Tag: divorce

Can My Spouse Take out a Loan Using Our House as Collateral After I File for a Divorce?

This is a good question and one that often comes up in divorce cases.

I cannot speak for the law in all jurisdictions, but as this question applies in the jurisdiction where I practice law (Utah), these are my observations (my discussion of a general question on Quora does not constitute legal advice, so anyone who has this particular question needs to consult with an attorney personally):

In Utah, can a spouse take out a loan using the marital home as collateral after the other spouse files for a divorce?

First, we need to know what “marital home” means in this context. Even if the house is in your spouse’s name alone, if the house was purchased by one spouse during the marriage, it is (unless the spouses contracted otherwise) still considered marital property because it was purchased by your spouse while he/she was married to you.

So, is it possible for your spouse to borrow against the marital home after a divorce action has been filed in Utah? Yes, but not likely, and even if the loan/credit was made, a Utah court would almost surely void the loan/credit contract.

Yes, if by “possible” we mean that your spouse was able to find a lender who is willing to contract with your spouse to borrow against the marital home’s value without your consent. This does not mean that the loan/credit contract is necessarily enforceable. This does not mean that the loan/credit contract could not be set aside by the divorce court as a fraudulent conveyance under the right circumstances (see below).

Not likely because 1) I don’t know of an institutional lender who would agree to accept as collateral all or a portion of a marital home without obtaining the consent of both spouses first; 2) such unilateral action on the part of your spouse to encumber marital property without your consent could be set aside as a fraudulent conveyance (See Bradford v. Bradford, 993 P.2d 887, 1999 UT App 37 (Court of Appeals of Utah 1999)); and 3) Utah Rules of Civil Procedure 109 provides, in pertinent part:

Rule 109. Injunction in certain domestic relations cases. Effective: 1/1/0021

(a) Actions in which a domestic injunction enters. Unless the court orders otherwise, in an action for divorce, annulment, temporary separation, custody, parent time, support, or paternity, the court will enter an injunction when the initial petition is filed. Only the injunction’s applicable provisions will govern the parties to the action.

(b) General provisions.

(1) If the action concerns the division of property then neither party may transfer, encumber, conceal, or dispose of any property of either party without the written consent of the other party or an order of the court, except in the usual course of business or to provide for the necessities of life.

And so, if your spouse attempted, after a divorce action was filed, to encumber marital property without your written consent, the court would likely void the transaction as fraudulent and/or penalize your spouse for violating the Rule 109(b) prohibition against a spouse encumbering marital property without his/her spouse’s written consent.

Utah Family Law, LC | | 801-466-9277

(61) Can my spouse take out a loan using our house as collateral after I file for a divorce? – Mother-in-Law Mysteries and Conflicts – Quora

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What Would I Have Done Differently If I Were In My Parents’ Shoes? By Braxton Mounteer, Legal Assistant

Like many people, I am a child of divorce. While I may not understand every reason why my parents chose to end their marriage (I was too young to understand at the time), I can look back on how I was raised, both pre- and post-divorce, and see what worked and what only caused problems. Hindsight is 20/20, after all.

I know that I cannot go back in time to do things differently, but if my experience might help divorcing parents who are contemplating these issues and help them avoid the difficulties and disappointments I encountered, this post will be among my best.

One of the things that affected me the most was how my divorced parents handled the matter of my clothes. Having two sets of similarly styled clothes might not have mattered to some people, but it always felt like a continental divide to me. I am the same person at both homes, but no matter what I did, I was never comfortable in either set of clothes. They always felt like I was borrowing clothing from a twin that I had just missed in passing.

My parents lived close enough that during major holidays, we did mid-day drop offs. On paper, this meant that I got two Christmases (and other holidays) on the same day. In reality, I was always late to the party. Always too early or too late to enjoy the holiday.

I love both my parents, but two Christmases gets old very quickly. I was surprised to find that as a child I had a limited amount of avarice during that particular holiday. Both parents want child-like wonder, and it always felt forced to drum up that much emotion for each holiday.

What I would have done differently (and what I did do when I was older) is use a suitcase. I combined both sets of clothing and made one set that I used all the time. It wasn’t the best solution to the problem, but it did help. To fix the holiday problem, I would adjust the schedule so that the holiday wouldn’t have been so taxing for my siblings and me.

Ultimately, the worst issues of my parents divorce are not something that I could have fixed as a child. For those issues I wish my parents would have come to me and my siblings together (parents together talking with their children together), to learn what our needs were and how they could meet them as best they could under the circumstances.

Utah Family Law, LC | | 801-466-9277

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Why All Communications with Your Former Spouse Should be in Writing By Braxton Mounteer, Legal Assistant.

Even if you trust your former spouse to deal with you honestly and in good faith in any matter pertaining to your divorce, why should you communicate in writing with your ex?
Writing down or recapping your conversations in writing (text and/or email) with your spouse creates a verifiable record. If you later present this to your spouse refer back to the record and avoid confusion, refute false claims, and prove real claims.
So if your ex tries to claim you didn’t give him or her notice of the day, time, and place for Timmy’s baseball game, referring back to that text message or email message will vindicate you. If you need to prove you made a timely request for reimbursement for a child health care or daycare expense, written record is essential.
If there is no record, the event or the claim might as well never have existed. If you can’t prove it exists, it doesn’t in the world of law. Phone calls do not exist. Well, to be fair, you may be able to prove a phone call to place, but not what was discussed during the call. Likewise with in-person communications. All the other person would have to do is to claim that the conversation didn’t happen and then it is your word against another’s. To avoid that, create a written record.
Your former spouse may try to get you to discuss (or worse, to agree to) something “off the record,” as it were, and then use that opportunity to take advantage of you. Avoid the hassle; get it in writing.
Utah Family Law, LC | | 801-466-9277
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Holding Marital Property Hostage During a Divorce Just Makes You Look Petty By Braxton Mounteer, Legal Assistant

You may have the idea that you can leverage his or her favorite or most valued things to get a more favorable outcome in your divorce. Holding property that rightfully belongs to the other party (like her jewelry or his tools) makes you look bad any way that you spin it. You may see the situation as a delicate hostage negotiation in order to get what you believe that you deserve, but in reality, if you behave this way, it reveals you as the petty and vengeful spouse you are.
During your divorce, you will be required to divide the marital property between your spouse and yourself and it cannot be avoided. Property division is a major and often, though not always, contentious issue between divorcing parties, getting only more complex the longer the marriage has lasted and the more affluent parties are the. Purposely delaying the division of marital property only makes you look bad and drags out your already expensive divorce.
Every time that you do something just to “get a jab in” on your former spouse, you only look petty and childish. You and your spouse end up making more work (and more profit) for your attorneys and slow the irritating, painful, and angst-inducing process of divorce down.
Be as equitable as possible. Do you really need that specific item of personal property, or are you just trying to be spiteful? If you cannot agree on who should get an item of significant value, or there are not enough items of or there are not enough items (such as a house or a car), or if there are not enough items of property to divide value equally, then sell the item(s) and split the profit.
Take a cool headed and business like approach to the division of property.
Utah Family Law, LC | | 801-466-9277
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On What Basis Should the Couple Share Half of Property in Divorce if One Contributes Significantly More Than the Other? How Is It Fair?

It’s fair. It’s not fair. Frankly, reasonable minds can differ on this question.

The governing principle in the USA is still (though it’s subtly and slowly changing) in most jurisdictions in the USA that I know of (if not all jurisdictions in the USA) is that property acquired during the marriage by the couple should be divided equally is because a marriage is an “e pluribus unum”-style principle: out of two, one. A married couple is considered to be one when it comes to the ownership of property the couple acquired during the marriage, even if that means that each spouse did not contribute an equal amount of money or effort to the purchase/acquisition of the property.

If the property was purchased with money earned or otherwise acquired by one or primarily by one of the spouses or in exchange for “sweat equity” that one spouse contributed more than the other, the idea is that “what’s mine is yours and what’s yours is mine—it’s all ours.”

Equitable distribution and community property are two different approaches to dividing marital property between spouses in divorce.

Community property states treat all property acquired during the marriage to be owned equally owned by the spouses, and so they, unless exceptional circumstances dictate otherwise, divide the marital property equally between the spouses. Equitable distribution states generally presume that an equal division of marital property is equitable, but an equitable division of property is not necessarily an equal division. In Utah (where I practice divorce and family law), for example the rule of equitable distribution is articulated this way:

Labon v. Labon, 517 P.3d 407, 2022 UT App 103, ¶¶25 – 27 (Utah Court of Appeals 2022; I removed the references to caselaw for the sake of making it easier to read and understand the principles articulated):

In making this division [i.e., and equitable division of property and debts and obligations] the court should engage in a four-step process: (1) distinguish between separate and marital property, (2) consider whether there are exceptional circumstances that overcome the general presumption that marital property should be divided equally between the parties, (3) assign values to each item of marital property, and (4) distribute the property in a manner consistent with its findings and with a view toward allowing each party to go forward with his or her separate life.

And in making the equitable distribution, the court should generally consider the amount and kind of property to be divided. As concerns the type of property, in situations where the marital estate consists primarily of a single large asset, such as a business or stock, a common acceptable approach for the court to take is to award the asset to one party and make a cash award to the other party. Doing so avoids the obviously undesirable situation that forces former spouses to be in a close economic relationship which has every potential for further contention, friction, and litigation, especially when third parties having nothing to do with the divorce will also necessarily be involved.

Moreover, a court should consider the tax consequences associated with the division of marital property if one of the parties will be required to liquidate assets to pay marital debts. But the court is under no obligation to speculate about hypothetical future tax consequences. Thus, when settling property matters, the trial court may decline to consider the speculative future effect of tax consequences associated with sale, transfer, or disbursement of marital property. In other words, there is no abuse of discretion if a court refuses to speculate about hypothetical future tax consequences of a property division made pursuant to a divorce.

Utah Family Law, LC | | 801-466-9277

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What Can I Do if My Ex Doesn’t Let My Daughter Come for My Parenting Time Which Is Summer? Our Divorce Is Not Finalized Yet.

I can give you my personal opinion (not legal advice, but my personal opinion) from my perspective as a lawyer licensed in Utah and who practices divorce and family law in Utah. You’ll need to confer with a lawyer about the specifics of your particular case, but I will give you my general take on the situation below.

In Utah, if:

  • you and your spouse are parties to a pending divorce case;
  • you and your spouse have made a written agreement governing a parent-time schedule at any time during the year (whether it be when school is in session or when school is dismissed for the summer);
  • you have an agreement, but the terms of the agreement have not been made the order of the court;
  • you’re upholding your end of the agreement; you’re complying with all of the terms of the agreement;
  • the date when school will be dismissed for the summer is in just a few weeks, or even just a few days, away;
  • but then your spouse tries to renege on the agreement and tells you he/she won’t comply with the agreement

then I would immediately and without delay file an ex parte motion for a temporary order (perhaps an ex parte motion for a temporary restraining order (TRO)) asking the court to order the parties to adhere to their parent-time schedule agreement and request expedited disposition. The longer you wait, the harder it is to prevail. You can request that such a motion be reviewed and decided by the court much more quickly than a typical motion if you can show that time is of the essence (meaning that unless the motion is decided immediately, you will suffer the adverse effects of your spouse’s non-compliance with your parent-time agreement). You can argue that unless the court upholds and enforces the agreement, both you and the children will suffer irreparable harm. See Utah Rules of Civil Procedure, Rule 65A for more details. While there are no guarantees the court would grant such a motion (every judge sees things his/her own way), your odds of succeeding on such a motion are, on the face of it, pretty good.

Utah Family Law, LC | | 801-466-9277

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Should You Stay Friends with Your Former Spouse? By Braxton Mounteer

Whether you should be or try to be friends with your spouse after a divorce is a tough question to answer. Many divorced people continue to care about each other after divorce. Some even find their personal relationship between each other improves. Most maintain an icy distance from each other. I won’t say that being truly friendly can’t be accomplished after divorce, but the question really is: should it?

If you have children, at the very least you must maintain a respectful relationship with the children’s co-parent (even if you have to fake it, in my opinion). Just because you and your former spouse have differences does not mean that your children must share in those differences. Maintaining a co-parenting relationship that doesn’t burden the children is in their best interest. They deserve it. It’s the least you can do for them.

Side note here: I know there are those of you reading this who were innocent victims of a spiteful spouse in your divorce. That you were the class act all along and continue to be, while your ex-spouse remains antagonistic toward you. I know about those of you treat your ex-spouse by Golden Rule post-divorce, while your ex-spouse does not reciprocate. As a legal assistant, I see the ex-spouses who hypocritically hold you to a standard they themselves do not follow. This is not fair, not even close, but for the sake of your children’s well-being, you need to know that sinking to the same level as your petty, spiteful, even malicious ex-spouse would benefit no one and only make life harder for the kids. Doing the right thing matters most when doing the right thing is hard.

Sometimes it may be unavoidable to have some kind of continuing relationship with your ex-spouse. Are you coworkers? Do you have mutual friends or engage in the same activities that neither of you is willing to give up? If so, you must determine mutual friends and activities are worth making the effort to get along with your ex-spouse. If they aren’t, you can’t complain about having to give those things up for the sake of achieving your goal of having nothing to do with your ex-spouse post-divorce.

We have all heard a story of an “ ugly divorce”. Most people burn whatever bridge that they had or may have had with their spouses over the course of that process.

The fact is that the right thing to do, if only for your own sake and without consideration for your ex-spouse, is to recognize your own failings that contributed to the failed marriage (and don’t misunderstand me; if you’re not at fault, you’re under no obligation to apologize falsely) and to forgive your ex for his or her faults and the hurt he or she caused you, so that you can put your troubled past behind you as best you can as you move on with life after divorce. “Hate is a poison more deadly to the hater than the hated.” If all you can do is make peace with the pre-divorce past, that’s invaluable. If you can do one better and bury the hatchet, becoming friends, though no longer spouses, don’t let your pride stand in the way of that. If you do, you’ll regret it.

Utah Family Law, LC | | 801-466-9277

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What Are the Options for Someone Who Has Been Served Divorce Papers by Their Spouse Who Has Moved Away and No Longer Wants to Be With Them?

If you want to know your options and have the time to exercise them, then you need to meet with an attorney immediately to find out what the law requires of you, so that you don’t default (“default” means that you failed or refused to answer or defend against the divorce petition or complaint filed against you in court) and end up having judgment entered against for your default. You have a limited amount of time to respond to the petition/complaint for divorce before you will be in default. Choosing to procrastinate is not an option that would do you any goodGo consult with an attorney immediately. Bring the divorce papers you were served with to the appointment.

Utah Family Law, LC | | 801-466-9277

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Is It Common for Ex-spouses to Continue Supporting Each Other Financially and Emotionally After a Divorce? What Are Some Potential Solutions for This Situation?

See parent question. I am a divorce lawyer, and after a divorce case ends (meaning a decree of divorce has been issued and case essentially closed), I literally never know how the divorced couple interacts afterward unless their interactions result in the violation of provisions of the decree, or circumstances change so substantially and materially from what they were at the time the decree of divorce was entered that modifying the decree becomes either necessary or warranted.

If a court orders an ex-spouse to pay child support and/or alimony, then clearly that ex-spouse will be supporting the other financially, but this is due to a court order, not out of the goodness of that ex-spouse’s heart (in fairness, most people have no objection to supporting their own minor children and would do so whether they were “court-ordered” to do so).

That stated, it is my impression that post-divorce, most (most, not all) couples interact with each other very little, and only as much as necessary. Obviously, divorced parents of minor children almost always find themselves interacting with each other more than a couple without children or whose children are grown adults and not living with either parent because these divorced parents of minor children need to sign documents pertaining to the children, attend health care appointments and parent teacher conferences, performances and athletic events in which the children participate, etc.

Some ex-spouses end up voluntarily supporting an ex-spouse financially and/or emotionally because they didn’t want the divorce and still care for their ex-spouses and genuinely want to help them. Some provide support over and above what the court orders because it’s easier to provide the support than it is to ignore the ex-spouse’s constant wheedling and complaining, threats, and overall nuisance-causing.

Some people divorce in such an amicable way that they can truly care for each other yet conclude (often mutually) that they are better off friends than spouses. In those situations, they can and do care about and support each other as friends. I don’t know about you, but I am not in the habit of supporting my friends financially (with friends like those . . . ). Of course I’ll help in a time of emergency or need, I’ll buy a friend a birthday gift, pick up the tab for a meal, and things like that, but I don’t consider it part of a friendship to be paying a friend’s expenses with any degree of regularity. So a “friendly ex-spouse” who expects your friendship with him/her to include regular financial support of any amount is probably exploiting your good will.

For the most part, it is my experience that most ex-spouses do not voluntarily continue to support each other financially and emotionally after a divorce; it’s part of the divorce process to cut those ties.

A divorced person who feels “cheated” or “deprived” of an ex-spouse’s financial and/or emotional support after divorce because of divorce is someone who either does not understand divorce or its purpose.

If one is an innocent spouse who was nothing but loving and supporting and faithful and devoted during the married and his/her spouse divorced him/her due to no fault of the innocent spouse, well, honey, unless your ex comes to his/her senses and sincerely begs your forgiveness (and it is known to happen in rare, rare circumstances—not frequently enough to justify believing or even hoping it is likely to happen), then if your ex wants nothing more to do with you, you’re much better off finding love, affection, and support elsewhere.

Utah Family Law, LC | | 801-466-9277

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Will Having a Child Will Possibly Save Your Marriage? By Braxton Mounteer, Legal Assistant

Have you ever heard that having a child will fix certain problems in marriage? That it will help bring a couple in a strained marriage closer together and thus fix, or facilitate fixing, the problems that you have in your relationship with your spouse?

Probably not, in my view.

But why? Wouldn’t it be safe to assume that the person you married would reorganize his/her priorities in order to love and support the new addition to your family?

I don’t think so.

I have never seen a baby magically fix relationship troubles. I have, however, seen already fragile relationships snap under the added weight of having a child.

The decision to have a child is something deeply personal on an individual and a relationship level. Each person has his/her own wants, desires, fears, and worries surrounding the birth of a child. Having a child also puts strain on a relationship from recovery after the birth to the reorganization of responsibilities in the relationship. Your relationship is fundamentally different once you have a child.

If your relationship is already as rocky as a cliffside coastline, the stress of having a child will likely do nothing but add to its difficulties. Your relationship problems existed before your child was born and will likely exist after that child’s birth. I won’t discount the exhilaration you and your spouse may feel at the prospect of a pregnancy and a future child’s birth. I’ll even concede that some people’s marital problems ease when they welcome a child into their family, but they are the exception, not the rule. If having children made marriages easier or stronger or more pleasant, a lot more children wouldn’t experience their parents’ divorce.

As a child of divorce, I can say with certainty that a child should not have to go through the emotional turmoil of his or her parents getting divorced before they even finish kindergarten.

And how do you think a child would feel if he or she learned that the reason that he/she exists was to be a band aid for a sinking ship? And if those parents later (or sooner) divorce, can you see how a child in that situation might also blame himself/herself for his/her parents’ divorce?

You don’t invite another passenger into a ship that is already sinking. An already weak marriage doesn’t need two sleep deprived, anxious people who aren’t ready to be parents (because they’re struggling at just being spouses at the moment).

Now just as having a child does not save a struggling marriage, circumstances are never ideal to start a family (though having children when you’re young is better than waiting until the biological clock has almost wound down). Don’t put off having children until your relationship is perfect—if you do that, you’ll never have children. Just don’t expect having a child to save a struggling marriage. It isn’t fair to your child, or you or your spouse.

Utah Family Law, LC | | 801-466-9277

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Is There Anything I Can Do for Winning Custody After the Gal Report Is Favoring My Ex? Is Paying More to My Attorneys Worth It or No?

After you ask, “Is there anything I can do for winning custody after the GAL report is favoring my ex? Is paying more to my attorneys worth it or no?,” then you need to ask these questions:

Is the GAL’s report favoring my ex accurate? Otherwise stated, “Am I unfit to be awarded custody (whether that be sole custody or joint custody or equal custody?” If you are unfit to be awarded the custody you want or any kind of custody, you may have different and bigger obstacles than the GAL’s report standing in your way.

If the GAL’s report favoring you ex is inaccurate and/or biased, are the inaccuracies and biases significant and relevant?

If so, can you prove it? Otherwise stated, do you have admissible evidence that conclusively establishes the the GAL’s report is inaccurate and/or biased? If you have evidence of some minor or irrelevant inaccuracies, that likely won’t be enough to persuade the court to disregard the report and recommendations of the GAL. If, however, you can show the GAL is incompetent, did shoddy work, and/or indulged personal biases irrespective of the facts, that might (might) be enough to get the report thrown out or at least to get the court to give the report less credence.

So, in response to the question of whether it is worth it to pay your attorneys more money in an effort to discredit the GAL’s reports and recommendations, if you conclude (honestly) that 1) you are fit to be awarded the custody award you seek AND you can prove it; 2) the GAL’s report and recommendations are significantly inaccurate and/or biased AND you can prove it; 3) you have the money and a good attorney necessary to make a winning presentation to the court; AND 4) you conclude it’s worth risking the money and effort to make the attempt, then the answer is yes.

Utah Family Law, LC | | 801-466-9277

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My Wife Is Divorcing Me Because I Am Not Rich Enough. She Said It Will Take Me Years to Make Her Feel Financially Secure. I Was There for Her When She Had Mental Breakdowns. What Should I Do?

If your wife really is divorcing you, and not merely threatening to divorce you, because 1) you are not rich enough to suit her, and 2) you are not a lazy bum and you are doing your best to support her financially as a spouse, then rejoice–good riddance to bad rubbish. Cut your losses now. You will be better off without her. I know you may think “I’ll never find someone as wonderful as she is again,” but a woman who would divorce you for not being rich enough is a woman who does not love you, who will not be the support you need and deserve, and who will only be a burden and a detriment to you and your children (if and when they would come along).

If your wife is not really divorcing you, but is threatening to divorce you, and claiming it is because 1) you are not rich enough to suit her, and 2) you are not a lazy bum and you are doing your best to support her financially as a spouse, then you should ask yourself the following questions:

  1. Is she really that shallow? Or is the “you’re not rich enough” perhaps a pretext for other feelings and concerns of hers? You mentioned that you were there for her mental breakdowns–is the “your not rich enough” symptomatic of a mental or emotional disorder?
  2. Is this perhaps a matter of youthful inexperience and naivete? A lack of maturity?
  3. Did she grow up rich and doesn’t understand that it’s not the norm?
  4. Did she grow up poor and goes through life terrified of staying poor?
  5. Is she deluded?

If her “I’m going to divorce you because you’re not rich” is not really what she’s thinking of feeling, it’s worth talking with her and with a minister and/or someone whose lifestyle you both wish to emulate and find out what’s realistic and what’s not, what’s achievable and what’s not. If your wife can’t accept reality, then see my answer above. It’s tragic that she would chuck a good man just because he’s not rich enough, but that’s not your problem nor is it a problem you can solve for her.

Utah Family Law, LC | | 801-466-9277

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Is It Possible to Discredit a Biased Custody Evaluation Full of Unsubstantiated and False Claims?

Yes, it is possible, but not always possible, and when it is possible it is often very difficult to accomplish.

Difficult not because custody evaluators are particularly competent (they typically are not, in my experience) but because the family law system appears to love custody evaluations.

And why does the system love custody evaluations?

  • One main reason: it takes the job of reviewing and analyzing the child custody evidence off the judge’s plate.
  • Another reason: some courts honestly find custody evaluations truly informative. In fairness, a custody evaluator who gathers relevant facts, analyzes them clearly and understandably, and makes cogent recommendations based upon the evidence and analysis with minimal reliance on subjective opinion provides a valuable service to parents and court alike. Rarely, however, are a custody evaluation performed and the recommendations made competently.
  • Another reason: regardless of whether the judge was being sensitive and thorough in analyzing the child custody issues, it makes the judge look that way.
  • Another reason: if the judge wants to rule a certain way and the custody evaluation supports what the judge wants to do, the judge can praise and cite to the custody evaluation (if the judge wants to rule a certain way and the custody evaluation is contrary to what the judge wants to do, the judge can simply (even blithely) dismiss the evaluator and evaluation—in classic 20/20 hindsight fashion—as “insufficient” or “incomplete” or “lacking detail” or “poorly reasoned” or “failing to address [fill in the blank here]” or “subjective”, etc. You may wonder whether it is fair to say such things of a custody evaluator and the evaluator’s report. It usually is, but even if it’s not (i.e., the evaluator did a commendable job), that won’t stop a judge who’s bent on ruling the way the judge wants to rule).

How do you refute an incompetent/inaccurate custody evaluation and recommendations? I could give you checklist, but that wouldn’t apply in all situations. The harsh reality: to refute and overcome a bad custody evaluation (“bad” meaning defective, not “performed competently, but adverse to me”) you will need to be prepared to spend a lot of money on 1) an excellent, skilled, fearless attorney; and 2) a rebuttal expert of your own who is more qualified and experienced and more articulate than the custody evaluator you are seeking to discredit. The attorney and rebuttal expert you need don’t come cheap.

Utah Family Law, LC | | 801-466-9277

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You Reap What You Sow.

I’m Braxton Mounteer, a legal assistant. I’ve written and talked about this problem before, but it’s a recurring problem and a serious one. It’s hard enough to muster the courage to hire a divorce lawyer and pay so much money to your lawyer to represent you in your divorce in the hope that your lawyer can protect you, guide you through the divorce process, help you make sense of what’s going on, and bring you to the end of the divorce process with an equitable outcome. So why do so many clients make it so difficult for their lawyers to help them? Why do so many clients procrastinate? Why do they ignore or put off until the last minute their attorneys’ requests for vital documents. Why do they evade or give incomplete or outright false answers to important questions? Why do so many clients act as though their wish is the lawyer’s command? Look, we know this is a hard process for you. We know it’s hard to manage all of life’s challenges without a divorce being added to the mix. We know you don’t like having to go through your financial records and share them with strangers. We know you don’t want to go over your criminal history, your infidelity, your substance abuse, and other examples of your bad judgment you’ve been trying to leave in the past and move on from and even forget. We know you don’t like what feels like intrusions into your privacy, your mental and physical health history, relationships between you and your spouse, between you and your children, between you and other members of your extended family and circle of friends. We know that you hate already being in dire financial straits before you had to start budgeting to pay for a divorce lawyer. We know you don’t like feeling ignorant of the legal system and all the terms getting thrown around as the lawyers and the courts discuss your fate. We know how tempting it is to believe if you simply bury your head in the sand all of this will go away. But it won’t. It’s tempting to fool yourself into believing that once you hire a divorce lawyer it’s all in your lawyer’s hands. But it’s not. If you have a house, some retirement savings, minor children, if you are facing the prospect of paying or receiving alimony, if there’s substantial marital debt, then you will almost surely benefit in the long run from investing in the services of a skilled divorce lawyer. The most effective lawyers work with a client, not merely for a client. Lawyers are called counselors for a reason; They confer with you, they advise you, but the choices are yours to make. Wouldn’t you rather have as many options and choices open to you? Wouldn’t you rather act instead of being acted upon? In a very real sense, how much your lawyer can help you depends upon how much you help your lawyer. You reap what you sow.

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Is this a first principle?

If you can get a no-fault divorce, meaning that you can just walk away from a marriage because you don’t want it anymore, why could that same person seek alimony?

You have a right to rescind the marriage contract. But with rights come responsibilities. The right to walk away from a marriage on no-fault grounds must entail the corresponding responsibility to take the bitter with the sweet. No more marriage means no more spouse, and no more obligation of your ex-spouse to support you financially. Isn’t rescinding the marriage contract on no-fault grounds and still demanding that the other party continue to perform as though nothing has changed just licentiousness?

Utah Family Law, LC | | 801-466-9277

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What Is the Benefit of a Legal Separation (Separate Maintenance) or a Temporary Separation Order in Utah?

Many people ask what the benefits of a legal separation are. Aside from the obvious “it gives us the option of staying together, if we want to,” are there other reasons the average person might want to separate but not divorce immediately?

I have the same conversation with potential clients who ask whether they “need” or “should get” a legal separation or temporary separation order instead of/before seeking a divorce. I tend to agree with you, i.e., that I see no benefits to legal separations for the majority of people. I’m sure that there is the occasional couple who might benefit from a legal separation or temporary separation order, but I have yet to encounter one. With two (maybe three) exceptions (and one of those ended in suicide), everyone I know who has separated ended up divorcing.

Sometimes separation makes sense if a spouse needs insurance coverage and can’t afford his/her own separate policy (note: some insurance policies require that spouses reside together, so in a situation like that, separation wouldn’t avail a spouse of insurance benefits).

Attorneys who sell separate maintenance or separation orders are, in my experience, doing so to make money, not to solve anyone’s or any couple’s problems.

Utah Family Law, LC | | 801-466-9277

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Can I Request to Have My Son’s Grandmother Removed From the Courtroom During My Custody Case Proceedings?

Are the court proceedings in your kind of case open to the public? If so, then the grandmother, being a member of the public, may have a right to be in the courtroom during the proceedings, as long as 1) there is no law that allows her to be excluded and 2) she is not disrupting the proceedings by being present during the proceedings.

Juvenile court proceedings are closed to the public in Utah.

District court proceedings are open to the public in Utah. That stated, it’s very easy for a Utah district court to exclude members of the public from the courtroom in certain kinds of cases because of Utah Code § 78A-2-208(4):

§ 78A-2-208.  Sittings of courts — To be public — Notice to public of recording — Right to exclude in certain cases.

(1) The sittings of every court of justice are public, except as provided in Subsections (3) and (4).

(2) The Judicial Council shall require that notice be given to the public that the proceedings are being recorded when an electronic or digital recording system is being used during court proceedings.

(3) The court may, in its discretion, during the examination of a witness exclude any and all other witnesses in the proceedings.

(4) In an action of divorce, criminal conversation, seduction, abortion, rape, or assault with intent to commit rape, the court may, in its discretion, exclude all persons who do not have a direct interest in the proceedings, except jurors, witnesses and officers of the court.

(emphasis added)

Utah Family Law, LC | | 801-466-9277

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I’m a Divorce Lawyer. Too Many People Divorce.

I’m a divorce lawyer. I’m not divorced (God willing, I won’t ever be), I am opposed to divorce generally (while there are times when a divorce is plainly necessary, most of the time divorce makes what one is suffering, what one’s spouse, and what one’s family are suffering worse). The family law legal system is adequately designed but poorly administered (and that includes many of the litigants).

While I acknowledge that many people marry foolishly and recklessly, people divorce far too often.

If your marriage is not placing your physical safety or life in danger, if your spouse is not flouting his/her marital vows, and yet you are still contemplating divorce, ask yourself if it’s your spouse or even merely being married that is your problem (it likely isn’t).

If your spouse or marriage is not your problem, they are likely more help to you than a hindrance, and throwing them away will likely do you (and your spouse) more harm than good.

Utah Family Law, LC | | 801-466-9277

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McFarland v. McFarland – 2024 UT App 31 – attorney’s fees awards

McFarland v. McFarland – 2024 UT App 31



Opinion No. 20221044-CA, Filed March 14, 2024

Second District Court, Farmington Department

The Honorable David J. Williams No. 084701533

Angilee K. Dakic, Attorney for Appellant, Jacob K. Cowdin, Attorney for Appellee


HARRIS, Judge:

¶1 This domestic dispute between Bruce Ray McFarland (Bruce) and Nicole S. McFarland (Nicole) comes before us for a second time. This time, we are asked to assess the propriety of two aspects of the district court’s most recent set of orders: the court’s decision to modify the parties’ divorce decree and award the house in which the parties lived while they were married (the Home) to Bruce instead of to Nicole, and the court’s decision to require Nicole to pay Bruce’s attorney fees incurred in litigating the petition to modify. We see no reversible error in the court’s award of the Home to Bruce, and we therefore affirm on that issue. But we agree with Nicole that the court erred in awarding attorney fees to Bruce, and we therefore reverse that fee award.


¶2        In our previous opinion, we set forth many of the relevant facts underlying the parties’ dispute. See McFarland v. McFarland, 2021 UT App 58, ¶¶ 2–18, 493 P.3d 1146. In the interest of brevity, we recite in this opinion only those facts necessary to our decision.

¶3        Bruce and Nicole’s divorce decree (the Decree) was entered in 2009 following a negotiated settlement. As relevant here, the Decree required Bruce to pay Nicole $1,700 per month in alimony, and it awarded the Home to Nicole “subject to” her “assumption” of the mortgage, tax, and insurance obligations associated with the Home as well as “a judicial lien in the sum of $12,034.24 payable to” Bruce. According to the Decree, Nicole was to pay Bruce the lien amount on the occurrence of the first of these events: (1) when Nicole remarries or cohabits; (2) when the Home is sold or rented; (3) when Nicole “moves from” the Home or no longer uses it as her primary residence; or (4) when the parties’ youngest child graduates from high school. Several of those events have long since occurred; indeed, the district court later found that Nicole “abandoned” the Home in 2010. At no point did Nicole ever make any of the mortgage, tax, or insurance payments on the Home, nor did she ever pay Bruce the lien amount.

¶4        Instead, after a brief period in which he did not live in the Home, Bruce moved back into the Home in 2009 and has lived there at all times since. And after entry of the Decree, Bruce— rather than Nicole—has made all mortgage, tax, and insurance payments on the Home, and he has also maintained and made improvements to the Home. But other than one single payment in January 2009, Bruce paid no alimony to Nicole. Thus, soon after the Decree was entered, both parties began to ignore many of the Decree’s important provisions. But for the next seven years, neither party seemed bothered by the other’s noncompliance, and neither sought to modify or enforce the terms of the Decree.

¶5        In 2017—apparently motivated by a desire to refinance the Home—Bruce filed a petition to modify (Bruce’s Petition), asking the court to modify the Decree to (among other things) award him the Home. Nicole responded not only by resisting Bruce’s Petition, but also by filing two motions asking the court to hold Bruce in contempt for (among other things) failing to pay alimony and for “willfully occup[ying Nicole’s] property,” namely, the Home. Concerning the Home, Nicole asked that the court “immediately restore[]” her “to the use and possession of” the Home. Later, in 2019, the court found Bruce in contempt for failing to pay alimony, and it ordered Bruce to pay Nicole over $150,000 in unpaid alimony. But the court declined to find Bruce in contempt for occupying the Home. The court made no ruling on Bruce’s Petition, however, because that matter had apparently not yet been certified for trial. But the court allowed Bruce to continue living in the Home “on a temporary basis” until the matter was finally resolved.

¶6        Both parties appealed several aspects of the court’s 2019 rulings and, in this case’s first trip to this court, we affirmed the court’s alimony award to Nicole and remanded “the case for further proceedings” regarding (among other things) Bruce’s Petition. Id. ¶¶ 46–47.

¶7        Following remand, the district court held a hearing to consider matters regarding the Home. Bruce asserted that any claim Nicole might make regarding possession of the Home was barred by several equitable doctrines, including waiver and laches. In particular, Bruce claimed that Nicole had waived any claim to the Home by moving out in 2010 and taking no action in the intervening years to challenge Bruce’s possession of it, and that Nicole’s claim was barred by laches because her “delay in bringing her claim” was “unreasonable” and “prejudicial to Bruce.” Nicole resisted all of these arguments and, in addition, claimed that Bruce’s Petition was barred by res judicata.

¶8        At the conclusion of the hearing, the court made an oral ruling granting Bruce’s Petition and denying Nicole’s motion regarding the Home. The court later issued a written ruling setting forth its findings and conclusions. In that ruling, the court found that Nicole’s abandonment of the Home in 2010 constituted “a material and substantial change in circumstances.” The court also rejected Nicole’s claim that Bruce’s Petition was barred by res judicata. And the court determined that modification of the Decree to award Bruce the Home was appropriate; the court found merit in several of Bruce’s equitable arguments. Specifically, the court determined that Nicole had waived any claim to the Home by moving out and failing to make any payments related to the Home since the Decree was entered. And the court concluded that laches also barred Nicole’s claim to the Home because she had delayed bringing any such claim and her delay had prejudiced Bruce because Bruce had made payments and improvements on the Home in the intervening years. The court noted that Bruce had also delayed in bringing his petition, but it found that Nicole had not been prejudiced by Bruce’s delay.

¶9        Bruce asked the court to award him attorney fees incurred in litigating his petition. As the district court interpreted it, this request was grounded not in the attorney fees statute found in the family law code, see Utah Code § 30-3-3, but, instead, in Utah’s bad-faith attorney fees statute, see id. § 78B-5-825. The court granted Bruce’s request, but it made no specific finding that Nicole’s claims and defenses regarding the Home had been “without merit.” It did make an express finding that “Nicole’s effort to pursue an award of [the Home] roughly eight (8) years after abandoning [it] was an act of bad faith” that Nicole undertook with a “retaliatory” motive in reaction to the filing of Bruce’s Petition. And the court noted that, during the intervening years, Nicole “had not satisfied the conditions in the Decree that allowed her to take possession of” the Home. Based on these findings, the court concluded that “law and equity call for an award of attorney fees in Bruce’s favor as it relates to the issue of” the Home. The court later quantified that attorney fee award, ordering that Nicole pay Bruce $7,390.67 for attorney fees he incurred litigating issues related to the Home.


¶10      Nicole appeals two aspects of the court’s rulings. First, she challenges the court’s order modifying the Decree to award the Home to Bruce. “In this context, we review the district court’s underlying findings of fact, if any, for clear error,” and we review “its ultimate determination regarding the petition to modify[] for an abuse of discretion.” Myers v. Myers, 2023 UT App 20, ¶ 19, 526 P.3d 1253. Whether the court chose and applied the correct legal standard is a question of law “that we review for correctness.” Peeples v. Peeples, 2019 UT App 207, ¶ 11, 456 P.3d 1159.

¶11      As discussed below, our analysis on this point focuses on the court’s application of the doctrine of laches and, in particular, on its determination that Bruce was prejudiced by Nicole’s delay in asserting a right to possession of the Home. “The application of laches to a particular set of facts and circumstances presents a mixed question of law and fact.” Peterson v. Pierce, 2019 UT App 48, ¶ 9, 440 P.3d 833 (quotation simplified). While “[l]aw-like mixed questions are reviewed de novo,” mixed questions that are more “fact-like” are “reviewed deferentially.” Sawyer v. Department of Workforce Services, 2015 UT 33, ¶ 11, 345 P.3d 1253. For the reasons discussed more fully later, see infra ¶¶ 18–21, we conclude that a district court’s prejudice determination made in the laches context is more fact-like than law-like and, therefore, calls for a more deferential standard of review.

¶12 Second, Nicole challenges the court’s award of attorney fees to Bruce under the bad faith statute. “We review a trial court’s grant of attorney fees under the bad faith statute as a mixed question of law and fact.” Outsource Receivables Mgmt., Inc. v. Bishop, 2015 UT App 41, ¶ 11, 344 P.3d 1167 (quotation simplified).

“A finding of bad faith is a question of fact and is reviewed by this court under the ‘clearly erroneous’ standard,” but a “‘without merit’ determination is a question of law” that we review “for correctness.” Id. (quotation simplified).



¶13      We first address Nicole’s challenge to the district court’s grant of Bruce’s Petition and its accompanying order modifying the Decree to award the Home to Bruce. The court based its ruling on several distinct legal doctrines, including waiver and laches. Nicole challenges the application of these doctrines, asserting that none of them apply to the facts at hand. For the reasons discussed, we conclude that the court did not abuse its discretion when it concluded that Bruce was prejudiced by Nicole’s delay in asserting her claim to the Home, and that therefore the doctrine of laches operates to bar Nicole’s claim. Because we affirm the court’s laches determination, we need not reach the question of whether the court erred in its application of waiver or any other legal or equitable doctrine.

¶14 “Laches” is an equitable doctrine “founded upon considerations of time and injury.” Insight Assets, Inc. v. Farias, 2013 UT 47, ¶ 17, 321 P.3d 1021 (quotation simplified). The thing that the doctrine is concerned about “is not mere delay, but delay that works a disadvantage to another.” Id. (quotation simplified). “In Utah, laches traditionally has two elements.” Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne, 2012 UT 66, ¶ 29, 289 P.3d 502. First, the party claiming laches must demonstrate that the other party “unreasonably delayed in bringing” a claim. See Veysey v. Nelson, 2017 UT App 77, ¶ 8, 397 P.3d 846 (quotation simplified), cert. denied, 400 P.3d 1046 (Utah 2017). Second, the party claiming laches must demonstrate that it “was prejudiced by that delay.” Id. (quotation simplified); see also Laches, Black’s Law Dictionary (11th ed. 2019) (defining “laches” as “[t]he equitable doctrine by which a court denies relief to a claimant who has unreasonably delayed in asserting the claim, when that delay has prejudiced the party against whom relief is sought”).

¶15      Nicole concedes that the first element of the laches test— unreasonable delay—is met here, given her eight-year delay in objecting to Bruce’s possession of the Home. Because of this concession, we need concern ourselves only with the second element of the laches test: whether Bruce was prejudiced by Nicole’s unreasonable delay.

¶16      On that point, the district court made a specific finding that Bruce would suffer “clear prejudice” if Nicole were allowed to claim possession of the Home. The court observed that Bruce had raised the parties’ children in the Home, had made “improvements” to the Home, and had taken care of “all financial obligations related to” the Home since 2009. In light of these undisputed facts, the court determined that Bruce would be prejudiced if Nicole were allowed to assert, after all these years, a right to exclusively use and possess the Home.

¶17 Nicole challenges the court’s prejudice determination, asserting that her delay in asserting her rights to the Home was actually “a benefit to Bruce” because it gave him a place to live and because he was able to take “significant amounts of equity out of” the Home “on multiple occasions.” But before we can address Nicole’s challenge to the court’s prejudice determination, we must first determine the appropriate standard of review.

¶18      As previously mentioned, see supra ¶ 11, a district court’s “application of laches to a particular set of facts and circumstances presents a mixed question of law and fact.” Peterson v. Pierce, 2019 UT App 48, ¶ 9, 440 P.3d 833 (quotation simplified). “Mixed questions fall somewhere in the twilight between deferential review of findings of fact and searching reconsideration of conclusions of law.” In re adoption of Baby B., 2012 UT 35, ¶ 42, 308 P.3d 382. The level of deference afforded to district courts in such situations thus depends on whether the determination at issue is more law-like or fact-like. See Sawyer v. Department of Workforce Services, 2015 UT 33, ¶ 11, 345 P.3d 1253. We must therefore assess whether a determination regarding prejudice, in the laches context, is more fact-like than law-like. As far as we are aware, no Utah court has yet rendered a specific ruling on this question.

¶19      When considering whether a question “should be deemed law-like or fact-like, we evaluate the marginal costs and benefits of conducting either a searching de novo review or a deferential review of a lower tribunal’s resolution of the mixed question.” Id. ¶ 12 (quotation simplified). To that end, our supreme court has instructed us to consider three relevant factors:

(1) the degree of variety and complexity in the facts to which the legal rule is to be applied; (2) the degree to which a trial court’s application of the legal rule relies on facts observed by the trial judge, such as a witness’s appearance and demeanor, relevant to the application of the law that cannot be adequately reflected in the record available to appellate courts; and (3) other policy reasons that weigh for or against granting discretion to trial courts.

Id. (quotation simplified).

¶20      The first two factors compare “the relative competencies” of “a fact-finding tribunal” and that of “an appellate court.” Id. ¶ 13. District courts and other fact-finding tribunals “are in a superior position to weigh facts that depend upon credibility determinations, the direct observation of witness testimony, and other evidence not fully captured in a written appellate record.” Id. On the other hand, appellate courts are in a better position to fashion “broad rules that can create a greater degree of consistency and predictability to future cases involving a particular mixed question.” Id. An inquiry that is highly “fact-intensive” is not one that “lend[s] itself to consistent resolution by a uniform body of appellate precedent.” Carbon County v. Workforce Appeals Board, 2013 UT 41, ¶ 7, 308 P.3d 477 (quotation simplified). Thus, a district court is “entitled to deference” where its determinations are “fact-intensive” because an appellate court “would be in an inferior position to review the correctness” of such a decision. Id. (quotation simplified).

¶21 Assessing whether a litigant’s unreasonable delay in bringing a claim has caused another party to sustain prejudice is a case-specific, fact-bound inquiry that will depend on the particular circumstances at hand, as well as—at least in many cases, including this one—on the district court’s perception of the progression of the litigation. Indeed, for this very reason, Utah appellate courts have concluded, in a number of analogous contexts, that appellate review of a district court’s prejudice determination should be deferential. See State v. De La Rosa, 2019 UT App 110, ¶ 9, 445 P.3d 955 (reviewing deferentially a district court’s “substantial adverse effect” determination, made in the context of assessing whether a new trial was warranted, “due to [the district court’s] advantaged position to judge the impact of legal errors on the total proceedings” (quotation simplified)); see also State v. Maestas, 2012 UT 46, ¶ 325, 299 P.3d 892 (stating that district courts “have discretion in granting or denying a motion for a mistrial . . . because of the[ir] advantaged position . . . to determine the impact of events occurring in the courtroom on the total proceedings” (quotation simplified)); Butler v. Mediaport Ent. Inc., 2022 UT App 37, ¶¶ 32, 48, 508 P.3d 619 (stating that “we review a district court’s harmlessness determination,” made in the discovery and disclosure context, deferentially “for abuse of discretion” because “a district court will almost always have a better vantage point than we do to make such a call”). We also observe that laches is an equitable doctrine, see Insight Assets, 2013 UT 47, ¶ 17, and “equitable inquiries are designed to be flexible, taking into account all relevant factors in light of the particular circumstances,” Jones v. Layton/Okland, 2009 UT 39, ¶ 17, 214 P.3d 859. “Because of the fact-intensive nature of equitable doctrines,” we generally grant district courts “broader discretion in applying the law to the facts.” Volonte v. Domo, Inc., 2023 UT App 25, ¶ 28, 528 P.3d 327 (quotation simplified). For all of these reasons, we conclude that a district court’s determination that a litigant has (or has not) sustained prejudice as a result of another party’s unreasonable delay in bringing a claim is entitled to deference from appellate courts and is a determination that should be reviewed for abuse of discretion.

¶22 We discern no abuse of discretion in the district court’s determination that Bruce sustained prejudice as a result of Nicole’s eight-year delay in asserting her right to the Home. The court’s ruling was well-reasoned and supported by evidence in the record. As noted, the court relied on the fact that Bruce had lived in the Home the entire time, raised the parties’ children there, and—perhaps most importantly—had taken care of all financial obligations related to the Home, including all maintenance and improvements.

¶23      We acknowledge Nicole’s point that Bruce enjoyed certain advantages as a result of living in the Home. As Nicole points out, Bruce would have had to pay for housing whether he lived in the Home or elsewhere, and Bruce was apparently able to take advantage of the equity in the Home. These facts could have led the district court to make a different determination with regard to whether Bruce was prejudiced by Nicole’s delay. But the presence of conflicting evidence does not compel reversal here. Given the applicable standard of review, the relevant question is not whether we would have made the same determination had we been sitting as the assigned trial-level arbiters in this case; rather, the relevant question is whether we discern an abuse of discretion in the decision the assigned judge made. See Stichting Mayflower Mountain Fonds v. United Park City Mines Co., 2017 UT 42, ¶ 49, 424 P.3d 72 (stating that “[t]he question presented is not whether we would have granted” the motion in question, but instead “whether we find an abuse of discretion in the district judge’s decision to deny the motion”). Where the court’s decision is supported by evidence in the record and free from legal error, we will not disturb it. And that is the case here.

¶24      Nicole resists this conclusion on three additional grounds. First, she points out that Bruce also delayed in asserting a right to the Home, and she complains that the district court applied the principles of laches in an uneven manner. But on this point, the district court made a specific determination that, although Bruce delayed the invocation of his claim to the Home, Nicole did not sustain any prejudice as a result of Bruce’s delay. The court noted that, during the time between her “abandonment” of the Home and the filing of Bruce’s Petition, Nicole “did not have to satisfy any financial obligations related to” the Home, “including those required by the Decree.” The court’s determination was therefore supported by evidence in the record and, while a different judge might have reached a different conclusion on these facts, we cannot say that the court’s ruling was an abuse of its discretion.

¶25      Second, Nicole asserts that Bruce should not be able to take advantage of equitable doctrines such as laches because, in her view, Bruce had “unclean hands” due to his failure to pay alimony and child support, as required by the terms of the Decree, during the years he lived in the Home. See Goggin v. Goggin, 2013 UT 16, ¶ 60, 299 P.3d 1079 (“The doctrine of unclean hands expresses the principle that a party who comes into equity for relief must show that his conduct has been fair, equitable, and honest as to the particular controversy in issue.” (quotation simplified)). But while Nicole (successfully, as it turned out) asked the district court to award her back alimony and child support, she never asked the district court to apply the doctrine of unclean hands, and her arguments in this regard are therefore unpreserved for appellate review. See State v. Johnson, 2017 UT 76, ¶ 18, 416 P.3d 443 (“A failure to preserve an issue in the trial court generally precludes a party from arguing that issue in an appellate court, absent a valid exception.”).

¶26      Nicole does not explicitly ask us to utilize any of the exceptions to our preservation requirement, but she does assert that the district court erred by failing to “sua sponte” apply the unclean hands doctrine. Certainly, a court may invoke that doctrine without being asked to do so. See 30A C.J.S. Equity § 116 (2023) (“A defense of unclean hands need not be pleaded. The doctrine may be applied by the court sua sponte.”). But the fact that a court may invoke the doctrine in a sua sponte manner does not relieve a party of its otherwise-applicable obligation to preserve issues for appellate review. Indeed, construed liberally, Nicole’s argument—that the district court erred by failing to sua sponte invoke the unclean hands doctrine—is an assertion that the court plainly erred by not concluding that Bruce’s unclean hands barred him from accessing equitable doctrines like laches. But this assertion fails because plain error review no longer exists in civil cases like this one. Kelly v. Timber Lakes Prop. Owners Ass’n, 2022 UT App 23, ¶ 44, 507 P.3d 357. Because plain error review is unavailable, and because Nicole does not ask us to employ any other exception to our preservation requirement, the fact that her “unclean hands” argument is unpreserved requires us to reject her argument without reaching its merits.

¶27      Finally, Nicole asserts that Bruce’s Petition was barred by the doctrine of res judicata. Essentially, she asserts that, because the parties already litigated the issue of entitlement to the Home, and because the Decree awarded the Home to her, Bruce is barred from relitigating that issue now. Nicole correctly asserts that res judicata is not categorically inapplicable in divorce cases. See Throckmorton v. Throckmorton, 767 P.2d 121, 123 (Utah Ct. App. 1988) (“The doctrine of res judicata applies in divorce actions.”). But “Fi]n the family law context, our legislature has given district courts the authority to revisit many of the provisions contained in a typical divorce decree, including provisions pertaining to child custody, child support, alimony, property distribution, and debts.” See Robertson v. Stevens, 2020 UT App 29, ¶ 7, 461 P.3d 323 (emphasis added); see also Utah Code § 30-3-5(5). In this context, a party may seek post-judgment modification of the property distribution provisions of a divorce decree, but in order to succeed in that endeavor the party “must demonstrate that a substantial change in circumstances has occurred since the entry of the decree.” See Toone v. Toone, 952 P.2d 112, 114 (Utah Ct. App. 1998) (quotation simplified); see also Throckmorton, 767 P.2d at 123 (“[T]he application of res judicata is unique in divorce actions because of the equitable doctrine which allows courts to reopen alimony, support, or property distributions if the moving party can demonstrate a substantial change of circumstances since the matter was previously considered by the court.”).

¶28 Thus, modification of the Decree’s property distribution provisions is appropriate—even post-judgment and even taking into account principles of res judicata—so long as Bruce can demonstrate that, since entry of the Decree, there has been a substantial change of circumstances that would justify the court taking a second look at the terms of the distribution. And on that point, Nicole raises no challenge; indeed, in her reply brief on appeal she makes clear that she “is not arguing lack of changed circumstance,” and she affirmatively acknowledges that, in this case, “there have been changed circumstances.” Thus, the court had the authority to revisit the property distribution provisions of the Decree, and we reject Nicole’s argument to the contrary.

¶29    For these reasons, we perceive no abuse of discretion in the district court’s determination that Bruce was prejudiced by Nicole’s unreasonable delay in asserting her right to possess the Home. Because Nicole does not contest the other element of laches—unreasonable delay—both elements are met. We therefore affirm the district court’s determination that the equitable doctrine of laches barred Nicole’s claim to the Home, and on that basis we affirm the court’s grant of Bruce’s Petition and its accompanying order awarding the Home to Bruce.


¶30      Next, we address Nicole’s challenge to the court’s award of attorney fees to Bruce, incurred in connection with litigating issues related to the Home. On this point, we find merit in Nicole’s arguments, and we therefore reverse the court’s fee award.

¶31 Bruce’s fee request was grounded in Utah’s bad-faith attorney-fees statute, which empowers courts to “award reasonable attorney fees to a prevailing party if the court determines that the action or defense to the action was without merit and not brought or asserted in good faith.” See Utah Code § 78B-5-825(1). Before awarding fees under this section, a district court—in addition to determining that the requesting party is the “prevailing party”—must make specific findings that the opposing party’s claim is (1) “without merit” and (2) “not brought or asserted in good faith.” Rocky Ford Irrigation Co. v. Kents Lake Reservoir Co., 2020 UT 47, ¶ 76, 469 P.3d 1003 (quotation simplified). These two findings “must be made independently” from one another. Still Standing Stable, LLC v. Allen, 2005 UT 46, ¶ 12, 122 P.3d 556. Nicole asserts that the court failed to make a specific finding that her claims and defenses regarding the Home were without merit, and she maintains that the fee award was therefore improper. We agree with Nicole.

¶32      While the court made a specific finding that Nicole’s claims and defenses regarding the Home were asserted in “bad faith” and on a “retaliatory” basis, it made no specific finding that Nicole’s claims were without merit. Bruce acknowledges the lack of an express finding on this point, but he asserts that we can infer such a finding from (a) the fact that the court rejected Nicole’s claims on their merits (i.e., that she lost) and (b) the court’s specific bad-faith finding. We see the matter differently.

¶33      First, a determination that a party lost on the merits is not equivalent to a determination that the party’s claims were without merit for purposes of the bad-faith statute. “Without merit” in this context means something worse than just having a losing claim. Indeed, our supreme court has stated that the term “without merit,” as used in the bad-faith statute, “implies bordering on frivolity,” with the term “frivolous” meaning “of little weight or importance having no basis in law or fact.” Cady v. Johnson, 671 P.2d 149, 151 (Utah 1983) (quotation simplified); see also Migliore v. Livingston Fin. LLC, 2015 UT 9, ¶ 31, 347 P.3d 394 (“To determine whether a claim is without merit, we look to whether it was frivolous or of little weight or importance having no basis in law or fact.” (quotation simplified)). And on at least one occasion, our supreme court has concluded that a losing claim was not “without merit,” because the claim—even though it was not the prevailing claim—involved a question of “first impression” and “had a basis in law and fact.” See In re Olympus Constr. LC, 2009 UT 29, ¶ 31, 215 P.3d 129. We therefore may not infer, merely from the district court’s rejection of Nicole’s claims on their merits, that the court considered those claims to be so meritless as to be “bordering on frivolity.” See Cady, 671 P.2d at 151.

¶34 Nor may we draw that inference from the court’s “bad faith” finding. As noted already, the two separate findings— without merit and bad faith—“must be made independently” from one another. Still Standing Stable, 2005 UT 46, ¶ 12. And this makes sense, because the two elements of the statutory test are aimed at two different things. The first element (“without merit”) is concerned with the objective quality of the claim itself, see Migliore, 2015 UT 9, ¶ 31, while the second element (“bad faith”) is concerned with the party’s subjective motivation for bringing it, see Blum v. Dahl, 2012 UT App 198, ¶ 9, 283 P.3d 963 (“A finding of bad faith turns on a factual determination of a party’s subjective intent.” (quotation simplified)). Both elements must be met before a court may award attorney fees under the bad-faith statute. And the presence of one element does not necessarily imply the presence of the other.

¶35 For instance, a party may have a completely frivolous claim that lacks any basis in law or fact, but that party may not be aware of the claim’s lack of merit at the time it was filed. In that situation, the first element of the test is met but, depending on the circumstances, the second might not be. Conversely, a party may have a solid (albeit losing) claim that has a basis in both law and fact, but the party might be bringing that claim for abusive or improper reasons. In that situation, the second element might be met but the first one wouldn’t be. In the case at hand, our review of the record indicates that this might be the situation: Nicole had in her corner a provision in the Decree awarding her the Home, and Bruce had not taken any action to seek modification of that provision in eight years. Given these facts, it is certainly not obvious to us that Nicole’s claims and defenses regarding the Home were “bordering on frivolity,” see Cady, 671 P.2d at 151, even if we take at face value the court’s finding that Nicole brought the claims in a bad-faith effort to retaliate against Bruce.

¶36 Accordingly, we conclude that the absence of any specific finding that Nicole’s claims were without merit renders the district court’s attorney fees award improper.[1]


¶37 We discern no abuse of discretion in the district court’s determination that laches barred Nicole’s claims and defenses regarding the Home, and on that basis we affirm the district court’s grant of Bruce’s Petition and its accompanying order awarding the Home to Bruce. But due to the absence of any finding that Nicole’s claims and defenses were without merit, we reverse the court’s award of attorney fees to Bruce pursuant to the bad-faith statute, and we vacate the part of the court’s judgment that required Nicole to pay $7,390.67 in fees to Bruce.

Utah Family Law, LC | | 801-466-9277

[1] Again invoking the bad-faith statute, Bruce asks us to award him attorney fees he incurred on appeal. We must reject this request because we have reversed the award of attorney fees in the district court. Moreover, we do not consider Nicole’s appellate arguments to have been brought in bad faith.

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Why Get it Straight From the Horse’s Mouth When You Can Get a Truncated Version, Second-Hand?

When a custody evaluator and/or private guardian ad litem is/are appointed in a divorce case in which custody and parent-time of the children is disputed, they usually interview the children who are the subject of the custody and parent-time dispute and then make observations and recommendations regarding what the custody and parent-time awards should be based in part on those interviews.

But they never record their interviews with the children.

Instead, every custody evaluator (except one) that I know and every PGAL that I know wants us to believe (as opposed to knowing, based upon an objectively verifiable recording) that 1) they did in fact speak with the children; 2) what the custody evaluators and PGALs report second-hand and in summary fashion accurately reflects what was (and was not) asked of the children and what the children said (and did not say) in response; and 3) that the custody evaluator’s and PGAL’s assessment of the children’s credibility (assuming–not knowing–that the child were interviewed in the first place and that what the children allegedly said is in fact what the children said) is correct.

Such a policy is incongruous with the way any other witness account is presented to a court.

Courts claim they need to know the child’s “intent [whatever that means in the context of a child custody dispute] and desires.”

Yet the court goes out of its way to ensure that what we get from custody evaluators and/or PGALs not just second-hand accounts of the child’s purported statements, but summary second-hand accounts of the child’s purported statements.

Then, on the basis of the purported, second-hand summary accounts, the non-witness PGAL “makes a recommendation regarding the best interest of the minor” by ostensibly “disclos[ing] the factors that form the basis of the recommendation” when the purported factors have–not necessarily, but by design, no less–no objectively verifiable basis in the child’s testimony (because there is no testimony). Such a “take my un-recorded, unverifiable, second-hand word for it” process elevates faith over fact, and needlessly.

Yet by way of the court interviewing the child directly and on the record (or by having the child deposed in a fitting, appropriate setting, of course), the court could easily obtain objectively verifiable knowledge of not only the child’s “intent and desires” stated in the child’s own words but in the same way also obtain knowledge of the child’s relevant experiences, observations, feelings, opinions, and anything else the court may want to learn that bears on the child custody and parent-time award decisions.

Everyone who tries to justify the policy against child testimony does so by claiming that there is no equal or superior alternative. Such claims are without merit.

I would be cruel and unreasonable if I did not concede that a child should not be questioned on and for the record if it were proved (as reflected in particularized findings, not generalized views or preferences) that that particular child likely will (not merely could) be harmed by testifying to the extent that the value of the testimony does not outweigh the harm. In such a situation barring that child from testifying would be warranted.

But when avoiding the subject altogether is worse for the child than confronting it, question the child on the record–for the child’s sake. For the sake of the truth- and fact-finding processes. It is cruel and unreasonable to silence the child that way.

Many children are not only willing to testify to the facts bearing upon the child custody and parent-time awards, they want to testify to them. Even when it may be unpleasant to address the topics. Regardless of how eager children may be to testify, they have the greatest stake in the child custody and parent-time awards. They deserve to be heard from, and in their own words. Who would (who could, credibly) gainsay that?

And the notion that a judge or commissioner interviewing a child, or a child being questioned in a deposition (and the child could be deposed by the PGAL, if there were sufficient facts to support a conclusion that the child is in danger of suffering verifiable serious, irreparable harm were the child questioned by the parents’ respective attorneys) would inherently cause a child unjustifiable harm is self-evidently false.

First, I have personal experience with children testifying for the record in child custody and parent-time proceedings without incident. I (and others who have the same experience actually deposing a child) know that it is not inherently harmful to every child who is old enough to testify competently.

Second, children regularly testify in proceedings substantively indistinguishable from divorce/parentage child custody and parent-time proceedings (e.g., contested child abuse, neglect, or dependency cases, contested petitions for termination of parental rights cases, contested adoption and guardianship cases). This is proof that child testimony–though it may be frightening or saddening for some children–is not universally catastrophic for all (even most) children who are old enough to testify competently.

Thus, the assertion that judges, domestic relations commissioners, and lawyers cannot competently question a child in a divorce-based child-custody and parent-time dispute unless they are “specially trained as PGALs (especially when the ‘special training’ can be obtained in a matter of a few days’ time)” is invalid on its face. If one need not be “specially trained” to question a child in contested child abuse, neglect, or dependency cases, contested petitions for termination of parental rights cases, contested adoption and guardianship cases, one need not be “specially trained” as a PGAL to question a child competently and with due sensitivity.

My biggest worry (among many) about the way custody evaluations and PGAL appointments work in Utah is when custody evaluators and PGALs–who can by recording child interviews easily provide the parents and the court with an objective way of verifying whether the children were interviewed, how well or poorly they were interviewed, what they were asked (and not asked) and what they said (or did not say) in response–refuse to do so.

Utah Family Law, LC | | 801-466-9277

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