Tag: intent

State v. Fowers – 2023 UT App 128 – violation of protective order

State v. Fowers – 2023 UT App 128








No. 20220073-CA

Filed October 26, 2023

Fourth District Court, Provo Department

The Honorable Robert A. Lund

No. 201402484

Sean D. Reyes and Jeffrey D. Mann, Attorneys for

Appellant, assisted by law student Rebecca Barker[1]

Douglas J. Thompson, Attorney for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which


LUTHY, Judge:

¶1        Thomas Fowers’s ex-wife (Ex-Wife) is married to his adopted brother (Brother). A court issued a protective order directing Fowers not to “contact . . . or communicate in any way with [Ex-Wife], either directly or indirectly,” and not to “threaten to commit any form of violence against” her. Early one morning, Fowers called Brother’s phone three times in two minutes from an unrecognized number. The first two times, no one answered. The third time, Ex-Wife answered, and Fowers said, “You and that f***ing whore have it coming.”

¶2        Fowers was charged with violating the protective order. The district court declined to bind Fowers over and dismissed the charge, determining that there was “no evidence in the record to establish that Mr. Fowers . . . intentionally communicat[ed] either directly or indirectly to [Ex-Wife]” since “the statement itself clearly [was] directed at [Brother]” and Fowers did not tell Brother “to direct the comment to [Ex-Wife].” The State appeals, and we reverse.


¶3        Ex-Wife obtained a protective order against Fowers in August 2017. The order included a “No Contact Order” stating, “Do not contact, phone, mail, e-mail, or communicate in any way with [Ex-Wife], either directly or indirectly.” It also included a “Personal Conduct Order” stating, “Do not commit, try to commit or threaten to commit any form of violence against [Ex-Wife] . . . . This includes stalking, harassing, threatening, physically hurting, or causing any other form of abuse.”

¶4        One morning in July 2020, Brother’s phone received three calls between 4:57 a.m. and 4:58 a.m. from an unrecognized number. At the time of the first call, Ex-Wife and Brother “were, of course, sleeping.” As they awoke, they thought that maybe someone was calling for help related to a wedding they were to attend that day. When Ex-Wife answered the third call, she recognized Fowers’s voice saying, “You and that f***ing whore have it coming.”

¶5        Ex-Wife reported the calls to authorities, and Fowers was charged with one third-degree felony count of violation of a protective order with a domestic violence enhancement.

¶6        The district court held a preliminary hearing on the charge. The State presented evidence that Fowers had been served with the protective order. In addition to Ex-Wife, who testified about the phone calls, the deputy who received Ex-Wife’s report testified that he had checked the number from which the calls had been made against local records and found that the number was attached to Fowers. The deputy also said that he called the number and that, when he asked to speak to Fowers, the person who answered identified himself as Fowers. Additionally, the court accepted into evidence records of three prior convictions of Fowers’s for violating this protective order and a previous protective order because those convictions were “relevant to establish under evidence [r]ule 404 both knowledge by the defendant and intention.”

¶7        After the State presented its case, the court found “that the [S]tate ha[d] not met its burden.” The court explained:

[A]lthough the direct and circumstantial evidence establishes that Mr. Fowers made the call, the number that he called was his adoptive brother’s number, not the alleged victim’s number. . . .

[And] the statement itself clearly is directed at [Brother], not at [Ex-Wife]. He say[s] “you and that f’ing whore,” meaning that he’s directing his comment toward [Brother] and not [Ex-Wife] . . . . [W]hat is glaringly missing from the record here is any statement by Mr. Fowers to [Brother] to direct the comment to the alleged victim. Therefore, there is no evidence in the record to establish that Mr. Fowers intentionally violated this order by intentionally communicating either directly or indirectly to [Ex-Wife].

Based on those findings, I find that the [S]tate has not—even drawing inferences in the light most favorable to the [S]tate— . . . establish[ed] sufficient evidence[,] and I decline to bind the charge over.

The court dismissed the charge with prejudice, and the State now appeals.


¶8        The State contends that it presented evidence establishing probable cause that Fowers violated the protective order and that the district court therefore erred by not binding Fowers over. In essence, the State argues that the court applied the wrong legal standard by not viewing the evidence and all reasonable inferences that can be drawn from it in favor of the prosecution. A district court’s “decision to bind over a criminal defendant for trial presents a mixed question of law and fact and requires the application of the appropriate bindover standard to the underlying factual findings. As a result, in reviewing a bindover decision, an appellate court should afford the decision limited deference.” In re I.R.C., 2010 UT 41, ¶ 12, 232 P.3d 1040 (cleaned up). “Applying the wrong legal standard . . . will always exceed whatever limited discretion the [court] has in the bindover decision.” State v. Ramirez, 2012 UT 59, ¶ 7, 289 P.3d 444.


¶9        Our supreme court has explained that the evidentiary threshold for bindover is a low bar:

Although the guarantee of a preliminary hearing is fundamental, the evidentiary threshold at such hearing is relatively low. As we have emphasized, a showing of “probable cause” entails only the presentation of evidence sufficient to support a reasonable belief that the defendant committed the charged crime. . . . To justify binding a defendant over for trial, the prosecution need not present evidence capable of supporting a finding of guilt beyond a reasonable doubt. Nor is the prosecution required to eliminate alternative inferences that could be drawn from the evidence in favor of the defense. All that is required is reasonably believable evidence—as opposed to speculation—sufficient to sustain each element of the crime(s) in question.

State v. Ramirez, 2012 UT 59, ¶ 9, 289 P.3d 444 (cleaned up). Here, the State needed to present “evidence sufficient to support a reasonable belief” that Fowers violated the protective order, id. (cleaned up), and the court was required to “view all evidence in the light most favorable to the prosecution and . . . draw all reasonable inferences in favor of the prosecution,” State v. Clark, 2001 UT 9, ¶ 10, 20 P.3d 300 (cleaned up).

¶10 A person commits the crime of violation of a protective order if the person “(a) is the respondent or defendant subject to a protective order . . . and (b) intentionally or knowingly violates that order after having been properly served” with it. Utah Code § 76-5-108(2). A person acts intentionally “when it is his conscious objective or desire to engage in the conduct.” Id. § 76-2-103(1). And a person acts knowingly “when he is aware of the nature of his conduct or the existing circumstances.” Id. § 76-2-103(2).

¶11 There is no dispute that Fowers was subject to the protective order at issue, and the State showed that Fowers was served with that protective order. Thus, the only issue before us is whether the State offered evidence supporting a reasonable belief that Fowers intentionally or knowingly violated the protective order. On this point, the State first argues that it put on evidence sufficient to establish probable cause that Fowers violated the No Contact Order portion of the protective order by “intentionally or knowingly contact[ing] Ex-Wife at least indirectly” because “[i]t was reasonable to infer that Fowers knew or intended that his contact and [message] . . . would be relayed to Ex-Wife.” The State then argues that Fowers’s statement “You and that f***ing whore have it coming” can also be reasonably interpreted as a threat of violence in violation of the Personal Conduct Order portion of the protective order. We agree with each of the State’s arguments.[2]

¶12      The State put on evidence establishing probable cause that Fowers intentionally or knowingly contacted Ex-Wife at least indirectly. In State v. Fouse, 2014 UT App 29, 319 P.3d 778, cert. denied, 329 P.3d 36 (Utah 2014), this court affirmed a conviction for violation of a protective order where the defendant mailed envelopes to the victim’s sisters rather than to the victim, his estranged wife. Id. ¶¶ 4–7, 43. The victim was living with one of the sisters, and the other sister lived in the apartment next door. Id. ¶ 3. While some of the letters in the envelopes were addressed to the victim, others contained statements such as, “Please hold onto this. . . . [E]ven though I can’t send nor talk to my wife or kids[,] . . . writing sure does help.” Id. ¶ 4. Nonetheless, we reasoned that a factfinder “could readily infer that communication directed to or dealing with one’s ex-spouse, and sent to the ex-spouse’s siblings, will routinely and predictably be conveyed by the siblings to their family member.” Id. ¶ 40. And we noted, “Such an inference is particularly sound in this case, given the jury’s awareness that [the victim] and her sisters were close—in both senses of that term.” Id.

¶13 The same reasoning applies here. A factfinder could readily infer that calls Fowers placed to Brother or statements Fowers made to him would “routinely and predictably be conveyed” to Ex-Wife, Brother’s spouse, especially where a factfinder could reasonably infer that Brother and Ex-Wife were “close” “in both senses of that term.” Id. Indeed, a factfinder could infer that Fowers’s decision to call Brother just before 5:00 a.m.— a time when spouses could reasonably be assumed to be together—manifested his intent to catch Brother and Ex-Wife together. Therefore, we have no trouble concluding that the State’s evidence was sufficient to support a reasonable belief that Fowers, by calling Brother’s phone when he did, intentionally or knowingly contacted Ex-Wife directly or indirectly. Fowers did not need to explicitly direct Brother to communicate his message to Ex-Wife, and the court erred in suggesting as much.

¶14 The State also asserts that Fowers’s statement “You and that f***ing whore have it coming” can be reasonably interpreted as a threat of violence. We agree. In State v. Spainhower, 1999 UT App 280, 988 P.2d 452, this court recognized that the admittedly “vague and indirect” statement, “‘I’m going to get you,’ surely may connote a threat of bodily injury” because “among the many dictionary definitions of the verb ‘get’ are: ‘to bring to retribution, take vengeance on, KILL’ and ‘to strike with force, HIT.’” Id. ¶¶ 6– 7 (cleaned up). Likewise, the words at issue here, though perhaps similarly vague and indirect, could carry either a violent or a nonviolent meaning and must be interpreted by the factfinder in light of “the inferences to be drawn from the context in which the words were spoken.” Id. ¶ 7. And again, at the preliminary hearing stage, a court must “view all evidence in the light most favorable to the prosecution and must draw all reasonable inferences in favor of the prosecution.” Clark, 2001 UT 9, ¶ 10 (cleaned up). Accordingly, at this stage, the court should have interpreted Fowers’s words to be capable of conveying, in context, a threat of violence.


¶15 The protective order’s No Contact Order forbade Fowers from contacting, phoning, mailing, e-mailing, or communicating in any way with Ex-Wife, either directly or indirectly. Its Personal Conduct Order forbade him from threatening violence against Ex-Wife. Plainly there is “reasonably believable evidence—as opposed to speculation—sufficient to” show that Fowers violated one or both of these provisions. State v. Ramirez, 2012 UT 59, ¶ 9, 289 P.3d 444. By not viewing the evidence and the reasonable inferences to be drawn from it in the light most favorable to the State—and instead requiring a statement by Fowers to Brother to direct the comment at issue to Ex-Wife—the district court applied the wrong legal standard and exceeded “whatever limited discretion” it had in the bindover decision. Id. ¶ 7. We therefore reverse and remand this matter to the district court for further proceedings consistent with this opinion.

[1] See Utah R. Jud. Admin. 14-807 (governing law student practice in the courts of Utah).

[2] Fowers asserts that the State did not preserve “the arguments” it now makes on appeal because the prosecutor “did not raise [them] in a way that gave the district court the opportunity . . . to address [them].” “An issue is preserved by presenting it to the trial court in such a way that the trial court has an opportunity to rule on that issue.” Vierig v. Therriault, 2023 UT App 67, ¶ 43, 532 P.3d 568 (cleaned up); see id. ¶ 44 (“Of note, issues must be preserved, not arguments for or against a particular ruling on an issue raised below. By contrast, new arguments, when brought under a properly preserved issue or theory, do not require an exception to preservation.” (cleaned up)).

Fowers is mistaken when he says that the State did not meet this preservation standard here. At the close of the preliminary hearing, the State referenced “paragraph 1 and 2 of the protective order”; identified those paragraphs as the Personal Conduct Order and No Contact Order respectively; and noted that they prohibited Fowers from “threatening [Ex-Wife] in any way” and from “communicating in any way with [Ex-Wife] either directly or indirectly.” The State then highlighted the evidence that Fowers “called the husband of [Ex-Wife] in the early morning hours when they would presumably be together and made a statement against her to [her] then husband,” which is the same evidence that the State emphasizes here. By presenting evidence and arguing below for bindover based on an alleged violation of both the Personal Conduct Order and the No Contact Order, the State gave the district court an opportunity to rule on the same questions we are now asked to rule on. So regardless of whether those questions are characterized as arguments or issues—and we express no opinion as to the proper characterization here— Fowers’s preservation argument fails.

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2020 UT App 73 – Utah Court of Appeals – civil stalking, contempt, intent



No. 20190395-CA
Filed May 7, 2020

Fourth District Court, Provo Department
The Honorable M. James Brady
No. 160400655

Scott N. Weight, Attorney for Appellant
Albert N. Pranno and Justin T. Ashworth, Attorneys
for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which

HAGEN, Judge:

¶1        The district court found Mark Stewart Allen in contempt for violating a civil stalking injunction when he contacted Alicia W. Koehler via email. On appeal, Allen argues that insufficient evidence supported the district court’s findings that (1) he knew that he was subject to a civil stalking injunction, and (2) he intentionally violated the civil stalking injunction. Although we reject his first argument, we reverse on the second and remand for the district court to enter an explicit finding as to whether Allen acted intentionally.


¶2        Allen and Koehler met in 2011 on Facebook. Whatever relationship developed between the two apparently deteriorated because Koehler requested that Allen “discontinue contact” with her in July 2013. But Allen continued to contact Koehler by emailing her, reaching out through third parties, sending Koehler and her family gifts, and entering Koehler’s home while she was not there. After contacting the police in 2014 and 2015, Koehler sought a civil stalking injunction in April 2016.

¶3        The district court granted Koehler a temporary civil stalking injunction (the injunction) on May 2, 2016. The injunction prohibited Allen from contacting Koehler and specifically advised him not to “contact, phone, mail, e-mail, or communicate in any way with [Koehler] . . . either directly or indirectly.” In bolded italics, the order stated that “[t]his order ends 3 years after it is served.” In a section titled “Warnings to the Respondent,” the injunction stated “[t]his is an official court order” and “[n]o one except the court can change it.” The injunction further warned that if Allen “disobey[ed] this order, the court [could] find [him] in contempt.” The injunction notified Allen of his right to a hearing but warned that if he did not ask for a hearing within 10 days, the order would last for three years after the date of service.

¶4        Allen was served with the injunction on May 13, 2016. Because a hearing was not requested within ten days, “the ex parte civil stalking injunction automatically [became] a civil stalking injunction without further notice to [Allen] and expire[d] three years from the date of service.” See Utah Code Ann. § 77-3a-101(9) (LexisNexis 2017).

¶5        Allen requested a hearing on May 26, 2016. Because the request was made more than ten days after service of the injunction, the burden shifted to Allen “to show good cause why the civil stalking injunction should be dissolved or modified.” See id. § 77-3a-101(10). The matter was set for a one-day bench trial, but Allen’s attorney moved to continue the hearing for additional discovery. For reasons not clear from the record, no hearing was ever held. No court orders were entered revoking or modifying the injunction.

¶6        On December 21, 2018, less than three years after service of the injunction, Allen contacted Koehler via email at 7:01 p.m. The email stated, in part, “Why you have despised me and ruined my hope for happiness, unknown, but I do desire peace between our hearts . . . if you are willing.”

¶7 Koehler moved for an order to show cause why Allen should not be held in contempt for contacting her in contravention of the injunction. At the hearing on the motion, Allen testified that he had been served with the injunction in 2016 but had asked his attorney to request a hearing, believing that the injunction would last only until a hearing was held. According to Allen, his attorney later informed him that the hearing was canceled because the case had been dismissed. Allen testified that, after speaking with his attorney, he believed the injunction was no longer in effect, but he admitted that he had never received any official court documents suggesting that the injunction had been dismissed or modified in any way.

¶8        Allen also admitted that he had been criminally charged with violating the injunction in June 2017 and had pled “no contest” pursuant to a plea-in-abeyance agreement.[2] During that plea hearing, Allen claimed that he “wasn’t aware there . . . was an injunction in place” because his “former counsel . . . had a mental breakdown and failed to provide that documentation to [him].” But he admitted, as the factual basis for the plea, that the State could likely prove that “with the stalking injunction in place [he] sent a package to the protected party which was in violation of that.” As a condition of the plea in abeyance, the court ordered Allen not to contact Koehler for one year. Allen testified that he complied with the terms of his plea agreement and the criminal case was dismissed prior to December 2018. Allen acknowledged, however, that the court in the criminal case did not say anything about the injunction. Allen was asked multiple times whether the 2017 criminal proceedings put him on notice that the injunction was still in place, and the district court noted that Allen was “evasive” in his answers.

¶9        Allen also claimed that he did not recall emailing Koehler on December 21, 2018. He testified that, on December 21, he had taken both Unisom, an over-the-counter sleep aid, and trazodone, a medication that had been prescribed to Allen to treat insomnia. Allen testified that he “woke up some 24 hours later” and recalled “[a]bsolutely nothing” from the time period during which the email was sent. Allen’s prescribing physician testified that taking trazodone and Unisom together would result in impairment and that it was possible that Allen slept for 24 hours.

¶10      After hearing arguments on the motion, the district court found that Koehler had proved the first two elements necessary for contempt by clear and convincing evidence. Specifically, the court found that, first, Allen “knew what was required” by the injunction and, second, Allen had “the ability to comply” with the injunction. But the third element—intentional failure to comply with the court-ordered injunction—was taken under advisement. In considering whether Allen “acted intentionally in sending the email,” the court noted that the email was “sent at 7:00 p.m., . . . which is not a time when typically people are asleep, but it could be that he tried to go to sleep at 1:00 or 2:00 in the afternoon and slept for 24 hours.” The court observed “that the content of the email and the way that it was drafted is not a rambling email and it’s not one that by its face is gibberish.” The court also noted that the email “seems to carry messages, it carries it clearly, it’s even punctuated, even with the uses of ellipses in the sentences.”

¶11 After taking the issue of intent under advisement, the district court issued a written ruling finding Allen in contempt of the stalking injunction. The court found that the third element was satisfied because “Allen acted intentionally, or . . . he was voluntarily intoxicated when he sent the email in question to Ms. Koehler.” In its written ruling, the court found that “[t]he content of the email, the proper spelling, sentence structure, use of punctuation are all indications of a person whose mind is not confused or stuporous. The time the email was sent is not when most people would be taking medicines to help them sleep.”

¶12      Allen appeals.


¶13 Allen argues that there was insufficient evidence to support the district court’s findings on two elements of contempt: first, that he was aware of the injunction and, second, that he intentionally violated the injunction. “When reviewing a bench trial for sufficiency of the evidence, we must sustain the trial court’s judgment unless it is against the clear weight of the evidence, or if we otherwise reach a definite and firm conviction that a mistake has been made.” In re D.V., 2011 UT App 241, ¶ 10, 265 P.3d 803 (cleaned up).


¶14      “As a general rule, in order to prove contempt for failure to comply with a court order it must be shown that the person cited for contempt knew what was required, had the ability to comply, and intentionally failed or refused to do so.” Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988), superseded on other grounds by statute as stated in State v. Hurst, 821 P.2d 467 (Utah Ct. App. 1991). The district court must make “explicit findings, whether written or transcribed, on the three elements of contempt.” State v. Hurst, 821 P.2d 467, 470 (Utah Ct. App. 1991). In a civil contempt proceeding such as this one, those elements must be proved by clear and convincing evidence. Von Hake, 759 P.2d at 1172.[3]

¶15 Allen challenges the sufficiency of the evidence supporting the district court’s findings on the first and third elements. First, he argues that there was insufficient evidence that he “knew he was subject to a stalking injunction on December 21, 2018.” Next, he argues that there was insufficient evidence that he “knowingly and intentionally violated the stalking injunction that was issued against him” because he could not form the requisite intent due to voluntary intoxication. We address each challenged element in turn.

  1. Knowledge of the Injunction

¶16 Allen argues that there was insufficient evidence that he “knew he was subject to a stalking injunction on December 21, 2018” because of “misleading information he received in 2016 from his attorney and the lack of explanation at the 2017 hearing.” We disagree.

¶17      The district court found by clear and convincing evidence that Allen knew he was subject to the injunction when he sent the email to Koehler in December 2018. In so doing, the court implicitly found that Allen’s claim of ignorance lacked credibility. “Because the weight to be given to the testimony is within the province of the finder of fact, we will not second guess a court’s decisions about evidentiary weight and credibility if there is a reasonable basis in the record to support them.” SA Group Props. Inc. v. Highland Marketplace LC, 2017 UT App 160, ¶ 24, 424 P.3d 187 (cleaned up). Here, the evidence supports the court’s finding that Allen knew he was subject to the injunction when he emailed Koehler in December 2018, despite his professed ignorance.

¶18 Allen admitted that he was served with the injunction, which stated that the court order would end after three years. The injunction was served on May 13, 2016, placing Allen on notice that he was required to obey the court order until May 13, 2019. Even assuming that Allen’s attorney later misinformed him that the case had been dismissed, the injunction specified that “[n]o one except the court can change” the order and Allen admitted that he never received any official communication from the court relieving him of the responsibility to comply.

¶19 Most importantly, Allen admitted that he had been charged with violating the injunction in 2017, long after he allegedly received the misinformation from his attorney. The stated factual basis for his plea in abeyance was that “with the stalking injunction in place the defendant sent a package to the protected party which was in violation of that.” And when asked whether the 2017 criminal proceedings had resolved any uncertainty about whether the injunction was still in place, Allen was “evasive,” casting further doubt on his credibility.

¶20 The record also undermines Allen’s claim that the 2017 criminal proceedings created further confusion about the status of the injunction. He testified that, after the plea hearing in his criminal case, he believed that the only order prohibiting him from contacting Koehler was the one-year order issued by the court, which expired before December 2018. But the record makes clear that the one-year period was not a substitute for or modification of the injunction, but a term of Allen’s plea-in-abeyance agreement. And Allen admitted that the court in the criminal case did not say anything about the injunction.

¶21 Viewed in the light most favorable to the district court’s ruling, the finding that Allen knew what was required of him by the injunction was not against the clear weight of the evidence. Therefore, we affirm the district court’s finding that Allen “knew he was subject to a stalking injunction on December 21, 2018.”

  1. Intentional Failure to Comply

¶22      Allen also argues that insufficient evidence supported the district court’s finding that he “knowingly and intentionally violated the stalking injunction that was issued against him” because he was voluntarily intoxicated when the alleged violation occurred. Because we conclude that the court did not make an explicit finding on whether Allen’s conduct was intentional, we do not reach the issue of whether such a finding would be supported by sufficient evidence.

¶23 The district court did not make an explicit finding that Allen acted intentionally, as required to hold him in contempt. Rather, the court ruled in the alternative that “Allen acted intentionally, or that he was voluntarily intoxicated when he sent the email in question to Ms. Koehler.” (Emphasis added.) That alternative ruling fails to account for the potential of voluntary intoxication to negate a person’s ability to form the intent required for a finding of contempt. See State v. Bell, 2016 UT App 157, ¶ 30, 380 P.3d 11.

¶24 Voluntary intoxication is not a defense “unless the intoxication ‘negates the existence of the mental state which is an element of the offense.’” Id. (quoting Utah Code Ann. § 76-2-306 (LexisNexis 2017)).[4] For voluntary intoxication to negate the existence of intent required for a finding of contempt, a defendant “must demonstrate that his state of intoxication deprived him of the capacity to form the mental state necessary” for such a finding. Id. (cleaned up). “It is not enough to merely present evidence showing that the defendant was intoxicated.” Id. (cleaned up). “Rather, to establish a viable voluntary intoxication defense, the defendant must point to evidence showing that he was so intoxicated that he was incapable of forming the requisite mental state for the [acts] committed.” Id. (cleaned up).

¶25 Here, the district court appears to have mistakenly assumed that Allen’s alleged voluntary intoxication could not be considered in determining whether Allen acted with the required mental state. Indeed, the court’s order stated that “[e]ven if [Allen] was not capable of intentionally sending the email as a result of confusion, stupor or intoxication caused by the medicines, since the medicines were voluntarily combined by [Allen], his intoxication was voluntary and therefore not a defense.” That ruling allows for the possibility that Allen did not act intentionally. Although the court’s subsidiary findings regarding the timing and content of the email suggest that it did not believe Allen’s mind was “confused or stuperous” as a result of the alleged intoxication, the court did not explicitly find that the third element was proved by clear and convincing evidence.

¶26 We therefore remand to the district court to make a finding as to whether Allen intentionally violated the injunction. If the court finds this element satisfied by clear and convincing evidence, it should enter an amended judgment to that effect. If, on the other hand, the court finds that Allen did not act intentionally—as a result of voluntary intoxication or otherwise—it should vacate the contempt order.


¶27      The district court’s finding that Allen knew he was subject to the injunction was not against the clear weight of the evidence. However, because the district court did not enter an explicit finding as to whether Allen acted intentionally in violating the injunction, we reverse and remand for the district court to make a finding on that element of contempt.

Utah Family Law, LC | | 801-466-9277


[1] “On appeal from a bench trial, we view the evidence in a light most favorable to the district court’s findings, and therefore recite the facts consistent with that standard and present conflicting evidence to the extent necessary to clarify the issues raised on appeal.” Burggraaf v. Burggraaf, 2019 UT App 195, n.2, 455 P.3d 1071 (cleaned up).

[2] In accordance with rule 410(a)(2) of the Utah Rules of Evidence, the district court did not consider Allen’s prior “no contest” plea for the purpose of establishing that Allen had previously violated the injunction. However, as permitted by rule 410(b), the parties stipulated to the admission of statements made during the plea hearing. We consider those statements only to the extent that they bear on whether Allen knew that the injunction was in effect on December 21, 2018.

[3] In a criminal contempt proceeding, the “elements must be proven beyond a reasonable doubt.” Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988). “The primary determinant of whether a particular contempt order is to be labeled civil or criminal is the trial court’s purpose in entering the order.” Id. at 1168. A criminal contempt order is punitive in nature, whereas a civil contempt order has a remedial purpose. Id. “A remedial purpose is indicated when the contemner is allowed to purge him- or herself of the contempt by complying with the court’s orders.” Id. Thus, “a contempt order is criminal if the fine or sentence imposed is fixed and unconditional, but is civil if the fine or imprisonment is conditional such that the contemner can obtain relief from the contempt order merely by doing some act as ordered by the court.” Id. at 1168 n.5. Here, the district court’s order “impose[d] sanctions on Mr. Allen including a jail term of 10 days and a fine of $300.” However, these sanctions were “stayed to allow Mr. Allen an opportunity to purge his contempt.” The order allowed Allen to obtain relief from the contempt order merely by “having no further contact directly or indirectly, in person, in writing, by email[,] text, electronic posting to social media or in other manner with Ms. Koehler for a period of two years.” Because this order was conditional such that Allen could obtain relief by staying away from Koehler, the contempt order is not criminal but civil. See id. As such, the court was required to find the three substantive elements of contempt by clear and convincing evidence.

[4] Although section 76-2-306 applies to criminal prosecutions, neither party has suggested that different principles apply in civil cases such as this one.

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What is child support intended to cover?

Child Support Purposes. What are they?

Black’s Law Dictionary defines child support as:

child support (1939) Family law. 1. A parent’s legal obligation to contribute to the economic maintenance and education of a child until the age of majority, the child’s emancipation before reaching majority, or the child’s completion of secondary education. • The obligation is enforceable both civilly and criminally. 2. In a custody or divorce action, the money owed or paid by one parent to the other for the expenses incurred for children of the marriage. • The right to child support is the child’s right and cannot be waived, and any divorce-decree provision waiving child support is void.

 (Black’s Law Dictionary (11th ed. 2019))

Does this mean that a parent receiving child support can spend some of the child support money on his/her rent or mortgage and the associated utilities? I would say yes. After all, the parent and child(ren) reside in the same place, and the child(ren) need housing too. Does this mean that a parent receiving child support can spend some of the child support money on his/her own food that the parent himself/herself eats? I would say no. A parent is responsible for purchasing his/her own food out of his/her own income, not the money provided for the support of the child. These same principles would apply to all other expenses. Although child support funds are paid to a parent, the funds are for the support of the child and the child alone, not for support of the parent.

In Utah (where I practice divorce and family law), here are some links to key statutes governing the purposes of child support:

Utah Code § 78B-12-105.  Duty of parents.

(1) Every child is presumed to be in need of the support of the child’s mother and father. Every mother and father shall support their children.

Utah Code § 78B-12-218.  Accountability of support provided to benefit child — Accounting.

(1) The court or administrative agency which issues the initial or modified order for child support may, upon the petition of the obligor, order prospectively the obligee to furnish an accounting of amounts provided for the child’s benefit to the obligor, including an accounting or receipts.

(2) The court or administrative agency may prescribe the frequency and the form of the accounting which shall include receipts and an accounting.

(3) The obligor may petition for the accounting only if current on all child support that has been ordered.

Utah Code § 78B-12-102.  Definitions.

As used in this chapter:

(4) “Base child support award” means the award that may be ordered and is calculated using the guidelines before additions for medical expenses and work-related child care costs.


(8) “Child support” means a base child support award, or a monthly financial award for uninsured medical expenses, ordered by a tribunal for the support of a child, including current periodic payments, arrearages that accrue under an order for current periodic payments, and sum certain judgments awarded for arrearages, medical expenses, and child care costs.

Utah Code § 78B-12-108.  Support follows the child.

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

(2) Except in cases of joint physical custody and split custody as defined in Section 78B-12-102, when physical custody changes from that assumed in the original order, the parent without physical custody of a child shall be required to pay the amount of support determined in accordance with Sections 78B-12-205 and 78B-12-212, without the need to modify the order for:

(a) the parent who has physical custody of the child;

(b) a relative to whom physical custody of the child has been voluntarily given; or

(c) the state when the child is residing outside of the home in the protective custody, temporary custody, or custody or care of the state or a state-licensed facility for at least 30 days.

Utah Family Law, LC | | 801-466-9277

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Hartvigsen v. Hartvigsen – 2018 UT App 238 – alimony, marital property

2018 UT App 238



Opinion No. 20160069-CA
Filed December 28, 2018

Fourth District Court, Provo Department
The Honorable Lynn W. Davis
No. 064402132

Danielle Marie Hartvigsen, Appellant Pro Se[1]
Richard Myers Hartvigsen, Appellee Pro Se



¶1        This is an appeal from a district court’s division of property and award of alimony in the aftermath of a contentious divorce between Danielle Marie Hartvigsen and Richard Myers Hartvigsen.[2] Danielle contends that the court abused its discretion when it imputed income to her, declined to accept her claimed expenses at face value, and credited Richard’s unrebutted testimony about his intent to convey real property to himself and Danielle as joint tenants. Danielle also contends that she was denied due process. We affirm.


¶2        Danielle and Richard married in 1995 and separated in 2005. Danielle filed for divorce in 2006, and in 2007 the district court entered a bifurcated decree of divorce, granting the divorce but reserving all other issues for later decision. After extensive litigation, a trial was held in 2012, and a supplemental decree of divorce was entered awarding Danielle a total property award of more than $1 million and alimony of $1,000 per month. Danielle filed several post-trial motions, including a motion for new trial which were denied in December 2015. Danielle appeals.


¶3        Danielle first argues that the district court’s alimony award was insufficient because the court exceeded its discretion by imputing income to her and in assessing her needs. We “review a district court’s alimony determination for an abuse of discretion” and will not disturb its alimony ruling “as long as the court exercises its discretion within the bounds and under the standards [set by Utah appellate courts] and has supported its decision with adequate findings and conclusions.” Dahl v. Dahl, 2015 UT 79, ¶ 84 (quotation simplified).

¶4        Danielle next argues that because Richard transferred a home that he purchased before marriage to the couple as joint tenants, the district court erred in determining that the home should be considered Richard’s separate property. “Generally, district courts have considerable discretion concerning property distribution in a divorce proceeding and their determinations enjoy a presumption of validity.” Id. ¶ 119 (quotation simplified). Accordingly, we will reverse only when “a clear and prejudicial abuse of discretion is demonstrated.” Id. (quotation simplified). In reviewing the district court’s decision, “we will not set aside findings of fact, whether based on oral or documentary evidence, unless they are clearly erroneous, and we give due regard to the district court’s superior position from which to judge the credibility of witnesses.” Id. ¶ 121.

¶5        Finally, Danielle asserts that the district court erred in refusing to grant her motion for new trial because misstatements by Richard in the pretrial phase precluded her from obtaining funds necessary to hire an attorney and resulted in a denial of due process. “Generally, we afford trial judges wide latitude in granting or denying rule 59 motions . . . . Consequently, we generally disturb a trial court’s grant or denial of a rule 59 motion only if it constitutes an abuse of discretion.” Sanpete Am., LLC v. Willardsen, 2011 UT 48, ¶ 28, 269 P.3d 118. Furthermore, we will not reverse a denial of a motion for new trial unless the appellant can demonstrate a reasonable likelihood that the outcome would have been different in the absence of the alleged error. See Pullham v. Kirsling, 2018 UT App 65, ¶ 38, 427 P.3d 261.

I. Alimony

¶6        Danielle first asserts that the district court’s alimony award should be reversed because the court abused its discretion in imputing income to her and in calculating her needs.[3]

However, in light of the supporting evidence and the district court’s articulated findings, Danielle’s various arguments fail to convince us that the court abused its discretion.

  1. Imputation of Income

¶7        Danielle first contends that “imputing income to [her] as a practicing attorney was an abuse of discretion” because she “had not worked as an attorney for nearly 19 years” and because “there was no competent evidence that a person with her experience could obtain employment as an attorney.”

¶8        In calculating an alimony award, a court must consider, among other things, the recipient’s ability to produce income. See Utah Code Ann. § 30-3-5(8)(a)(ii) (LexisNexis Supp. 2010)[4]. When an individual “has no recent work history or [his or her] occupation is unknown, income shall be imputed at least at the federal minimum wage for a 40–hour work week.” See id. § 78B­12-203(7)(c) (LexisNexis 2012). The court may impute greater income upon entering “specific findings of fact as to the evidentiary basis for the imputation.” Id. (governing the imputation of income for child support purposes).[5] Such imputation “shall be based upon employment potential and probable earnings as derived from employment opportunities, work history, occupation qualifications, and prevailing earnings for persons of similar backgrounds in the community, or the median earning for persons in the same occupation in the same geographical area as found in the statistics maintained by the Bureau of Labor Statistics.” Id. § 78B-12-203(7)(b).

¶9        The court heard extensive evidence related to Danielle’s ability to produce income, including her education and the range of potential salaries for individuals with similar educational achievements. Danielle earned a juris doctor from Stanford Law School in 1988 and a master’s degree in wildlife biology from Brigham Young University in 1996. She received scholarships for both her legal and wildlife biology education. Danielle was admitted to the Utah State Bar in 1990 and worked at two law firms immediately after that. Her employment at the later firm was terminated in 1993.

¶10 A vocational expert retained by Richard testified that there were “260 annual openings for attorneys in the state of Utah metro area”[6] and that the entry-level annual salary for an attorney in the Provo/Orem area at the time of trial was between $61,318.40 and $70,886.40. The expert did not know how many applicants there were for the 260 attorney positions but admitted that the competition was “keen.” The expert also testified that the entry-level annual salary for a wildlife biologist began at $40,788.80. Danielle did not present any contrary expert testimony.

¶11      The court ultimately imputed $50,000 in annual income to Danielle, identifying this sum as an “average” based on the vocational evaluator’s testimony that Danielle could earn between $40,788.80 and $70,886.40. The court also made several findings about Danielle’s ability to work as an attorney. For example, it found that Danielle’s “lack of success as a lawyer was due to her failure to keep up with billable hours” but that “[t]his does not mean [she] is incapable of employment in a law job.” The court pointed to evidence of Danielle’s demonstrated negotiating and organizational capabilities, finding that her “testimony about her inability to be employed is not credible and she is fully employable.” The court also noted the half­hearted efforts Danielle made to seek assistance from the Utah Department of Rehabilitation and to pursue mediation training and employment, ultimately finding that her “efforts to become self-sufficient have been inadequate.”

¶12      On appeal, Danielle raises several objections to the district court’s income imputation, namely that the vocational expert’s testimony failed to establish that she could obtain employment as an attorney, that the court erred in concluding that her efforts to obtain employment had been inadequate, and that the court failed to judge her ability to earn against “persons of similar backgrounds in the community.” See id. § 78B-12-203(7)(b).

¶13 Danielle first argues that “[t]here was no competent evidence that [she] could obtain employment as an attorney,” because “there was no evidence concerning the number of qualified applicants” for the available positions. She concedes that the vocational expert testified that there were “260 annual openings for attorneys” but highlights the expert’s admission that he did not know how many applicants there were for those jobs. She suggests that in the absence of evidence of the number of applicants, the evidence of the existence of job openings was insufficient to support the court’s findings.

¶14 Danielle cites no authority supporting this proposition. Nor does this argument seem reasonable on these facts. Imputation, by definition, contemplates a degree of speculation. Indeed, the statute allows courts to impute income “based upon employment potential and probable earnings.” See id. § 78B-12­203(7)(b) (emphases added). And “[n]either the statute nor any case law of which we are aware requires trial witnesses to identify a position with a specific employer that meets a spouse’s employment needs.” Bond v. Bond, 2018 UT App 38, ¶ 11, 420 P.3d 53.

¶15 Perhaps more importantly, Danielle did not present any evidence that the number of applicants overwhelmed the number of available jobs such that she had no reasonable likelihood of securing employment as an attorney.[7] Thus, the only affirmative evidence before the court was that there were 260 job openings for lawyers in the Utah metro area each year and that “the entry level wage for an attorney” in the area was between $61,318.40 and $70,886.40. While the expert noted that the job market was tight, there was no evidence suggesting that the odds of Danielle securing one of the 260 jobs were so low as to make her ability to earn the imputed income improbable. We think the unrebutted evidence before the district court was sufficient to support the finding that, in light of her education, Danielle could reasonably be expected to earn $50,000 annually as an attorney. See Dahl v. Dahl, 2015 UT 79, ¶ 121 (noting that it is the province of the fact finder to weigh competing evidence and that “we will not set aside findings of fact . . . unless they are clearly erroneous”).

¶16      Danielle also challenges the court’s finding that her efforts to obtain employment were inadequate. Although not required to impute income, a finding of “voluntary unemployment or underemployment may be relevant when considering whether a party is concealing income or shirking in his or her efforts to earn income.” Reller v. Argenziano, 2015 UT App 241, ¶ 33, 360 P.3d 768 (quotation simplified). Danielle asserts that she was not voluntarily or willfully unemployed because she had applied for jobs in 1993 but had been unsuccessful in finding employment as an attorney.

¶17 According to Danielle, the court’s analysis should be limited to considering what she did “immediately after termination, not 19 years later.” However, she again does not provide any authority to support this proposition. Danielle asserts that she “applied for 2 jobs per week for up to a year after she was fired in January of 1993.” But her inability to secure employment as an attorney in 1993 is not dispositive of her ability to do so nineteen years later. Danielle’s termination and unsuccessful job search nearly two decades before the court’s ruling simply do not demonstrate clear error in the finding that she “has made no credible efforts to become employed or self-sufficient in the seven years since the parties’ separation.”

¶18      Danielle also argues that it was unreasonable for the court to determine that she could find work as an attorney when she had not worked as an attorney for the past nineteen years. In support of this assertion, she cites Spencer v. Utah State Bar, 2012 UT 92, 293 P.3d 360, in which the Utah Supreme Court enforced the Utah State Bar’s requirement that an out-of-state applicant to the Utah Bar have practiced for three out of the preceding five years in order to be admitted without taking the Utah bar examination. See id. ¶¶ 16–18. Danielle argues that like the attorney in Spencer, she does not satisfy the three-out-of-the-last-five years rule and therefore is incapable of finding employment as an attorney in Utah. But that rule applied to out-of-state attorneys who wished to practice in Utah without taking and passing the Utah bar examination. See id. ¶¶ 9–13. In contrast, Danielle did take and pass the Utah bar examination. And there is no rule preventing attorneys who have passed that examination from activating their licenses and practicing law simply because they have not practiced law recently. Indeed, the absence of a rule to that effect suggests the opposite; it appears that in the view of the Utah State Bar, attorneys are presumptively competent to practice law in Utah, even if they have not practiced law recently, so long as they have passed the Utah bar examination and are eligible to be licensed.

¶19 Finally, Danielle argues that the court “did not properly apply [the] legal standard” for imputation of income because it failed to consider “prevailing earnings for persons of similar background in the community.” See Utah Code Ann. § 78B-12­203(7)(b). Danielle asserts that the “similar background” requirement means that the court should have considered only the prevailing earnings of “attorney[s] who had been fired from their only law jobs, had not been able to find a job while applying for 2 per week for a year [after termination,] and hadn’t worked in that occupation for over 19 years.” Danielle provides no reasoned analysis to support her assertion.

¶20 It is a well-recognized canon of statutory interpretation that “we presume that the legislature used each word advisedly.” Bylsma v. R.C. Willey, 2017 UT 85, ¶ 64 n.115, 416 P.3d 595 (quotation simplified). Here, the legislature employed the term “similar” rather than “identical” or “same.” We presume that this choice reflects the legislature’s intent not to limit a consideration of prevailing earnings to individuals with identical backgrounds. We therefore see no error in the district court’s consideration of the prevailing earnings of “persons of similar background” as opposed to “persons of identical background.” See Utah Code Ann. § 78B-12-203(7)(b).

¶21      Further, Danielle fails to acknowledge the ways in which the district court did take her background into account and even demonstrated leniency in its imputation. Although Danielle had several years of work experience as an attorney—albeit dated experience—the court based its imputation on salaries for entry-level attorneys. And even then, the court imputed only $50,000 of annual income to Danielle, more than $10,000 less than the low end of the vocational expert’s estimate of attorney salaries. Thus, Danielle’s assertion that the court failed to assess her potential income based on others of similar backgrounds is not supported by the record.

¶22 In short, none of the objections Danielle raises demonstrate that the district court exceeded its discretion in imputing income to her.

  1. Determination of Need

¶23 Danielle next contends that the district court abused its discretion in determining the amount of her needs. In calculating an alimony award, courts are required to consider, among other things, “the financial condition and needs of the recipient spouse.” Utah Code Ann. § 30-3-5(8)(a)(i) (LexisNexis Supp. 2010). Generally, courts are expected to assess need based on the standard of living existing at the time of the parties’ separation. See id. § 30-3-5(8)(c).

¶24 In evaluating Danielle’s needs, the court found that her “monthly needs . . . are overstated and bear no relation to her historical needs or standard of living as of the date of separation” and that her “claimed need exceeds [Richard]’s take-home income earned during the parties’ marriage.” The court called out a number of expenses that it considered to be overstated. It also found that Danielle’s “testimony regarding finances and expenses is not credible,” that “[s]he failed to provide any credible evidence regarding expenses,” and that her evidence contradicted itself. The court contrasted this with Richard’s testimony regarding the marital standard of living, which it deemed to be “credible, detailed and specific.”

¶25      We defer to the factfinder’s advantaged position to weigh conflicting evidence and testimony, and we will not set aside findings of fact so long as evidence supports them. See Dahl v. Dahl, 2015 UT 79, ¶ 121; Bonnie & Hyde, Inc. v. Lynch, 2013 UT App 153, ¶ 18, 305 P.3d 196. Danielle’s evidence of her financial needs was largely limited to her testimony and was generally unsupported by documentation. Yet, rather than address the district court’s credibility determination, on which its assessment of her needs largely rested, Danielle asks us to reconsider the reasonableness of her expenses. We decline to do so, because she has failed to demonstrate that the district court exceeded its discretion in its credibility determination, or even to address that determination. Moreover, in fashioning an alimony award, Danielle fails to address the district court’s consideration of the extensive support Richard provided Danielle from the date of the parties’ separation to the trial, the large property settlement Danielle received in the divorce, and the court’s finding that Danielle wrongly diverted marital funds from the parties’ joint accounts at the time of their separation.

¶26 Because the district court did not exceed its discretion in imputing income to Danielle and in calculating her need, we decline to disturb its alimony award.

  1. Richard’s Intent and Presumption of Gift

¶27 Danielle next contends that the district court erred by ruling that certain real property, owned solely by Richard before the marriage, remained his individual property despite being subsequently conveyed to Richard and Danielle as joint tenants. While a “transfer of otherwise separate property to a joint tenancy with the grantor’s spouse is generally presumed to be a gift,” Bradford v. Bradford, 1999 UT App 373, ¶ 22, 993 P.2d 887, it “is not conclusive [evidence] that a gift has been made.” Jesperson v. Jesperson, 610 P.2d 326, 328 (Utah 1980). Generally, the gift must be “coupled with an evident intent to do so [to] effectively change[] the nature of that property to marital property.” Bradford, 1999 UT App 373, ¶ 22. And “[t]he trial judge has wide discretion in the division of marital property (a matter of equity) and [the court’s] findings will not be disturbed unless the record shows there has been an abuse of discretion.” Jesperson, 610 P.2d at 328.

¶28 The two cases cited above are illustrative of the central role intent plays in dividing marital property. In Jesperson, the district court found that despite the fact that the parties’ property was held in joint tenancy, “there was no intention by Plaintiff to create a one-half property interest in Defendant, nor any expectation by Defendant that he had received a one-half property interest.” Id. The Utah Supreme Court upheld the district court’s finding in light of the court’s “wide discretion in the division of marital property.” Id. In contrast, in Bradford, this court held that real property that a husband had conveyed to himself and his wife as joint tenants was marital property because the husband himself testified that he “intended at that time to give a one-half interest in the home to his wife” and nothing in the record indicated otherwise. See Bradford, 1999 UT App 373, ¶ 24.

¶29      In this case, Richard owned the property in question prior to the marriage but then conveyed it to himself and Danielle as joint tenants. At the divorce trial, Richard was asked why the house had been retitled jointly:

Q. Okay. You heard [Danielle] testify that the Woodland Hills house was titled jointly. How did that occur?

Ahhh, I believe it was several months after we were married she demanded that I put her name on the deed for the Woodland Hills house. She claimed that if I wouldn’t do that she was going to leave me and leave the marriage.

Q. So you acquiesced in that?

A. I did.

Q. Did you intend for your premarital contribution to be a gift to her?

A. No, I didn’t.
. . .

Q. Do you consider your premarital contribution [of the Woodland Hills house proceeds] to be a gift to [Danielle]?

A. No, I don’t.

Q. Do you consider it a gift to the marriage?

A. No.

¶30      The court explained in its ruling on Danielle’s motion for new trial that “there was no evidence of intent by [Richard] to change the nature of his separate property contributions to marital property” and that the court had therefore exercised its equitable discretion to award Richard his premarital property.[8] In light of Richard’s testimony that he added Danielle’s name to the deed for the property only because Danielle threatened to leave him if he did not and the lack of any additional evidence, apart from the transfer itself, indicating that Richard intended to make a gift of the property, we conclude that the district court did not exceed its discretion in determining that Richard’s property retained its premarital character.

III. Due Process

¶31 Finally, Danielle contends that she “was denied due process by [Richard’s] misstatements to the court regarding financial matters, which resulted in [Danielle] having inadequate support to employ counsel” because the district court refused to release funds from the estate to her. She claims that this was a denial of due process and that the district court therefore should have granted her motion for new trial.

¶32 First, we are skeptical of Danielle’s claim that the funds she had prior to trial were insufficient for her to hire legal counsel. Danielle concedes that in addition to her temporary alimony award,[9] the court released $10,000 to each party on two separate occasions. And the parties further stipulated to a release of another $10,000 to each party. We also doubt Danielle’s claim that she was utterly helpless in preparing for trial without an attorney, as she is herself an attorney, having both graduated from Stanford Law School and passed the Utah bar examination.

¶33 In any event, Danielle has failed to adequately brief this issue. See Utah R. App. P. 24(a)(8) (“The argument must explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal.”). She claims to have been denied due process but fails to discuss any legal standards regarding due process. Her argument appears to assume that she had a due process right to representation by counsel in the divorce proceedings, but she provides no legal support for that proposition. See, e.g., State v. Young, 853 P.2d 327, 354 (Utah 1993) (noting that there is generally “no right to counsel in a civil case”).[10] She also makes cursory reference to the “doctrine of unclean hands” but fails to discuss this doctrine or explain how it applies in the context of her due process argument. Instead of supporting her due process claim with reasoned legal analysis, Danielle peppers her brief with conclusory statements asserting that various actions by Richard and the court “denied her due process.” The rest of her argument consists of a list of complaints regarding the limitations she faced in preparing her case without an attorney in light of her claimed disabilities.

¶34 Essentially, Danielle’s argument asks us to hold that she was denied due process simply because she was not able to prepare her case in the manner that she would have preferred and because the court’s rulings did not come out in her favor. This does not establish an adequate basis for a due process claim, and we therefore conclude that Danielle has failed to carry her burden of persuasion on this issue.[11]


¶35 The district court’s factual findings supporting its imputation of income to Danielle and its assessment of her needs were supported by sufficient evidence and not clearly erroneous. Similarly, the court did not exceed its discretion by crediting Richard’s testimony regarding his separate premarital property and awarding him a credit for the value of that property. Further, we reject Danielle’s due process claims because she has failed to adequately brief them.[12] Accordingly, we affirm the district court’s findings and conclusions and its denial of Danielle’s motion for new trial.[13]

Utah Family Law, LC | | 801-466-9277


[1] Assisted by Leslie W. Slaugh.

[2] As is our practice in cases where both parties share a last name, we refer to the parties by their first names with no disrespect intended by the apparent informality.

[3] Danielle also challenges the court’s calculation of Richard’s income. Specifically, she claims that the court should have considered Richard’s W-2 for 2004. Danielle has not demonstrated that this argument was preserved. See Utah R. App. P. 24(a)(5). In fact, it does not appear that the disputed W-2 was admitted into evidence by the district court; we have not been able to locate the W-2 in the record on appeal, and Danielle does not provide a record citation to where the W-2 may be found. We therefore do not address this claim further. See id. R. 24(a)(8); id. R. 24(a)(12)(C); id. R. 24(e).

[4] Because the language of some statutes have changed, we cite to the version of the statutes in effect at the time of trial.

[5] “Although this section of the Utah Code addresses imputation for the purposes of child support, it is also relevant to imputation in the alimony context.” Fish v. Fish, 2010 UT App 292, ¶ 14 n.5, 242 P.3d 787.

[6] The expert explained that the term “state of Utah metro area” referred to the region between Provo and Ogden.

[7] Danielle cites one case for the proposition that, when determining “a recipient’s ‘income and resources,’ [the government] must ensure that any such income or resources ‘actually exist,’ be not ‘fictitious’ or ‘imputed,’ and ‘be actually on hand or ready for use when it is needed.’” See Heckler v. Turner, 470 U.S. 184, 200 (1985). But that case concerned public assistance from the government, not alimony. Moreover, the quoted language was describing a Social Security Board “policy statement applicable to various aid programs” and was not a legal holding by the Court. Id.

[8] Danielle was also awarded premarital assets in the amount of $8,482.

[9] At the outset of the divorce proceedings, the commissioner made a temporary award of $3,915 per month, of which half was child support and half was alimony. In arriving at this amount, the commissioner imputed to Danielle an after-tax income of $1,850 per month.

[10] We note that Danielle does not allege the court refused to allow her to be represented by counsel at her own expense. In such a case, our analysis would be different.

[11] Danielle also includes three claims regarding the adequacy of the record in her briefing of this issue. In all three, she essentially argues that a new trial should be granted due to the district court’s failure to record certain post-trial proceedings. We reject these claims because Danielle did not show “that the issue was preserved” or provide a “statement of grounds for seeking review of an issue not preserved.” See Utah R. App. P. 24(a)(5). Moreover, as the appellant, Danielle bears the burden of establishing a record adequate to support her claims on appeal. See, e.g., Reperex, Inc. v. May’s Custom Tile, Inc., 2012 UT App 287, ¶ 13, 292 P.3d 694; see also Utah R. App. P. 11(e)(2). This burden entails either providing a transcript of the relevant hearings or, where no transcript can be made, reconstructing the proceedings through the participants’ affidavits. See id. R. 11(g); see also Ajinwo v. Chileshe, 2018 UT App 39, ¶ 3, 420 P.3d 51. Danielle has not done the latter, and thus unable to carry her burden on appeal of showing prejudicial error.

[12] Danielle requests an award of fees on appeal. As she has not prevailed on appeal, we deny this request. See Leppert v. Leppert, 2009 UT App 10, ¶ 29, 200 P.3d 223. Also, Danielle is a pro se litigant and therefore not entitled to fees. See White v. White, 2017 UT App 140, ¶ 37, 402 P.3d 136.

[13] To the extent that we have not addressed other points or subpoints raised in Danielle’s briefs, we have determined that they lack merit and decline to separately analyze them. See Lucas v. Wells Fargo Bank, NA, 2013 UT App 117, ¶ 14 n.4, 302 P.3d 1240; see also Centennial Pointe Owners’ Ass’n v. Onyeabor, 2009 UT App 325U, para. 1 n.1 (declining to address some of a pro se appellant’s “inadequately briefed arguments”); Delta Delta Delta v. Theta Phi House Corp., 2009 UT App 133U, para. 5 n.1 (“Other issues raised by [the appellant] are without merit, and we decline to analyze them in detail.”).

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