ensure that [Mother had a] bond and relationship with [Child].” “But based on [Mother’s] pattern of behavior throughout this action,” the court found it was “more likely than not that if sole legal and physical custody were to be awarded to [Mother], she would not cooperate to support the parent-child relationship and bond between [Father] and [Child].” And because it was “in [Child’s] best interest to have a bond with both parents, and since joint custody [was] not feasible,” the court found that the best way to ensure Child’s best interests were protected was “by awarding [Father] sole legal and physical custody with [Mother] to enjoy parent-time.”

¶22      The court found the following factors weighed in favor of Mother:

·         Child’s interaction and relationship with extended family, see id. § 30-3-10(2)(l): This factor weighed in favor of Mother because Child had a “strong relationship” with Grandmother.

·         Parent who has been the primary caretaker, see id. § 30-3­10(2)(m): This factor weighed in favor of Mother because she had primary custody during temporary orders.

·         Child’s bond with parent, see id. § 30-3-10(2)(q): “This factor [did] not strongly militate for or against either parent” but “[t]o the extent that [Mother had] been the primary caretaker under the temporary orders, this factor would likely militate in her favor.”

¶23      The court concluded these factors favored neither party:

·         Past conduct and moral character of the parent, see id. § 30-3-10(2)(d): The court noted that while evidence of Mother’s prior criminal convictions was presented, those convictions had, according to Mother, been expunged, and Father had presented no evidence to the contrary. Stating that it would not consider expunged charges, the court determined this factor weighed in neither party’s favor.

·         Relinquishment of custody or parent-time, see id. § 30-3­10(2)(h).

·         Duration and depth of desire for custody or parent-time, see id. § 30-3-10(2)(i).

·         Religious compatibility with Child, see id. § 30-3-10(2)(j).

·         Parent’s financial responsibility, see id. § 30-3-10(2)(k).

·         Happiness of Child in previous parenting arrangements, see id. § 30-3-10(2)(n).

¶24      After weighing these factors, the court entered the divorce decree, awarding Father sole legal and physical custody and Mother parent-time as set forth by Utah Code section 30-3-37(6).

¶25      Two days after the trial, Mother’s fifth attorney entered a limited appearance to assist Mother with filing a rule 52 motion[2] to amend the findings of fact and conclusions of law and a rule 59 motion[3] for a new trial. The court denied both motions, ruling Mother raised nothing in them “that she could not have raised earlier” and that they were “impermissible motions to reconsider” lacking “substantive merit.” Mother appeals.

ISSUES AND STANDARDS OF REVIEW

¶26      Mother asserts that the district court erred in applying the statutory custody factors and Utah case law when it found that it was in the best interest of Child to award Father full custody. “We review custody determinations under an abuse of discretion standard, giving the district court broad discretion to make custody awards.” Nebeker v. Orton, 2019 UT App 23, ¶ 15, 438 P.3d 1053 (cleaned up). And “we will not disturb the district court’s judgment unless we determine the district court has exceeded the scope of permitted discretion or has acted contrary to law.” Id. (cleaned up).

¶27      Mother also alleges that she was denied the right to a fair trial when the district court denied her motion to continue the trial. “We review a trial court’s decision on a motion to continue for an abuse of discretion.” Vaughan v. Romander, 2015 UT App 244, ¶ 6, 360 P.3d 761. “Indeed, courts have substantial discretion in deciding whether to grant continuances, and their decisions will not be overturned unless that discretion has been clearly abused. Stated differently, a district court’s denial of a motion to continue is an abuse of its discretion only if its decision is clearly unreasonable and arbitrary.” Clarke v. Clarke, 2012 UT App 328, ¶ 19, 292 P.3d 76 (cleaned up).

ANALYSIS

I. Custody Determination

¶28 Mother first challenges the award of full custody to Father, arguing that the district court misapplied Utah common law in weighing the factors.[4] We disagree with Mother.

¶29      In the context of determining custody, the court analyzes the child’s best interest through the factors found in Utah Code section 30-3-10(2) in light of the evidence. “Generally, it is within the trial court’s discretion to determine, based on the facts before it and within the confines set by the appellate courts, where a particular factor falls within the spectrum of relative importance and to accord each factor its appropriate weight.” Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. The “court’s discretion stems from the reality that in some cases the court must choose one custodian from two excellent parents, and its proximity to the evidence places it in a more advantaged position than an appellate court.” Tucker v. Tucker, 910 P.2d 1209, 1214 (Utah 1996). Thus, a custody determination “may frequently and of necessity require a choice between good and better.” Hogge v. Hogge, 649 P.2d 51, 55 (Utah 1982).

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

¶31      Here, the district court clearly operated within the above framework in reaching its custody decision. The court found the evidence supported the conclusion that Father was better able to meet the developmental needs of Child. See Utah Code Ann. § 30-3-10(2)(b) (LexisNexis 2019). Specifically, the court focused its attention on each parent’s relative ability to co-parent Child. It determined that persuasive evidence was presented to show that Mother was “not interested in [Child] having an emotional father-son attachment to [Father], and to [the] contrary [had] taken steps to prevent or interfere with such an attachment.” As evidence of this tendency, the court pointed to Mother’s testimony and closing arguments:

[Mother] went out of her way several times to tell the Court that [Child] did not like to be around [Father], and that [Child] would act up when it was time to transition to [Father]. It was clear from [Mother’s] testimony that she believed it was an appropriate response to such perceptions to interfere with [Father’s] access to [Child], including interfering with his parent time, and that she . . .

believed such interference was appropriate even in the face of court orders if her perception as [Child’s] mother was that . . . she should keep him from [Father].

¶32 The court also noted that Mother regularly referred to Father by his first name when speaking about him to Child rather than referring to him as Child’s father. The court concluded that “[i]t was evident” that Mother’s testimony “was an effort to suggest that this four-year-old child had a preference for her over [Father].” In addition, the court noted that there was “ample evidence” that Mother had “interfered significantly” in Child’s relationship with Father by “a pattern of misbehavior, violating the orders of the court, and not cooperating with the custody evaluation.” In contrast, the court found “there was no evidence” that Father “would interfere” with Child’s relationship with Mother.

¶33      The court observed that if Mother was truly “looking out for the emotional needs” of Child, she “would make efforts to ensure [Child had] a strong emotional bond and parent-child relationship with both parents.” Based on this evidence, the court concluded,

[T]here is a strong reason to believe [Child] can have an appropriate parent-child relationship with [Mother] if custody of [Child] is awarded to [Father]. But there is an equally strong reason to believe that [Mother] will prevent [Child] from having any such relationship with [Father] if custody is awarded to [Mother]. This is apparent from the pattern of intransigence and noncompliance with Court orders, particularly regarding parent time, that [Mother] has demonstrated during the pendency of this action. It is manifestly in [Child’s] best interests to have an emotional bond and supportive parent-child relationship with both parents, and that goal is more likely to be achieved if custody is awarded to [Father] than if custody is awarded to [Mother].

¶34 With regard to each parent’s capacity and willingness to function as a parent, see id. § 30-3-10(2)(c), the court concluded that this factor overall weighed “very strongly” in favor of Father. As evidence, the court cited the “frustrating pattern throughout the pendency of this action of [Mother] agreeing to do things, or being ordered to do things, and then almost immediately refusing to follow through with agreements she made or Court orders she was given.” This pattern led the court to not being “persuaded that [Mother] would cooperate with [Father] having a parent-child relationship with [Child].” Thus, the court concluded that it was in Child’s best interest for Father to have sole custody because “he would cooperate better in terms of facilitating parent-time with [Mother] than she would in facilitating parent-time with him.”

¶35 One overarching concern of the court in weighing the factors was that it was in the best interest of Child “to live in a situation that maximizes the probability that he will maintain a strong bond and a productive and healthy relationship with both parents.” And “[b]ased on the evidence that was presented at trial,” the court found that if Father was awarded sole legal and physical custody, he would “likely cooperate to the extent necessary to ensure” Mother would have a bond and relationship with Child. But the same could not be said if Mother was awarded sole custody. On the contrary, based on her pattern of behavior, the court found it “more likely than not” that she would not cooperate in fostering a parent-child relationship and bond between Father and Child.

¶36 The court in this case “had to choose between two good parents,” but one of those parents—Mother—had consistently

manifested behavior that suggested she would not support or nurture Child’s relationship with Father. See Hudema v. Carpenter, 1999 UT App 290, ¶ 38, 989 P.2d 491; see also Tucker v. Tucker, 910 P.2d 1209, 1215 (Utah 1996) (“Often, when there are two equally suitable parents, the trial judge may be compelled to base a custody award upon observations of the parents in court, the reactions of the child to each parent, or other factors. A trial court need not find one parent inadequate before awarding custody to the other.”). So even though certain factors weighed slightly in Mother’s favor, see supra ¶ 22, “we must defer to the trial court’s broad discretion and affirm its conclusion that [Child’s] interests would best be served by awarding [Father] primary physical custody,” see Hudema, 1999 UT App 290, ¶ 38. In other words, the court did not abuse its discretion in concluding that it was in Child’s best interest to live with the parent who would most likely ensure that he would have a strong bond and healthy relationship with both parents and that this goal would best be achieved by awarding Father sole legal and physical custody.

II. Motion to Continue

¶37      Mother next argues that she was denied the right to a fair trial when the district court denied her motion to continue the trial.

¶38 “Courts have substantial discretion in deciding whether to grant continuances, and their decisions will not be overturned unless that discretion has been clearly abused.” Clarke v. Clarke, 2012 UT App 328, ¶ 19, 292 P.3d 76 (cleaned up). Stated another way, “we will conclude that a trial court has abused that discretion only if the decision to grant or deny a continuance is clearly unreasonable and arbitrary.” Vaughan v. Romander, 2015 UT App 244, ¶ 10, 360 P.3d 761 (cleaned up).

¶39 Mother has not shown that the district court abused its discretion in denying her motion to continue. In no way did the court act unreasonably or arbitrarily in coming to its decision. In Layton City v. Longcrier, 943 P.2d 655 (Utah Ct. App. 1997), this court adopted a five-prong test to determine whether a district court acted reasonably in denying a motion to continue: (1) “whether other continuances have been requested and granted”; (2) “the balanced convenience or inconvenience to the litigants, witnesses, counsel, and the court”; (3) “whether the requested delay is for legitimate reasons, or whether it is dilatory, purposeful, or contrived”; (4) “whether the [requesting party] contributed to the circumstance which gives rise to the request for a continuance”; and (5) “whether denying the continuance will result in identifiable prejudice to [the requesting party’s] case, and if so, whether this prejudice is of a material or substantial nature.” Id. at 659. We address each factor in turn.

¶40 First, Mother had already received one continuance and one extended period of time following her revocation of consent to an informal trial. While the transitory time between the second scheduled informal trial in November and the March trial date did not result from an express continuance, as a functional matter, granting this motion would have effectually resulted in a third continuance; so the first factor supports a determination that the court acted reasonably in denying the motion.

¶41 Second, granting the motion, which was made on the morning of the trial, would have resulted in significant inconvenience. Father had taken time off work and traveled from New Mexico to be present at trial. Evaluator was also present, and Father had paid her for her time. Mother had also been notified of the trial date and was present in court. So apart from her lack of counsel, she faced no inconvenience in proceeding—other than her desire not to.

¶42 Third, Mother had displayed a pattern of dilatory behavior throughout the proceedings, and the court could have reasonably concluded that her request for a continuance was yet another manifestation of this tendency.

¶43 Fourth, Mother’s action of firing her fourth attorney constituted the very circumstance that gave rise to the putative reason (namely, to hire another attorney) for requesting the third continuance.

¶44 Fifth, and most importantly, Mother was not prejudiced by the denial of the motion. Indeed, the court noted that Mother

was well prepared and represented herself quite effectively at trial, despite not ultimately convincing the court to rule in her favor. She had done research into relevant legal and factual issues. She represented herself tenaciously while still following the procedural rules set forth by the court. She cross-examined witnesses, testified, and presented arguments effectively. . . . Overall, the court’s impression of [Mother’s] performance at trial was that she had successfully deployed evidence and argument to present her strongest possible case to the court, albeit not a case that ultimately prevailed. In light of this, and considering that [Mother’s] inability to present an expert witness at trial was due to decisions by [her] prior counsel not to designate an expert and not due to the court’s refusal to grant a continuance, the court [was] hard-pressed to conclude that counsel could have secured a better result for [Mother] at trial than she secured for herself.

Thus, this final factor also supports the conclusion that the district court acted reasonably in denying the motion. See State v. Wallace, 2002 UT App 295, ¶ 37, 55 P.3d 1147 (“Unless a defendant shows that denial of the continuance had a material [e]ffect on the outcome of the trial, thereby demonstrating prejudice, the trial court’s decision would not constitute an abuse of discretion.”).

¶45 Mother had already effectively received two continuances, and granting a third would have disproportionately inconvenienced Father. Moreover, Mother had a pattern of delaying the custody proceedings and had occasioned the need for a third continuance by her own actions. Finally, there is no evidence that Mother would have received a more favorable outcome had the continuance been granted. Under these circumstances, we conclude that the district court did not abuse its discretion in denying Mother’s motion on the morning of the trial.

III. Attorney Fees on Appeal

¶46 Father requests attorney fees incurred pursuant to this appeal. “Generally, when the trial court awards fees in a domestic action to the party who then substantially prevails on appeal, fees will also be awarded to that party on appeal.” Wollsieffer v. Wollsieffer, 2019 UT App 99, ¶ 11, 446 P.3d 84 (cleaned up). But that is not the case here. The court awarded attorney fees below relative to the two orders to show cause, which are not the subject of this appeal. Because Father prevails on separate issues on appeal (namely, the award of custody and the denial of Mother’s motion to continue), he is not entitled to fees incurred on appeal.

CONCLUSION

¶47 We see no abuse of discretion in the district court’s weighing of the statutory factors in reaching its decision to award custody to Father. We also conclude that the court did not abuse its discretion in denying Mother’s motion to continue. And we decline to award Father attorney fees incurred on appeal. Affirmed.

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

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Do judges interpret the law or do they decide what the law ought to be?

In principle, do judges view themselves as referees where they interpret what the law says or do they view themselves as CEOs where they decide what the law ought to be? 

Trial judges do not make law. They are bound by what the law tells them to do under the circumstances as established by the proof and by other credible, relevant evidence. Where the law and the facts and the relevant evidence don’t dictate to what should be done, judges then exercise their judgment (their “discretion”, as it is known in legal parlance) to decide the issue. 

So judges are more like referees than executives. 

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

https://www.quora.com/In-principle-do-judges-view-themselves-as-referees-where-they-interpret-what-the-law-says-or-do-they-view-themselves-as-CEOs-where-they-decide-what-the-law-ought-to-be/answer/Eric-Johnson-311

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Why can’t judges use their own knowledge of the law to fill in any gaps that the lawyers may have missed?

Why can’t judges use their own knowledge of the law to fill in any gaps that the lawyers may have missed?

Actually, they can do just that, to an extent.

Their power and discretion are not unlimited, but if they catch certain errors and omissions in the lawyers’ pleadings and arguments, judges not only may note and take steps to correct those errors and omissions, but in most situations they are obligated to correct the legal errors and omissions they catch, so that they do their jobs as well and as effectively as they can in the administration of justice. This does not mean that a court must “save” a sloppy or careless lawyer from himself or even save the client from the consequences of the errors and omissions his/her sloppy or careless lawyer causes. This also does not mean that a judge must (or even legally can) “level the playing field” if one party’s lawyer is better than the other, although sometimes you will see that happen (and truth be told, as long as the judge’s attempts to level the playing field don’t come at the expense of or prejudice to the more competent attorney’s efforts to do his/her job properly and effectively, it’s hard to find anything truly morally or ethically wrong with it, except perhaps the risk of going too far).

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

https://www.quora.com/Why-cant-judges-use-their-own-knowledge-of-the-law-to-fill-in-any-gaps-that-the-lawyers-may-have-missed/answer/Eric-Johnson-311

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Janson v. Janson – 2019 UT App 106 – setting aside settlement agreement

2019 UT App 106 – Janson v. Janson – setting aside stipulation
THE UTAH COURT OF APPEALS

DEIDRE SUE JANSON,
Appellant,
v.
JEFFREY ALAN JANSON,
Appellee.

Opinion No. 20170541-CA
Filed June 20, 2019

Third District Court, Salt Lake Department
The Honorable Andrew H. Stone
No. 164906327
Jamie Carpenter, Attorney for Appellant
Kara L. Barton and Ashley Wood, Attorneys for Appellee

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

CHRISTIANSEN FORSTER, Judge:

¶1        Deidre Sue Janson appeals the district court’s order denying her motion to set aside a written stipulation (the Stipulation) entered in her divorce action against Jeffrey Alan Janson. We affirm.

BACKGROUND

¶2        The parties entered into the Stipulation following mediation on November 14, 2016, to resolve the issues in their divorce. As part of the Stipulation, Deidre[1] agreed to pay Jeffrey alimony of $2,500 per month for eighteen months and $1,500 per month for an additional eighteen months.

¶3        The Stipulation awarded the marital home to Jeffrey.

Deidre was awarded half of the equity in the home, less $45,000 that constituted Jeffrey’s inherited funds. The Stipulation also divided the equity in the parties’ vehicles, requiring Deidre to pay Jeffrey $13,178 from her share of the parties’ bank accounts to equalize the vehicle equity disparity.

¶4 The parties had a number of retirement funds and accounts. Regarding the retirement, the parties agreed as follows:

  1. [Deidre] has the following retirement accounts: Utah Retirement in the amount of approximately $72,440; General Electric in the approximate amount of $100,435; Roth IRA in the approximate amount of $18,252; FDIC in the approximate amount of $16,719 and $17,431; and Utah Pension in the amount of $15,281.
  2. [Jeffrey] has the following retirement accounts: Fidelity in the approximate amount of $22,012; Bernstein in the approximate amount of $18,305.
  3. The above retirement accounts will be divided equally between the parties. In addition [Deidre] has a premarital IRA in the approximate amount of $17,682 which is her separate property.
  4. [Jeffrey’s] Alliant Technical Systems Pension plan which will be divided pursuant to the Woodward formula.
  5. The parties will share equally the cost of any qualified domestic relation order.

¶5        On January 12, 2017, Deidre moved to set aside the Stipulation on the ground that there was not a meeting of the minds regarding various provisions in the agreement. She asserted that she “did not receive [Jeffrey’s] financial disclosures until the morning of mediation and was not able to consult with her attorney prior to mediation.” She asserted that because her Utah pension was listed with its approximate value alongside the other retirement accounts, her understanding was that Jeffrey was to receive only half of the listed $15,281 partial lump sum value of that pension rather than half of the entire monthly payment amount as determined by a qualified domestic relations order (QDRO). According to Deidre, the total value of Jeffrey’s half of the pension if the monthly payment option were utilized would amount to approximately $80,000. Deidre claimed that had she understood that Jeffrey would be entitled to half of the entire Utah pension, she would not have agreed to provisions granting Jeffrey premarital equity in the home. She pointed to the lack of specific dates for the accounts to be divided and the impracticality of preparing a QDRO for every retirement account as support for her assertion that the Stipulation should be interpreted as granting Jeffrey only half of the stated partial lump sum value of her Utah pension account.[2]

¶6        Jeffrey opposed the motion to set aside the Stipulation, pointing out that his financial declaration was provided to Deidre well in advance of mediation and that she was represented by counsel at the mediation. He also explained the discrepancy between how the Stipulation described the division of his pension account and how it described the division of Deidre’s—his account had been partially accrued prior to the marriage, whereas Deidre’s had been accrued entirely during the period of the marriage. He asserted that Deidre was aware that an equal division of her pension could result in him receiving half of the monthly payments rather than half of the partial lump sum payout value because her own financial declaration included a summary of the various payout options. Jeffrey also asserted that only three QDROs, at maximum, were necessary to divide the retirement accounts.

¶7        In responding to Jeffrey’s memorandum in opposition to her motion, Deidre raised additional issues impacting the Stipulation’s alimony award—she indicated that after filing the motion to set aside, she was involuntarily terminated from her job without notice, that the loss of her job precluded her from continuing to pay alimony, and that Jeffrey had become eligible to draw on his social security and retirement accounts to support himself. She asserted that these changes in circumstances justified setting aside the Stipulation.

¶8        Following a hearing, the district court denied Deidre’s motion. The court found that both parties understood that Deidre’s Utah pension had the potential for an annuitized benefit. The court determined that the language in the Stipulation dividing the pension equally was clear as to how the retirement accounts would be treated and contained sufficient detail to enforce the Stipulation. The court stated that it was reasonable to anticipate that additional details would be filled in when the QDROs were prepared. The court also determined that issues related to Deidre’s alleged change in circumstances should be handled separately as a petition to modify.

¶9        Deidre now appeals.

ISSUES AND STANDARDS OF REVIEW

¶10 Deidre asserts that the Stipulation is unenforceable because there was no meeting of the minds regarding various aspects of the Stipulation.[3]

Whether the parties had a meeting of the minds sufficient to create a binding contract is an issue of fact, which we review for clear error, reversing only where the finding is against the clear weight of the evidence, or if we otherwise reach a firm conviction that a mistake has been made.

LD III, LLC v. BBRD, LC, 2009 UT App 301, ¶ 13, 221 P.3d 867 (quotation simplified).

¶11 Deidre also asserts that the district court erred in declining to consider her substantial change in circumstances argument as a basis for setting aside the Stipulation and instead determining that a petition to modify was the necessary route for her to pursue this argument. Whether a district court erred in accepting and enforcing a proffered stipulation is reviewed for an abuse of discretion. See In re N.M., 2018 UT App 141, ¶ 17, 427 P.3d 1239.

ANALYSIS

  1. The District Court Did Not Clearly Err in Rejecting Deidre’s Assertion That There Was No Meeting of the Minds.

¶12 “It is a basic principle of contract law there can be no contract without a meeting of the minds.” Granger v. Granger, 2016 UT App 117, ¶ 14, 374 P.3d 1043 (quotation simplified). “A binding contract exists where it can be shown that the parties had a meeting of the minds as to the integral features of the agreement and that the terms are sufficiently definite as to be capable of being enforced.” LD III, LLC v. BBRD, LC, 2009 UT App 301, ¶ 14, 221 P.3d 867 (quotation simplified). “Whether there is a meeting of the minds depends on whether the parties actually intended to contract, and the question of intent generally is one to be determined by the trier of fact.” Terry v. Bacon, 2011 UT App 432, ¶ 21, 269 P.3d 188 (quotation simplified).

¶13 “[I]n divorce cases, the ability of parties to contract is constrained to some extent by the equitable nature of the proceedings . . . .” Granger, 2016 UT App 117, ¶ 15. “Because retirement funds are prospectively marital property if acquired or contributed to during the marriage, the distribution of such marital funds must fit within the overarching principle of equity unless the parties have freely and knowingly agreed to a different result that has been appropriately sanctioned by the court.” Id. ¶ 16. Nevertheless, “it is not the court’s prerogative to step in and renegotiate the contract of the parties. Instead, courts should recognize and honor the right of persons to contract freely and to make real and genuine mistakes when the dealings are at arms’ length.” Id. ¶ 14 (quotation simplified).

A. Retirement Funds

1. The Court Did Not Err in Accepting Jeffrey’s Interpretation of the Stipulation.

¶14 At the evidentiary hearing, the district court considered both parties’ testimonies regarding their understanding of the Stipulation and their intent regarding the division of their retirement funds. Having considered this evidence, the district court found that both parties understood that Deidre’s Utah pension had the potential for an annuitized benefit and that the Stipulation was clear that the listed retirement accounts were to be divided equally between the parties. Deidre asserts that this conclusion was clearly erroneous because it is inconsistent with the principle that retirement funds that can be “presently valued” should be equally divided.

¶15 As a general matter, equitable division of a defined benefit plan is accomplished by the Woodward formula[4] and equitable division of a defined contribution plan is accomplished by dividing the value contributed during the marriage. Granger Granger, 2016 UT App 117, ¶ 23, 374 P.3d 1043. While Deidre’s pension fund had a “partial lump sum” payout option—which was listed as the “approximate value”[5] in the Stipulation—it also had a monthly payment option. Because pension funds are presumptively divided according to the Woodward formula, an interpretation of the Stipulation that requires dividing the entire fund rather than only the partial lump sum amount is more consistent with equity. It is also the most logical approach in light of Deidre’s own financial declaration, which acknowledged that her Utah pension had a monthly payment option.

¶16 Deidre also asserts that Jeffrey himself testified that he believed the “approximate” amount listed for Deidre’s pension, rather than the entire pension, would be divided equally. But the record does not support Deidre’s characterization of Jeffrey’s testimony. At the hearing, Jeffrey was asked, “So it was your understanding that [the] specific value you listed would be, at least with 401-Ks or whatnot, would be divided. You would get half of that value?” (Emphasis added.) Jeffrey responded, “It would be half the value as identified by the amounts listed in the stipulation.” Jeffrey was asked specifically about the division of the 401(k)s, not the pension. Thus, his answer to this question cannot be construed as a statement that he expected and agreed that the pension would be divided only according to the amount listed in the Stipulation.

¶17 Indeed, Jeffrey testified that based on the document Deidre produced in her financial declaration outlining the various options for the distribution of the Utah pension, he understood that Deidre’s pension could be taken either “as a partial lump sum” or as “monthly payments” and that he “would have a choice” either to take half of the monthly payments or to add half of the partial lump sum to his share of the distributions of the other IRA and 401(k) accounts. Deidre also testified that she knew that a monthly payment could be an option for payout of her pension. Thus, the court’s interpretation of the Stipulation is supported by the evidence and is not clearly erroneous.

2. The Court Did Not Err in Enforcing the Stipulation.

¶18 Deidre also asserts that the Stipulation should not be enforced because it was not equitable. She argues that the district court should have considered the Stipulation as a whole and recognized that she had given up other valuable assets in exchange for treating the pension as a lump sum rather than as a monthly benefit calculated by utilizing the Woodward formula. However, there is nothing on the face of the Stipulation to indicate that such an exchange was made. The Stipulation states that Jeffrey was granted an extra $45,000 of equity in the home because he had contributed inherited funds to the home, not in exchange for the retirement.

¶19      Even if the court had accepted Deidre’s argument, it is by no means clear that she gave up anything in exchange for the pension, let alone something of comparable value such that the court should have recognized the retirement division as inequitable. Presumably, Jeffrey would have contested Deidre’s assertion that the inheritance funds were comingled, and she has not established that she was equitably entitled to share in the portion of the equity gained by investing the inheritance funds. Further, her half of that portion of the equity was significantly smaller than the amount of the pension Jeffrey would be giving up by accepting half of the partial lump sum value rather than half of the monthly payments. Additionally, Deidre herself asserted only that her belief regarding the pension made her “a little more flexible” on the issue of the allegedly comingled inheritance, not that she bargained for an exchange of one for the other.

¶20 To require the district court to examine and evaluate the Stipulation to the degree recommended by Deidre would be to undermine the parties’ right to contract freely. While courts should ensure that the provisions of a divorce stipulation comply with “the overarching principle of equity,” Granger v. Granger, 2016 UT App 117, ¶ 16, 374 P.3d 1043, they are also to “respect[] and give[] considerable weight” to the parties’ agreement, Maxwell v. Maxwell, 796 P.2d 403, 406 (Utah Ct. App. 1990). Thus, weighing every provision of a stipulation against every other to ensure that the parties have reached a perfectly fair agreement is beyond the scope of the court’s mandate.

¶21      Indeed, the court’s equity analysis generally focuses “not on the contract’s subject matter, but rather on whether the contract was fairly negotiated and does not result in an outcome so severely one sided that it prevents the district court from fulfilling its equitable obligations.” Ashby v. Ashby, 2010 UT 7, ¶ 21, 227 P.3d 246. We see nothing in the record to suggest that the district court was presented with such a situation. Both parties were represented by counsel, and the terms of the Stipulation were not so one-sided as to give the court reason to believe that the parties’ agreement had violated the principles of equity. Thus, the court did not exceed its discretion in determining that the Stipulation’s division of the retirement funds was enforceable.

B. Deidre’s Arguments Regarding Alimony and Vehicles Were Not Preserved for Appeal.

¶22 On appeal, Deidre renews the arguments made in her motion to set aside that there was no meeting of the minds with respect to the Stipulation’s provisions regarding alimony and the division of equity in the vehicles. However, the district court made no ruling on these issues.[6]

¶23      “[I]n order to preserve an issue for appeal the issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue.” Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 14, 48 P.3d 968. “[O]nce trial counsel has raised an issue before the trial court, and the trial court has considered the issue, the issue is preserved for appeal.” Id. (emphasis added).

¶24 We agree with Jeffrey that Deidre’s reference to the alimony and vehicle issues in her motion to set aside was not sufficient to preserve them for appeal when she did not present evidence or argue these issues to the district court at the evidentiary hearing and the district court did not rule on them. “[T]he mere mention of an issue in the pleadings, when no supporting evidence or relevant legal authority is introduced at trial in support of the claim, is insufficient to raise an issue at trial and thus insufficient to preserve the issue for appeal.” LeBaron & Assocs., Inc. v. Rebel Enters., Inc., 823 P.2d 479, 483 (Utah Ct. App. 1991). Further, a party may waive an issue by relinquishing or abandoning it before the district court, either expressly or impliedly. State v. Johnson, 2017 UT 76, ¶ 16 n.4, 416 P.3d 443.

¶25      “The fundamental purpose of the preservation rule is to ensure that the district court had a chance to rule on an issue before an appellate court will address it.” Helf v. Chevron U.S.A. Inc., 2015 UT 81, ¶ 42, 361 P.3d 63. Because the district court did not rule on the alimony and vehicle issues, and Deidre made no attempt to remedy that omission before raising the issues on appeal, her arguments regarding these issues are unpreserved, and we will not consider them for the first time on appeal. See Vandermeide v. Young, 2013 UT App 31, ¶¶ 8–9, 296 P.3d 787 (holding that a challenge to a district court’s failure to rule on an issue raised in the pleadings was not preserved for appeal, because the appellants did not object to the court’s findings or file a post-judgment motion requesting additional findings).

II. Deidre Will Have the Opportunity to Pursue Her Change of Circumstances Argument in the Context of a Petition to Modify.

¶26 Deidre also argues that the district court erred in declining to consider the change in her employment status as a basis for setting aside the Stipulation before a final order was entered. Although Deidre filed her motion to set aside prior to the entry of the final Decree of Divorce (the Decree), the court declined to consider whether the Stipulation should be modified based on a change of circumstances, stating, “[O]ur procedural rules contemplate that a petition to modify has to be made when the parties reached this state of the proceeding. The Parties reached a resolution in this case and new situations are handled differently.”

¶27 The district court has the discretion to reconsider a prior ruling any time before a final judgment is entered. See Utah R. Civ. P. 54(b); see also Hafen v. Scholes, 2014 UT App 208, ¶ 3, 335 P.3d 396 (per curiam); Durah v. Baksh, 2011 UT App 159, ¶ 5, 257 P.3d 458 (per curiam). However, to seek a modification of a divorce decree, a movant must show “a substantial change of circumstances occurring since the entry of the decree and not contemplated in the decree itself.” Gardner v. Gardner, 2012 UT App 374, ¶ 38, 294 P.3d 600 (emphasis added) (quotation simplified).

¶28      The change in Deidre’s employment status occurred after the Stipulation was signed but before the Decree was entered. Thus, Deidre asserts that the district court’s refusal to reconsider the alimony portion of the Stipulation as part of her motion to set aside was an abuse of discretion because it put her in a catch-22—the court would not let her seek a modification prior to the entry of the Decree, but she would be precluded from seeking one afterward because her alleged change in circumstances occurred before the entry of the Decree.

¶29 We agree with Deidre that the district court, contrary to its own assertion, had the discretion to reconsider whether to accept the parties’ Stipulation as to alimony prior to the entry of the Decree, since the alleged change in circumstances occurred prior to a final judgment being entered. This issue was relevant to the court’s consideration of whether the Stipulation complied with the “overarching principle of equity.” See Granger v. Granger, 2016 UT App 117, ¶ 16, 374 P.3d 1043. The court may have determined that the Stipulation as to alimony was no longer equitable in light of the change in circumstances and that the parties would not have entered into the Stipulation as to alimony had they been aware that Deidre would lose her employment.

¶30 However, while considering Deidre’s alleged substantial change of circumstances at an earlier stage of the proceedings may have been desirable as a matter of judicial economy, Deidre has not been prejudiced by the district court’s refusal to do so. Deidre filed a Petition to Modify on January 9, 2018, which is currently pending in the district court. The district court gave Deidre leave to pursue her substantial change of circumstances argument subsequent to the entry of the Decree, and Jeffrey has conceded that she should be allowed to do so. These circumstances avoid the catch-22 scenario Deidre feared. Because Deidre has not actually been precluded from raising her substantial change of circumstances claim, any error on the part of the district court in declining to consider her motion to set aside the alimony portions of the Stipulation on that basis was harmless.

CONCLUSION

¶31 The district court’s interpretation of the Stipulation’s retirement provisions is supported by the evidence presented at the evidentiary hearing. Deidre’s arguments concerning other aspects of the Stipulation were not preserved, and we therefore do not consider them. Further, while the district court could have considered Deidre’s arguments concerning her alleged change in circumstances in the context of the motion to set the Stipulation aside, the court’s refusal to do so was not prejudicial. Deidre will be permitted to pursue her claim in the context of the petition to modify already filed with the district court. Accordingly, we affirm the district court’s denial of Deidre’s motion to set aside the Stipulation.

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

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

[2] Deidre also challenged other provisions of the Stipulation that she asserted were inartfully drafted. Specifically, she claimed that there was a mathematical error in the calculation of the vehicle equity and that a lack of language regarding the parties’ incomes and needs in the alimony provision had the potential to preclude a future modification. However, she did not present argument or evidence on these issues at the evidentiary hearing, and the district court ultimately made no ruling on them. See infra ¶¶ 22–25.

[3] Deidre also asserts that the district court erred in determining that the Stipulation was unambiguous. Although the court stated that it considered the Stipulation’s language to be “clear,” it did not make an explicit ruling regarding whether the Stipulation was ambiguous. In fact, the district court’s consideration of extrinsic evidence suggests that the court actually did consider the Stipulation to be ambiguous, since the purpose of considering extrinsic evidence is to clarify ambiguous terms in the contract. See Ward v. Intermountain Farmers Ass’n, 907 P.2d 264, 268 (Utah 1995) (explaining that if a court determines that a contract is ambiguous, the next step is to admit extrinsic evidence “to clarify the ambiguous terms”). We therefore review only the district court’s evaluation of the extrinsic evidence and its determination that Jeffrey’s interpretation of the Stipulation was more reasonable, that there was a meeting of the minds regarding how the retirement was to be divided, and that the

Stipulation was enforceable.

[4] The Woodward formula grants a spouse one-half of the “portion of the retirement benefits represented by the number of years of the marriage divided by the number of years of the [acquiring spouse’s] employment.” Woodward v. Woodward, 656 P.2d 431, 433–44 (Utah 1982).

[5] Incidentally, the fact that the parties listed only the “approximate” values of the various retirement funds also undermines Deidre’s assertion that the parties intended to effectuate the division based on the listed values rather than the actual values of the funds.

[6] Deidre asserts that the court’s ruling that “[i]n order to have a contract, the Court doesn’t need perfect clarity on every factual point” constituted a ruling on all the issues she raised. However, Deidre omits vital language from the court’s ruling. The court actually stated, “In order to have a contract, the Court doesn’t need perfect clarity on every factual point that might fill in a QDRO here.” (Emphasis added.) Thus, it is clear from the context that the court’s ruling contemplated only the issues Deidre raised with respect to the retirement, not the alimony and vehicle issues.

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Xu v. Zhao – 2018 UT App 189 – when it comes to determining alimony, almost anything goes.

2018 UT App 189

THE UTAH COURT OF APPEALS

DEGAO XU,
Appellant and Cross-appellee,
v.
HONGGUANG ZHAO,
Appellee and Cross-appellant.

Opinion
No. 20160453-CA
Filed October 4, 2018

Fourth District Court, Provo Department
The Honorable Derek P. Pullan
No. 124402420

Steve S. Christensen and Clinton R. Brimhall, Attorneys for Appellant and Cross-appellee
Brandon C. Bowen, Attorney for Appellee and Cross-appellant

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

HARRIS, Judge:

¶1        Degao Xu and Hongguang Zhao divorced in 2015, after twenty-three years of marriage. After a bench trial and post-trial motions, the trial court ultimately ordered Xu to pay $534 per month in alimony. Both parties are dissatisfied with that ruling, and both appeal. We affirm.

BACKGROUND

¶2        The parties were married in China in 1992, but later moved to Utah. During their marriage, Xu obtained a Ph.D. in physics and worked for various employers using that degree. During the last few years before the parties’ separation, Zhao was working as a translator and as a Chinese-language customer service representative, and for a few months worked a second job as a hotel manager. Prior to their separation, the parties resided in a home with a monthly mortgage payment of over $1,800. In 2009, the parties began living separately, and in 2012 Xu filed for divorce.

¶3        After the petition for divorce was filed, Xu submitted financial declarations and supporting documentation, informing Zhao and the court that he earned $6,080 per month, and that he had monthly expenses of $5,987.31, including the $1,800 monthly mortgage payment. For her part, Zhao also completed a financial declaration, but claimed she had no income whatsoever and that her family members helped cover her monthly expenses, which she estimated amounted to $3,383.57, including a $650 housing expense. Zhao provided some documentation for a few of her expenses, but failed to provide any documentation for her claim that she had no income.

¶4        After reviewing Zhao’s financial declaration, Xu made discovery requests asking Zhao to produce bank statements and tax returns. Zhao refused to comply with these requests, and Xu asked the trial court to order Zhao to produce the documents, which request the trial court granted. When Zhao failed to comply with the court’s order, the court imposed a “discovery sanction” to the effect that Zhao would “not [be] permitted to introduce evidence in opposition to [Xu’s] evidence of her income.” In accordance with this sanction, the court ultimately barred Zhao from introducing evidence of her income at trial.

¶5        The case eventually proceeded to a bench trial, which was held in 2015. At trial, Xu revealed for the first time that he had recently been fired from his job, and attempted to introduce a new financial declaration indicating that he had no income other than unemployment benefits. However, during closing argument, when the court asked Xu’s attorney how it should “deal with [Xu’s] income,” Xu’s attorney responded by stating that the court should impute income to Xu based on his employment history, asserting that $60,000 to $79,000 would be a reasonable range, and asking the court to “place [Xu’s] income at $60,000 per year.” Xu also presented evidence of Zhao’s income, which, per the discovery sanction, Zhao was not permitted to rebut. Xu presented evidence that, prior to their separation, Zhao had earned $2,150 per month at her primary job and $1,500 per month at a part-time, secondary job. At the conclusion of the trial, the court took the matter under advisement.

¶6        A few weeks later, the court issued findings of fact and conclusions of law. Although Xu had maintained he was unemployed, the court found that Xu had an “extended history of working at jobs ranging in annual pay from $60,000 to $89,000,” and “[b]ased on such history” the court imputed income to Xu in the amount of $76,000 per year, or $6,333 per month. The court further determined that Xu’s claimed expenses were overstated, in part because the court refused to grant Xu the $1,800 housing allowance on the ground that the parties could not afford to live at the premarital standard of living and because the court ordered that the marital home should be sold. Ultimately, the court determined that Xu’s monthly expenses were $3,865.89, and that Xu’s imputed income exceeds his expenses by over $2,400 each month.

¶7        The court imputed Zhao’s income for her primary job at $2,150 per month, but declined to consider her income from her secondary job, reasoning that her “need should not be based on working a second job any more than [Xu’s] ability to pay should be.” In assessing Zhao’s expenses, the court determined that Zhao’s $650 housing expense was acceptable because “there is not enough money for both parties to continue to live at [the marital] standard of living.” Ultimately, the court determined that Zhao’s monthly expenses were $3,033.57, and that Zhao therefore had a monthly unmet need of $883.57 per month. In the end, the court ordered Xu to pay monthly alimony to Zhao, and the court set that amount at $1,600 per month for four years, and then $1,200 per month for another thirteen years.

¶8        After the trial court issued these findings, Xu filed a motion asking the court to amend its findings of fact and the resulting alimony calculation. In his motion, Xu first pointed out—citing Bingham v. Bingham, 872 P.2d 1065, 1068 (Utah Ct. App. 1994) (stating that a “spouse’s demonstrated need must . . . constitute the maximum permissible alimony award”)—that the ceiling for any alimony award was Zhao’s unmet need, which the court had already determined was $883.57, and that any alimony award higher than that was improper. Xu also challenged some of the court’s specific determinations regarding the parties’ income and expenses. Specifically, Xu argued that Zhao had not done enough to prove her $650 monthly housing expense, which Xu asserted should be “removed” from her list of expenses. Next, Xu argued that the court should have considered Zhao’s second job when determining her income. Finally, Xu argued that the court should not have imputed him income based on his work history, because the court had not made a finding that Xu was voluntarily underemployed and had not made any findings that the job market would allow Xu to actually make $76,000 per year.

¶9        In response, Zhao argued that the trial court’s alimony determination was adequately supported by its factual findings, and posited that the court would have been within its discretion to determine that her expenses were in fact much higher than it had previously found. For example, Zhao noted that her current standard of living was well below the standard of living she enjoyed during the marriage, and that the court had nonetheless determined that her monthly housing expenses were $650 (the amount she claimed to be paying at the time of the trial) and not $1,800 (the amount the parties had paid on their mortgage on the marital home). Zhao also suggested that the parties’ respective standard of living could be “equalized” simply “by allocating them the exact same amount in current expenses,” and argued that her monthly expenses should be raised from $3,033.57 to $3,865.80 to match Xu’s. Xu filed a reply memorandum responding to these arguments.

¶10        At oral argument on the motion, the court addressed its decision to impute income to Xu at $76,000, and noted that it had made that imputation after it reviewed Xu’s work history and found that, while Xu did “have periods where he [was unemployed],” Xu was “always, in the past, able to get back” to full employment relatively quickly. The court also considered whether it should impute income to Zhao on the basis of her secondary job. Here, Xu argued that Zhao should be imputed income based on both of the jobs she held prior to separation because her lack of disclosure crippled the court’s ability to “really know how much she was receiving, how much she was spending, [and] what the source of those funds were.” Xu acknowledged that while “it’s hard to look back [several] years and say that it’s relevant today,” the evidence of Zhao’s income at the time of the separation was “all the [c]ourt had” due to her discovery noncompliance. The court apparently agreed with that argument, noting that it had decided that, “as a sanction,” Zhao would not be allowed to contradict evidence Xu produced regarding her income and that this sanction may well justify a decision to impute Zhao income from her second job. Finally, the court allowed both parties to present argument related to whether it correctly imputed their expenses in its initial findings.

¶11        After the hearing, the court issued amended findings of fact and conclusions of law. In these amended findings, the court refused to alter its previous decision to impute to Xu an annual income of $76,000, but did explain its decision in more detail. The court noted that Xu’s unemployment was a “temporary” condition and that Xu’s “work history demonstrated him to be resourceful and able to acquire new employment in his field.” Because of this, and because of Xu’s work history “working at jobs ranging in annual pay from $60,000 to $89,000,” the court again set Xu’s income at $76,000 per year, or $6,333 per month. However, the court did alter its previous conclusion regarding Zhao’s secondary job, and this time determined to assign to Zhao income received from a secondary job at a rate of $1,500 per month, which when added to her other income of $2,150 meant that Zhao’s imputed monthly income, for the purposes of the alimony calculation, was $3,650. Finally, the court elected to raise both Xu’s and Zhao’s housing expenses to $1,800 per month to allow both of them “to enjoy the same standard of living [they] had during the marriage.” The court declined to raise any of Zhao’s other expenses (such as medical expenses, utility bills, and insurance expenses) to match Xu’s expenses. Using these numbers, the court determined that Zhao’s monthly expenses were $4,183, leaving her with an unmet monthly need of $533.37. The court determined that Xu could meet that need, and therefore ordered Xu to pay Zhao $534 in monthly alimony.

ISSUES AND STANDARDS OF REVIEW

¶12        Both parties appeal from the court’s alimony determination, each raising two issues for our review.

¶13        First, Xu contends that the trial court erred when it determined, in its amended findings, that Zhao’s monthly housing expense was $1,800. “The trial court in a divorce action is permitted considerable discretion in adjusting the financial and property interests of the parties, and its actions are entitled to a presumption of validity.” Goggin v. Goggin, 2013 UT 16, ¶ 26, 299 P.3d 1079 (quotation simplified). Thus, we will not disturb a trial court’s determinations unless they are “clearly unjust or a clear abuse of discretion.” Id. (quotation simplified).

¶14      Second, Xu contends that the trial court erred when it set his income at $76,000 per year. “Trial courts have considerable discretion in determining a spouse’s income, and determinations of income will be upheld on appeal absent an abuse of discretion.” Leppert v. Leppert, 2009 UT App 10, ¶ 7, 200 P.3d 223.

¶15        For her part, Zhao contends that the trial court erred when, relying on the discovery sanction, it included income from a second job in her income calculation. Again, we review a trial court’s determination of a spouse’s income for abuse of discretion. Id.

¶16      Next, Zhao contends that the trial court erred when it did not equalize all of her imputed expenses with Xu’s. Trial courts have “considerable discretion” in determining the financial and property interests of parties and we will disturb such determinations only if they are “clearly unjust or a clear abuse of discretion.” Goggin, 2013 UT 16, ¶ 26 (quotation simplified).

ANALYSIS

A

¶17        Xu first contends that the trial court erred when it determined that, in order to help raise her to the same standard of living the parties enjoyed during the marriage, Zhao’s monthly housing expense should be considered to be $1,800. Xu challenges the trial court’s determination on both procedural and substantive grounds.

¶18        Xu’s procedural complaint is premised on the assumption that the trial court originally assessed Zhao’s housing expenses as $650, and then sua sponte raised those expenses to $1,800 without giving Xu a chance to be heard on the matter. Xu asserts that no party “ask[ed] the [trial] court to find the housing expense to be that high,” and therefore concludes that the trial court acted on its own motion, and contrary to due process, by raising Zhao’s housing expenses. Xu notes that while he asked the court to amend its findings of fact, “Zhao did not file a motion or counter motion for additional findings of fact or a new trial in which she requested the Court to raise her housing expense, and Xu did not have an opportunity to oppose any such motion.”

¶19        The record, however, does not support Xu’s argument. As an initial matter, it was Xu who—in his motion to alter the trial court’s findings—directly challenged the $650 housing expense the trial court originally assigned to Zhao, and even implied that the court should “remove” that expense from its calculation entirely. Then, in her response, Zhao raised the argument that $1,800 might be a better reflection of her monthly housing expenses because it was in keeping with the parties’ standard of living prior to separation, and Xu had the opportunity to respond to that argument—and did in fact respond to it—in his reply memorandum. Thus, Xu put the issue of Zhao’s housing expense before the court in the first instance, elicited a responsive counter-argument from Zhao that reflected the reasoning which eventually swayed the court, and had the opportunity to respond to that counter-argument in a reply brief. On this record, Xu has failed to persuade us that the trial court raised the issue sua sponte, or that Xu had anything less than a full and fair opportunity to address the issue.[1]

¶20        Substantively, Xu asserts that the trial court abused its discretion in setting Zhao’s monthly housing expense at $1,800 for three reasons. First, Xu argues that the trial court acted improperly by setting the parties’ housing expense based on what they were paying at the time of their separation, but setting many of their other expenses based on their estimates of their post-separation financial needs. Xu argues that, because the court initially calculated his and Zhao’s expenses as of the time of separation, the court “opt[ed] to adopt the standard of living existing at the time of trial” as its time frame for assessing the parties’ expenses and was therefore foreclosed from including a pre-separation housing expense in its calculation.

¶21        We disagree, because a trial court may, in its discretion, assess some of the parties’ expenses as of the time of separation, but nevertheless assess other expenses as of the time of trial. See Utah Code Ann. § 30-3-5(8)(e) (LexisNexis 2013) (stating that “[a]s a general rule, the court should look to the standard of living, existing at the time of separation, in determining alimony,” but noting that “the court shall consider all relevant facts and equitable principles and may, in the court’s discretion, base alimony on the standard of living that existed at the time of trial”); see also Kidd v. Kidd, 2014 UT App 26, ¶ 24, 321 P.3d 200 (noting that trial courts should “avoid focusing on actual expenses alone when assessing need because the expense level during separation may be necessarily lower than needed to maintain an appropriate standard of living for various reasons,” and encouraging courts to consider “the standard of living during the marriage” as well as the expenses during separation (emphasis added) (quotation simplified)).

¶22      Second, Xu asserts that the trial court abused its discretion in setting Zhao’s monthly housing expenses at $1,800, because the “the evidence and testimony” on the record “cannot . . . support[]” that figure. Xu argues that Zhao “presented a financial declaration . . . reflecting that the rent on her residence . . . was $650 per month,” and that no evidence supported assigning a higher expense to her. Xu acknowledges that $1,800 was the approximate amount of the mortgage payment on the marital home prior to separation. Nonetheless, Xu argues that, to justify assigning that amount as Zhao’s monthly housing expense, the court would need to make additional findings “that Zhao needed to spend $1,800 per month . . . to live comfortably or to live at any particular level,” and asserts that the court made no such findings.

¶23        We see the matter differently. We first note that the trial court did in fact find that its assigned housing expense reflected that Zhao “would be required to spend at least two times as much as she now pays in rent” in order “to enjoy the same standard of living she had during the marriage.” We construe that statement to be a finding by the trial court that Zhao required the higher housing expense in order to live at a particular level—the level she enjoyed during her marriage. Second, we note that Xu cites to no case law—and we are aware of none—supporting his contention that a court, in determining alimony, must first make a finding that the parties need a specific expense item in order to “live comfortably” or “at any particular level” before determining to assign individual expenses as of the date of separation rather than as of the date of trial. Indeed, while the alimony statute encourages courts to consider the standard of living that “[existed] at the time of separation” in determining alimony, it does not require the court to make specific findings explaining how each imputed expense contributes or fails to contribute to that standard of living. Utah Code Ann. § 30-3-5(8)(e). We conclude that all of the evidence in the record—including, among other things, that the parties’ spent $1,800 per month for housing during the marriage—is sufficient to support the trial court’s amended finding regarding Zhao’s housing expense.

¶24      Finally, Xu asserts that setting Zhao’s housing expense at $1,800 was unwarranted because that amount was being spent, prior to separation, to house the entire family, and not just Zhao. We are unpersuaded, for two reasons. First, we note that Xu specifically asked the trial court to set his housing expense at $1,800, even though he was also living alone, because he was living in the same house in which the parties had lived during the marriage. Where one spouse asks the court to set his housing expense to reflect his perceived needs and the court has no evidence that the other spouse has significantly different needs, it is not improper for the court to set the housing expense for both spouses at the amount requested. Cf. Sauer v. Sauer, 2017 UT App 114, ¶ 10, 400 P.3d 1204 (noting that, when a husband asked for a higher housing allowance than his wife, and where there was no “claim or evidence that [the husband’s] and [the wife’s] reasonable housing needs differed or were wildly different than the housing they enjoyed during their marriage,” this court saw “no impropriety in the trial court’s decision to impute housing needs to [the wife] in the same amount as [the husband] had claimed was reasonable for him”). Second, we note that it is not an abuse of discretion for a trial court to calculate divorcing spouses’ housing expenses by trying to determine what each spouse would need to live in a home of the same size and value as the marital home. See Farnsworth v. Farnsworth, 2012 UT App 282, ¶¶ 14–15, 288 P.3d 298 (holding that when a wife was “accustomed to living in a single-family home on property suitable for keeping horses,” setting her housing expense at the amount that would be required to place her in a different home of that variety was “the appropriate measure of her housing needs”). Thus, the trial court did not abuse its discretion by setting Zhao’s housing expense at the amount Xu had requested be allotted for his own housing, nor did it abuse its discretion by setting Zhao’s housing expense at the amount she would theoretically need to continue to live in the type of home she enjoyed during her marriage: a single-family home similar to the marital home in which Xu continued to reside.

¶25        Part of the purpose of alimony is to “get the parties as close as possible to the same standard of living that existed during the marriage,” and “to equalize the standards of living of each party.” See Richardson v. Richardson, 2008 UT 57, ¶ 7, 201 P.3d 942. The trial court’s decision to amend its findings to raise Zhao’s housing expense from $650 to $1,800 was supported by competent evidence, and furthered these purposes of alimony. Accordingly, we find no abuse of discretion in the trial court’s determination.

B

¶26 Xu next contends that the court erred when it set his income at $76,000 per year, despite his testimony during trial that he was unemployed. While Xu initially argued in his brief that the trial court was unjustified in imputing him income based on his prior work history, he acknowledged at oral argument that he waived any challenge to the court adopting an imputation methodology when his counsel advocated for it at trial.[2] Indeed, at trial, Xu’s counsel appropriately invited the court to assign income to Xu based on his employment history, indicated that $60,000 to $79,000 would be a reasonable range of income to consider, and asked the court to set Xu’s income at $60,000. In light of this concession, Xu has narrowed his argument to assert that the court was not justified in assigning Xu an income figure of $76,000 (as opposed to $60,000).

¶27      “When determining the appropriate amount of alimony, a

trial court must make findings as to the ability of the payor spouse to provide support.” Rayner v. Rayner, 2013 UT App 269, ¶ 7, 316 P.3d 455 (quotation simplified). When doing so, the court shall base its income determination “upon employment potential and probable earnings as derived from” a long list of factors, including “work history.” Fish v. Fish, 2010 UT App 292, ¶ 14, 242 P.3d 787; see also Olson v. Olson, 704 P.2d 564, 566 (Utah 1985) (noting that where a spouse “has experienced a temporary decrease in income, his historical earnings must be taken into account in determining the amount of alimony to be paid”). In this case, Xu’s counsel invited the trial court to impute Xu’s income based on his work history. The court did so and, after determining that Xu had an “extended history of working at jobs ranging in annual pay from $60,000 to $89,000,” and reasoning that Xu’s “work history demonstrated him to be resourceful and able to acquire new employment in his field,” assigned Xu an income figure of $76,000, a figure that was well within both the range of income demonstrated by Xu’s work history and the somewhat lower range suggested by Xu’s counsel at trial.

¶28      On this record, the trial court did not abuse its discretion by imputing Xu annual income of $76,000.

C

¶29        On her cross-appeal, Zhao first contends that the trial court abused its discretion when it altered its initial calculation of her income to also reflect income from a secondary job. Zhao alleges that this was an abuse of discretion because the only “evidence before [the] court was that Zhao could not even find one job let alone a second,” and that there was no evidence that she had worked in any job since 2009. Further, Zhao argues that the only evidence regarding any second job was in reference to an eight-month period in which she worked as a hotel manager, and Zhao asserts that drawing long-term conclusions from an eight-month work history is improper. Accordingly, Zhao argues that she should not have been imputed any income, and especially should not have been imputed income from both a primary and secondary job.

¶30      While under ordinary circumstances a court’s inclusion of income from a second job under the conditions Zhao describes would give us pause, here Zhao fails to take into account the impact of the discovery sanction the court applied to her with regard to her income information. During discovery, Zhao refused to provide any documentation (bank statements, tax returns) to substantiate her claim that she was not receiving any income, despite being ordered to do so by the court. As a result, the court eventually imposed a discovery sanction, noting that Zhao would not be able to contradict any evidence of her income that Xu was able to introduce. In this case, Xu introduced evidence that, prior to the separation, Zhao had held both a primary and secondary job, and that Zhao was working both of those jobs at the time the parties separated. Based on this evidence, the trial court inferred that Zhao continued to work those (or similar) jobs after the parties’ separation, and due to her discovery violations Zhao was prohibited from contradicting this evidence at trial.

¶31        This case is similar to Breinholt v. Breinholt, 905 P.2d 877 (Utah Ct. App. 1995). In that case, a trial court granted a divorce to a husband and wife, and issued findings of fact and conclusions of law concerning alimony. Id. at 878–79. The husband was working two jobs at the time of the alimony calculation, but the court declined to consider his income from the second job, reasoning that it should “consider only the income from the equivalent of one . . . full-time job” when calculating its support award. Id. at 880 (quotation simplified). On appeal, this court disagreed, holding that “when determining an alimony award, it is appropriate and necessary for a trial court to consider all sources of income that were used by the parties during their marriage to meet their self-defined needs,” including income from a second job. Id. (quotation simplified). Accordingly, we held that it was an abuse of discretion for the court to decline to consider the husband’s income from his second job. Id.

¶32        Here, Xu presented evidence that Zhao worked two jobs at the time of separation, and asked the court to infer that Zhao continued to be so employed between the separation and the trial. Because of her discovery misdeeds, Zhao was not permitted to contradict this evidence. While the trial court initially seemed to support Zhao’s position, it later reasoned that, “because of the discovery sanction,” it was justified in imputing Zhao’s income at the last documented level she had received, including both of her jobs. In this unique situation, the trial court did not abuse its discretion when, pursuant to the discovery sanction, it elected to impute Zhao income from both the primary and secondary jobs she held during the last time her income was documented.

D

¶33        Finally, Zhao contends that the trial court abused its discretion when it elected to equalize her housing expense with Xu’s but declined to equalize their other expenses, including utility expenses, medical expenses, and insurance expenses. Zhao argues that these expenses must be equalized to allow her to enjoy “the same standard of living” as Xu.

¶34      We disagree. While Zhao is correct that the “primary aims of alimony” include bringing “the parties as close as possible to the same standard of living that existed during the marriage, or otherwise equalizing the parties’ standards of living,” Jensen v. Jensen, 2008 UT App 392, ¶ 13, 197 P.3d 117 (quotation simplified), we have consistently discouraged trial courts from “simply attempting to equalize the parties’ income, rather than going through the traditional needs analysis,” when determining alimony, id. (quotation simplified). “This is so because, regardless of the payor spouse’s ability to pay,” alimony should be limited by the recipient spouse’s “demonstrated need.” Id. (quotation simplified). Because different people may pay different amounts to enjoy the same standard of living, simply electing to equalize all of the parties’ expenses is inappropriate for an alimony calculation. Id.; see also Willey v. Willey, 951 P.2d 226, 231–32 (Utah 1997) (upholding a trial court’s refusal to impute medical expenses at a value not justified by a payee spouse’s demonstrated need, and reversing a court of appeals holding to the contrary).

¶35        In this case, as the trial court observed, Xu’s and Zhao’s basic expenses differed. As indicated by their financial declarations, they spent different amounts on their medical care, utility bills, insurance, and several other recurring expenses. However, the mere fact that Zhao spent less than Xu on, for example, medical care does not in and of itself prove that Zhao needed to spend more in order to enjoy the same standard of living as Xu did. While large expenses like mortgage payments tend to be borne equally by marital partners, other expenses (like those required for medical care) often vary greatly from person to person. The trial court did not abuse its discretion by refusing to impute Zhao expenses that matched Xu’s expenses dollar-for-dollar on every line-item.

CONCLUSION

¶36      The trial court did not abuse its discretion by determining that Zhao’s monthly housing expenses were $1,800, imputing income to Xu at $76,000 per year, imputing additional income to Zhao based on her second job, or by declining to impute equal expenses to both Xu and Zhao in every category. We therefore affirm the trial court’s alimony calculation.

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

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[1] To the extent that Xu is asserting that a trial court, when asked to reconsider one of its findings, is bound to either (a) leave the finding undisturbed or (b) change the finding to exactly what the movant requests, we find that argument unconvincing. Once a movant asks a trial court to reconsider a finding or conclusion, the trial court retains discretion to reassess that finding or conclusion in its entirety. Cf. County Board of Equalization of Salt Lake County v. Tax Comm’n ex rel. Schneiter Enters., 899 P.2d 1228, 1230 (Utah 1995) (stating that once a party raises an issue before a reviewing body, the reviewing body is “entitled to rule on precisely the issue [the movant] presented,” even if that places the movant in a worse position than he was prior to his motion).

[2] We note that even if Xu had not agreed to the use of his work history to impute his income, the trial court would have been within its discretion to forbid Xu from introducing any evidence that he was unemployed, because Xu opted not to disclose that fact until the day of trial. Because Zhao had no reason to believe that Xu was unemployed prior to trial, Zhao had no opportunity to prepare for imputation-of-income arguments prior to trial.

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Munoz-Madrid v. Carlos-Moran – 2018 UT App 95 – alimony

Munoz-Madrid v. Carlos-Moran – 2018 UT App 95

THE UTAH COURT OF APPEALS

PATRICIA MUNOZ-MADRID,

Appellee,

v.

MARTIN ROBERTO CARLOS-MORAN,

Appellant.

Opinion

No. 20161013-CA

Filed May 24, 2018

Fourth District Court, Provo Department

The Honorable Fred D. Howard

No. 144401171

David J. Hunter, Attorney for Appellant
Mary Ann Hansen, Attorney for Appellee

JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

TOOMEY, Judge:

¶1        Patricia Munoz-Madrid (Wife) and Martin Roberto Carlos-Moran (Husband) divorced after a long marriage, and the district court awarded alimony to Wife. Husband contends the court abused its discretion in determining the amount of alimony he would have to pay. Because we determine the district court did not abuse its discretion, we affirm.

¶2        Wife petitioned for divorce in 2014, and after a bench trial the district court entered the divorce decree in November 2016. At trial, both parties testified to their financial situations. Wife testified she has been employed by one employer for almost twenty years and earns a gross monthly income of $2,005.47 and a net monthly income of $1,627.78. She stated that her monthly expenses were $3,424.94.[1] Wife’s friend (Friend) also testified and explained that, after filing the divorce petition, Wife moved in with her. Wife agreed to pay Friend $800 per month for rent, but she was only able to pay part of that, usually between $300 and $350 each month.

¶3        Husband testified that he worked at one company for almost twenty years and stated in his financial declaration that his gross monthly income was $4,281 and that his net monthly income was $3,393. His purported monthly expenses were $3,543.15.

¶4        After the bench trial, the parties filed post-trial briefs and the court entered findings of fact and conclusions of law. The court found that Husband’s gross income was $4,281 per month with a net monthly income of “roughly $3,831,” and his monthly expenses “were found to be between $3,300 and $3,500 per month.” The court found that Wife’s gross monthly income was $2,005 with a net income of $1,600 per month. It explained that Wife’s expenses “were difficult to determine . . . [given] the lack of evidence to support her expenses,” but it was “not persuaded” that “she doesn’t have expenses.” After deducting some expenses from her financial declaration, the court found Wife’s expenses to be $3,200 per month. It also found that Wife was left with “a deficit of $1,600 per month” and concluded “that reasonable alimony would be $548 per month effective May 1, 2016 for a period of 12 years.” Husband appeals.

¶5        Husband contends the district court abused its discretion when it awarded alimony to Wife because she “failed to provide the court with supporting documentation or to otherwise verify or prove her financial need.” He argues that alimony “should have been denied as a matter of law,” because the district court could not have found that Wife had a “need” for alimony under Utah Code section 30-3-5. We disagree.

¶6 “[District] courts have considerable discretion in determining alimony and determinations of alimony will be upheld on appeal unless a clear and prejudicial abuse of discretion is demonstrated.” Vanderzon v. Vanderzon, 2017 UT App 150, ¶ 41, 402 P.3d 219 (quotation simplified).

¶7        The Utah Code provides that when the court determines alimony, it “shall consider,” as relevant here, “(i) the financial condition and needs of the recipient spouse; (ii) the recipient’s earning capacity or ability to produce income . . . ; (iii) the ability of the payor spouse to provide support; [and] (iv) the length of the marriage.” Utah Code Ann. § 30-3-5(8)(a) (LexisNexis Supp. 2017). The primary purposes of alimony are “(1) to get the parties as close as possible to the same standard of living that existed during the marriage; (2) to equalize the standards of living of each party; and (3) to prevent the recipient spouse from becoming a public charge.” Rule v. Rule, 2017 UT App 137, ¶ 14, 402 P.3d 153 (quotation simplified).

¶8        Husband challenges only the first factor of subsection 30-3-5(8)(a), and he cites Dahl v. Dahl, 2015 UT 79, in support of his contention that Wife failed to show she had a financial need that would support an award of alimony. But Dahl does not support Husband’s assertion that failure to file financial documentation automatically precludes an award of alimony.

¶9        In Dahl, the wife sought temporary and permanent alimony, but she “repeatedly failed to provide the credible financial documentation necessary for the district court to make an adequate finding as to [her] financial need.” Id. ¶ 84. Our supreme court determined that the wife “did not satisfy her burden of showing her financial need” because her “testimony consisted solely of her recollection of her marital expenses” and she “provided no financial declaration, no supporting financial documentation, and no expert testimony.” Id. ¶ 108. But the supreme court also explained that courts “may impute figures” “where there is insufficient evidence of one of the statutory alimony factors.” Id. ¶ 116. Thus, a court can make findings related to the statutory alimony factors without supporting financial documents and can impute reasonable expenses based on circumstantial and testimonial evidence. Cf. id. But in Dahl, the court did not abuse its discretion by refusing to impute expenses for the wife, “because [she] received a sufficiently large property award to support a comfortable standard of living,” and, based on the deferential standard of review, the district court “acted within its discretion in denying [the wife’s] request for permanent alimony.” Id., ¶¶ 116–17.

¶10            Here, although Wife’s expenses may have been difficult to discern because she failed to provide supporting documentation with her financial declaration, there was not a complete lack of evidence to support their existence.[2] Friend testified that Wife had a monthly expense of $800 in rent. Friend testified that Wife had never paid the full amount and instead paid between $300 and $350 each month, but she also testified that Wife paid all of the utilities because the children stayed with Wife at Friend’s house and used more utilities than Friend would have. Friend further testified that she could no longer “subsidiz[e]” Wife’s living expenses. Wife therefore provided some information, consistent with her financial declaration, that she had monthly expenses. Because the housing expenses listed in her financial declaration were corroborated by Friend’s testimony, it was reasonable for the court to exclude “some stated expenses for credit cards [and] her [401(k)] contribution, but otherwise accept[] her expenses from her financial declaration in the summary in her post-trial brief.”[3]

¶11 The court acted entirely within its discretion when it awarded alimony to Wife in the amount of $548 per month for twelve years based on Wife’s post-trial brief, financial declaration, and the testimony at trial.[4] Accordingly, we affirm.

[1] 1. When asked about her financial declaration presented at trial, Husband’s counsel stated, “[W]e can stipulate . . . that [Wife] would testify consistent with what’s written.”

[2] Husband was not deprived of a remedy for Wife’s failure to disclose financial documents to support her request for alimony. Because Wife failed to comply with rule 26.1(c)(1) of the Utah Rules of Civil Procedure and did not provide “copies of statements verifying the amounts listed on the Financial Declaration that are reasonably available to [her],” Husband could have filed a statement of discovery issues under rule 37 and could have “request[ed] that the judge enter an order regarding any discovery issue, including . . . compelling discovery from a party who fails to make full and complete discovery.” Utah R. Civ. P. 37(a)(1)(E). If Wife failed to comply with such an order, “the court, upon motion, [could have] impose[d] appropriate sanctions for the failure to follow its orders,” unless “the court [found] that the failure was substantially justified.” Id. R. 37(b).

[3] 3. We note that Dahl is distinguishable on its facts. There, the wife presented a series of dramatically different financial declarations, claiming expenses from $11,000 to $40,000 per month with no supporting evidence. Dahl v. Dahl, 2015 UT 79, ¶ 89. Here, Wife similarly filed a series of financial declarations, but the difference in expenses were not drastically different. Indeed, her expenses varied by only $213. In addition, the Dahl court was asked to determine whether the district court was required to infer expenses for the wife’s benefit. See id. ¶ 93 (explaining that the wife claimed to have “demonstrated her need for alimony during the pendency of the divorce proceedings,” and, in the alternative, her husband’s “financial declarations were sufficient to demonstrate her need”). The Dahl court determined that, in light of the large property award that helped the wife meet her marital standard of living, the district court did not abuse its discretion in declining to impute expenses to the wife or to deny an award of alimony. Id. ¶¶ 84, 116–17. In the present case, the record does not reflect that Wife received a substantial financial or property award that would compare to her marital standard of living. Instead, testimonial evidence showed that her income could not cover her basic living expenses—rent and utilities—and therefore the court acted within its broad discretion to refer to testimonial evidence to impute reasonable expenses to Wife in light of the lack of financial documentation in support of her expenses. See id. ¶ 116.

[4] 4. Husband challenges only the district court’s application of subsection (8)(a)(i), and we therefore do not address whether the district court considered all of the relevant factors in making its alimony determination. See Utah Code Ann. § 30-3-5(8)(a) (LexisNexis Supp. 2017).

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Is it true that the first to file for divorce has to pay the other party’s lawyer fees?

Is it true that the first to file for divorce has to pay the other party’s lawyer fees?

No. Filing for divorce first does not obligate the filing party to pay the opposing party’s attorney fees.

Attorney’s fees are rarely awarded. Prevailing in the case does not automatically entitle the prevailing party to an award of attorney’s fees. Whether attorney’s fees are awarded is a matter left to the discretion of the judge.

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

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