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2024 UT App 54 – Tilleman v. Tilleman – custody factors, income, fees

2024 UT App 54 – Tilleman v. Tilleman

THE UTAH COURT OF APPEALS

MICHAEL ROBERT TILLEMAN, Appellant, v. MICHAL CHRISTINE TILLEMAN, Appellee.

Opinion No. 20210637-CA Filed April 11, 2024

Fourth District Court, Provo Department

The Honorable M. James Brady No. 164402522

Julie J. Nelson, Attorney for Appellant, Douglas B. Thayer, Andy V. Wright, and Jessica Griffin Anderson, Attorneys for Appellee

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

ORME, Judge:

¶1        Michael Robert Tilleman (Father) and Michal Christine Tilleman (Mother) were married and share one child (Child). Following rather contentious divorce proceedings, the trial court awarded sole legal custody of Child to Mother but awarded the parties joint physical custody. The court also imputed federal minimum wage income to Mother for child support purposes, and it awarded her attorney fees and costs.

¶2        On appeal, Father makes various arguments challenging the court’s legal custody award. He also contends that the court abused its discretion in imputing federal minimum wage income to Mother and in awarding her attorney fees and costs. Although we affirm several aspects of the court’s legal custody award, we nevertheless hold that the court abused its discretion in applying the wrong legal standard and accordingly reverse and remand for the court’s consideration of all the statutorily mandated custody factors. We also reverse the court’s imputation of Mother’s income and its attorney fee award and remand for further proceedings.

BACKGROUND[1]

¶3        Mother and Father married in 2013, and Child was born a little over a year later. In 2016, following a separation, Father filed a petition for divorce. This was soon followed by Mother’s counter-petition for divorce. The trial court characterized the ensuing litigation as “contentious” and the parties as “unusually accusatory, intransigent, and uncooperative.” We limit our recounting of the divorce proceedings to facts relevant to the issues raised on appeal.

¶4        In 2018, the court entered a stipulated, bifurcated decree of divorce reserving for trial, in relevant part, the issues of custody, parent-time, child support, and attorney fees. Although the parties each initially sought sole physical custody and joint legal custody of Child, by the time of trial they had each amended their pleadings to request sole physical and sole legal custody of Child.

¶5        In conjunction with her counter-petition for divorce, Mother also filed a motion asking that the court order Father to undergo a psychological examination under rule 35 of the Utah Rules of Civil Procedure “to properly address his ability to parent” Child.[2] The motion alleged that Father “has exhibited intense anger toward [Mother] and has engaged in mental and emotional abuse,” that “such anger has been exhibited toward” Child, and that he “may be suffering from mental health conditions.”

¶6        Father opposed Mother’s rule 35 motion and denied its allegations. In turn, he asked the court to order that Mother undergo a rule 35 evaluation, alleging that she “has been verbally and physically abusive towards” him, that she “is unable to control her anger and aggressions towards” him, and that “recent irrational and inappropriate actions, behaviors, and instability indicate that she may be suffering from some form of mental illness.”

¶7        In 2017, at a hearing on temporary orders, Mother’s counsel informed the trial court that the parties had stipulated, among other things, “that either party can request and . . . the other party will participate in a Rule 35 mental health exam as long as the requesting party pays the cost up front.” Accordingly, the court’s temporary order included a provision stating that “[e]ither party may request the other party to participate in [a] Rule 35 examination at the requesting party’s expense.”

¶8        Mother subsequently provided Father with a list of three potential rule 35 evaluators, of which Father selected one (First Expert) to conduct his exam. When First Expert requested that Father sign medical releases for his psychological health records, Father refused. In response, Mother filed a motion requesting that the court order Father “to sign and execute all necessary medical releases, upon presentation by [First Expert], so that [Father’s] Rule 35 mental examination can proceed as expeditiously as possible.” At a hearing before a commissioner on the matter, Father argued that he never agreed to sign medical releases and that his understanding of the stipulation was “that he was agreeing to an independent, objective, standardized psychological test.” He also argued that releasing his medical records “prejudices him down the road” because “it allows information that would not otherwise be admissible to become admissible.”

¶9        In ruling on the motion, the commissioner first stated that because the trial court—and not a jury—would be the finder of fact in this case, he did not consider prejudice “to be a significant issue.” Next, in addressing the scope of the rule 35 exam, the commissioner stated that based on his decades of experience interacting with mental health professionals, “the one thing that they all assure me is true [is that] the best predicter of future behavior is past behavior.” The commissioner also noted that the parties had not submitted affidavits from professionals indicating what their usual practice is for such evaluations. Thus, the commissioner recommended, “If it is the Rule 35 examiner’s professional opinion that certain information would assist him in completing his evaluation/report, then both parties shall cooperate in good faith and sign whatever releases for records or information the evaluator wants[.]” Father objected to the commissioner’s recommendation, but the trial court overruled his objection and ordered him to sign the requested medical releases.

¶10 Upon completion of the rule 35 evaluation, First Expert reached the following conclusions, as summarized by the trial court. First Expert noted that “Father was so guarded and defensive when he took the psychological testing that credible information from testing is not available.” First Expert did not observe Father with Child as part of the evaluation. Nevertheless, First Expert concluded, among other things, that Father exhibited “varying degrees” of several negative personality traits; that he “is a very persistent person,” which when “utilized to intimidate and control others” can cause substantial harm to himself and others; and that he “tends to place his own interests before those of others and is not invested in cooperative relationships.” See also infra note 5. First Expert also recommended against joint legal custody of Child.

¶11      In anticipation of trial, Father filed a motion in limine to exclude First Expert’s testimony, contending that his “report and his corresponding testimony have not been shown by [Mother] to be reliable, based on sufficient facts or data, and reliably applied to the facts as required by rule 702 of the Utah Rules of Evidence.” See Utah R. Evid. 702(b). In support of his motion, Father included a report from his own expert (Second Expert) who reviewed the rule 35 evaluation. Second Expert opined, among other things, that “the methodology employed” by First Expert “did not comport with generally accepted standards of practice.” He further stated that First Expert’s “recommendation against joint legal custody is concerning because there is no indication the purpose of the evaluation was to aid the Court in determining custody.”

¶12 Following a hearing, the court ruled that First Expert would be permitted to testify at trial because his “report and his . . . procedures, his methodology, and his data gathering and his qualifications meet that low threshold of showing an indicia of reliability.” But because First Expert’s “qualifications and methodology don’t meet the requirements for a custody evaluation,” the court limited his testimony by precluding him from offering his opinion on that subject at trial.

¶13 Toward the end of 2020, the court held a ten-day bench trial, after which it entered thirty-three pages of findings of fact and conclusions of law. In addressing custody, the court prefaced its findings by discussing Utah Code sections 30-3-10(2) and 30-3-10.2(2), which govern child custody determinations. Section 30-3-10(2) states, with our emphasis, that “[i]n determining any form of custody and parent-time . . . , the court shall consider the best interest of the child and may consider among other factors the court finds relevant, the following for each parent” and then lists various factors. The court interpreted that section to mean that it “is not required to make findings on all factors listed in” that section. Further, section 30-3-10.2(2) provides, again with our emphasis, that “[i]n determining whether the best interest of a child will be served by ordering joint legal custody or joint physical custody or both, the court shall consider the custody factors in Section 30-3-10 and” additional factors listed in section 30-3-10.2(2). The court stated that it understood the interplay between the two sections to mean that when considering joint legal or physical custody of a child, it is “obligated to address the enumerated factors in” section 30-3-10.2(2), but that its consideration of each factor listed in section 30-3-10(2) is not mandatory.

¶14      The trial court then proceeded to make extensive findings pertaining to custody and parent-time, as summarized below. The court found that “[a] primary condition that permeated the marriage was Father’s underlying hostility,” which also “affected the first few years of [Child’s] life and [Father’s] early relationship with, and care for” Child. Throughout Child’s life, Mother has been Child’s primary caregiver. Although “Father rarely, if ever, held, fed, changed, or played with” Child during the marriage, since the separation he has cared for Child during his parent-time. Father and Mother have “demonstrated a strong desire for parent-time since their separation,” and Father “has rearranged work schedules and career goals to accommodate as much time as possible with” Child. His interactions with Child have “significantly improved,” and he “has bonded more with her.” But his “anger towards Mother occasionally interferes with his ability to see, understand, and meet the needs of” Child. Child “has a strong bond with Father” and “enjoys spending time with” him.

¶15 The court found that Mother consistently demonstrated the ability to meet Child’s developmental needs and that Father had demonstrated an improvement in his ability to do so, although the court was unsure whether this was a long-term change. Each parent was able to meet Child’s physical needs and to function as an effective parent, although Father’s “apparent lack of insight of how his anger towards Mother, and his efforts to embroil Mother in allegations of abuse,” see infra ¶ 17, “have physically impacted” Child and have interfered with his parenting abilities. The court determined that both parents have negatively impacted Child’s emotional wellbeing—albeit Mother to a lesser extent—through their poor responses and behaviors when in each other’s presence.

¶16      The court found that although “each parent has shown that they have the capacity and willingness to function as a parent to” Child, “[t]he difficulty lies in their inability to co-parent and properly interact with the other parent,” particularly during drop-off and pick-up, as well as when communicating about Child. Regarding drop-off and pick-up, the court stated that “[t]he difficulty comes about by actions of both parents, although Father more consistently causes [Child’s] transitions to be difficult” by not encouraging her to transition to Mother’s care and by saying things that “weigh negatively on [Child’s] emotions in a manipulative and passive aggressive manner.” Mother also occasionally expressed displeasure about Father’s behavior in Child’s presence. Concerning the parents’ communication, the court stated that in 2017, “[d]ue to the high level o[f] conflict,” it ordered Mother and Father to communicate through a third-party service that reviewed and, if necessary, edited and revised the messages they sent each other. The third-party service had to make substantial edits to many of Father’s messages and advised him that it would “not send emails that are threatening.” Because Father also became adversarial with the third-party service, it withdrew, and the parties had to find another communication intermediary. But in the months leading up to trial, communication between the parties had “been relatively civil.”

¶17 The court next expressed concern regarding Father’s “emotional and sometimes indirect physical abuse of” Child through his repeated claims, “without sufficient justification,” that Mother was physically abusive toward Child. Specifically, between 2017 and 2020, Father made multiple reports of abuse to various police departments, the Division of Child and Family Services (DCFS), and medical providers. This “exposed [Child] to unnecessary emotional trauma and invasive physical examinations” and never resulted in criminal charges being filed against Mother or in DCFS taking enforcement action against her. “When the agencies did not confirm his opinion, [F]ather became overly focused, argumentative, and belligerent” and “was unwilling to accept the many conclusions of DCFS.” The court found that “Father’s reports of abuse were vexatious and were calculated and designed to harm Mother,” and he either “was not aware of, or did not care about the emotional harm he was causing [Child] through the continuous filing of unsupported claims of abuse.”

¶18      The court then addressed Father’s rule 35 evaluation.[3] At trial, First Expert, Second Expert, and another expert (Third Expert) testified about the evaluation. The court noted that based on First Expert’s own testimony, it appeared that First Expert “primarily identified personality traits of [Father] from testing which [First Expert himself] considered invalid.” The court also agreed with many of Second Expert’s critiques of First Expert’s opinions, including that First Expert’s “opinions based on testing should not be considered” because First Expert “testified that the test results were unreliable due to Father’s high degree of defensiveness”; that First Expert “did not utilize many of the standard tests and methods for determining parenting capacity and therefore his opinions on parenting capacity are not helpful”; and that First Expert did not observe Father interact with Child. Accordingly, the court “found little value in much of [First Expert’s] diagnostic expert opinions,”[4] but it noted that, based on other trial testimony and on its own review of some of the records that First Expert examined that were also submitted into evidence, it agreed with his conclusions regarding Father’s negative characteristics and personality traits. Specifically, the court noted Father’s “historical demonstration of grandiosity, entitlement, interpersonal exploitativeness, lack of empathy, high levels of persistence, rigidity, lack of agreeableness, vexatious intimidation, along with a tendency to resort to arrogant and intimidating behaviors toward others, particularly when encountering others whom he believes stand in his way.” The court, however, rejected several of First Expert’s other opinions.[5]

¶19 The court also found Third Expert to be “qualified,” “credible,” and “an unbiased witness.” Third Expert testified that in counseling sessions, he “worked with Father to understand how to modify his behavior” and that Father had demonstrated improvement. Third Expert described Father’s current character traits as “[p]ersistent,” “[i]ntelligent,” “[e]ven keeled,” “[c]onstant in demeanor,” and “[a]ble to rise and process issues and disagreement more effectively.”

¶20      Turning to the question of legal custody, the court held that the presumption that joint legal custody is in the child’s best interest was rebutted in this case by the parties’ inability “to set aside their personal differences and focus on the needs of” Child, and it awarded sole legal custody to Mother. The court based this decision on several things: the difficulties the parties had in setting aside their personal differences to attend to Child’s needs, although it noted that Mother was better able to do so; Father’s emotional abuse of Child “by subjecting her to repeated interviews and physical examinations when he repeatedly raises allegations of abuse against Mother without sufficient cause”; “Father’s need to control and dominate Mother” and to disrespect her; Father’s “inability to recognize the value of input from others, including Mother”; Father’s history of being unable to effectively communicate with Mother; Father’s aggressive and passive-aggressive behavior during pick-up and drop-off and his failure to make it a less emotionally draining experience for Child; Father’s lack of encouragement that Child “equally share time, love and affection with Mother”; and Mother’s constant meaningful participation in raising Child, while Father did not do so for the first few years of Child’s life due to “his anger issues” and university studies.

¶21 Regarding physical custody, the court determined that it was in Child’s best interest “that Father be actively involved in her life” and that he “should have frequent and consistent time with” her so long as there were orders in place enforcing respectful communication between Mother and Father and reducing their interactions during pick-up and drop-off. Accordingly, the court awarded the parties joint physical custody, with Mother as the primary physical custodian and with Father having “frequent and expanded rights of parent time.”

¶22 The court then considered child support, the main issue of which was the income to be imputed to Mother. The court noted that Mother had left full-time employment when Child was born and that she was not employed at the time of trial, but she was attending university classes. The court found that Mother had the experience and skills to find employment in the fields of marketing and public relations with a likely starting income of between $2,500 and $2,800 per month. But the court also found that as a result, Mother would necessarily incur childcare costs and either have to terminate or significantly modify her studies. Ultimately, the court determined that Mother was voluntarily underemployed. But because there was insufficient evidence presented regarding childcare costs or whether current employment was “available in either of her experience categories, or what the current rate of pay would be,”[6] the court imputed to Mother “the federal minimum wage of $1,257 per month.” And based on Father’s actual income and Mother’s imputed income, the court ordered Father to make $666 monthly child support payments to Mother.

¶23      Finally, the court awarded Mother $161,066.94 in attorney fees and costs pursuant to Utah Code section 30-3-3, holding that Mother had substantially prevailed and finding, among other things, that Father had a greater ability to pay.[7]

¶24      Father appeals.

ISSUES AND STANDARDS OF REVIEW

¶25      Father raises five primary issues on appeal. First, Father argues that the trial court erred in awarding sole legal custody of Child to Mother.[8] Specifically, he contends that the “court’s analysis of Utah Code sections 30-3-10 and 30-3-10.2 does not comply with Utah law.” Generally, we review a trial court’s custody award for an abuse of discretion. See T.W. v. S.A., 2021 UT App 132, ¶ 15, 504 P.3d 163. “This discretion is broad; indeed, as long as the court exercises it 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.” Id. (quotation simplified). But whether the court correctly interpreted the legal standards set forth in sections 30-3-10 and 30-3-10.2 is a question of law that we review for correctness. See Ross v. Ross, 2019 UT App 104, ¶ 8, 447 P.3d 104. See also State v. De La Rosa, 2019 UT App 110, ¶ 4, 445 P.3d 955 (stating that because “trial courts do not have discretion to misapply the law,” “the abuse-of-discretion standard of review will at times necessarily include review to ensure that no mistakes of law affected a lower court’s use of its discretion”) (quotation simplified).

¶26 Second, Father contends that the court abused its discretion when it found that he had emotionally abused Child. We review the trial court’s findings of fact for clear error. See T.W., 2021 UT App 132, ¶ 15. Under this standard, “the factual findings of the district court will not be disturbed unless they are clearly erroneous by being in conflict with the clear weight of the evidence. But the existence of conflicting evidence is not sufficient to set aside a district court’s finding.” Hinds v. Hinds-Holm, 2022 UT App 13, ¶ 28 n.4, 505 P.3d 1136 (quotation simplified).

¶27      Third, Father argues that the trial court erred in allowing First Expert to testify at trial.[9] In reviewing the admissibility of evidence, we review the underlying legal questions for correctness and the “court’s decision to admit or exclude evidence and [its] determinations regarding the admissibility of expert testimony” for an abuse of discretion. Smith v. Volkswagen SouthTowne, Inc., 2022 UT 29, ¶ 41, 513 P.3d 729 (quotation simplified). “However, error in the district court’s evidentiary rulings will result in reversal only if the error is harmful.” Anderson v. Larry H. Miller Commc’ns Corp., 2015 UT App 134, ¶ 17, 351 P.3d 832.

¶28      Fourth, Father challenges the court’s imputation of federal minimum wage income to Mother for child support purposes. “We review the district court’s interpretation of statutory requirements for correctness” and “the court’s ultimate imputation of income . . . for abuse of discretion.” Burggraaf v. Burggraaf, 2019 UT App 195, ¶ 23, 455 P.3d 1071 (quotation simplified).

¶29      Fifth, Father takes issue with the court’s award of attorney fees and costs to Mother under section 30-3-3 of the Utah Code. “We review a district court’s decision to award attorney fees pursuant to this statute for an abuse of discretion,” Gardner v. Gardner, 2019 UT 61, ¶ 16, 452 P.3d 1134, but review its underlying legal conclusions for correctness, see De La Rosa, 2019 UT App 110, ¶ 4.

ANALYSIS

I. Legal Custody Factors

¶30      Utah law establishes “a rebuttable presumption that joint legal custody . . . is in the best interest of the child.”[10] Utah Code Ann. § 30-3-10(3) (LexisNexis Supp. 2023). This presumption “may be rebutted by a showing by a preponderance of the evidence that [joint legal custody] is not in the best interest of the child.” Id. § 30-3-10(4)(b). The Utah Code also provides several factors to aid in the best interest analysis. See id. §§ 30-3-10(2), -10.2(2) (2019).

¶31      In challenging the trial court’s award of sole legal custody to Mother, Father argues that (A) the court wrongly interpreted Utah Code sections 30-3-10(2) and 30-3-10.2(2) to mean that its consideration of the factors listed in section 10(2) was discretionary; (B) the court’s application of the wrong legal standard resulted in its failure to consider certain relevant factors in its custody analysis; and (C) the court “analyzed certain factors only as they related to Father but not to Mother.”[11] We address each argument in turn.

A.        Statutory Interpretation

¶32 At issue is the interplay between Utah Code sections 30-3-10(2) and 30-3-10.2(2). Section 10(2) provides that “[i]n determining any form of custody and parent-time . . . , the court shall consider the best interest of the child and may consider among other factors the court finds relevant, the following for each parent[.]” Utah Code Ann. § 30-3-10(2) (LexisNexis 2019) (emphasis added). There then follows a list of factors, (a) through (r), several of which have subparts. See id. Taken in isolation, section 10(2) suggests that while the trial court must consider the child’s best interest when determining custody, the court has discretion as to which specific factors are appropriate for consideration in making that key determination.

¶33      But when joint legal or physical custody is at issue, section 10.2(2) also comes into play. That section provides that “[i]n determining whether the best interest of a child will be served by ordering joint legal custody or joint physical custody or both, the court shall consider the custody factors in Section 30-3-10, and the following factors[.]” Id. § 30-3-10.2(2) (emphasis added). And here again, a number of factors are then listed, (a) through (i), several of which include subparts. See id.

¶34      The parties are at odds on whether, when joint custody is at issue, the court’s consideration of the section 10(2) factors is discretionary or mandatory. We agree with Father that, in undertaking any joint custody determination, courts are required to consider, in some fashion, all the section 10(2) factors and all the section 10.2(2) factors.

¶35 “Our primary goal when interpreting a statute is to ascertain the legislature’s intent,” the best evidence of which “is the plain language of the statute itself.” McKitrick v. Gibson, 2024 UT 1, ¶ 31, 541 P.3d 949 (quotation simplified). In this pursuit, “where the statute’s language marks its reach in clear and unambiguous terms, it is our role to enforce a legislative purpose that matches those terms, not to supplant it with a narrower or broader one.” Id. (quotation simplified). See Brindley v. Logan City, 2023 UT App 46, ¶ 22, 530 P.3d 557 (“When the meaning of a statute can be discerned from its language, no other interpretive tools are needed.”) (quotation simplified). Furthermore, to determine legislative intent “when two statutory provisions conflict in their operation, the provision more specific in application governs over the more general provision.” Taghipour v. Jerez, 2002 UT 74, ¶ 11, 52 P.3d 1252 (quotation simplified). With this charge, we look to the directives our Legislature mandated regarding determinations of joint custody.

¶36      Section 10(2) provides that when “determining any form of custody,” the court may consider, among other things, the factors listed in that section. Utah Code Ann. § 30-3-10(2) (emphasis added). Section 10.2(2), on the other hand, applies when the court is tasked with “determining whether the best interest of a child will be served by ordering joint legal custody or joint physical custody or both.” Id. § 30-3-10.2(2) (emphasis added). Thus, although both section 10(2) and section 10.2(2) purport to govern custody determinations, because section 10(2) applies more generally to “any form of custody,” id. § 30-3-10(2), and because section 10.2(2) “is tailored precisely” to address joint custody—the type of custody at issue here—section 10.2(2) is the more specific of the two provisions and thus governs, see Taghipour, 2002 UT 74, ¶ 14.

¶37 Therefore, based on the plain language of section 10.2(2) that “the court shall consider the custody factors in Section 30-3-10 and” additional factors listed in section 10.2(2), see Utah Code Ann. § 30-3-10.2(2) (emphasis added), our Legislature has deemed it necessary to impose additional requirements and heightened sensitivities regarding a court’s decision to order joint custody. In simple terms, this means that in cases where joint custody is under consideration, trial courts lose much of their discretion about which factors to consider. In other words, when considering the best interest of the child under section 10.2(2), the court is required to consider all the custody factors identified by both section 10(2) and section 10.2(2). Cf. Martinez v. Sanchez-Garcia, 2023 UT App 60, ¶ 21, 532 P.3d 105 (stating that under Utah Code section 30-3-10.4(2), which similarly states that when considering whether modifying a custody order is in the child’s best interest, the trial court shall consider the factors listed in section 10(2) and section 10.2(2), courts “are statutorily required to consider, at least in some form, twenty-five enumerated factors, as well as any other relevant factor”) (quotation simplified).

¶38 We note, however, that “not all [the section 10(2) and section 10.2(2)] factors are on equal footing, and a district court generally has 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. ¶ 22 (quotation simplified). “Some factors might not be relevant at all to the family’s situation, and others might be only tangentially relevant or will weigh equally in favor of both parents.” Id. For example, among the other custody factors, section 10(2) indicates that the court must consider “the relative benefit of keeping siblings together.” Utah Code Ann. § 30-3-10(2)(o). But in some cases, such as the one currently before us, the child does not have any siblings. In such circumstances, it is obviously unnecessary to analyze this factor because it is inapplicable to the court’s ultimate decision, although best practice suggests that the court should at least make a note of the factors it considers inapplicable in a given case. See Martinez, 2023 UT App 60, ¶ 22 n.6 (“Even with factors not relevant to the situation or factors that do not move the needle one way or the other, a court is well-served to at least mention those factors in its ruling and briefly indicate that it deems them irrelevant or of equal weight for each party. By mentioning them, even if only to say that they are irrelevant, a court ensures that the parties—and, significantly, a reviewing court—will be able to tell that the court at least considered them.”) (quotation simplified).

¶39 In sum, the trial court erred when it interpreted the relevant statutes to mean that its consideration of the section 10.2(2) factors was mandatory, while its consideration of the section 10(2) factors was discretionary. The court was required to consider, at least to some degree, all factors listed under both sections, and its failure to do so constituted an abuse of discretion. But “unless an appellant demonstrates that an error is prejudicial, it will be deemed harmless and no appellate relief is available.” See Huish v. Munro, 2008 UT App 283, ¶ 8, 191 P.3d 1242 (quotation simplified). We consider this question in conjunction with Father’s argument addressed in the next section of this opinion.

B.        Consideration of All Relevant Factors

¶40      Father argues that the trial court’s misinterpretation of the governing statutes resulted in its failure to consider a number of relevant factors. Specifically, he asserts that the court abused its discretion when it did not consider the parent’s “ability to provide personal care rather than surrogate care”; “the past conduct and demonstrated moral character of the parent”; and “previous parenting arrangements in which the child has been happy and well-adjusted in the home, school, and community,” Utah Code Ann. § 30-3-10(2)(c)(iii), (d), (n) (LexisNexis Supp. 2023), even though he presented evidence at trial relevant to each of these factors.

¶41 As an initial matter, we commend the trial court for providing thirty-three pages of detailed findings in this matter, in which it addressed the majority of the section 10(2) and section 10.2(2) factors. But even given these extensive findings, the court expressly stated that it did not consider certain statutorily mandated factors in making its legal custody determination. Instead, it stated that it would consider the 10(2) factors “if it elects to do so.” Furthermore, because at least one of the three factors Father identifies, i.e., each parent’s “past conduct and demonstrated moral character,” id. § 30-3-10(2)(d), carries some weight in the legal custody determination,[12] we cannot say that the court’s failure to consider all the section 10(2) factors was harmless.

¶42 We therefore vacate the trial court’s legal custody determination and remand the case for consideration of all section 10(2) factors, and for such adjustment in the court’s legal custody determination, if any, as may then become appropriate. See Twitchell v. Twitchell, 2022 UT App 49, ¶ 25, 509 P.3d 806.

C.        Comparative Findings

¶43 A best-interest determination is “based on a number of factors that compare the parenting skills, character, and abilities of both parents in light of a realistic and objective appraisal of the needs of a child.” Woodward v. LaFranca, 2013 UT App 147, ¶ 22, 305 P.3d 181 (quotation simplified), cert. denied, 312 P.3d 619 (Utah 2013), abrogated on other grounds by Zavala v. Zavala, 2016 UT App 6, 366 P.3d 422. See Twitchell, 2022 UT App 49, ¶ 23 n.4 (noting that a trial court’s findings should compare both parents’ “relative character, skills, and abilities” and not just that of one parent in particular). In other words, the court is required to undertake a comparative analysis whereby the court must consider the evidence relating to each parent.[13]

¶44 Father argues that the court’s comparative analysis and subsequent findings on a number of factors addressed only him and did not adequately compare the evidence as it related to Mother. Specifically, Father asserts that the court failed to make findings relating to Mother’s emotional stability, Child’s bond with her, her maturity and willingness to protect Child from parental conflict, and her ability to cooperate with Father. See Utah Code Ann. § 30-3-10(2)(e), (q) (LexisNexis Supp. 2023); id. § 30-3-10.2(2)(g), (h) (2019). Although Father acknowledges that the court made certain findings relating to these factors, he contends that the findings did not account for specific pieces of evidence he identifies on appeal.[14] But the trial court is not required to recite all evidence presented at trial in its findings of fact; just the evidence that is key to its custody decision. See Twitchell, 2022 UT App 49, ¶ 21 (highlighting that “courts are not required to render a global accounting of all evidence presented or to discuss all aspects of a case that might support a contrary ruling” and instead must present sufficiently detailed findings and “include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached”) (quotation simplified).

¶45      We address each of the factors Father challenges on appeal and ultimately reject his suggestion that a court’s comparative analysis must proceed in a point-by-point, side-by-side comparison of each piece of evidence presented at trial in the context of each custody factor. Overall, the court’s comparative analysis in this case was sufficient.

¶46 Emotional Stability. Father contends that the court included specific findings regarding his emotional stability but did not include similar findings related to Mother despite evidence he presented at trial reflecting negatively on her in that respect. But Father misinterprets the trial court’s charge. The court is required to make only sufficient findings to support its decision. And the trial court is in the best position to weigh the evidence.

¶47      The court found that each parent had shown “the capacity and willingness to function as a parent” but that they both demonstrated an “inability to co-parent and properly interact with the other parent” and that they had “shown [a] limited ability to communicate effectively about [Child] over the years.” The court also found Third Expert to be credible and made findings consistent with his opinion that Father had improved his character traits since the parties’ separation. But despite Father’s improvement, the court also found that Father “says things to [Child] which weigh negatively on her emotions in a manipulative and passive aggressive manner.” Comparatively, the court found that “Mother occasionally expresses her displeasure of Father’s behavior openly in front of [Child] either by word or by her actions.” Based on its charge to make sufficient findings necessary to support its decision, the trial court’s findings are sufficiently comparative as concerns the parties’ emotional stability, particularly as concerns the issue of legal custody.

¶48 Child’s Bond with Parent. Father argues that the court specifically found that Child “has a strong bond with” and “enjoys spending time with” him but made no comparative findings regarding Mother’s bond with Child. He further asserts that the court did not consider evidence he presented that Mother and Child have a weak bond. But the court’s findings demonstrate that the court at least implicitly considered the strong bond between Child and Mother. The court found that “Mother has been the primary caregiver of [Child] from the time she was born, both during the marriage and after separation” and that although Father seemed uninterested in Child during the marriage, since the separation Father’s bond with Child had improved through his beginning to care for her during his parent-time. With the court’s recognition that Child’s bond with Father had improved and became “strong” as he began to show interest in and to care for Child, which Mother has done from the very beginning of Child’s life, the court sufficiently compared Child’s bonds with each parent.

¶49 Maturity and Willingness to Protect Child. Father next contends that the court made findings relating to his maturity and willingness to protect Child from parental conflict but did not make such findings relating to Mother. We disagree. The court specifically found that each parent showed an “inability to co-parent and properly interact with the other parent,” resulting in difficulty surrounding parenting decisions and custody handoffs. The court also found that Mother “occasionally expresses her displeasure of Father’s behavior openly in front of [Child] either by word or by her actions.” Similarly, the court found that Father displayed “inappropriate interactions with [Child] and Mother during pickup and drop off,” demonstrated an “insistence on addressing speculative and false allegations of abuse at the expense of [Child’s] emotional well-being,” did not encourage Child to look forward to being with Mother, and “is either unaware of the emotional upset his behavior causes [Child] or he is aware but prefers to upset her.” Thus, because the court addressed both parents’ interactions on custody handoffs and the like, the court’s findings are sufficiently comparative as to the parties’ maturity and willingness to protect Child from parental conflict.

¶50      Ability to Cooperate. Lastly, Father challenges the court’s findings regarding his inability to cooperate with Mother. He does not assert that the court did not make comparative findings regarding Mother’s ability to cooperate with him. Instead, Father’s argument is limited to asserting that the court’s findings on this point did not reflect evidence he presented at trial regarding his cooperation with Mother and her lack of cooperation with him. But, as discussed above, the trial court is not required or expected to make a finding on every bit of evidence presented. The litigation in this matter comprised numerous motion hearings and a ten-day trial with multiple witnesses, resulting in an appellate record in excess of 6,000 pages. The court made thirty-three pages of specific findings and those findings sufficiently show how the court arrived at its decision.

¶51 For these reasons, while the court did not undertake granular comparisons of each piece of evidence deemed problematic by Father, the court did adequately consider Child’s best interest by making appropriate comparisons. From the court’s extensive findings, it appears that the court made the difficult decision concerning the best interest of Child, who obviously has two very loving parents. See Tucker v. Tucker, 910 P.2d 1209, 1215 (Utah 1996) (“A trial court need not find one parent inadequate before awarding custody to the other.”).

¶52      In conclusion, because the court abused its discretion in not considering every factor it was statutorily required to, we remand this matter with instructions that the court reconsider its joint legal custody award in light of all the factors listed in section 10(2) and section 10.2(2), and in particular each parent’s “past conduct and demonstrated moral character,” Utah Code Ann. § 30-3-10(2)(d), as explained in Part I.B.

II. Emotional Abuse

¶53      Father argues that the court’s finding of his “substantial emotional abuse of [Child] through false allegations” was against the clear weight of the evidence. He primarily asserts that the court did not address the evidence of Child’s repeated injuries (cuts, bruises, and welts) that prompted him to alert authorities, and that “Mother presented little to no evidence that Child was [harmed], or even affected by the reports.”

¶54      As discussed above, under section 30-3-10.2(2) of the Utah Code, the court must address all the factors included in section 30-3-10(2) and make comparative findings for those factors. This includes consideration of “evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent.” Utah Code Ann. § 30-3-10(2)(a) (LexisNexis Supp. 2023). Here, the trial court expressed concern about “Father’s use of emotional and sometimes indirect physical abuse of [Child] by claiming [Mother] has harmed [Child] without sufficient justification” that “exposed [Child] to unnecessary emotional trauma and invasive physical examinations.” The court then provided three pages of findings concerning this factor, including a list of some, but not all, of the reports of physical abuse Father made to the authorities about Mother and their outcomes.[15] But because neither party presented expert testimony at trial to establish or rebut whether Father’s many reports amounted to emotional abuse in a diagnostic sense, the court’s reference to emotional abuse is properly understood as usage in a more colloquial sense with a rather limited purpose.

¶55 The court limited its findings relating to emotional abuse to its legal custody award. Although emotional abuse resulting in harm to Child would absolutely play a significant role in a physical custody determination, the court made no mention of it when it awarded the parties joint physical custody of Child. Instead, the court concluded that it was in Child’s best interest that “Father be actively involved in her life” and “have frequent and consistent time with” her.

¶56 And in addressing legal custody, the court discussed its emotional abuse findings in the limited context of discussing the issue of Mother and Father being unable “to set aside their personal differences and focus on the needs of” Child, which formed the basis for the court’s determination that the presumption in favor of joint legal custody had been rebutted. The court awarded Mother sole legal custody because she was better able to set aside her differences, while “Father is not able to set aside his differences with Mother to give first priority to the welfare of [Child] and reach shared decisions in [Child’s] best interests.” Father’s “subjecting [Child] to repeated interviews and physical examinations when he repeatedly raises allegations of abuse against Mother without sufficient cause” was one such example of this.

¶57 Also notable is that the trial court applied the statutory presumption in favor of joint custody in its analysis (holding that it had been rebutted) when such a presumption does not apply in cases involving emotional abuse. See id. § 30-3-10(3)(a) (stating that the presumption in favor of joint legal custody does not apply in cases involving, among other things, “emotional abuse”). This further illustrates the very limited purpose for which the court applied its findings on “emotional abuse,” focusing on how it reflected that Father’s hostility toward Mother was paramount even if it entailed exposing Child to repeated interviews and physical exams—and not on any harm Child actually suffered as a result.

¶58 With this limited view in mind, we conclude that the court’s findings were sufficiently supported by the evidence. Even in light of all the evidence Father presented at trial supporting the various cuts, bumps, and bruises that prompted him to alert authorities, the court’s finding that his “reports of abuse were vexatious and were calculated and designed to harm Mother” is supported by the sheer number of reports Father made that never resulted in criminal charges being filed against Mother or in DCFS taking enforcement action against her. Several different agencies all investigated Mother and each investigation produced the same result. Although, as Father points out, they could not conclusively rule out the possibility that Mother abused Child, the many investigations did not produce sufficient evidence of abuse to cause intervention by the authorities. After multiple reports of such injuries to various authorities and medical professionals did not produce the desired intervention, it was not unreasonable for the court to find that Father’s primary motivation in continuing to file such reports was his desire to harm Mother.[16]

¶59 For these reasons, and given the limited role the court’s findings related to “emotional abuse” served in the legal custody analysis, we do not disturb those findings.

III. First Expert’s Testimony

¶60      Father argues that the trial court abused its discretion in not excluding First Expert’s testimony as unreliable under rule 702 of the Utah Rules of Evidence. In support of this argument, he points to the court’s ultimate agreement with Second Expert’s testimony that, among other things, First Expert’s “opinions based on testing should not be considered” and that First Expert “did not utilize many of the standard tests and methods for determining parenting capacity and therefore his opinions on parenting capacity are not helpful.” But even assuming, without deciding, that the court’s decision to allow First Expert to testify amounted to an abuse of discretion, such error was harmless here.

¶61      “Not every trial error requires reversal.” State v. Leech, 2020 UT App 116, ¶ 42, 473 P.3d 218 (quotation simplified), cert. denied, 481 P.3d 1039 (Utah 2021). “Unless an appellant demonstrates that an error is prejudicial, it will be deemed harmless and no appellate relief is available.” Huish v. Munro, 2008 UT App 283, ¶ 8, 191 P.3d 1242 (quotation simplified). “An error is harmless and does not require reversal if it is sufficiently inconsequential that we conclude there is no reasonable likelihood that the error affected the outcome of the proceedings.” State v. Reece, 2015 UT 45, ¶ 33, 349 P.3d 712 (quotation simplified).

¶62 Here, after agreeing with several of Second Expert’s concerns and critiques of First Expert’s rule 35 evaluation of Father, the court stated that it ultimately “found little value in much of his diagnostic expert opinion” and that it agreed with only some of his “conclusions regarding characteristics and personality traits” of Father. But even here, the court stated that First Expert’s opinions with which it agreed “are consistent with other evidence presented to the Court regarding Father’s historical demonstration of” certain negative personality traits, specifically records submitted into evidence and other trial testimony. Thus, First Expert’s testimony did not serve as the sole basis for the court’s findings regarding some of Father’s characteristics and personality traits. Indeed, the court seemed to emphasize that its agreement with First Expert in that regard was based on the corroboration furnished by the court’s own review of some of the records First Expert examined and on other trial testimony.

¶63 For these reasons, Father has not demonstrated a reasonable likelihood that First Expert’s testimony affected the outcome of the trial, and this argument therefore fails.

IV. Mother’s Imputed Income

¶64 Father contends that the court abused its discretion by imputing Mother’s income at only the federal minimum wage, when a higher income was in order given the evidence before the court. Because the trial court misapplied the controlling legal standard, we agree.

¶65      “Because income imputation itself is primarily focused on a spouse’s ability to produce income, it is not unusual for courts to impute income to a spouse who has not worked during the marriage (or who has not worked for a number of years preceding the divorce) but who is nevertheless capable of producing income.” Petrzelka v. Goodwin, 2020 UT App 34, ¶ 26, 461 P.3d 1134 (quotation simplified). “The purpose of such imputation is to prevent parents from reducing their child support or alimony by purposeful unemployment or underemployment.” Connell v. Connell, 2010 UT App 139, ¶ 16, 233 P.3d 836 (quotation simplified).

¶66 Section 78B-12-203 of the Utah Code establishes the guidelines by which income may be imputed. It provides that in contested cases, a trial court may not impute income to a party without first holding a hearing on the matter and entering “findings of fact as to the evidentiary basis for the imputation.” Utah Code Ann. § 78B-12-203(8)(a) (LexisNexis 2022). The statute further provides that the court’s imputation of income “shall” be based on the following ten factors, “to the extent known”: “(i) employment opportunities; (ii) work history; (iii) occupation qualifications; (iv) educational attainment; (v) literacy; (vi) age; (vii) health; (viii) criminal record; (ix) other employment barriers and background factors; and (x) prevailing earnings and job availability for persons of similar backgrounds in the community.”[17] Id. § 78B-12-203(8)(b).

¶67 Here, the trial court deemed Mother voluntarily underemployed and found that she “has experience and skills in the workforce that would enable her to find employment in marketing and public relations work.” The court further found that “[i]f Mother were able to find employment as either a PR Specialist or in Advertising Sales her likely income would start around $2,500 to $2,800” per month. But the court opined that to become employed full-time, “Mother would necessarily incur childcare costs for a six (6) year old with transportation to and from school and would need to terminate or significantly modify her current study program” and that the evidence presented at trial “does not provide a calculation of the costs of day care expense necessary for Mother to become full time employed.” The court further stated that “the evidence provided is insufficient for the Court to determine that there is current employment available in either of her experience categories, or what the current rate of pay would be,” presumably given the impact of the COVID-19 pandemic. Based on those considerations, the court imputed to Mother “the federal minimum wage of $1,257 per month.”

¶68      The court’s reasons for reducing Mother’s imputed income from between $2,500 and $2,800 per month to the federal minimum wage go against the legal standard set forth in section 78B-12-203. As an initial matter, the reasoning that Mother would need to make adjustments to her schooling in order to pursue full-time employment has no legal basis. “[T]he pursuit of a higher education simply does not preclude employment.” Mancil v. Smith, 2000 UT App 378, ¶ 17, 18 P.3d 509. Although section 78B-12-203 provides that a trial court may not impute an income to a parent who “is engaged in career or occupational training to establish basic job skills” when such training “is not of a temporary nature,” Utah Code Ann. § 78B-12-203(8)(d)(iii), this is not the case here. Mother already had a bachelor’s degree and was pursuing a graduate program. Moreover, the court already found that she possessed skills and experience in the field of marketing and public relations. See Fish v. Fish, 2010 UT App 292, ¶ 18, 242 P.3d 787 (“The basic job skills training envisioned by the statute is training which can aid a person in achieving an income beyond the minimum wage job which can be had with no training at all, i.e., training for the starting point on a consecutive progressive career track.”) (quotation simplified). Thus, the court incorrectly based its reduction in Mother’s imputed income on her pursuit of higher education.

¶69 As for daycare expenses, at age six, Child would begin school soon, thus drastically reducing childcare costs as well. In any event, Utah law provides that “[t]he child support order shall require that each parent share equally the reasonable work-related child care expenses of the parents.” See Utah Code Ann. § 78B-12-214(1) (LexisNexis 2022). Accordingly, the child support order—and not Mother’s imputed income—was the appropriate means by which to address childcare costs.

¶70      Lastly, section 78B-12-203(8) mandates that the trial court base its imputation of income on “employment potential and probable earnings” by evaluating the ten enumerated factors, “to the extent known.” Id. § 78B-12-203(8)(b) (emphasis added). The statute thus expressly provides for possible uncertainty regarding the factors. Here, the vocational expert, whom the trial court found to be “qualified and credible,” provided a projection of future job openings in the field and stated that the unemployment rate in the area had doubled from the previous year due to the COVID-19 pandemic. Insofar as the court felt that additional information regarding current employment opportunities in the area was necessary, the uncertainty regarding this factor did not support a reduction of the already determined likely beginning wage of between $2,500 and $2,800 per month to the federal minimum wage. To be sure, the trial court has discretion when weighing the statutory factors, but because the statute expressly allows for uncertainty regarding the factors, that uncertainty cannot rationalize the court’s somewhat speculative decision.

¶71      For these reasons, the trial court abused its discretion by applying the wrong legal standard when imputing Mother’s income. See T.W. v. S.A., 2021 UT App 132, ¶ 15, 504 P.3d 163. We therefore reverse the trial court’s imputation of federal minimum wage income to Mother and remand for recalculation of her imputed income consistent with this opinion.

V. Attorney Fees and Costs

¶72      Finally, Father contends that in awarding attorney fees and costs to Mother, the trial court misapplied Utah law by incorrectly applying the “substantially prevailed” standard and by basing its decision, in part, on Father’s greater ability to pay. We agree.

¶73      A trial court may award attorney fees in a divorce action pursuant to section 30-3-3 of the Utah Code. “Both the decision to award attorney fees and the amount of such fees are within the district court’s sound discretion.” Lobenduhn v. Lobenduhn, 2023 UT App 137, ¶ 44, 540 P.3d 727 (quotation simplified). But the court must still “make detailed findings of fact supporting its determination.” Connell v. Connell, 2010 UT App 139, ¶ 27, 233 P.3d 836.

¶74      Section 30-3-3 “creates two classes of attorney fees—those incurred in establishing court orders and those incurred in enforcing court orders.” Id. ¶ 28 (emphasis in original). Subsection (1) provides,

In any action . . . to establish an order of custody, parent-time, child support, alimony, or division of property in a domestic case, the court may order a party to pay the costs, attorney fees, and witness fees, including expert witness fees, of the other party to enable the other party to prosecute or defend the action. The order may include provision for costs of the action.

Utah Code Ann. § 30-3-3(1) (LexisNexis Supp. 2023) (emphasis added). “[T]he party to be awarded attorney fees under this [subsection] has the burden to prove (1) that the payee spouse has a financial need, (2) that the payor spouse has the ability to pay, and (3) that the fees requested are reasonable.” Lobendahn, 2023 UT App 137, ¶ 44.

¶75      Subsection (2) provides,

In any action to enforce an order of custody, parent-time, child support, alimony, or division of property in a domestic case, the court may award costs and attorney fees upon determining that the party substantially prevailed upon the claim or defense. The court, in its discretion, may award no fees or limited fees against a party if the court finds the party is impecunious or enters in the record the reason for not awarding fees.

Utah Code Ann. § 30-3-3(2) (emphasis added). In contrast to subsection (1), when “awarding fees under subsection (2), the court may disregard the financial need of the moving party” using the “substantially prevailed” standard as “the guiding factor.” Connell, 2010 UT App 139, ¶ 28 (quotation simplified).

¶76 The differing standards of the two subsections are attributed to the different purposes each subsection serves. See id. ¶ 29. “Attorney fees are granted under subsection (1) to enable a party to prosecute or defend the action.” Id. (quotation simplified). Otherwise, “a spouse lacking a separate income would be unable to meaningfully participate in divorce proceedings.” Id. “Consequently, the moving spouse’s need is a sine qua non of a subsection (1) award.” Id. Conversely, “fee awards under subsection (2) serve no equalizing function but allow the moving party to collect fees unnecessarily incurred due to the other party’s recalcitrance.” Id. ¶ 30.

¶77      Here, in addressing the question of attorney fees and costs, the trial court prefaced its findings with the observation that the litigation in this matter “was contentious and relied on a significant amount of documents, which caused a significant amount of fees to be incurred by the parties.” The court first denied Father’s request for attorney fees “as a sanction for [Mother’s] unreasonableness in requiring these proceedings to go to trial,” ruling that “[a]ttorney’s fees as sanctions are not applied because a party has been unreasonable in requiring disputes to go to trial.” The court then turned to Mother’s competing request premised on her “having ‘substantially prevailed.’” The court stated that Mother “did substantially prevail, not only at trial, but at interim hearings on motions prior to trial.”

¶78 Following this preface, the court entered findings regarding the parties’ need and ability to pay. The court found that Mother “has limited income, if any, at this time,” and it noted Father’s annual salary. The court then proceeded to make findings on the parties’ expenses and disposable income, prefacing its findings by stating that it “has limited information regarding each party’s monthly expenses.” The court found that Father has “approximately $44,500 in disposable funds annually.” Turning to Mother next, the court first noted that neither party provided any evidence of her expenses, leaving the court “with no basis to find Mother has any expenses beyond those which are covered by her need for child support.”[18] The court thus found that Mother “has no income and no evidence of expenses.” The court also noted that “it received no evidence that Mother can pay for her costs and attorney fees.” Based on this, the court found that “[a]s between Father and Mother, Father has the greater ability to pay attorney’s fees” and held that “Mother should be awarded her reasonable costs and attorney fees.”

¶79      The court then addressed the reasonableness of Mother’s attorney fees. It again prefaced its findings by stating that “[a]lthough the issues of custody, parent time, and child support are routinely dealt with in our courts, this case is not a ‘usual’ case” because “[t]he parties have been unusually accusatory, intransigent, and uncooperative which has significantly raised the costs of this litigation to both parties.” The court noted that “Father’s decisions caused Mother to successfully bring multiple orders to show cause, motions to compel, and statements of discovery issues,” and have “forced Mother to incur otherwise unnecessary legal costs.” Against this backdrop, the court found that not all Mother’s requested costs and fees, totaling almost $410,000, were “reasonable and necessary,” and it ultimately awarded her $161,066.94 in attorney fees and costs. The court largely based this reduction on Mother’s “duplication of legal services, unnecessary review and consultation between multiple attorneys, and inefficiencies in presenting evidence at trial,” which the court deemed to be unreasonable.

¶80      There are two problems with the trial court’s award. First, the court conflated the two distinct bases for awarding fees under section 30-3-3, resulting in an undifferentiated attorney fees award. See Connell, 2010 UT App 139, ¶ 31. The court began its analysis by stating that Mother “substantially prevail[ed], not only at trial, but at interim hearings on motions prior to trial.”[19] This statement in and of itself is concerning as the purpose of the ten-day bench trial was largely “to establish an order of custody, parent-time, [and] child support,” thereby implicating subsection (1). See Utah Code Ann. § 30-3-3(1). But subsection (1) does not apply a “substantially prevailed” standard. See Lobendahn, 2023 UT App 137, ¶ 44; Connell, 2010 UT App 139, ¶ 29.

¶81      Although some pre-trial motions dealt with enforcing the court’s temporary orders regarding “custody, parent-time, child support, alimony, or division of property,” thereby falling under the ambit of subsection (2), see Utah Code Ann. § 30-3-3(2), the court did not distinguish between the two distinct statutory bases for awarding attorney fees. Rather, the court took the total amount of attorney fees Mother sought and reduced the amount to the sum it considered reasonable based on multiple inefficiencies on Mother’s part.

¶82 The second problem is that in awarding attorney fees under subsection (1), the court did not expressly find that Father “has the ability to pay” the requested attorney fees. Lobendahn, 2023 UT App 137, ¶ 44. Instead, the court found that between the two, “Father has the greater ability to pay attorney’s fees.” Whether Father is in a better position than Mother to pay attorney fees and whether Father has an actual ability to pay both his and Mother’s attorney fees are two different inquiries. Although the answer to both questions may, on remand, end up being the same, the court nonetheless did not make the required finding when awarding Mother attorney fees. See Connell, 2010 UT App 139, ¶ 27 (stating that as part of its attorney fees award, the court “must make detailed findings of fact supporting its determination”).

¶83      In sum, we reverse the trial court’s award of attorney fees and costs and remand with instructions that the court distinguish the fees that fall under subsection (1) and subsection (2) of section 30-3-3, and that it apply the corresponding legal standard to each group of fees. In the course of this effort, the court also needs to make a specific finding regarding Father’s ability to pay Mother’s attorney fees as to any fees awarded under subsection (1).

CONCLUSION

¶84      There remain issues that require additional attention and must be revisited on remand. Although we affirm certain of the trial court’s findings of fact and evidentiary rulings relating to its award of sole legal custody of Child to Mother, we reverse and remand with instructions that the court reevaluate its legal custody award by considering all the statutorily mandated custody factors, in particular the one focused on past conduct and moral character. We likewise reverse and remand for further consideration of Mother’s imputed income and the award of attorney fees and costs in Mother’s favor.[20]

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


[1] “On appeal from a bench trial, we view the evidence in a light most favorable to the trial court’s findings, and therefore recite the facts consistent with that standard.” Chesley v. Chesley, 2017 UT App 127, ¶ 2 n.2, 402 P.3d 65 (quotation simplified).

[2] As relevant here, rule 35(a) of the Utah Rules of Civil Procedure states, When the mental or physical condition or attribute of a party or of a person in the custody or control of a party is in controversy, the court may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party’s custody or control. The order may be made only on motion for good cause shown.

[3] Mother also underwent a rule 35 examination, but it does not appear that those results were admitted into evidence at trial.

[4] The trial court initially found First Expert “to be credible although not entirely unbiased.” But following Father’s post-trial motion, the court did not include that statement in the amended findings of fact and conclusions of law that it later issued.

[5] Specifically, the court rejected First Expert’s opinion that Father “is prone to bouts of depression”; that he “appears to have a disconnect between his emotions and his cognitive abilities, which impedes his ability to utilize constructive feedback and an inability to learn from his experience and mistakes”; and that “[i]t is likely that Father has not emotionally separated, or moved on from his relationship with Mother.”

[6] A vocational expert, whom the court found to be “qualified and credible,” opined at trial that Mother could earn “approximately $2,800 to $3,750 gross per month” as a public relations specialist. But the court stated that the expert’s calculations did not take the COVID-19 pandemic’s impact on the job market into consideration, and although the expert provided a projection of future job openings in the field, he did not identify any current job openings or pay rates.

[7] We recount the relevant details of the trial court’s attorney fees award in Part V.

[8] Father does not challenge the trial court’s physical custody award on appeal.

[9] Father also contends that the trial court erred in ordering him to sign medical releases for his mental health records without first undertaking the analysis set forth in Debry v. Goates, 2000 UT App 58, 999 P.2d 582, cert. denied, 9 P.3d 170 (Utah 2000). See id. ¶ 26. But because Father did not raise this issue below, and instead opposed the release of the records only on prejudice and scope-of-the-stipulation grounds, this argument is not preserved, and we do not address it further.

[10] The presumption in favor of joint legal custody does not apply in cases that include, among other things, “emotional abuse.” Utah Code Ann. § 30-3-10(3)(a) (LexisNexis Supp. 2023). Although the trial court in this case did make several findings regarding emotional abuse, the court nonetheless applied the presumption but found that it was rebutted by the parties’ inability “to set aside their personal differences and focus on the needs of” Child.

[11] Father also argues that the trial court made unsupported findings concerning Mother’s financial stability, Father’s involvement in Child’s life, and the parties’ communications. But because Father has not marshaled the evidence in support of these findings, he has not carried his burden of persuasion. See Pankhurst v. Pankhurst, 2022 UT App 36, ¶ 15, 508 P.3d 612 (“A party will almost certainly fail to carry its burden of persuasion on appeal if it fails to marshal the evidence sufficient to overcome the healthy dose of deference owed to factual findings.”) (quotation simplified).

[12] The other two factors, the “ability to provide personal care rather than surrogate care” and the “previous parenting arrangements in which the child has been happy and well-adjusted in the home, school, and community,” Utah Code Ann. § 30-3-10(2)(c)(iii), (n) (LexisNexis Supp. 2023), are more germane to a physical custody rather than to a legal custody determination, and Father conceded as much during oral argument before this court.

[13] The case of Allen v. Allen, 2014 UT App 27, 319 P.3d 770, provides a good example of how appropriate comparison between the parents works in practice. After considering the applicable factors and concluding that “both parents appeared nearly equally capable of caring for” their child, the district court in that case determined that, with respect to two factors where the parents were not equally strong, “the stability offered by [the father] outweighed the apparent empathy of [the mother].” Id. ¶ 5 (quotation simplified). See id. ¶ 12 (holding that given the district court’s observation that the parties were “nearly equally capable of caring for” the child and its findings of fact supporting that determination, the court had adequately considered the “character and quality of [the child’s] bonds with both parents”). The deciding factors in the district court’s view were the father’s stability and the mother’s immaturity, “with a tendency to put her needs above those of others, including” the child. Id. ¶ 10. On appeal, this court concluded that the district court’s “discussion of the parties’ relative maturity, stability, and ability to care for [the child] constitutes adequate consideration of both parties’ ‘past conduct and demonstrated moral standards.’” Id. ¶ 11 (quoting Utah Code Ann. § 30-3-10(2)(d) (LexisNexis 2013)).

[14] On this point, Father contends that our decision in Twitchell v. Twitchell, 2022 UT App 49, 509 P.3d 806, requires a trial court to make a finding on all evidence presented by either party. Father misinterprets that decision. In Twitchell, we determined that “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 (quotation simplified). The premise of Twitchell is not that a court must make a specific finding regarding each piece of evidence, but simply that a court must make findings on the “basic facts” that support its ultimate conclusion.

[15] The trial court acknowledged that its list was not a comprehensive one. Mother asserts that she presented evidence at trial that Father instigated a total of 28 investigations against her.

[16] In any event, although Father argues that the trial court’s findings are against the clear weight of the evidence given the evidence of Child’s various injuries presented at trial, he has not marshaled the evidence supporting the court’s findings. To successfully challenge a finding, it is not enough to focus only on “evidence that points to an alternate finding or a finding contrary to the trial court’s finding of fact.” Taft v. Taft, 2016 UT App 135, ¶ 19, 379 P.3d 890 (quotation simplified). Accordingly, Father has also not carried his burden of persuasion on appeal. See Pankhurst v. Pankhurst, 2022 UT App 36, ¶ 15, 508 P.3d 612 (“A party will almost certainly fail to carry its burden of persuasion on appeal if it fails to marshal the evidence sufficient to overcome the healthy dose of deference owed to factual findings.”) (quotation simplified).

[17] The statute further provides that in cases where “a parent has no recent work history,” a court may impute “an income at the federal minimum wage for a 40-hour work week,” and that “[t]o impute a greater or lesser income, the judge in a judicial proceeding . . . shall enter specific findings of fact as to the evidentiary basis for the imputation.” Utah Code Ann. § 78B-12-203(8)(c) (LexisNexis 2022). Although Mother was not working at the time of trial, this did not form the basis for the trial court’s decision to impute the federal minimum wage to her. Rather, it found that she had the potential of earning between $2,500 and $2,800 per month but reduced this amount based on other factors as explained in paragraph 67.

[18] Father argues that Mother bore the burden of establishing her expenses and that the court incorrectly faulted him for not providing evidence of her expenses. But the inability to establish Mother’s expenses only benefitted Father—admittedly to a very limited degree—as the court ultimately did not attribute any expenses to Mother apart from those that are covered by her need for child support in its calculation of disposable funds available to her.

[19] The court awarded some attorney fees to Mother for her success in pre-trial motions along the way. The court also reserved for later determination the issue of attorney fees on certain other pre-trial motions.

[20] Father recently asked that we take judicial notice of developments in legal proceedings involving other parties that he believes are germane to this case. Mother opposes Father’s motion. We are not persuaded that the matters we are asked to take notice of bear on the issues presented in this appeal and so deny the motion. If relevant to the issues the trial court will address on remand, Father may renew his request in that forum.

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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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Father has 50/50 custody. Now ex is trying to take it away. What to do?

I am a father who has exercised at least 50/50 custody with my ex. Now she’s trying to take me to court for full custody and me getting every other weekend visits. How can I avoid losing 50/50 custody?

First, thank your lucky stars you are a father who currently has 50/50 custody of his children. Far, far too many fit and loving fathers who could easily exercise joint equal physical custody of their children and whose children would do nothing but benefit from the exercise of joint equal custody are needlessly and unjustifiably denied a joint equal child custody award by courts who simply cannot bring themselves to believe, much less conceive of, the idea that children being reared by both parents equally is better than relegating one parent to second class visitor status in his child’s life.

Second, the fact that you have been exercising at least 50–50 custody of your children for the past few years helps to make it much harder for your ex to build a case against you for modifying the child custody award in a manner that deprives both father and children of a 50–50 custody schedule. Again, be grateful this is the case, because if you were trying to win 50–50 custody of your children on the first go around during your divorce or other child custody legal action, the odds are grossly stacked against fit and loving fathers.

Third, if you are afraid that your judge is going to discriminate against you on the basis of sex, you need to understand this principle: “if it isn’t close, there cheating won’t matter.” Otherwise stated, you need to ensure that you win six ways from Sunday. you have to bring overwhelming amounts of evidence and proof into court, so that you leave the judge no option but to rule in your favor. Easier said than done, certainly, but now is not the time to become complacent or substitute hope for effort. Spare no expense to preserve your joint equal physical custody award. A necessary component of a winning case is that you are living a life beyond reproach. Get your house in order. If there is anything remotely amiss in your life, correct course immediately, clearly, and permanently.

Fourth, make sure you understand and that your attorney understands what statutory and case law factors and criteria govern the original child custody award and a petition to modify the original child custody award. It may be that your ex does not have sufficient grounds for a petition to modify child custody to survive a motion to dismiss.

Fifth and finally, do not take on a petition to modify child custody alone, without a vigilant and skilled attorneys assistance. There is an undeniable culture of bias and discrimination and prejudice against fathers when it comes to courts making child custody awards. This doesn’t mean that every judge in every court indulges in sexual discrimination against father, but it’s virtually impossible to tell the difference between an impartial judge and a biased one, and so you need an attorney who will not suffer fools gladly, who will defend the joint equal custody award.

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

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Can a mother lose custody even if the child is still very young?

Can a mother lose custody even if the child is still very young?

Are there any situations where a mother can lose custody even if their child is still very young (e.g., under 5 years old)?

Oh, heck yeah. Many possible situations. Rather than identify all the various ways that a mother of a young child could lose or not be awarded sole or primary custody of that child or children, let’s just examine the basis for determining whether a parent keeps, wins, or is deprived of custody of a child. All states have slightly different criteria but these criteria all come down to this: parental fitness.

Parental fitness is evaluated in the contexts of a parent’s desire and ability to provide for the child’s physical and emotional needs and welfare.

In Utah, where I practice family law and go to hearings and trials over child custody disputes, the factors the court must consider and factors that the court can consider when determining whether to award sole or joint custody are contained in these sections of the Utah Code and the Utah Rules of Judicial Administration:

Utah Code § 30–3–10:

(a) evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent;

(b) the parent’s demonstrated understanding of, responsiveness to, and ability to meet the developmental needs of the child, including the child’s:

(i) physical needs;

(ii) emotional needs;

(iii) educational needs;

(iv) medical needs; and

(v) any special needs;

(c) the parent’s capacity and willingness to function as a parent, including:

(i) parenting skills;

(ii) co-parenting skills, including:

(A) ability to appropriately communicate with the other parent;

(B) ability to encourage the sharing of love and affection; and

(C) willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration; and

(iii) ability to provide personal care rather than surrogate care;

(d) in accordance with Subsection (10), the past conduct and demonstrated moral character of the parent;

(e) the emotional stability of the parent;

(f) the parent’s inability to function as a parent because of drug abuse, excessive drinking, or other causes;

(g) whether the parent has intentionally exposed the child to pornography or material harmful to minors, as “material” and “harmful to minors” are defined in Section 76-10-1201;

(h) the parent’s reasons for having relinquished custody or parent-time in the past;

(i) duration and depth of desire for custody or parent-time;

(j) the parent’s religious compatibility with the child;

(k) the parent’s financial responsibility;

(l) the child’s interaction and relationship with step-parents, extended family members of other individuals who may significantly affect the child’s best interests;

(m) who has been the primary caretaker of the child;

(n) previous parenting arrangements in which the child has been happy and well-adjusted in the home, school, and community;

(o) the relative benefit of keeping siblings together;

(p) the stated wishes and concerns of the child, taking into consideration the child’s cognitive ability and emotional maturity;

(q) the relative strength of the child’s bond with the parent, meaning the depth, quality, and nature of the relationship between the parent and the child; and

(r) any other factor the court finds relevant.

Utah Code §30–3–10.2:

(a) whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal custody or joint physical custody or both;

(b) the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;

(c) co-parenting skills, including:

(i) ability to appropriately communicate with the other parent;

(ii) ability to encourage the sharing of love and affection; and

(iii) willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration; and

(d) whether both parents participated in raising the child before the divorce;

(e) the geographical proximity of the homes of the parents;

(f) the preference of the child if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to joint legal custody or joint physical custody or both;

(g) the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;

(h) the past and present ability of the parents to cooperate with each other and make decisions jointly; and

(i) any other factor the court finds relevant.

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What policies and factors determine how child support is calculated?

What policies and factors determine how child support is calculated?

This is a good question and a question that many parents ask.

Every state in U.S. has child support calculation guidelines and formulae to determine which parent pays child support and how much child support that parent will pay. Each state’s child support calculation guidelines utilizes or is based upon one of three different models:

  • Income Shares Model
  • Percentage of Income Model
  • The Melson Formula

Under the Income Shares Model, each parent is responsible for a portion of the amount of financial support a child needs to maintain the lifestyle the child would have had the parents were not separated. The Income Shares Model relies upon knowing each parent’s to calculate the support award. The parent with the lower income of the two parents will receive a monthly child support payment from the other parent. This amount is known as the base child support award.

The Percentage of Obligor Income Model utilizes the obligor parent’s income only in calculating child support. Many (though not all) Percentage of Obligor Income guidelines assume that the support payee parent’s child-rearing costs are the same dollar amount or percentage of income as the obligor parent’s child-rearing costs. The Income Shares Model considers the incomes of both parents. The Percentage of Obligor Income Model does not factor in the custodial parent’s income in calculating the support award amount.

The Melson Formula[1] is different from the other two models. Rather than calculating child support based upon parental incomes, it first considers the basic needs of the child and each parent before determining whether and how much child support the obligor parent can and will pay.

This July 10, 2020 article from the National Conference of State Legislatures [click the link to access the article] provides a list of links to the child support calculation guidelines for every state and Washington D.C. in the U.S., as well as the Guan and Virgin Islands territories

Note: legislation, regulations, and caselaw governing child support policy and calculation change, so be sure you know both A) what your jurisdiction’s current child support guidelines are and B) how to use apply them correctly and accurately when calculating child support.

Income Shares Model

• Alabama • Arizona • Arkansas • California • Colorado • Connecticut • Florida • Georgia • Idaho • Illinois • Indiana • Iowa • Kansas • Kentucky • Louisiana • Maine • Maryland •  Massachusetts • Michigan • Minnesota • Missouri • Nebraska • New Hampshire • New Jersey • New Mexico • New York • North Carolina • Ohio • Oklahoma • Oregon • Pennsylvania • Rhode Island • South Carolina • South Dakota • Tennessee • Utah • Vermont • Virginia • Washington • West Virginia • Wyoming (also • Guam • Virgin Islands)

Percentage of Income Model (this model has two variations: the Flat Percentage Model and the Varying Percentage Model)

Percentage of Income Model

• Alaska • Mississippi • Nevada • North Dakota • Texas • Wisconsin

Flat Percentage Model

Alaska • Mississippi • Nevada • Wisconsin

Varying Percentage Model

• North Dakota • Texas

Melson Formula

• Delaware • Hawaii • Montana

According to the July 10, 2020 NCSL article the District of Columbia uses a hybrid model that starts as a varying percentage of income model and is then reduced by a formula based on the custodial parent’s income.

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

[1] Named from the Delaware Family Court judge who articulated the formula in Dalton v. Clanton, 559 A.2d 1197 (Del. 1989).

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S.B. 122 just passed! So what? Joint equal physical custody.

S.B. 122 (4th Substitute) passed by the Utah State Legislature March 5, 2021!

Who should care and why?

  • The elephant in the room is this: if there is no gender bias/sexual discrimination that is preventing fit, able, worthy fathers from being awarded joint equal physical custody, then why A) did so many people (not only a huge number of men, but women who sympathize with these men and with the plight of men in child custody disputes generally) and B) the overwhelming majority of Utah legislators pass a law to address and, it is hoped, eliminate that bias.
  • If you are a parent (particularly a father) who is worried about having child custody or parent time reduced to minimal levels in your divorce or other kind of child custody case, then for the sake of your children and your relationship with them, you need to know what S. B. 122 means for you and your children.

What will S.B. 122’s passage into law do? It will make it easier to make a case for an award of joint equal physical custody of children. Again, this is especially important to fathers who have historically faced a strong culture of bias and prejudice in the legal system.

Finally! But all is not total sunshine and roses—read on to learn why.

Bottom line: This new joint equal custody option is better than what we had in the past and should make it easier to win a joint equal custody award, but we’re still going to run into parents and commissioners and judges who simply cannot accept the idea of joint equal physical custody. So get your hands on as much proof (proof, as opposed to mere evidence; meaning: objective, independently verifiable facts) as you possibly can to satisfy § 30-3-35.2 factors if you hope to get joint equal physical custody awarded.

S.B. 122:

  • amends Utah Code § 30-3-34 to provide for a new “parent-time” schedule option that, if implemented, would result in the children spending equal periods of time annually with each parent.
  • creates a new code section, § 30-3-35.2, which, if the court orders its application in a child custody case, would result in the parents sharing overnights with the children equally on an annual basis.
  • Amends § 78B-12-208 to provide for how child support is calculated under a § 30-3-35.2 equal custody schedule.

Portions of the changes S.B. 122 bring to the child custody scene are highlighted (in some cases “lowlighted”) in red text because they are important to know about.

NEWLY CREATED § 30-3-35.2 READS AS FOLLOWS:

30-3-35.2. Equal parent-time schedule.
(1) (a) A court may order the equal parent-time schedule described in this section if the court determines that:

(i) the equal parent-time schedule is in the child’s best interest;
(ii) each parent has been actively involved in the child’s life; and
(iii) each parent can effectively facilitate the equal parent-time schedule.

(b) To determine whether each parent has been actively involved in the child’s life, the court shall consider:
(i) each parent’s demonstrated responsibility in caring for the child;
(ii) each parent’s involvement in child care;
(iii) each parent’s presence or volunteer efforts in the child’s school and at extracurricular activities;

(iv) each parent’s assistance with the child’s homework;

(v) each parent’s involvement in preparation of meals, bath time, and bedtime for the child;
(vi) each parent’s bond with the child; and
(vii) any other factor the court considers relevant.

(c) To determine whether each parent can effectively facilitate the equal parent-time schedule, the court shall consider:

(i) the geographic distance between the residence of each parent and the distance between each residence and the child’s school;
(ii) each parent’s ability to assist with the child’s after school care;
(iii) the health of the child and each parent, consistent with Subsection 30-3-10(6);
(iv) the flexibility of each parent’s employment or other schedule;
(v) each parent’s ability to provide appropriate playtime with the child;
(vi) each parent’s history and ability to implement a flexible schedule for the child;
(vii) physical facilities of each parent’s residence; and
(viii) any other factor the court considers relevant.

(2) (a) If the parties agree to or the court orders the equal parent-time schedule described in this section, a parenting plan in accordance with Sections 30-3-10.7 through 30-3-10.10 shall be filed with an order incorporating the equal parent-time schedule.

(b) An order under this section shall result in 182 overnights per year for one parent, and 183 overnights per year for the other parent.
(c) Under the equal parent-time schedule, neither parent is considered to have the child the majority of the time for the purposes of Subsection 30-3-10.3(4) or 30-3-10.9(5)(c)(ii).
(d) Child support for the equal parent-time schedule shall be consistent with Section 78B-12-208.
(e) (i) A court shall determine which parent receives 182 overnights and which parent receives 183 overnights for parent-time.

(ii) For the purpose of calculating child support under Section 78B-12-208, the amount of time to be spent with the parent who has the lower gross monthly income is considered 183 overnights, regardless of whether the parent receives 182 overnights or 183 overnights under Subsection (2)(e)(i).

(3) (a) Unless the parents agree otherwise and subject to a holiday, the equal parent-time schedule is as follows:

(i) one parent shall exercise parent time starting Monday morning and ending Wednesday morning;
(ii) the other parent shall exercise parent-time starting Wednesday morning and ending Friday morning; and
(iii) each parent shall alternate weeks exercising parent-time starting Friday morning and ending Monday morning.

(b) The child exchange shall take place:

(i) at the time the child’s school begins; or
(ii) if school is not in session, at 9 a.m.

(4) (a) The parents may create a holiday schedule.

(b) If the parents are unable to create a holiday schedule under Subsection (4)(a), the court shall:

(i) order the holiday schedule described in Section 30-3-35; and
(ii) designate which parent shall exercise parent-time for each holiday described in Section 30-3-35.

(5) (a) Each year, a parent may designate two consecutive weeks to exercise uninterrupted parent-time during the summer when school is not in session.

(b) (i) One parent may make a designation at any time and the other parent may make a designation after May 1.

(ii) A parent shall make a designation at least 30 days before the day on which the designated two-week period beings.

(c) The court shall designate which parent may make the earlier designation described in Subsection (5)(b)(i) for an even numbered year with the other parent allowed to make the earlier designation in an odd numbered year.
(d) The two consecutive weeks described in Subsection (5)(a) take precedence over all holidays except for Mother’s Day and Father’s Day.

THE AMENDMENTS TO § 30-3-34 ARE:

30-3-34. Parent-time — Best interests — Rebuttable presumption.
(1) If the parties are unable to agree on a parent-time schedule, the court may:

(a) establish a parent-time schedule [consistent with the best interests of the child.]; or

(b) order a parent-time schedule described in Section 30-3-3530-3-35.130-3-35.2, or 30-3-35.5.
(2) The advisory guidelines as provided in Section 30-3-33 and the parent-time
33     schedule as provided in Sections 30-3-35 and 30-3-35.5 shall be [presumed to be in the best interests of the child unless the court determines that Section 30-3-35.1 should apply. The parent-time schedule shall be] considered the minimum parent-time to which the noncustodial parent and the child shall be entitled [unless a parent can establish otherwise by a preponderance of the evidence that more or less parent-time should be awarded based upon one or more of the following criteria:].
(3) A court may consider the following when ordering a parent-time schedule:
(a) whether parent-time would endanger the child’s physical health or mental health, or significantly impair the child’s emotional development;

*****

(5) A court may not order a parent-time schedule unless the court determines by a preponderance of the evidence that the parent-time schedule is in the best interest of the child.

NEWLY AMENDED § 78B-12-208 READS AS FOLLOWS:

 78B-12-208.Joint physical custody — Obligation calculations.

In cases of joint physical custody, the base child support award shall be determined as
follows:

(1) Combine the adjusted gross incomes of the parents and determine the base combined child support obligation using the base combined child support obligation table.
(2) Calculate each parent’s proportionate share of the base combined child support obligation by multiplying the base combined child support obligation by each parent’s percentage of combined adjusted gross income. The amounts so calculated are the base child support obligation due from each parent for support of the children.
(3) (3) [IfSubject to Subsection 30-3-35.2(2)(e)(ii), if the obligor’s time with the children exceeds 110 overnights, the obligation shall be calculated further as follows:
(a) if the amount of time to be spent with the children is between 110 and 131 overnights, multiply the number of overnights over 110 by .0027, then multiply the result by the base combined child support obligation, and then subtract the result from the obligor’s payment as determined by Subsection (2) to arrive at the obligor’s payment; or
(b) if the amount of time to be spent with the children is 131 overnights or more, multiply the number of overnights over 130 by .0084, then multiply the result by the base combined child support obligation, and then subtract the result from the obligor’s payment as determined in Subsection (3)(a) to arrive at the obligor’s payment.

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

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What income is counted when calculating child support?

What income is counted when calculating child support?

This is a great question. In the jurisdiction where I practice family law (Utah), the Utah Code tells you exactly what kind of parental income a court considers in determining child support:

78B-12-207.  Obligation — Adjusted gross income used.

Adjusted gross income shall be used in calculating each parent’s share of the base combined child support obligation. Only income of the natural or adoptive parents of the child may be used to determine the award under these guidelines.

78B-12-204.  Adjusted gross income.

(1)          As used in this chapter, “adjusted gross income” is the amount calculated by subtracting from gross income alimony previously ordered and paid and child support previously ordered.

(2)          The guidelines do not reduce the total child support award by adjusting the gross incomes of the parents for alimony ordered in the pending proceeding. In establishing alimony, the court shall consider that in determining the child support, the guidelines do not provide a deduction from gross income for alimony.

78B-12-203.  Determination of gross income — Imputed income.

(1)          As used in the guidelines, “gross income” includes prospective income from any source, including earned and nonearned income sources which may include salaries, wages, commissions, royalties, bonuses, rents, gifts from anyone, prizes, dividends, severance pay, pensions, interest, trust income, alimony from previous marriages, annuities, capital gains, Social Security benefits, workers’ compensation benefits, unemployment compensation, income replacement disability insurance benefits, and payments from “nonmeans-tested” government programs.

(2)          Income from earned income sources is limited to the equivalent of one full-time 40-hour job. If and only if during the time before the original support order, the parent normally and consistently worked more than 40 hours at the parent’s job, the court may consider this extra time as a pattern in calculating the parent’s ability to provide child support.

(3)          Notwithstanding Subsection (1), specifically excluded from gross income are:

(a)          cash assistance provided under Title 35A, Chapter 3, Part 3, Family Employment Program;

(b)          benefits received under a housing subsidy program, the Job Training Partnership Act, Supplemental Security Income, Social Security Disability Insurance, Medicaid, SNAP benefits, or General Assistance; and

(c)           other similar means-tested welfare benefits received by a parent.

(4)

(a)          Gross income from self-employment or operation of a business shall be calculated by subtracting necessary expenses required for self-employment or business operation from gross receipts. The income and expenses from self-employment or operation of a business shall be reviewed to determine an appropriate level of gross income available to the parent to satisfy a child support award. Only those expenses necessary to allow the business to operate at a reasonable level may be deducted from gross receipts.

(b)          Gross income determined under this Subsection (4) may differ from the amount of business income determined for tax purposes.

(5)

(a)          When possible, gross income should first be computed on an annual basis and then recalculated to determine the average gross monthly income.

(b)          Each parent shall provide verification of current income. Each parent shall provide year-to-date pay stubs or employer statements and complete copies of tax returns from at least the most recent year unless the court finds the verification is not reasonably available. Verification of income from records maintained by the Department of Workforce Services may be substituted for pay stubs, employer statements, and income tax returns.

(c)           Historical and current earnings shall be used to determine whether an underemployment or overemployment situation exists.

(6)          Incarceration of at least six months may not be treated as voluntary unemployment by the office in establishing or modifying a support order.

(7)          Gross income includes income imputed to the parent under Subsection (8).

(8)

(a)          Income may not be imputed to a parent unless the parent stipulates to the amount imputed, the parent defaults, or, in contested cases, a hearing is held and the judge in a judicial proceeding or the presiding officer in an administrative proceeding enters findings of fact as to the evidentiary basis for the imputation.

(b)          If income is imputed to a parent, the income shall be based upon employment potential and probable earnings considering, to the extent known:

(i)            employment opportunities;

(ii)           work history;

(iii)          occupation qualifications;

(iv)         educational attainment;

(v)          literacy;

(vi)         age;

(vii)        health;

(viii)       criminal record;

(ix)         other employment barriers and background factors; and

(x)          prevailing earnings and job availability for persons of similar backgrounds in the community.

(c)           If a parent has no recent work history or a parent’s occupation is unknown, that parent may be imputed an income at the federal minimum wage for a 40-hour work week. To impute a greater or lesser income, the judge in a judicial proceeding or the presiding officer in an administrative proceeding shall enter specific findings of fact as to the evidentiary basis for the imputation.

(d)          Income may not be imputed if any of the following conditions exist and the condition is not of a temporary nature:

(i)            the reasonable costs of child care for the parents’ minor children approach or equal the amount of income the custodial parent can earn;

(ii)           a parent is physically or mentally unable to earn minimum wage;

(iii)          a parent is engaged in career or occupational training to establish basic job skills; or

(iv)         unusual emotional or physical needs of a child require the custodial parent’s presence in the home.

(9)

(a)          Gross income may not include the earnings of a minor child who is the subject of a child support award nor benefits to a minor child in the child’s own right such as Supplemental Security Income.

(b)          Social security benefits received by a child due to the earnings of a parent shall be credited as child support to the parent upon whose earning record it is based, by crediting the amount against the potential obligation of that parent. Other unearned income of a child may be considered as income to a parent depending upon the circumstances of each case.

78B-12-205.  Calculation of obligations.

(1)          Each parent’s child support obligation shall be established in proportion to their adjusted gross incomes, unless the low income table is applicable. Except during periods of court-ordered parent-time as set forth in Section 78B-12-216, the parents are obligated to pay their proportionate shares of the base combined child support obligation. If physical custody of the child changes from that assumed in the original order, modification of the order is not necessary, even if only one parent is specifically ordered to pay in the order.

(2)          Except in cases of joint physical custody and split custody as defined in Section 78B-12-102 and in cases where the obligor’s adjusted gross income is $1,050 or less monthly, the base child support award shall be determined as follows:

(a)          combine the adjusted gross incomes of the parents and determine the base combined child support obligation using the base combined child support obligation table; and

(b)          calculate each parent’s proportionate share of the base combined child support obligation by multiplying the combined child support obligation by each parent’s percentage of combined adjusted gross income.

(3)          In the case of an incapacitated adult child, any amount that the incapacitated adult child can contribute to the incapacitated adult child’s support may be considered in the determination of child support and may be used to justify a reduction in the amount of support ordered, except that in the case of orders involving multiple children, the reduction shall not be greater than the effect of reducing the total number of children by one in the child support table calculation.

(4)          In cases where the monthly adjusted gross income of either parent is between $650 and $1,050, the base child support award shall be the lesser of the amount calculated in accordance with Subsection (2) and the amount calculated using the low income table. If the income and number of children is found in an area of the low income table in which no amount is shown, the base combined child support obligation table is to be used.

(5)          The base combined child support obligation table provides combined child support obligations for up to six children. For more than six children, additional amounts may be added to the base child support obligation shown. Unless rebutted by Subsection 78B-12-210(3), the amount ordered may not be less than the amount which would be ordered for up to six children.

(6)          If the monthly adjusted gross income of either parent is $649 or less, the tribunal shall determine the amount of the child support obligation on a case-by-case basis, but the base child support award may not be less than $30.

(7)          The amount shown on the table is the support amount for the total number of children, not an amount per child.

(8)          For all worksheets, income and support award figures shall be rounded to the nearest dollar.

78B-12-210.  Application of guidelines — Use of ordered child support.

(1)          The guidelines in this chapter apply to any judicial or administrative order establishing or modifying an award of child support entered on or after July 1, 1989.

(2)

(a)          The guidelines shall be applied as a rebuttable presumption in establishing or modifying the amount of temporary or permanent child support.

(b)          The rebuttable presumption means the provisions and considerations required by the guidelines, the award amounts resulting from the application of the guidelines, and the use of worksheets consistent with these guidelines are presumed to be correct, unless rebutted under the provisions of this section.

(3)          A written finding or specific finding on the record supporting the conclusion that complying with a provision of the guidelines or ordering an award amount resulting from use of the guidelines would be unjust, inappropriate, or not in the best interest of a child in a particular case is sufficient to rebut the presumption in that case. If an order rebuts the presumption through findings, it is considered a deviated order.

(4)          The following shall be considered deviations from the guidelines, if:

(a)          the order includes a written finding that it is a deviation from the guidelines;

(b)          the guidelines worksheet has:

(i)            the box checked for a deviation; and

(ii)           an explanation as to the reason; or

(c)           the deviation is made because there were more children than provided for in the guidelines table.

(5)          If the amount in the order and the amount on the guidelines worksheet differ by $10 or more:

(a)          the order is considered deviated; and

(b)          the incomes listed on the worksheet may not be used in adjusting support for emancipation.

(6)

(a)          Natural or adoptive children of either parent who live in the home of that parent and are not children in common to both parties may at the option of either party be taken into account under the guidelines in setting a child support award, as provided in Subsection (7).

(b)          Additional worksheets shall be prepared that compute the base child support award of the respective parents for the additional children. The base child support award shall then be subtracted from the appropriate parent’s income before determining the award in the instant case.

(7)          In a proceeding to adjust or modify an existing award, consideration of natural or adoptive children born after entry of the order and who are not in common to both parties may be applied to mitigate an increase in the award but may not be applied:

(a)          for the benefit of the obligee if the credit would increase the support obligation of the obligor from the most recent order; or

(b)          for the benefit of the obligor if the amount of support received by the obligee would be decreased from the most recent order.

(8)

(a)          If a child support order has not been issued or modified within the previous three years, a parent, legal guardian, or the office may move the court to adjust the amount of a child support order.

(b)          Upon receiving a motion under Subsection (8)(a), the court shall, taking into account the best interests of the child:

(i)            determine whether there is a difference between the payor’s ordered support amount and the payor’s support amount that would be required under the guidelines; and

(ii)           if there is a difference as described in Subsection (8)(b)(i), adjust the payor’s ordered support amount to the payor’s support amount provided in the guidelines if:

(A)          the difference is 10% or more;

(B)          the difference is not of a temporary nature; and

(C)          the order adjusting the payor’s ordered support amount does not deviate from the guidelines.

(c)           A showing of a substantial change in circumstances is not necessary for an adjustment under this Subsection (8).

(9)

(a)          A parent, legal guardian, or the office may at any time petition the court to adjust the amount of a child support order if there has been a substantial change in circumstances. A change in the base combined child support obligation table set forth in Section 78B-12-301 is not a substantial change in circumstances for the purposes of this Subsection (9).

(b)          For purposes of this Subsection (9), a substantial change in circumstances may include:

(i)            material changes in custody;

(ii)           material changes in the relative wealth or assets of the parties;

(iii)          material changes of 30% or more in the income of a parent;

(iv)         material changes in the employment potential and ability of a parent to earn;

(v)          material changes in the medical needs of the child; or

(vi)         material changes in the legal responsibilities of either parent for the support of others.

(c)           Upon receiving a petition under Subsection (9)(a), the court shall, taking into account the best interests of the child:

(i)            determine whether a substantial change has occurred;

(ii)           if a substantial change has occurred, determine whether the change results in a difference of 15% or more between the payor’s ordered support amount and the payor’s support amount that would be required under the guidelines; and

(iii)          adjust the payor’s ordered support amount to that which is provided for in the guidelines if:

(A)          there is a difference of 15% or more; and

(B)          the difference is not of a temporary nature.

(10)        Notice of the opportunity to adjust a support order under Subsections (8) and (9) shall be included in each child support order.

————-

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

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How is the custody going to work after separation?

After filling for legal separation where is my only child going to stay? I have my child with me right now. How is the custody going to work after separation?

The question of what the court will do regarding child custody is premature.

The first question you should ask is 1) “Can the other parent and I reach our own agreement on custodial and visitation (now often called parent time) arrangements?”

And if you and the other parent cannot reach agreement, then the second and third questions you should ask are 2) “What custodial and parent time arrangement is best for the children,” irrespective of what I may desire?” because that’s essentially the question the court will try to answer in fashioning its custody and parent time award; and 3) am I willing to spend thousands (maybe even tens of thousands) of dollars to fight over the issues of child custody and parent-time?

If you and your spouse/the other parent can agree on what the custody and parent time schedule will be between you both, then you both don’t need to bring that matter before the court for a temporary order. Far too often parents end up litigating more than they need to because they don’t realize they don’t need to litigate every issue. They don’t realize that they can (and should as much as possible) make agreements and follow those agreements.

That stated, I, as a divorce and family law attorney, am well aware that child custody is frequently (even usually) a bone of contention between parents who are separating or divorcing. Still, even parents that don’t get along may find it in their individual and mutual best interest to reach an agreement over child custody and parent time, instead of placing that decision in the hands of the court.

Before you go to the trouble and expense of litigating temporary child custody and support, it wouldn’t hurt you at all to try and work out an agreement on the subjects with the other parent first. Even if the other parent simply to negotiate or refuses to negotiate in good faith, you can go to court knowing that, for the sake of your kids, you did your best to reach consensus instead of conflict.

Judges don’t know (and thus cannot accommodate) your or your children’s needs nearly as well as you and the other parent do. For all that they say to the contrary, the truth is that judges usually don’t particularly care that much about other people’s children and what’s best for them. They deal with hundreds and thousands of couples and families, so to an extent, you can’t really blame them completely. Judges often have surprisingly obtuse, bizarre, and counterproductive ideas about what the best custodial and parent time arrangements are for children.

So as long as you and the other parent are decent and rational people, you should be able to come up with a custody arrangement that is not only fair to you as parents, but what your children need and deserve. If you and the other parent can’t set aside your own self-interest and posturing for the sake of doing what’s best for your children, then frankly you deserve to have the court impose a child custody and parent time award on you, like it or not.

If you and the other parent cannot reach an agreement regarding child custody and parent time so that the court is left to make that determination, then here are the factors that the courts in Utah (where I practice divorce and family law) consider in analyzing and determining what the child custody and parent time awards shall be:

Utah Code § 30-3-10(2):

(2) In determining any form of custody and parent-time under Subsection (1), the court shall consider the best interest of the child and may consider among other factors the court finds relevant, the following for each parent:

(a) evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent;

(b) the parent’s demonstrated understanding of, responsiveness to, and ability to meet the developmental needs of the child, including the child’s:

(i) physical needs;

(ii) emotional needs;

(iii) educational needs;

(iv) medical needs; and

(v) any special needs;

(c) the parent’s capacity and willingness to function as a parent, including:

(i) parenting skills;

(ii) co-parenting skills, including:

(A) ability to appropriately communicate with the other parent;

(B) ability to encourage the sharing of love and affection; and

(C) willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration; and

(iii) ability to provide personal care rather than surrogate care;

(d) in accordance with Subsection (10), the past conduct and demonstrated moral character of the parent;

(e) the emotional stability of the parent;

(f) the parent’s inability to function as a parent because of drug abuse, excessive drinking, or other causes;

(g) whether the parent has intentionally exposed the child to pornography or material harmful to minors, as “material” and “harmful to minors” are defined in Section 76-10-1201;

(h) the parent’s reasons for having relinquished custody or parent-time in the past;

(i) duration and depth of desire for custody or parent-time;

(j) the parent’s religious compatibility with the child;

(k) the parent’s financial responsibility;

(l) the child’s interaction and relationship with step-parents, extended family members of other individuals who may significantly affect the child’s best interests;

(m) who has been the primary caretaker of the child;

(n) previous parenting arrangements in which the child has been happy and well-adjusted in the home, school, and community;

(o) the relative benefit of keeping siblings together;

(p) the stated wishes and concerns of the child, taking into consideration the child’s cognitive ability and emotional maturity;

(q) the relative strength of the child’s bond with the parent, meaning the depth, quality, and nature of the relationship between the parent and the child; and

(r) any other factor the court finds relevant.

Utah Code § 30-3-10.2(2)

(2) In determining whether the best interest of a child will be served by ordering joint legal custody or joint physical custody or both, the court shall consider the custody factors in Section 30-3-10 and the following factors:

(a) whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal custody or joint physical custody or both;

(b) the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;

(c) co-parenting skills, including:

(i) ability to appropriately communicate with the other parent;

(ii) ability to encourage the sharing of love and affection; and

(iii) willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration; and

(d) whether both parents participated in raising the child before the divorce;

(e) the geographical proximity of the homes of the parents;

(f) the preference of the child if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to joint legal custody or joint physical custody or both;

(g) the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;

(h) the past and present ability of the parents to cooperate with each other and make decisions jointly; and

(i) any other factor the court finds relevant.

Utah Code § 30-3-34. Parent-time — Best interests — Rebuttable presumption.

(1) If the parties are unable to agree on a parent-time schedule, the court may establish a parent-time schedule consistent with the best interests of the child.

(2) The advisory guidelines as provided in Section 30-3-33 and the parent-time schedule as provided in Sections 30-3-35 and 30-3-35.5 shall be presumed to be in the best interests of the child unless the court determines that Section 30-3-35.1 should apply. The parent-time schedule shall be considered the minimum parent-time to which the noncustodial parent and the child shall be entitled unless a parent can establish otherwise by a preponderance of the evidence that more or less parent-time should be awarded based upon one or more of the following criteria:

(a) parent-time would endanger the child’s physical health or mental health, or significantly impair the child’s emotional development;

(b) evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, a parent, or a household member of the parent;

(c) the distance between the residency of the child and the noncustodial parent;

(d) a credible allegation of child abuse has been made;

(e) the lack of demonstrated parenting skills without safeguards to ensure the child’s well-being during parent-time;

(f) the financial inability of the noncustodial parent to provide adequate food and shelter for the child during periods of parent-time;

(g) the preference of the child if the court determines the child is of sufficient maturity;

(h) the incarceration of the noncustodial parent in a county jail, secure youth corrections facility, or an adult corrections facility;

(i) shared interests between the child and the noncustodial parent;

(j) the involvement or lack of involvement of the noncustodial parent in the school, community, religious, or other related activities of the child;

(k) the availability of the noncustodial parent to care for the child when the custodial parent is unavailable to do so because of work or other circumstances;

(l) a substantial and chronic pattern of missing, canceling, or denying regularly scheduled parent-time;

(m) the minimal duration of and lack of significant bonding in the parents’ relationship before the conception of the child;

(n) the parent-time schedule of siblings;

(o) the lack of reasonable alternatives to the needs of a nursing child; and

(p) any other criteria the court determines relevant to the best interests of the child.

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

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What Is Alimony, and How Does It Work in Utah?

What is Alimony?

Alimony is a legal obligation imposed by court order upon one spouse in a separate maintenance action or divorce action to provide financial support for the other spouse. Through an alimony award the court can require that one ex-spouse continue to provide financial support to the other ex-spouse so that the alimony recipient can maintain the standard of living (or close to that standard of living) that the ex-spouse enjoyed during the marriage.

Alimony is also sometimes called “spousal support” or “spousal maintenance,” but often a court may distinguish between alimony and spousal support by calling “alimony” an amount of money a court orders one ex-spouse to pay the other ex-spouse and calling “spousal support” an amount of money a court orders one spouse to pay the other spouse on a temporary orders or “pendent lite” basis while a divorce or separate maintenance case is pending in the court.

Alimony and Child Support Are Different Things

Keep in mind that alimony and child support are different things. Child support and alimony are two separate financial obligations created for two separate purposes. While the purpose of alimony is to provide financial support for the former spouse after divorce, child support is an obligation for the financially support of their children after divorce.

Factors that Affect Whether Alimony is Awarded and If So, How Much is Awarded and for How Long

Alimony is not awarded in every divorce. Whether alimony is awarded depends on many factors.

Utah has no fixed formula for determining how much alimony should be paid and for how long. In Utah alimony may be ordered to last for a period equal to the entire length of the marriage (for example: if the marriage lasted for 8 years, one spouse may be required to pay alimony for the next 8 years following the divorce).  In other cases alimony may be ordered for a period shorter than the marriage (in some cases a much shorter period), with the court awarding the alimony recipient alimony long enough to help the recipient get education or job training with the goal of the alimony recipient becoming financially independent and able to support himself/herself.

Factors that may improve one’s chances of obtaining an alimony award are found in Utah Code § 30-3-5(8):

  • the financial condition and needs of the recipient spouse;
  • the recipient’s earning capacity or ability to produce income, including the impact of diminished workplace experience resulting from primarily caring for a child of the payor spouse;
  • the ability of the payor spouse to provide support;
  • the length of the marriage (alimony is more likely to be awarded in divorce cases where the parties have been married around 10 years or more (but even in very short marriages alimony can be awarded, but alimony awarded at the end of short-term marriages is rare and exceptional);
  • whether the recipient spouse has custody of a minor child requiring support;
  • whether the recipient spouse worked in a business owned or operated by the payor spouse; and
  • whether the recipient spouse directly contributed to any increase in the payor spouse’s skill by paying for education received by the payor spouse or enabling the payor spouse to attend school during the marriage.
  • the fault of a party or of the parties in determining whether to award alimony and the duration of the alimony award.
    • “Fault” means any of the following wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship:
    • engaging in sexual relations with a person other than the party’s spouse;
    • knowingly and intentionally causing or attempting to cause physical harm to the other party or a minor child
    • knowingly and intentionally causing the other party or a minor child to reasonably fear life-threatening harm; or
    • substantially undermining the financial stability of the other party or the minor child.
  • As a general rule, the court should look to the standard of living, existing at the time of separation, in determining alimony; however, the court must 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.
  • In marriages of short duration, when no child has been conceived or born during the marriage, the court may consider the standard of living that existed at the time of the marriage.
  • In determining alimony when a marriage of short duration dissolves, and no child has been conceived or born during the marriage, the court may consider restoring each party to the condition which existed at the time of the marriage.
  • The court may, under appropriate circumstances, attempt to equalize the parties’ respective standards of living.
  • When a marriage of long duration dissolves on the threshold of a major change in the income of one of the spouses due to the collective efforts of both, that change shall be considered in dividing the marital property and in determining the amount of alimony. If one spouse’s earning capacity has been greatly enhanced through the efforts of both spouses during the marriage, the court may make a compensating adjustment in dividing the marital property and awarding alimony.

Alimony may not be ordered for a duration longer than the number of years that the marriage existed unless, at any time before termination of alimony, the court finds extenuating circumstances that justify the payment of alimony for a longer period of time (Utah Code § 30-3-5(8)(j)).

Unless a decree of divorce specifically provides otherwise, any order of the court that a party pay alimony to a former spouse automatically terminates upon the remarriage or death of that former spouse. However, if the remarriage is annulled and found to be void ab initio, payment of alimony shall resume if the party paying alimony is made a party to the action of annulment and the payor party’s rights are determined (Utah Code § 30-3-5(9)).

Alimony terminates upon establishment by the party paying alimony that the former spouse, after the order for alimony is issued, cohabits with another person, even if the former spouse is not cohabiting with another person when the party paying alimony files the motion to terminate alimony, so long as the party ordered to pay alimony petitions to terminate alimony no later than one year from the day on which the party knew or should have known that the former spouse has cohabited with another person (Utah Code § 30-3-5(10)(a) and (b)).

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

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Alimony: How much of it should I be asking for, and why?

How much alimony should I be asking for from my spouse? He’s very wealthy, and I do not work. I became a stay-at-home parent at his request. I’m now leaving the marriage without any retirement or savings.
Here is a simple way to analyze whether you should receive alimony, and if so, how much alimony, in Utah (where I practice divorce law):

First, Utah Code Section 30–3–5(8–10) describes some of the factors the court must consider in determining alimony. Those factors are:

  • the financial condition and needs of the recipient spouse;
  • the recipient’s earning capacity or ability to produce income, including the impact of diminished workplace experience resulting from primarily caring for a child of the payor spouse;
  • the ability of the payor spouse to provide support;
  • the length of the marriage;
  • whether the recipient spouse has custody of a minor child requiring support;
  • whether the recipient spouse worked in a business owned or operated by the payor spouse; and
  • whether the recipient spouse directly contributed to any increase in the payor spouse’s skill by paying for education received by the payor spouse or enabling the payor spouse to attend school during the marriage.

In a nutshell: you must show a need for alimony and that your husband has the ability to pay it.

The court may consider the fault of the parties in determining whether to award alimony and the terms of the alimony. “Fault” means any of the following wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship:

  • engaging in sexual relations with a person other than the party’s spouse;
  • knowingly and intentionally causing or attempting to cause physical harm to the other party or a minor child;
  • knowingly and intentionally causing the other party or a minor child to reasonably fear life-threatening harm; or
  • substantially undermining the financial stability of the other party or the minor child.
  • As a general rule, the court should look to the standard of living, existing at the time of separation, in determining alimony. However, 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. In marriages of short duration, when no child has been conceived or born during the marriage, the court may consider the standard of living that existed at the time of the marriage.

The court may (may, no must) under appropriate circumstances, attempt to equalize the parties’ respective standards of living.

When a marriage of long duration dissolves on the threshold of a major change in the income of one of the spouses due to the collective efforts of both, that change shall be considered in dividing the marital property and in determining the amount of alimony. If one spouse’s earning capacity has been greatly enhanced through the efforts of both spouses during the marriage, the court may make a compensating adjustment in dividing the marital property and awarding alimony.

In determining alimony when a marriage of short duration dissolves, and no child has been conceived or born during the marriage, the court may consider restoring each party to the condition which existed at the time of the marriage.

Alimony may not be ordered for a duration longer than the number of years that the marriage existed unless, at any time before termination of alimony, the court finds extenuating circumstances that justify the payment of alimony for a longer period of time.

Unless a decree of divorce specifically provides otherwise, any order of the court that a party pay alimony to a former spouse automatically terminates upon the remarriage or death of that former spouse. However, if the remarriage is annulled and found to be void ab initio (meaning the marriage was found never to have been valid from the start), payment of alimony shall resume if the party paying alimony is made a party to the action of annulment and the payor party’s rights are determined.

An order of the court that a party pay alimony to a former spouse terminates upon establishment by the party paying alimony that the former spouse, after the order for alimony is issued, cohabits with another person, even if the former spouse is not cohabiting with another person when the party paying alimony files the motion to terminate alimony. Bear in mind, however, that a party paying alimony to a former spouse may not seek termination of alimony for cohabitation if he/she fails to do so more than one year from the day on which the party knew or should have known that the former spouse has cohabited with another person.

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

How much alimony should I be asking for from my spouse? He’s very wealthy, and do not work. I became a stay-at-home parent at his request. I’m now leaving the marriage without any retirement or savings.

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