I think I know why you think it’s weird. Why have the children live with one parent instead both parents on an equal custody basis? In other words, “I’ll bear the financial costs of taking care of the children when they are with me, and you bear the financial costs of taking care of the children when they are with you.” That makes, sense. But there is more than one way to view this situation. Most jurisdictions in the U.S.A. see it this way:
If the children spend more time in the care and custody of one parent than the other, then that parent will bear greater financial burden in the form of having to pay for at least the food the children eat, the laundry detergent they use in the washing of their clothes, the extra utilities expenses they represent (using more water and electricity than if the parent lived alone) and the soap, shampoo, and toilet paper the children use.
In Utah (where I practice divorce and family law), child support is intended to cover not only these expenses of the children, but their clothing and bedding, school fees, and extracurricular activities too.
This is why most jurisdictions order the parent who exercises less care and custody than the other parent (the noncustodial parent) to pay what is called “child support” to the custodial parent.
But what if the parents share equal physical custody of the children? Does that mean that neither parent will pay child support to the other? Not necessarily.
In Utah, even if the parents were awarded equal custody of the children, one parent can end up still paying child support to the other, if one parent has a higher income than the other. The reason for this is the idea that the children’s lifestyle should be the same regardless of which parent they are residing with at the time. To ensure the parent whose income is lower can afford to provide the same lifestyle for the children as their other parent, many courts (including Utah’s) will still order the richer parent to pay child support to the poorer parent for this purpose.
What can you do if your husband does not want to pay school fees for his children when you are divorced?
First, it is not necessarily a given that a divorced parent must pay for a child’s school fees. I don’t know the law for all jurisdictions, of course, but in the jurisdiction where I practice divorce and family law (Utah), there is no law that expressly requires the parents to share the cost of the child’s school fees.
Second, in the jurisdiction where I practice divorce and family law (Utah), unless the parents are awarded joint physical custody* of the child(ren), the child support obligor parent (meaning the parent who is obligated to pay child support to the other parent) is not required to pay for anything over and above the monthly base child support obligation amount.
Even when parents are awarded joint physical custody of children, that does not necessarily guarantee that the parents must share the children’s school fees. First, they are fees that a student must pay as a condition of being enrolled in school, but there are many other optional fees that a student may incur but is not required to incur. A joint physical custodial parent in Utah who has a monthly base child support payment obligation is required to do as follows, when it comes to child support obligations other than/in addition to the base monthly Child support amount:
(3) “Joint physical custody”:
(a) means the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support;
Could the phrase “both parents contribute to the expenses of the child in addition to paying child support” be any more ambiguous? It’s hard to imagine how it could be. And yet that is the law in the state of Utah for joint physical custodial parents. So while it is by no means black letter law that joint physical custodial parents in Utah must share the costs of their children’s school fees, it is likely a safe bet that a court would, if the issue arose, order a child support obligor parent to pay, in addition to monthly base child support, a portion (likely half) of a school’s fees that must be paid so that a child can be enrolled in school.
————
*In Utah, joint physical custody does not mean joint equal custody (50/50), it means, “the child stays with each parent overnight for more than 30% of the year,” which means that the child spends no less than 111 overnights with a parent.
Utah Family Law, LC | divorceutah.com | 801-466-9277
In Utah, the answer is: it’s likely that Mom will pay child support to Dad. Generally, unless the primary joint custodial parents makes orders of magnitude more than the other parent, the parent awarded less custody is going to pay the parent awarded more custody.
But it is possible, in certain scenarios, for a dad who has custody of the children more overnights annually than does a mom. For example, in preparing the answer to this question I calculated child support based upon this scenario:
Mom’s gross monthly income is $2,000. Dad’s gross monthly income is $25,000. Dad has the children in his custody 220 overnights annually and Mom has the children in her custody 145 overnights annually. Even though the children are with Dad more than with Mom, given the huge disparity in the parents’ respective incomes, Dad would end up paying Mom $238 per month, where if Dad had sole custody (meaning that Mom has the children in her custody 110 overnights or fewer annually), Mom would pay Dad $166 per month.
Utah Family Law, LC | divorceutah.com | 801-466-9277
BRUCE RAY MCFARLAND, Appellant and Cross-appellee, v. NICOLE S. MCFARLAND, Appellee and Cross-appellant.
Opinion
No. 20190541-CA Filed June 4, 2021
Second District Court, Farmington Department
The Honorable David J. Williams
No. 084701533
Jacob K. Cowdin and A. Douglas Anderson, Attorneys for Appellant and Cross-appellee
Angilee K. Dakic and Ryan C. Gregerson Attorneys for Appellee and Cross-appellant
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N. MORTENSEN concurred.
HARRIS, Judge:
¶1Bruce Ray McFarland (Bruce) and Nicole S. McFarland (Nicole)1 divorced in 2009 pursuant to a stipulated divorce decree, but soon thereafter began to ignore many of the decree’s important provisions. However, neither party brought any matter to the attention of the district court for some eight years, until Bruce filed a petition to modify in 2017, and Nicole followed up with a request that the court hold Bruce in contempt. Both parties now appeal the court’s ruling on those requests and, for the reasons discussed herein, we affirm in part, reverse in part, and remand for further proceedings.
BACKGROUND The Divorce Decree
¶2In 2008, after almost sixteen years of marriage, Bruce and Nicole separated, and Bruce filed a petition for divorce. Soon thereafter, the parties negotiated a resolution to the divorce proceedings, and filed papers memorializing their agreement. In February 2009, the court entered a decree of divorce (the Decree) that incorporated the parties’ stipulated agreement. With regard to alimony and the house in which they lived while they were married (the Home), the parties’ agreement was straightforward: Bruce was ordered to pay $1,700 per month in alimony to Nicole, beginning in November 2008 and continuing until Nicole “remarries, cohabits, dies, for a term equal to their marriage, or further order of the Court,” and Nicole was awarded the Home, including the obligation to make the mortgage payments.
¶3But the parties’ agreement regarding custody and child support was unusual. Bruce was to have overnight custody of the parties’ four children every week from Sunday evening until Friday morning, with the parties each enjoying weekend overnight custody on an alternating basis. During the modification proceedings at issue here, Nicole acknowledged that the arrangement entitled her to fewer than 30% of the overnights; indeed, the district court found that this arrangement resulted in Bruce having “24 overnights per month with the children,” leaving Nicole with just six, and neither party takes issue with that finding. But despite the fact that Bruce was awarded more than 70% of the overnights, see Utah Code Ann. § 30-3-10.1(2)(a) (LexisNexis 2009) (defining “joint physical custody” as any arrangement in which “the child stays with each parent overnight for more than 30% of the year”), the parties labeled their arrangement “joint . . . physical custody,” perhaps because the arrangement contemplated that Nicole would pick the children up from school every day and care for them until eight o’clock p.m., at which point Bruce was to retrieve the children so that they could “stay with him overnight.”
¶4With regard to child support, the parties agreed to calculate the amount using the sole custody worksheet, even though they labeled their arrangement as joint custody, and agreed that Bruce—and not Nicole, notwithstanding the fact that Bruce had the lion’s share of the overnights—would be considered the “Obligor Parent” on the worksheet. Using these parameters, the parties agreed that Bruce would pay Nicole monthly child support equating to one-half of what the worksheet said Bruce would owe if he were the Obligor Parent, an amount the parties computed to be $739.73 per month at the time the Decree was entered, when all four children were still minors.2
Post-Divorce Events and Conduct
¶5Soon after the court entered the Decree, both parties began to ignore many of its provisions. For instance, Nicole made no mortgage payments on the Home. And Bruce made only one alimony payment (in January 2009) and three child support payments (in December 2008, and January and February 2009), but after that made no payments of either kind.
¶6In addition, with Nicole’s permission, Bruce moved back into the Home in April 2009. After that point, although Bruce made no payments denominated as alimony or child support, he did resume paying the mortgage on the Home, a payment that happened to be $1,728 per month, only slightly more than Bruce’s alimony obligation. When Bruce first moved back in, he and Nicole lived separately for a time, but beginning in September 2009, and lasting until April 2010, Bruce and Nicole resumed cohabiting as a couple, which included sharing familial expenses and reinitiating sexual relations. It is not a matter of dispute in this case that, during that seven-month period, the parties were cohabiting, as that term is used in relevant statutes and case law. See Myers v. Myers, 2011 UT 65, ¶ 17, 266 P.3d 806 (identifying the “hallmarks of cohabitation, including participation in a relatively permanent sexual relationship akin to that generally existing between husband and wife and the sharing of the financial obligations surrounding the maintenance of the household” (quotation simplified)); see generally Utah Code Ann. § 30-3-5(10) (LexisNexis 2017) (stating that alimony “terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person”).
¶7In April 2010, Nicole enlisted in the military, and left Utah for basic training. Over the next seven years, Bruce resided in the Home with the children, and provided all necessary childcare and financial support, including making the monthly mortgage payments on the Home. Nicole served two tours of duty overseas with the military, and visited the children or took them on vacation periodically while on leave. But other than these short visits, Nicole exercised no custody or parent-time, and provided no significant financial support to the children. Eventually, in 2015, Nicole remarried.
¶8For the seven years following Nicole’s enlistment, both parties seemed content with their arrangement and, even though both were materially violating the terms of the Decree, neither filed so much as a single document with the court. In particular, neither party sought to modify the terms of the Decree, and neither party sought contempt sanctions against the other.
The Post-Divorce Filings
¶9The parties’ tacit arrangement came to an end in 2017 when Bruce sought to refinance the Home. Because Nicole had been awarded the Home in the Decree, Bruce asked Nicole to deed him the Home to facilitate the refinance. Nicole refused to authorize the refinance unless Bruce paid her half the equity, asserting that she owned the Home and that any mortgage payments made by Bruce constituted “either rent or alimony payments” that he owed her. Then, in June 2017, Bruce filed a petition to modify, followed by a motion for temporary orders in February 2018, bringing three separate provisions of the Decree to the court’s attention. First, Bruce requested that alimony be terminated, dating back to 2009. Second, Bruce asked the court to modify the Decree to award him sole physical and legal custody of the two remaining minor children, and asked that he be awarded child support payments from Nicole going forward. And finally, Bruce asked the court to modify the Decree to award him the Home, alleging that he assumed the mortgage to avoid foreclosure because Nicole had “abandoned the property when she joined the military.” While the petition and motion for temporary orders were pending, Bruce completed a refinance of the Home, apparently finding a way to close the transaction without Nicole’s authorization.
¶10 Nicole responded by filing two orders to show cause, asking the court to hold Bruce in contempt in three respects:
(1) for failing to make alimony payments; (2) for failing to make child support payments; and (3) for occupying the Home and for refinancing it without her authorization. Nicole asked the court to enter judgment in her favor for alimony and child support arrears, as well as for “the amount that [Bruce] cashed out when he refinanced” the Home, and asked the court to order that she obtain immediate “use and possession” of the Home.
¶11 After a hearing, a domestic relations commissioner certified a number of issues as ripe for an evidentiary hearing before the district court, including the following: (1) whether Bruce should be held in contempt for failing to pay alimony and, if so, the amount of arrears at issue; (2) whether Bruce should be held in contempt for failing to pay child support and, if so, the amount of arrears at issue; (3) whether Bruce should be held in contempt for refinancing the Home without Nicole’s consent; and (4) whether Bruce should be held in contempt for occupying and refusing to vacate the Home. All of the issues certified by the commissioner were framed as contempt or temporary order issues; the commissioner apparently did not envision that the hearing would be a final dispositive hearing on Bruce’s petition to modify.
¶12 In anticipation of the evidentiary hearing before the district court, both parties filed papers outlining their positions. Citing section 30-3-5(10) of the then-applicable Utah Code, Bruce argued that he did not owe any alimony arrears because his obligation to pay alimony terminated in 2009 due to “the cohabitation relationship” that the two established when they moved back into the Home together. Citing Scott v. Scott, 2017 UT 66, ¶¶ 10, 26–27, 26 n.7, 423 P.3d 1275, Nicole argued in response that, under the applicable statute as interpreted by our supreme court, a party attempting to terminate alimony for cohabitation must file a motion or petition “during [the] alleged co-habitation.”
¶13 Regarding child support, Bruce asserted that he should not be required to pay Nicole for any point after 2009, because the children had been almost entirely in his care since then. In particular, Bruce argued for the applicability of section 78B-12108 of the Utah Code, which provides that child support payments generally “follow the child,” and that changes in child support obligations can, under certain circumstances, occur “without the need to modify” the governing decree. See Utah Code Ann. § 78B-12-108(1), (2) (LexisNexis 2017). Bruce’s arguments in the pretrial briefing were entirely defensive—that is, he asserted that he should not be required to make child support payments to Nicole after 2009, but at no point did he assert an entitlement to child support arrears from Nicole regarding any time period prior to the filing of his petition to modify.
The Hearing and Subsequent Ruling
¶14 At the ensuing evidentiary hearing, the court heard live testimony from Bruce, Nicole, Bruce’s father, and the parties’ adult daughter. At the conclusion of the evidence, the court took the matter under advisement, and asked the parties to submit written closing arguments in the form of post-trial briefs.
¶15 In her closing brief, Nicole attempted to rebut Bruce’s cohabitation claim with two arguments. First, Nicole asserted that the governing statute, as interpreted in Scott, required Bruce to have requested termination of alimony during the period of cohabitation. Second, Nicole argued that, even if Bruce’s request was timely, no cohabitation occurred because Bruce, the payor spouse, did not qualify as “another person” within the meaning of the governing statute. See Utah Code Ann. § 30-3-5(10) (LexisNexis 2017) (stating that alimony terminates if “the former spouse is cohabitating with another person”). For his part, while he attempted to rebut all of Nicole’s claims, Bruce again made no affirmative claim to child support arrears running in his direction.
¶16A few weeks later, the court issued a written ruling. With regard to alimony, the court found Bruce in contempt for failing to make payments. First, the court concluded that the mortgage payments Bruce made were just that—mortgage payments on a house Bruce lived in—and could not be considered alimony, and it found that Bruce had not paid any alimony since 2009. Second, the court determined that, even if all of the hallmarks of cohabitation were present between September 2009 and April 2010, cohabitation had not occurred because “‘cohabitation’ does not include meeting the elements of cohabitation with the ex-spouse.” Accordingly, the court concluded that Bruce’s alimony obligation had not terminated in 2009 when the parties moved back in together, and that Bruce was in contempt for not paying alimony between 2009 and Nicole’s remarriage in 2015. Based on those findings, the court computed the alimony arrearage amount to be “$150,744.50 plus post-judgment interest,” and ordered Bruce to pay that amount.
¶17 With regard to child support, the court found that Bruce was not in contempt. The court accepted Bruce’s argument that, pursuant to section 78B-12-108 of the Utah Code, the child support obligation was to follow the children, and concluded that, pursuant to subsection (2) of that statute, which the court found applicable, Bruce was relieved of his child support obligation dating back to 2009, even though he did not file a petition to modify until 2017. In addition, the court offered its view that, even if section 78B-12-108 were inapplicable, “it would not be equitable to require” Bruce to pay child support to Nicole for time periods in which he cared for the children. On those bases, the court determined that Bruce had no obligation to pay child support to Nicole after 2009. But the court did “not find that [Nicole] was required to pay child support payments to [Bruce] after leaving for military service,” noting that, in its view, Bruce had not made any such affirmative claim, and instead had raised only defensive claims regarding any obligations he might have to Nicole.
¶18With regard to the Home, the court declined to find Bruce in contempt for not vacating the Home, refusing to quitclaim it to Nicole, or refinancing it. However, the court made no ruling on altering the Decree’s provision that originally awarded the Home to Nicole, stating simply that Bruce “shall be allowed, on a temporary basis, to remain” in the Home “until the matter is brought forth and certified” by the commissioner as ripe for an evidentiary hearing.
ISSUES AND STANDARDS OF REVIEW
¶19 Both parties appeal the district court’s ruling, raising two main issues for our review. First, Bruce challenges the court’s determination that his alimony obligation was not terminated by cohabitation. In advancing this argument, Bruce relies entirely on Utah’s alimony statute, and asserts that the court’s interpretation of that statute was incorrect. See Utah Code Ann. § 30-3-5(10) (LexisNexis 2017) (stating that a payor spouse’s obligation “terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person”).3 “The proper interpretation and application of a statute is a question of law which we review for correctness . . . .” Veysey v. Veysey, 2014 UT App 264, ¶ 7, 339 P.3d 131 (quotation simplified).
¶20 Next, both parties challenge the court’s child support rulings. Nicole takes issue with the court’s determination that Bruce did not owe her child support payments, pursuant to the terms of the Decree, after 2009. And Bruce asserts that the court erred by declining to order Nicole to pay child support arrears to him. Because the parties’ arguments center on interpretation and application of section 78B-12-108 of the Utah Code (Section 108), we review the district court’s decision for correctness. See Veysey, 2014 UT App 264, ¶ 7.4
ANALYSIS I. Alimony
¶21We first address Bruce’s claim that his alimony obligation terminated by operation of statute when the parties cohabited in 2009 and 2010. Because Bruce’s position is directly foreclosed by our supreme court’s decision in Scott v. Scott, 2017 UT 66, 423 P.3d 1275, we reject his challenge to the district court’s ruling.
¶22 At all relevant times during the events precipitating this appeal, Utah’s alimony statute provided that alimony obligations “to a former spouse terminate[] upon establishment by the party paying alimony that the former spouse is cohabitating with another person.” Utah Code Ann. § 30-3-5(10) (LexisNexis 2017) (emphasis added).5 In Scott, our supreme court was asked to interpret the same version of this statute. See 2017 UT 66, ¶ 3. After noting the statute’s use of present tense language—“is cohabitating”—the court interpreted the statute as requiring “the paying spouse to establish that the former spouse is cohabiting at the time the paying spouse files the motion to terminate alimony.” See id. ¶¶ 23, 33. While the Scott opinion was not published until 2017, the statutory language the court was interpreting in that case had been in effect at all times relevant to this case. See supra note 5. That is, Scott did not introduce a new rule that was effective only prospectively; rather, it provided an interpretation of statutory text that had already been in effect for several years. See DIRECTV, Inc. v. Imburgia, 577 U.S. 47, 56 (2015) (“[J]udicial construction of a statute ordinarily applies retroactively.”); see also Rivers v. Roadway Express, Inc., 511 U.S. 298, 311–12 (1994) (stating that “the principle that statutes operate only prospectively, while judicial decisions operate retrospectively, is familiar to every law student” (quotation simplified)).
¶23 Under the circumstances presented in this case, any cohabitation between Bruce and Nicole ceased sometime in early 2010. But Bruce did not file his petition to modify until 2017. It is therefore undisputed that the cohabitation to which Bruce points had long since ceased by the time he filed his petition to modify. Thus, under the statute then in effect (as interpreted by Scott), that petition was filed some seven years too late. Accordingly, Bruce cannot now complain that his alimony obligation should be terminated, by operation of statute, due to the parties’ long-since-concluded cohabitation. Bruce has therefore not carried his burden of demonstrating error in the district court’s ruling that Bruce’s alimony obligation lasted until Nicole’s 2015 remarriage,6 or in the court’s rulings holding Bruce in contempt for failing to pay alimony from 2009 through 2015 and ordering him to pay past-due alimony.7
Child Support
¶24 Next, we address the parties’ respective challenges to the district court’s child support rulings. As noted, Nicole takes issue with the court’s ruling that Bruce’s child support obligations to her, as set forth in the Decree, ended in 2009, and that therefore Bruce could not be held in contempt for not meeting those obligations. Building on that same ruling, Bruce takes issue with the court’s reluctance to go a step further and order Nicole to pay him child support arrearages dating to 2009. We begin our analysis by discussing some of the broad overarching principles governing modification of child support orders, including a discussion of Section 108 in particular. We then address the parties’ respective challenges, in turn, beginning with Nicole’s.
A
¶25In general, decrees in domestic relations cases are binding final judgments that may be modified “only under certain conditions.” Kielkowski v. Kielkowski, 2015 UT App 59, ¶ 21, 346 P.3d 690; see also Robertson v. Stevens, 2020 UT App 29, ¶¶ 6–7, 461 P.3d 323 (explaining that once “judgment is entered” in a divorce case, “the court’s power to modify the judgment is limited” (quotation simplified)). While there are several tools that can generally be used to modify final judgments, see, e.g., Utah R. Civ. P. 60(b), one tool that is specific to family law cases is the petition to modify, see id. R. 106(a) (stating that, in most cases, “proceedings to modify a divorce decree . . . shall be commenced by filing a petition to modify”); see also Ross v. Ross, 2019 UT App 104, ¶ 11, 447 P.3d 104 (“[R]ule 106 establishes a general rule . . . that any changes to divorce decrees must be brought about by the filing of a petition to modify.”). Parties in family law cases may use this tool, in accordance with applicable statutes and rules, to seek modification of various provisions of decrees, including child support provisions. See Utah Code Ann. § 78B-12-210(9)(a) (LexisNexis 2017) (“A parent . . . may at any time petition the court to adjust the amount of a child support order if there has been a substantial change in circumstances.”); see also id. § 30-3-5(3) (“The court has continuing jurisdiction to make subsequent changes or new orders for the custody of a child and the child’s support, maintenance, health, and dental care, and for distribution of the property and obligations for debts as is reasonable and necessary.”); id. § 30-3-5(8)(i)(i) (“The court has continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantial material change in circumstances . . . .”).
¶26 But in general, modifications to a decree’s provisions regarding child support payments may date back only to “the month following service” of the petition to modify “on the parent whose support is affected.” See id. § 78B-12-112(4); see also McPherson v. McPherson, 2011 UT App 382, ¶ 17, 265 P.3d 839 (stating that “the statute does limit the time period during which retroactive modification is available”). That is, as concerns child support provisions, parties are generally barred from obtaining modifications that date back further than the first day of the month after the month in which the petition to modify was served on the opposing party.
¶27 One potential exception to this general rule appears in Section 108, a statutory provision entitled “Support Follows the Child.” See Utah Code Ann. § 78B-12-108 (LexisNexis 2017). That section, in relevant part, reads as follows:
Obligations ordered for child support and medical expenses are for the use and benefit of the child and shall follow the child.
Except in cases of joint physical custody and split custody as defined in Section 78B-12-102, when physical custody changes from that assumed in the original order, the parent without physical custody of a child shall be required to pay the amount of support determined in accordance with [calculation guidelines found in other code sections] without the need to modify the order for . . . the parent who has physical custody of the child.
Id. (emphasis added). Thus, Section 108 contains an overarching mandate that child support payments “shall follow the child,” and provides that, under certain limited circumstances, child support obligations can change “without the need to modify” the child support provisions in the governing decree. Id.; see also Hansen v. Hansen, 2012 UT 9, ¶ 13, 270 P.3d 531 (stating that, under certain circumstances, Section 108 “allows redirection of child support [payments] without modification of the support order”). In this way, Section 108 constitutes an exception to the general rule that modifications to child support provisions may date back only to the month following service of the petition to modify on the opposing party: where Section 108 applies, it may allow modification of child support awards even further back in time.
¶28 But this exception comes with distinct statutory limits. Indeed, our supreme court has noted that Section 108 “contains two provisions: (1) a general statement that support shall follow the child and (2) a specific provision providing guidelines for redirection of child support to a new physical custodian.” Hansen, 2012 UT 9, ¶ 7. And the court has already foreclosed any argument that subsection (1)’s general statement—that child support “shall follow the child”—operates by itself “to redirect support payments any time anyone provides any shelter or sustenance to a child.” See id. ¶ 10. Instead, the specific requirements of subsection (2) operate to “modif[y] the general statement in subsection (1),” and those specific requirements serve as the prerequisites for entitlement to a retroactive change in child support that dates back further than the date of a duly served petition to modify. See id. ¶ 11.
¶29 Under the provisions of subsection (2), a litigant can obtain a change in a child support provision even “without the need to modify the order” itself, but only if two conditions are met: (a) there must be a change in “physical custody . . . from that assumed in the original order,” and (b) the case must not be one involving “joint physical custody.” See Utah Code Ann. § 78B-12-108(2).
B
¶30 Bruce asserts that Section 108 applies here, and allows him to obtain retroactive modification, dating all the way back to 2009, of the Decree’s child support provisions, even though he did not seek modification of either the custody provisions or the child support provisions until 2017. The district court agreed with Bruce’s interpretation of Section 108, and determined that Bruce was not in contempt for failure to pay Nicole child support between 2009 and 2017 because he had been caring for the children during that time and because child support should “follow the children.” (Citing Utah Code Ann. § 78B-12-108.)
¶31Nicole challenges the court’s interpretation of Section 108. We agree with Nicole because, for two independent reasons, Section 108 is inapplicable here. First, this is not a case in which physical custody ever legally changed “from that assumed in the original order.” See Utah Code Ann. § 78B-12-108(2) (LexisNexis 2017). And second, even assuming that some sort of de facto change of parent-time occurred in 2010 when Nicole joined the military, that change did not constitute a change in physical custody under the operative definition of that term. See id. §§ 30-3-10.1(3)(a), 78B-12-102(15) (each defining “joint physical custody” for its respective chapter).
1
¶32In order for Section 108’s exception to apply, the situation must involve a change in “physical custody . . . from that assumed in the original order.” See id. § 78B-12-108(2). The term “physical custody,” as used in this statute, is a “legal term of art” that “involve[s] much more than actual possession and care of a child.” See Hansen, 2012 UT 9, ¶¶ 12, 15, 19. “A physical custodian also has a legal responsibility to provide supervision and control.” Id. ¶ 15 (emphasis added).
¶33 Given this definition, a change in “physical custody” cannot occur without some sort of “formal legal process[].” Id. ¶¶ 19, 24. In most cases, this occurs by court order following the filing of a petition to modify. See id. ¶¶ 21, 25. In other “rare circumstances,” this can occur “by statute without the need for a hearing or court order.” Id. ¶ 25. But in any event,
child support should be redirected only to those persons or entities who acquire the rights and responsibilities of the child’s new “physical custodian” under the law. Usually that will happen only after adjudication and a formal order, but in all cases it requires fulfillment of the statutory procedures and standards for a change in physical custody. The actual provision of sustenance and support is insufficient.
Id.
¶34 In this case, no one disputes that Bruce assumed all responsibility for “sustenance and support” of the children after April 2010. See id. But in this context, provision of additional sustenance and support to the children beyond that anticipated in the Decree is not enough to effectuate an actual, legal change in physical custody. See id. Bruce took no steps—at least not until 2017—to follow the “formal legal processes” typically used to effectuate an actual change of physical custody. See id. ¶ 24. And Bruce makes no argument that this case presents any “rare circumstances” in which custody can change by operation of statute, even in the absence of a petition to modify. See id.
¶35Thus, no change in “physical custody”—in an actual legal sense, as required by the “term of art” definition of the statutory phrase, see id. ¶ 12 (quotation simplified)—occurred in April 2010, or at any time prior to the filing of Bruce’s petition to modify. Because physical custody did not change, Section 108’s narrow exception to the usual retroactivity rules governing modification of child support orders does not apply here, and therefore it does not enable Bruce to seek changes to the Decree’s child support obligations dating any further back than 2017.
2
¶36 Moreover, even if we were to assume, for purposes of argument, that a change in “physical custody” could theoretically be effectuated merely by a parent’s provision of additional sustenance and support beyond that required by the governing child support order, no such change occurred on the facts of this case. We have previously stated that “[c]ustody and parent-time are conceptually distinct.” See Ross v. Ross, 2019 UT App 104, ¶ 14 n.3, 447 P.3d 104. By statutory definition, there are two kinds of physical custody—sole physical custody and joint physical custody—with the dividing line based on the number of overnight visits enjoyed by each parent. See Utah Code Ann. §§ 30-3-10.1(3)(a), 78B-12-102(15) (both stating that “joint physical custody means the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support” (quotation simplified)). Because either parent, in any given case, could be awarded sole physical custody— defined as having at least 70% of the overnights—there are three possible physical custody arrangements: (a) Parent 1 has sole custody; (b) Parent 2 has sole custody; and (c) the parents share joint custody. When a change occurs that causes one parent to obtain enough additional overnights to move from one category to another (e.g., from 25% of overnights to 35%, or from 65% to 75%), there has been a change in physical custody. See Ross, 2019 UT App 104, ¶¶ 16–17, 17 n.5. But when a change occurs in which one parent obtains a few additional overnights but not enough to move from one category to another, the change constitutes only a change in parent-time, and not a change in physical custody, as that term is statutorily defined. See id. ¶ 16 (noting that, in relocation cases, a parent need not file a petition to modify if scheduling changes necessitated by the proposed relocation would not change the statutory custody designation, and would change only parent-time).
¶37 In this case, the parties started out with an arrangement, under the Decree, in which Bruce had twenty-four overnights each month and Nicole had only six. Although the parties described that arrangement, in the Decree, as a joint custody arrangement, the label the parties assigned to the arrangement is inconsequential. See Stephens v. Stephens, 2018 UT App 196, ¶ 29, 437 P.3d 445 (stating that the “designation of ‘joint physical custody’ or ‘sole physical custody’” used in a decree “is not as important as whether the custody arrangement [actually] exceeds the statutory threshold for joint physical custody” (quotation simplified)). And here, despite the parties’ label, their arrangement was actually a sole custody arrangement. See Utah Code Ann. § 78B-12-102(15). As noted, the district court made a specific (and unchallenged) finding on this point, and correctly concluded that, because the Decree awarded Nicole only “approximately 20% of the overnights,” it described a sole custody arrangement.
¶38 Thus, the more recent arrangement, following Nicole’s departure into the military, did not result in a change of custody. After Nicole left, Bruce went from about 80% of the overnights to nearly 100% of the overnights. Thus, Bruce had sole physical custody of the children under the original arrangement, and he maintained sole physical custody of the children after Nicole left. See id. In this situation, while Nicole’s departure did result in practical (if not official) changes to the parties’ division of parent-time, it did not effectuate any change in physical custody, under the statutory definition of that term.
¶39 Section 108 applies only in instances where “physical custody changes.” See id. § 78B-12-108(2). For both of the reasons just discussed, no change in physical custody occurred here, and therefore Section 108 cannot provide Bruce an escape from the usual rule that modifications to a domestic decree’s child support provisions cannot date back any further than the month following service of the petition to modify. See id. § 78B-12112(4). We therefore sustain Nicole’s challenge to the district court’s interpretation of the relevant statutes.
3
¶40 The district court’s ruling also included an alternative basis for declining Nicole’s request that Bruce pay child support arrearages. Specifically, the court stated as follows:
Finally, and regardless [of] whether [Section 108] applies here, it would not be equitable to require [Bruce] to pay child support arrearages to [Nicole] in this case. Even if that statute does not apply directly, subsection (1) is instructive of the legislature’s intent that child support “is for the use and benefit of the children.” . . . It would not be equitable to acknowledge that [Bruce] was the sole provider after moving back into the [Home] and especially after [Nicole] entered the military, acknowledge that [Nicole] provided very little, if any, support to the children since that time, but nonetheless require [Bruce] to pay the alleged child support arrearages requested by [Nicole].
¶41We do not necessarily disagree with the court’s sentiment (although we note that, in a big-picture sense at least, there are equities on the other side of the equation too: we can see wisdom in a bright-line rule requiring parties to file petitions to modify child support provisions, and in limiting parties’ ability to obtain changes to decrees that date back any further than the month following service of the relevant petition to modify). Looking just at the facts of this case, there does seem to be something intuitively inequitable about requiring Bruce to pay child support arrearages to Nicole. And we acknowledge that district courts are often given wide discretion to apply equitable principles in family law cases. See Harmon v. Harmon, 491 P.2d 231, 232 (Utah 1971) (“In order to carry out the important responsibility of safeguarding the interests and welfare of children, it has always been deemed that the courts have broad equitable powers.”).
¶42 But our legislature has enacted a number of statutes that govern certain aspects of family law cases, and we are aware of no principle of law that allows courts to override statutes, in particular cases, simply out of generalized equitable concerns. See Martin v. Kristensen, 2021 UT 17, ¶ 53 (stating that courts have “no equitable power to override” statutory mandates due to generalized concerns of “public policy and equity”). At a minimum, the district court has not adequately explained how its equitable concerns, in this situation, allow it to supersede statutory mandates or interpretations of those statutes by our supreme court. For instance, the district court’s reliance on subsection (1) of Section 108 as being “instructive of the legislature’s intent” that child support obligations shall “follow the child[ren]” appears misplaced, given our supreme court’s explanation, in Hansen v. Hansen, that “[s]ubsection (1)’s general directive cannot possibly be interpreted unqualifiedly . . . to redirect support payments any time anyone provides any shelter or sustenance to a child,” and that subsection (1) is “modifie[d]” by the “specific limitation[s]” found in subsection (2). See 2012 UT 9, ¶¶ 10–11, 270 P.3d 531. And as we have noted, supra ¶¶ 30–39, the prerequisites of subsection (2) are not satisfied here. Apart from the language in subsection (1), the court does not otherwise explain how generalized equitable considerations, no matter how weighty, can justify modification of a child support order back beyond the month following service of the petition to modify, given our legislature’s clear directive that such orders may be modified “only from the date of service of the pleading on the obligee.” See Utah Code Ann. § 78B-12112(4).
¶43 We observe that there may well be specific doctrines of equity or discretion that could apply in this situation to temper Nicole’s requests. Nicole presented her request in the context of an order to show cause seeking contempt, a legal doctrine that has its own elements and requirements, see Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988) (setting forth the required showing for a contempt finding), in which courts are afforded discretion in selecting an appropriate sanction once contempt is found, see Utah Code Ann. § 78B-6-310(1) (LexisNexis 2018) (stating that, “[i]f the court finds the person is guilty of the contempt, the court may impose a fine” or other punishment (emphasis added)); id. § 78B-6-311(1) (stating that a court “may order” the contemnor to pay the aggrieved party “a sum of money sufficient to indemnify and satisfy the aggrieved party’s costs and expenses” (emphasis added)). Alternatively, various equitable doctrines may apply in situations like this, depending on the circumstances. See, e.g., Soter’s, Inc. v. Deseret Fed. Sav. & Loan Ass’n, 857 P.2d 935, 939–40 (Utah 1993) (discussing the doctrine of waiver and its elements); Veysey v. Veysey, 2014 UT App 264, ¶ 16, 339 P.3d 131 (discussing the doctrine of laches and its elements); Bahr v. Imus, 2009 UT App 155, ¶ 6, 211 P.3d 987 (discussing the doctrine of equitable estoppel and its elements). We express no opinion as to the applicability of any such doctrine to the facts of this case. But the district court did not ground its child support ruling—that Bruce should not be required to make child support payments—in its post-contempt sentencing discretion or in any specific equitable doctrine; instead, as we interpret its order, it concluded that, due to unspecified equitable considerations, Bruce should be relieved from any obligation to make payments in the first place. In our view, the court has not adequately explained how equitable considerations can override statutory commands in this case.
¶44Accordingly, we reverse the district court’s determination that Bruce was not “required to pay child support payments to [Nicole] after [Nicole left] for military service,” and we remand the matter for further proceedings on Nicole’s request that Bruce be held in contempt for failing to make child support payments.
C
¶45Finally, given our conclusion regarding Nicole’s challenge to the district court’s child support ruling, we can readily dispose of Bruce’s challenge to that same ruling. As an initial matter, we agree with the district court’s conclusion that Bruce made no affirmative claim, before the district court, to any child support arrears dating back further than the service of his petition to modify. On that basis alone, the district court was justified in not awarding him any. But more substantively, for the reasons already explained, we find no merit in Bruce’s argument that Section 108 operates to allow him to look all the way back to 2009 for modification of the Decree’s child support provisions.
CONCLUSION
¶46 The district court correctly determined that Bruce’s alimony obligation was not terminated—at least not under the alimony statute—by the parties’ cohabitation in 2009 and 2010, because the statute required Bruce to file a petition seeking termination while the cohabitation was still occurring, and he did not do so. Accordingly, the district court did not err by holding Bruce in contempt for failing to pay alimony after 2009, and in ordering Bruce to pay past-due alimony through 2015, and we affirm those orders.
¶47 However, the district court erred in its interpretation of Section 108, and erred in concluding that Section 108 operated to relieve Bruce of his obligation, under the Decree, to continue to pay Nicole child support after 2010. In this case, neither Section 108, nor generalized equitable concerns, operates to relieve Bruce of that obligation, and neither allows Bruce to obtain a modification of his child support obligations dating back any further than the month following service of his petition to modify. Accordingly, we reverse the district court’s determination to the contrary, and remand the case for further proceedings, consistent with this opinion, on Nicole’s request for contempt relating to child support and on Bruce’s petition to modify.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Normally, I do not like to comment on the intersection of pop culture and family law because quite often, what happens in a celebrity divorce or child custody dispute does not arise or get handled the same way as would be the case for those of us who are not celebrities, but because this was a matter of fathers seeking joint custody of his children, and because (based upon the little I have read on the subject) the court did not find Brad Pitt to be an unfit parent, I will comment.
I will phrase the question this way: is it fair for a parentally fit father to be awarded joint custody of his own children? The answer to this question is obvious. Of course it’s fair. Now just because it’s fair does not mean that every parentally fit father should be awarded joint physical custody of his children. There may be situations where, through no fault of the fathers, it is still determined to be in the child’s best interest that the father not exercise joint physical custody of the child. Granted, I can’t think of a scenario offhand where that would be the case, but the point is that just it’s fair to treat fathers no differently than mothers when it comes to the question of which is the “better” parent to exercise physical custody of children.
This is a bête noire for me. Although things are getting better for fathers who are trying to remain in their children’s lives following separation and divorce (a generation or two ago, if a father had wanted joint, let alone soul, custody of his children, he did not have a snowballs chance in hell, if mother was also a fit parent; even if he could prove that he was clearly the superior and only fit parent, he still had a real fight on his hands and often came out the loser), there is still a horrible bias against men when awarding custody of children. Those who believe that mothers are inherently superior parents for children of any age (with the exception of a nursing child) are sexists, pure and simple. Do your research. The science doesn’t back the bias. Ask adults who were children of divorce how they felt when they had their time with their father artificially limited to every other weekend and a few holidays. Ask them and their fathers what that did to their relationship. The irreparable damage it caused. Treating fathers as second-class parents is a shameful tragedy that the legal system perpetrates with impunity.
So when a court awards joint custody to it parents whose children love them both and who want to have a strong relationship with both parents as possible, how could anyone conclude that is in any way unfair?
Utah Family Law, LC | divorceutah.com | 801-466-9277
SIREESHA NAKKINA, Appellee,
v.
PRODEEP KUMAR MAHANTHI, Appellant.
Opinion
No. 20190750-CA
Filed June 17, 2021
Third District Court, Salt Lake Department
The Honorable Barry G. Lawrence
No. 164903563
Eric K. Johnson, Attorney for Appellant
Kelli J. Larson, Attorney for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and DIANA HAGEN concurred.
POHLMAN, Judge:
¶1 Prodeep Kumar Mahanthi and Sireesha Nakkina divorced in August 2019. Mahanthi appeals the trial court’s decree of divorce, challenging the court’s division of parent-time and its award of certain personal property and attorney fees to Nakkina. He also appeals the court’s denial of his motion to amend its findings of fact and conclusions of law.
¶2 We conclude that the court acted within its discretion in denying the motion to amend. But we conclude that the court exceeded its discretion in not dividing parent-time equally between Mahanthi and Nakkina. We also conclude that the court erred in its personal property determination and that its attorney fees award was not supported by sufficient findings.
Accordingly, we affirm in part, reverse in part, vacate the attorney-fees award and award of certain personal property, and remand for further proceedings.
¶3 Nakkina and Mahanthi married in India in December 2005. Shortly thereafter, the couple moved to the United States for Mahanthi’s employment. The couple lived in Salt Lake City, Utah, for a few months before relocating to Atlanta, Georgia.
¶4 After becoming pregnant with their first child, Nakkina returned to India in 2006, where the child was born. Nakkina eventually returned to the United States but again travelled to India in 2010 while pregnant with the couple’s second child. Nakkina took the first child with her, and she remained in India for two and a half years with the two children. Mahanthi occasionally visited Nakkina and the children during their time in India but otherwise remained in the United States for his employment.
¶5 Nakkina returned to the United States with the children in 2012 and joined Mahanthi who had moved back to Utah. The couple separated in 2016, and Nakkina filed for divorce shortly thereafter. From the time of their separation until the trial court finalized the divorce decree—nearly three years—Nakkina exercised temporary primary physical custody of the children while Mahanthi exercised his allotted statutory parent-time pursuant to Utah Code section 30-3-35.
¶6 At trial, Nakkina testified that Mahanthi’s employment prevented him from spending quality time with their children. She explained that when the children were very young, Mahanthi regularly traveled for work and was away from home for days at a time. She further alleged that while she was in India with the children, Mahanthi’s visits were infrequent and he did not spend much time with the family even when he was present. She also testified that she was the primary caregiver for the children, performing tasks such as bathing and feeding them. In general, Nakkina claimed that Mahanthi was an absent father.
¶7 Mahanthi largely denied Nakkina’s allegations. He testified that although he used to travel a lot for his employment and would occasionally stay up late working to accommodate his employer’s operations overseas, he participated in raising the children, performing all the tasks Nakkina claimed she managed alone. Mahanthi further testified that he quit his travelling job several years prior and that his new job did not interfere with his parent-time.
¶8 Regarding the couple’s personal property, Nakkina testified about pieces of jewelry she claimed Mahanthi gave her as gifts during the marriage. She described a diamond necklace, a pair of earrings, and another necklace and set of earrings, which, according to Nakkina, have a combined estimated value of between $15,000 and $18,000.[2]
¶9 Finally, Nakkina testified that she had borrowed about $61,000 from friends and family that she used, in part, to pay the attorney fees she incurred in litigating the divorce. Nakkina admitted that there was no formal agreement to repay this money. However, she testified that her friends and family still expected to be repaid. In calculating her monthly expenses for alimony, Nakkina included $1,000 per month for payments associated with this debt.
¶10 Following trial, the court issued findings of fact and conclusions of law and ordered the parties to prepare a final decree for the court’s review. Invoking “rules 52 and 59 of the Utah Rules of Civil Procedure,” Mahanthi filed a motion to amend certain of the court’s findings of fact and conclusions of law. The trial court denied Mahanthi’s motion, stating that it viewed the “Motion to Amend as a motion for the Court to reconsider its recent Findings, which the Court will not do.” It subsequently issued a Final Order and Decree.
¶11 In its Final Order and Decree, the trial court awarded the parties joint physical custody with a parent-time schedule close to equal time: Nakkina was awarded eight out of every fourteen days with the children and Mahanthi was awarded six out of every fourteen days (6/14 schedule). The court stated that the “6 out of 14 schedule provides an equitable balance and adequately considers all of the facts and, ultimately, is in the best interest of the children.” While the court acknowledged that many factors supported “equal time, or close to equal time, for both parents,” it reasoned that two related factors justified the less-than-equal division of parent-time for Mahanthi: (1) that the “family unit relies heavily on [Mahanthi’s] income” and (2) that “the demands of [Mahanthi’s] job are, and will likely always be, greater than any of the demands of [Nakkina’s] job.”
¶12 Next, the trial court awarded the jewelry exclusively to Nakkina and “decline[d] to award [Mahanthi] anything for [it].” Consistent with Nakkina’s testimony, the court found that Mahanthi had gifted the jewelry to her during the marriage and that it was worth “about $15,000.” The court further concluded that the jewelry “need not be divided” because “gifts given during the marriage are not marital property.”
¶13 Lastly, the trial court ordered Mahanthi to pay Nakkina her attorney fees in the amount of $40,600, crediting Mahanthi for his prior payments. The court rejected Nakkina’s $1,000 monthly expense “in debt payments to family and friends for the alleged loan” for attorney fees because she presented no evidence that she was legally obligated to pay her friends and family back. Still, it justified awarding attorney fees in a subsequent order, stating,
[Nakkina] has a demonstrated monthly need that will be addressed, at least in part, by an award of child support and alimony. In calculating [Nakkina’s] need, the Court did not address her attorney’s fees, which were above and beyond her monthly expenses—which she is unable to meet. Accordingly, [Nakkina] has a demonstrated need associated with any and all fees she has incurred in this matter.
(Cleaned up.)
¶14 Mahanthi now appeals.
ISSUES AND STANDARDS OF REVIEW
¶15 On appeal, Mahanthi raises four issues. First, he contends that the trial court erred in not awarding him equal parent-time. We review a trial court’s parent-time determination for abuse of discretion. Blocker v. Blocker, 2019 UT App 82, ¶ 8, 444 P.3d 541.
¶16 Second, Mahanthi contends that the trial court erred in awarding Nakkina the jewelry Mahanthi gave her as gifts during the marriage. “We will not disturb a property award unless we determine that there has been a misunderstanding or misapplication of the law resulting in substantial and prejudicial error, the evidence clearly preponderates against the findings, or such a serious inequity has resulted as to manifest a clear abuse of discretion.” Jensen v. Jensen, 2009 UT App 1, ¶ 6, 203 P.3d 1020 (cleaned up).
¶17 Third, he contends that the trial court erred in awarding attorney fees to Nakkina. “We review a trial court’s attorney fees award in divorce proceedings for abuse of discretion.” Id. ¶ 7. “An award for attorney fees must be based on sufficient findings, and the failure to make such findings requires remand for more detailed findings by the trial court.” Leppert v. Leppert, 2009 UT App 10, ¶ 25, 200 P.3d 223 (cleaned up).
¶18 Fourth, he contends that the trial court improperly refused to reconsider its findings of fact and conclusions of law. “As long as the case has not been appealed and remanded, reconsideration of an issue before a final judgment is within the sound discretion of the district court.” Ross v. Short, 2018 UT App 178, ¶ 10, 436 P.3d 318 (cleaned up). Thus, we will reverse a trial court’s denial of a motion to reconsider “only if there is no reasonable basis for the decision.” Tschaggeny v. Milbank Ins. Co., 2007 UT 37, ¶ 16, 163 P.3d 615 (cleaned up).
ANALYSIS
I. Parent-Time
¶19 Mahanthi first contends that the trial court erred by awarding him less than equal parent-time. When determining what is in the children’s best interest regarding parent-time, the decision “turns on numerous factors, each of which may vary in importance according to the facts in the particular case.” See Sanderson v. Tryon, 739 P.2d 623, 627 (Utah 1987). Generally, parent-time should be awarded “at a level consistent with all parties’ interests.” Utah Code Ann. § 30-3-32(1) (LexisNexis 2019). “Absent a showing by a preponderance of evidence of real harm or substantiated potential harm to the child,” it is in the children’s best interest “to have frequent, meaningful, and continuing” time with each parent. Id. § 30-3-32(2)(b)(i). In addition, each parent is entitled to “frequent, meaningful, and continuing access” with the children. Id. § 30-3-32(2)(b)(ii).
¶20 Even though we afford the trial court broad discretion when weighing these factors, a parent-time award “must be firmly anchored on findings of fact that (1) are sufficiently detailed, (2) include enough facts to disclose the process through which the ultimate conclusion is reached, (3) indicate the process is logical and properly supported, and (4) are not clearly erroneous.” See Marchant v. Marchant, 743 P.2d 199, 203 (Utah Ct. App. 1987). “Findings of fact are clearly erroneous if it can be shown that they are against the clear weight of evidence or that they induce a definite and firm conviction that a mistake has been made.” Maughan v. Maughan, 770 P.2d 156, 159 (Utah Ct. App. 1989). Additionally, the trial court “cannot act arbitrarily, or on supposition or conjecture as to facts upon which to justify its [parent-time] order.” See Iverson v. Iverson, 526 P.2d 1126, 1127 (Utah 1974).
¶21 Mahanthi argues that the trial court’s order awarding him less-than-equal parent-time is not firmly anchored in the findings of fact because it is based on speculation, conjecture, or supposition. He asserts that there is no evidence to support the trial court’s finding that he cannot simultaneously maintain his employment and exercise equal parent-time. In contrast, Nakkina argues that the trial court sufficiently articulated its findings, justifying the 6/14 schedule, and that such a decision was within the trial court’s discretion. We agree with Mahanthi. Although we are mindful of the court’s discretion and appreciate the careful way it articulated its findings in support of a 6/14 schedule, the court’s rationale is not supported by the evidence.
¶22 In addressing the statutory factors for determining parent-time in section 30-3-10 of the Utah Code, the trial court found that the factors “favorably support a joint arrangement giving each parent equal, or close to equal, time with the [children].” For example, the court found it was “important for both parents to have a relationship” with the children and there “was certainly nothing to suggest that maximum time with either parent would be harmful to . . . either of the children.” Also, the court concluded that the children “have good relationships with each of their parents” and “there is no legitimate argument that the [children] would be endangered by broadening [Mahanthi’s] parent time from 5 to 6 or 7 days every two weeks.”
¶23 But after highlighting the many reasons that justified an award of equal parent-time, the court ultimately rejected a 50/50 split for two related reasons. First, the court explained, “the reality is that this family unit relies heavily on [Mahanthi’s] income. It is imperative that he continue with his work.” “Second, the demands of [Mahanthi’s] job are, and will likely always be, greater than any of the demands of [Nakkina’s] job, whatever that may be.” Thus, the court awarded Mahanthi less than equal parent-time to “reduce [his] burden” and provide some “flexibility in his schedule to accommodate his work demands.” While the court meant well, its findings lack evidentiary support.
¶24 The testimony at trial was that years ago, while the children were still very young, Mahanthi’s job required that he travel several nights every week and, occasionally, work late to accommodate his employer’s operations. But there was no evidence that Mahanthi’s work continued to be so demanding.
Instead, he testified that his schedule did not interfere with his parent-time, and the court even expressed its lack of concern about Mahanthi’s “availability as a parent going forward.” Further, although Nakkina opposed a 50/50 split for a variety of reasons, she made no complaints about his work schedule, and she expressed no concern over Mahanthi’s ability to accommodate both his job and his children.
¶25 In sum, the trial court has broad discretion in awarding parent-time. But limiting Mahanthi’s parent-time based on unsubstantiated concerns about his work demands “does not follow from the findings stated.” See Nebeker v. Orton, 2019 UT App 23, ¶ 39, 438 P.3d 1053. We therefore reverse the trial court’s award of parent-time with instructions to award equal parent-time.
II. Jewelry
¶26 Mahanthi next contends that the trial court erred in awarding Nakkina the jewelry Mahanthi gave her during the marriage. In distributing property in a divorce proceeding, “[t]he presumption is that marital property will be divided equally while separate property will not be divided at all.” Lindsey v. Lindsey, 2017 UT App 38, ¶ 32, 392 P.3d 968. Thus, a trial court “must identify the property in dispute and determine whether each item is marital or separate property.” Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 15, 176 P.3d 476. Mahanthi contends that the trial court applied the wrong legal standard to conclude that his gifts to Nakkina are not marital property subject to division. We agree.
¶27 Citing Burke v. Burke, 733 P.2d 133 (Utah 1987), the trial court concluded that “gifts given during the marriage are not marital property and need not be divided in the event of divorce.” But Burke involved an inheritance received by one spouse during the marriage, not a gift from one spouse to the other purchased with marital funds. See id. at 134–35. As a general rule, courts “award property acquired by one spouse by gift and inheritance during the marriage (or property acquired in exchange thereof) to that spouse, together with any appreciation or enhancement of its value,” unless the property has been commingled or the other spouse has acquired an equitable interest in the property by contributing to its enhanced value. Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988). Gifts and inheritance to an individual spouse are treated as separate property because they are “not acquired through the joint efforts of the parties.” See Preston v. Preston, 646 P.2d 705, 706 (Utah 1982) (cleaned up); see also Mortensen, 760 P.2d at 307 (explaining that “property which comes to either party by avenues other than as a consequence of their mutual efforts owes nothing to the marriage and is not intended to be shared” (cleaned up)).
¶28 But this rule applies only to gifts received during the marriage from an outside source. It does not apply when one spouse uses marital funds to purchase property, regardless of whether those purchases are designated as a “gift” from one spouse to another. See Morris v. Morris, 2005 UT App 435U, para. 3 (holding that the district court acted within its discretion in valuing “gifts” from one spouse to another as marital property when one spouse “purchased the gifts during their marriage, using marital funds to do so”). In such circumstances, both the gifting and receiving spouse have a pre-existing right of ownership in the marital assets used to acquire the property. A purchase financed with marital funds already belonging to both spouses is not a “gift” in the sense used in our case law.
¶29 In light of this precedent, it was error for the trial court to conclude, as a matter of law, that the jewelry Mahanthi gave Nakkina during the marriage was necessarily Nakkina’s separate property and not subject to division in the divorce. The property was acquired during the marriage, with marital funds, and as such was presumptively marital. See Lindsey, 2017 UT App 38, ¶ 31 (“Marital property ordinarily includes all property acquired during marriage, whenever obtained and from whatever source derived.” (cleaned up)). We therefore vacate the court’s award of the jewelry and remand to give the trial court the opportunity to reconsider its award and, if necessary, to amend its order awarding the jewelry in its entirety to Nakkina.[3]
III. Attorney Fees
¶30 Mahanthi next argues that the trial court erred in awarding Nakkina attorney fees. Pursuant to section 30-3-3(1) of the Utah Code, a party in a divorce proceeding may be required to pay the attorney fees “of the other party to enable the other party to prosecute or defend the action.” Utah Code Ann. § 30-33(1) (LexisNexis 2019). The party to be awarded attorney fees under this section 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. Dahl v. Dahl, 2015 UT 79, ¶ 168, 459 P.3d 276. On appeal, Mahanthi challenges only the first element of the test: whether Nakkina had a financial need for the award of attorney fees. “When determining the financial need of the requesting spouse, [courts] generally look to the requesting spouse’s income, including alimony received as the result of a divorce decree; the property received via the property distribution award; and his or her expenses.” Id. ¶ 170 (cleaned up).
¶31 Mahanthi argues that the court erred in awarding Nakkina her attorney fees because those fees have already been paid. Nakkina argues that this is irrelevant because attorney fees may still be awarded based on need if a party borrowed funds to pay those fees. Nakkina has a point. Utah courts have recognized that “[p]arties to a divorce action often incur debt to retain counsel,” id., and that “the very existence of indebtedness to fund legal services may tend to show need,” Kimball v. Kimball, 2009 UT App 233, ¶ 46, 217 P.3d 733. Likewise, Nakkina argues that she incurred debt to pay her fees, and that the friends and family who lent her funds “expected to be repaid eventually and it would detrimentally impact her relationships if she did not repay them.”
¶32 We acknowledge that indebtedness to friends and family, while not determinative, may tend to demonstrate a need sufficient to satisfy section 30-3-3(1). See id. (holding that it is the existence of indebtedness to fund legal services that tends to show need regardless of whether the debt is owed to an attorney, a bank, family, or a friend). This is true “especially if [the spouse] is expected to repay his [or her] family in due course, even if the family members are disinclined to commence a collection action to enforce such repayment.” Id. ¶ 48. But it is unclear if Nakkina’s indebtedness, or something else, was the basis for the court’s finding that she had a need for assistance to pay her attorney fees.
¶33 In finding that Nakkina had an unmet need, the court stated that she “has a demonstrated need associated with any and all fees she has incurred in this matter” and incorporated the need-related “findings made in [the court’s] principal set of [Findings of Fact and Conclusions of Law].” But in those findings, the only mention of Nakkina’s attorney fees was in the court’s expression of “concern[] with the reliability of some of” her claimed expenses. In particular, the court did not accept Nakkina’s claimed expense of $1,000 a month “in debt payments to family and friends for the alleged loans” used to pay her attorney fees. The court rejected Nakkina’s claim that she was “legally indebted to family members” because her testimony on the “topic was ambiguous” and because it was not supported by any “corroborating documents.”
¶34 Unfortunately, these findings do not reveal the steps the trial court took to find that Nakkina had demonstrated an unmet need. See Jensen v. Jensen, 2009 UT App 1, ¶ 18, 203 P.3d 1020 (“When awarding attorney fees in divorce cases, the trial court is required to make explicit findings regarding the financial need of the receiving spouse . . . .” (cleaned up)). The court stated that Nakkina “is unable to meet” her attorney fees expenses, which “were above and beyond her monthly expenses,” but this finding does not appear to account for the fact that Nakkina’s fees had already been paid and that the court rejected Nakkina’s claims of indebtedness to her family and friends, at least for purposes of determining alimony. Accordingly, we vacate the trial court’s attorney fees award and remand for reconsideration and entry of sufficient findings of fact thereon.[4]
IV. Motion to Amend
¶35 Lastly, Mahanthi appeals the trial court’s denial of his motion to amend the court’s findings of fact and conclusions of law. Mahanthi contends that his motion was properly filed under rule 59 of the Utah Rules of Civil Procedure and that the court erred in rejecting it as a motion to reconsider. We disagree.
¶36 “Motions to reconsider are not recognized by the Utah Rules of Civil Procedure,” and “trial courts are under no obligation to consider [them].” Tschaggeny v. Milbank Ins. Co., 2007 UT 37, ¶ 15, 163 P.3d 615; see also A.S. v. R.S., 2017 UT 77, ¶ 28, 416 P.3d 465. Although Mahanthi takes no issue with this general principle, he contends that the court erred in “recast[ing]” his motion to amend as a motion to reconsider. Mahanthi argues that his motion “was appropriately titled as a Rule 59 motion to amend and contained all the elements required by the rule.” (Cleaned up.) But Mahanthi’s motion was not a rule 59 motion simply because he labeled it as such.
¶37 Rule 59 allows a party to seek to alter or amend a judgment. See Utah R. Civ. P. 59(e) (“A motion to alter or amend the judgment must be filed no later than 28 days after entry of the judgment.”); see also Ron Shepherd Ins., Inc. v. Shields, 882 P.2d 650, 653 (Utah 1994) (“Rule 59, according to its plain language, applies only to motions for new trials or amendments of judgments.”). Mahanthi’s motion did not seek to amend a judgment; rather, Mahanthi sought to amend the court’s pre-judgment findings of fact and conclusions of law.[5] Thus, because Mahanthi’s motion preceded the judgment, the court did not err in construing it as a motion to reconsider, and Mahanthi has not shown that the court abused its discretion in denying it as such.
V. Fees on Appeal
¶38 Nakkina requests an award of her attorney fees incurred in defending this appeal. “In divorce actions where the trial court has awarded attorney fees and the receiving spouse prevails on the main issues, we generally award fees on appeal.” Jacobsen v. Jacobsen, 2011 UT App 161, ¶ 17, 257 P.3d 478 (cleaned up). Although Nakkina was awarded fees by the trial court, we have vacated that award and remanded for reconsideration. Further, even if that award is ultimately sustained by the trial court, because Nakkina has prevailed only on the motion to amend issue and not the others, she is not entitled to an award of attorney fees on appeal.
CONCLUSION
¶39 The trial court erred by not awarding equal parent-time because the award was not firmly anchored on findings of fact. Thus, we reverse the ruling, and we order the court to award equal parent-time. The court also erred by awarding Nakkina the jewelry based on a misunderstanding of the law. We therefore vacate the award and remand with instructions to divide the jewelry using the appropriate standard. Next, the court erred by awarding Nakkina attorney fees because it failed to make adequate findings regarding her need related to receiving attorney fees. Thus, we vacate the attorney fees award and remand for reconsideration and entry of sufficient findings of fact thereon. Lastly, the court did not err by dismissing Mahanthi’s motion to amend because when his motion was filed there was no final order or judgment to be reviewed under rule 59. We therefore affirm the court on this issue.
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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,” and “we present conflicting evidence to the extent necessary to clarify the issues raised on appeal.” Kidd v. Kidd, 2014 UT App 26, ¶ 2 n.1, 321 P.3d 200 (cleaned up).
[2] Nakkina estimated that the jewelry was worth about $18,000 and could be sold for “maybe” $15,000. Her estimation that the jewelry could be sold for $15,000 was struck for lack of foundation, but that is the value the court gave the jewelry in its final decree. Neither party challenges that valuation.
[3] Nakkina invites us to affirm the trial court’s award on alternative grounds, arguing that even if the jewelry is “a marital asset eligible for division between the parties, the court still has broad discretion in making an award of the personal property and the court was well within its right to award the jewelry to [Nakkina].” We decline this invitation because it is not for us to exercise that discretion on behalf of the trial court. The court may determine it is appropriate, for another reason, to award the jewelry to Nakkina. But that is a decision for the trial court to make in the first instance.
[4] 4. Mahanthi also complains that he is entitled to a credit for an alleged overpayment of attorney fees in the amount of $10,000. He argues that Nakkina’s lawyer was paid $64,000 in fees, but because the court awarded Nakkina only $54,600, he should receive a credit for some of the fees he already paid. Mahanthi has not demonstrated that he preserved this issue for appeal, and we reject it on that basis. See Allen v. Allen, 2021 UT App 20, ¶¶ 37–38, 483 P.3d 730, petition for cert. filed, May 21, 2021 (No. 20210355). But even if the issue had been preserved, it does not appear that any amount would be due Mahanthi. The trial court found that Nakkina reasonably incurred $54,600 in attorney fees, and it ordered Mahanthi to pay $40,600 after crediting him $14,000 for fees he already paid. The fact that Nakkina may have paid her attorney more than $54,600 does not entitle Mahanthi to a credit.
[5] Mahanthi expressed some confusion about whether the court’s findings and conclusions constituted its final judgment in the case. But the court’s order directed Mahanthi’s counsel to draft a “Final Order and Decree in accordance with these findings and conclusions.” Further, subsequent proceedings made clear that the court expected to enter a decree to effectuate its findings and conclusions, and the court later entered a Final Order and Decree.
I normally don’t comment on popular culture matters dealing with divorce, but for this question I will make an exception.
I have no idea what kind of parents Angelina Jolie and Brad Pitt are. I don’t know what findings the court made regarding the parental fitness of each of them.
I know that Angelina Jolie accused Brad Pitt of domestic violence and child abuse, but frankly (and I know this is not politically correct to say) so many wives and mothers have made false “he’s abusive” claims in divorce for so many years that they are rightly met with a healthy dose of skepticism nowadays (in my experience and the experience of other divorce attorneys, most (most, not all) claims of domestic violence and child abuse made in divorce cases are false*). And it doesn’t appear that either Jolie or Pitt have an independently verifiable history of any kind of serious criminal activity.
If, as appears to be the case, the judge in the Angelina Jolie vs. Brad Pitt divorce action conducted a thorough investigation (or as thorough an investigation as one is actually likely to get in a divorce case) and determined that Jolie’s allegations — whatever they are — against Pitt did not rise to the level of warranting that Pitt’s parental rights and authority be any less than that of the children’s mother, and it’s only fair both to Pitt as a parent and to the couple’s children that joint custody be awarded.
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*You may ask that if most of the domestic violence and child abuse claims made in divorce are false, then why are so many falsely accused parents (who 99% of the time are the fathers) against whom no proof of abuse is found denied a joint child custody award?
After being in practice and observing the workings of the legal system for 24 years (as of when I write this), the best explanation I have is this: when some judges err on the side of caution and take a “better safe than sorry” approach to domestic violence and child abuse claims, these kinds of judges stay out of the public eye and protect their jobs at the expense of the innocent but falsely accused parent. “Who would or credibly could blame me for awarding primary or sole custody to the mother?,” so the thinking goes. And it works. When is the last time you raised an eyebrow upon hearing that the mother was awarded custody of the kids?
And that’s exactly what certain lazy, controversy-avoiding judges count on when making perfunctory child custody awards to mothers. These kinds of judges put their self-interest before the public’s interest in seeing justice and equity dispensed impartially. They abuse the public trust by—in the name of “protecting” children—contriving to make a virtue of treating both 1) a father’s parental rights and 2) the best interest of the child and the child’s rights to being reared as much as possible by his/her father as less than and subordinate to the interests of the mother.
Utah Family Law, LC | divorceutah.com | 801-466-9277
What are the different tips for parents sharing custody during this COVID-19?
Best tip: don’t use COVID-19 as a pretext for withholding/preventing/sabotaging contact and care and communication between the children from the other parent. Don’t use COVID-19 as a pretext for alienating the children from the other parent. COVID-19 may raise some legitimate concerns and require some changes, even some necessary restrictions on contact between children and the parent(s), but where there’s a will to ensure that the loving bond between parent(s) and children is not unduly strained or damaged by COVID-19, there is a way.
Utah Family Law, LC | divorceutah.com | 801-466-9277
2021 UT App 8
THE UTAH COURT OF APPEALS
JEREMY THOMAS, Appellant,
v.
JODY TASKER THOMAS, Appellee.
Opinion
No. 20190242-CA
Filed January 22,2021
Fourth District Court, Nephi Department
The Honorable Anthony L. Howell
No. 114600077
Rosemond G. Blakelock and Megan P. Blakelock, Attorneys for Appellant
Todd F. Anderson, Attorney for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Jeremy Thomas appeals the district court’s order following a January 10, 2019 hearing, in which it held him in contempt and imposed various sanctions. We affirm but remand for a calculation of fees and costs on appeal.
BACKGROUND
¶2 Jeremy and Jody Tasker Thomas were divorced in 2013. The parties have two children: Son and Daughter. The divorce decree provided that during the school year, Jeremy would have primary custody of Son and Jody would have primary custody of Daughter. The parties were to share joint physical custody of the children during the summer. Since their divorce, the parties have had numerous conflicts regarding the children, which ultimately led the parties to stipulate to appointment of a special master to help them resolve their parenting disputes. With respect to establishing an order governing the special master’s authority (Order Appointing Special Master), the parties stipulated to use the “standard Special Master Order as used by Jay Jensen or Sandra Dredge.”[1]
¶3 The special master issued numerous orders in the years following his appointment. For example, he issued orders governing the children’s communication and cell phone use during parent-time and requiring both the parents and children to participate in therapy. He also issued orders outlining procedures for exchanges for parent-time that were intended to minimize conflict and prevent the children from defying the parent-time schedule.
¶4 Four years after the decree was entered, Jody filed a motion for order to show cause in which she alleged that Jeremy had violated various provisions of the parties’ divorce decree and the special master’s orders. These allegations revolved around one primary issue: that Jody believed Jeremy was alienating the children from her by speaking “derogatorily or disparagingly” about Jody, “[p]utting the children in the middle,” “discussing adult issues with the children,” and denying her parent-time.
¶5 The district court held a hearing on Jody’s motion for order to show cause, as well as various other pending motions, in November 2017. With respect to Jody’s motion, the court found that Jeremy was “using the teenager[s’] busy schedules as a way to triangulate animosity and contempt of the children against their mother,” that his actions made Jody out to be the “bad guy,” and that he had “shown a continued pattern towards alienating the love and affection of the children towards” Jody. The court also found that Jeremy had not complied with an order of the special master that he “engage in individual therapy.”
¶6 Based on these findings, the court concluded that Jeremy had violated provisions of the divorce decree as well as “multiple orders of the Special Master,” that Jeremy knew of the orders, that he had the ability to comply, and that he willfully refused to do so. As a result, the court found him in contempt and ordered sanctions of thirty days incarceration in county jail, suspension of any licenses issued by the state, and a $1,000 fine (the First Contempt Order). However, the court stayed the sanctions and gave Jeremy an opportunity to purge the contempt by doing four things: (1) “fully comply[ing] with the Special Master order(s) regarding counseling”; (2) “mak[ing] progress regarding his alienation of the children”; (3) “provid[ing] necessary releases for [his therapist] to provide regular reports to the Special Master and [Jody] regarding [Jeremy’s] progress”; and (4) paying Jody’s attorney fees and costs relating to several motions. The court then set the matter for further review. At the subsequent hearing, the court did not consider whether Jeremy had purged his contempt, but it ordered Jeremy:
To strictly comply with the Custody order.
To make no alterations or changes to the custody order without the prior agreement of [Jody].
To compel the children to comply with the custody order, and to do so without any further alienation of the children.
To not schedule or allow to be scheduled any activity with the children in conflict with the custody order.
To not allow [Son’s] sports and motocross to interfere with [Jody’s] visitation without [Jody’s] agreement to a trade.
To compel [Son] to comply with the custody order.
To not allow the children to refuse to comply with the custody order.
¶7 As the year progressed, tensions between the parties continued. Several contentious issues arose relating to exchanges of the children, in which Jeremy “fail[ed] to ensure the children attend parent-time.” Although Jeremy would take the children to the exchange location, the children would refuse to go with Jody, and Jeremy would then allow them to go home with him. Additionally, when conflicts arose between Son’s extracurricular activities and his parent-time with Jody, Jeremy left it to Son to coordinate scheduling changes and make-up time with Jody, putting the full responsibility of disappointing Son on Jody if changes to the schedule could not be arranged.
¶8 Then, at some point in the summer of 2018, Daughter hatched a plan that would allow her to move in with Jeremy during the school year. She informed Jeremy that Jody had given her permission to register for school in Jeremy’s district. Without verifying this information with Jody, Jeremy went to the school and pre-registered Daughter to attend school where he lived. When it became apparent that Jody had not given permission for Daughter to change schools, Daughter “refused to go to school for a considerable time” in the hope that “if [she] didn’t go to school, they’d let [her] go to [her] dad’s.” Additionally, Daughter made attempts to harm Jody, which culminated in Daughter being placed in juvenile detention and referred to the Utah Juvenile Court system.
¶9 Jody filed another motion for order to show cause in December 2018, in which she alleged that Jeremy had failed to purge his contempt and that he should additionally be held in contempt for failing to obey a subpoena and for violating numerous orders of the court and special master. The district court held an evidentiary hearing on the motion on January 10, 2019, and again found Jeremy in contempt (the Second Contempt Order). In light of the voluminous evidence relating to Jeremy’s alienation of the children submitted to the court at that hearing and throughout the pendency of the case, the court made findings regarding anecdotal incidents that it believed were representative of the alienating behavior.
¶10 First, the court recited text messages from an incident in February 2018 in which Daughter refused to return to Jody’s home after parent-time with Jeremy and Jeremy supported her refusal. It then addressed an incident in July 2018 in which Jeremy “knew the children did not want to do” parent-time with Jody and “failed to do anything to encourage or ensure the children comply with [Jody’s] parent-time as required by the orders of the Court.” The court found that this conflict was “only one example of many where [Jeremy] failed to encourage and/or compel the children’s compliance with” Jody’s parent-time.
¶11 The court also made several findings regarding the school incident. The court found that either (1) Jeremy was lying to the court when he claimed Daughter told him Jody gave permission for her to “look at enrolling and attending school” in Jeremy’s district or (2) Daughter lied to Jeremy and Jeremy made no attempt to communicate with Jody to verify Daughter’s “unbelievable statement that she had [Jody’s] permission.” The court found that “as a result of [Jeremy’s] failure to act, [he] implanted the idea into [Daughter’s] mind that [he] was going to aid [her] in her plot to” live with Jeremy: “[T]he best-case scenario is that [Jeremy] was complicit with [Daughter’s] lies and plans. The worst-case scenario is that [Jeremy] helped [Daughter] orchestrate her plot and is lying to the Court.” The court found that Jeremy’s “willingness to allow [Daughter’s] defiance” was a “significant contributor” to her “pushing the envelope of her defiance” by “refusing to attend school for many weeks” and attempting to harm Jody.
¶12 Moreover, the court adopted as part of its order findings of fact submitted by the special master on December 18, 2018, and January 4, 2019. The special master found that although “there was an added measure of compliance” by Jeremy following the First Contempt Order, noncompliance escalated during the late summer and early fall of 2018 and Jeremy had “failed to demonstrate strict and consistent compliance with the custody order.” The special master’s findings went on to detail various incidents of parent-time conflicts and noncompliance by Jeremy, as well as how Jeremy’s failure to respond to the special master and comply with his orders had impeded the special master’s investigation of various incidents and allegations.
¶13 The special master also found that although Jeremy had attended ten sessions with his therapist following the First Contempt Order, he had not met with the therapist for the nine months prior to the January 2019 hearing. However, apart from observing that the therapist appeared not to have a full understanding of the situation, the court did not make additional findings regarding Father’s compliance with orders that he attend therapy.
¶14 The court determined that “the alienation of the children . . . is the most critical issue that the Court has taken into consideration.” It therefore found Jeremy “in continued contempt as [he] has failed to purge his contempt previously found, and also continued to violate the same orders,” including provisions of the divorce decree regarding alienation and putting the children in the middle, as well as “multiple orders of the Special Master.”
¶15 As a result of its contempt findings, the court ordered the following sanctions: (1) that Jeremy pay all Jody’s attorney fees and costs “incurred in relation to this case and her difficulty in co-parenting since February 3, 2018”; (2) that Jeremy pay all the special master “fees and costs incurred since November 14, 2017”; (3) that Jeremy pay for “all uninsured costs of counseling for the parties’ minor children” as well as for individual treatment for Jody and Jeremy with the family counselor; (4) that all parent-time and communication between Jeremy and Daughter be supervised until the special master makes findings that the alienation issues have been sufficiently addressed; (5) that custody of Son be changed from Jeremy to Jody and all parent-time and communication between Jeremy and Son be supervised; and (6) that the stay on two days of the thirty-day jail sentence imposed in the previous contempt order be lifted and that Jeremy serve those two days in the Juab County Jail. However, the court stayed the sanction changing custody and instituting supervised parent-time of Son conditioned on Son strictly complying with court-ordered parent-time and Jeremy showing “a good faith effort to ensure that the minor children are repairing their relationships with [Jody].”
¶16 Custody of Son never actually changed, and the parties reached a stipulation in July 2019 in which they agreed that “[c]ustody of [Son] shall remain [with Jeremy] based on the recommendation of the Special Master, who believes that [Jeremy] has (as of the date of the signing of this Stipulation) been in sufficient compliance with” the conditions imposed by the court in the Second Contempt Order. Son turned eighteen in August 2020.
¶17 Jeremy now challenges the Second Contempt Order on appeal.
ISSUES AND STANDARDS OF REVIEW
¶18 First, Jeremy claims that the district court violated rule 53 of the Utah Rules of Civil Procedure by treating the special master’s orders as orders of the court, the violation of which could justify a contempt finding. “The proper interpretation of a rule of procedure is a question of law, and we review the trial court’s decision for correctness.” American Interstate Mortgage Corp. v. Edwards, 2002 UT App 16, ¶ 10, 41 P.3d 1142 (quotation simplified).
¶19 Second, Jeremy raises several issues relating to the district court’s contempt findings and sanctions: (1) that the court exceeded its discretion in concluding that he had not purged his prior contempt found in the First Contempt Order, (2) that the court exceeded its discretion in finding him in further contempt of the court’s orders, (3) that the court lacked authority to change the custody of Son as a sanction for his contempt when no petition to modify was pending in the case, and (4) that other sanctions were inappropriate. “An order relating to contempt of court is a matter that rests within the sound discretion of the trial court.” Dansie v. Dansie, 1999 UT App 92, ¶ 6, 977 P.2d 539. Moreover, “we overturn a sanction only in cases evidencing a clear abuse of discretion.” Chaparro v. Torero, 2018 UT App 181, ¶ 20, 436 P.3d 339 (quotation simplified). “An abuse of discretion may be demonstrated by showing that the district court relied on an erroneous conclusion of law or that there was no evidentiary basis for the trial court’s ruling.” Id. (quotation simplified).
ANALYSIS
Special Master Orders
¶20 Rule 53 of the Utah Rules of Civil Procedure states that “[a]ny or all of the issues in an action may be referred by the court to a master upon the written consent of the parties.” Utah R. Civ. P. 53(a). Regarding the powers of a special master, the rule states that “[t]he order of reference to the master may specify or limit [the master’s] powers.” Id. R. 53(c).
¶21 A special master was appointed in this case based on the parties’ stipulation, in which they agreed to give the master authority in accordance with “[t]he standard Special Master Order as used by Jay Jensen or Sandra Dredge.” The Order Appointing Special Master grants the special master authority to issue “directives” regarding numerous specified issues such as scheduling, communication, and therapy and specifies that these directives “are effective as orders when made and . . . continue in effect unless modified or set aside by a court of competent jurisdiction.” The Order Appointing Special Master also grants the special master the authority to issue “recommendations” on other specified issues, such as significant changes to parent-time or conflicts on fundamental parenting decisions relating to healthcare, religion, and education. It states that recommendations—unlike directives—do not become court orders unless and until the district court adopts them.
¶22 Jeremy first asserts that the district court erred in determining that “all the Special Master ‘Orders’ issued” as of the January 10, 2019 hearing “are ‘directives’” under the Order Appointing Special Master, because the court did not “examin[e] the subject matter contained in each pleading the Special Master filed.” However, Jeremy provides no support for his assertion that the district court did not examine the subject matter of the individual special master orders. Further, he makes no attempt to point us to orders that should have been considered recommendations rather than directives. Thus, he has not adequately briefed his claim that the district court erred in classifying all the prior special master orders as directives. See State v. Thomas, 961 P.2d 299, 304 (Utah 1998) (“It is well established that a reviewing court will not address arguments that are not adequately briefed.”).
¶23 Jeremy further asserts that even if the special master orders were directives, they could not have become effective until the district court acknowledged them as such in its Second Contempt Order. But this position is contrary to the plain language of the Order Appointing Special Master, which states that directives “are effective as orders when made and . . . continue in effect unless modified or set aside by a court of competent jurisdiction.” The court’s acknowledgment that the special master orders were directives is not the event that made them effective. They were effective and binding at the time the special master issued them, in accordance with the Order Appointing Special Master.
¶24 To the extent that Jeremy challenges the special master’s authority to make binding directives under rule 53, such a challenge was previously foreclosed by this court in Wight v. Wight, 2011 UT App 424, 268 P.3d 861, in which we rejected a similar argument challenging a district court’s ability to grant a special master limited power under rule 53 to make binding decisions on specific issues. Id. ¶ 16. While rule 53 does not directly give the special master authority to make binding directives, it gives the court the ability to “specify or limit” the special master’s powers in the Order Appointing Special Master. See Utah R. Civ. P. 53(c). The parties in this case stipulated to the appointment of the special master and to the Order Appointing Special Master that would be used. The grant of limited decision-making power in an Order Appointing Special Master is permitted under the “considerable discretion” rule 53 grants district courts in using a special master. See Wight, 2011 UT App 424, ¶ 16. Thus, the court’s acknowledgment of the binding nature of the special master’s directives in this case is not contrary to rule 53. As in Wight, “nothing in the [Order Appointing Special Master] limited either party’s ability to challenge the decisions of the special master by filing objections with the trial court.” Id. But unless and until such an objection was made and ruled on, the special master’s directives were “effective as orders” under the Order Appointing Special Master.
¶25 And while Jeremy asserts that his due process rights were violated when the court treated the directives as orders of the court and held him in contempt for violating them, he has failed to explain why. “At its core, the due process guarantee is twofold—reasonable notice and an opportunity to be heard.” In re adoption of B.Y., 2015 UT 67, ¶ 16, 356 P.3d 1215. Jeremy does not assert that he lacked notice of the orders of the special master. Moreover, given that the orders were directives—a finding that Jeremy has failed to adequately challenge, see supra ¶ 22—and that the Order Appointing Special Master clearly informed Jeremy that directives are binding when issued, he should have known that he was required to comply with them. Further, the Order Appointing Special Master gave Jeremy an opportunity to present any grievances regarding the special master’s orders to the court by means of an objection. He does not assert that he was somehow precluded from objecting to the special master’s orders in the manner prescribed by the Order Appointing Special Master. Therefore, we find no merit in Jeremy’s claim that the district court violated his due process rights in holding him accountable for failing to comply with the special master’s orders.[2]
II. Contempt Finding and Sanctions
¶26 Next, Jeremy raises several challenges to the district court’s contempt findings and sanctions. We address each in turn.
A. Failure to Purge Contempt
¶27 Jeremy first asserts that the court exceeded its discretion in finding that he had not purged his prior contempt, claiming that its findings were not supported by the evidence. To purge his contempt, Jeremy was required to do the following four things: (1) “fully comply with the Special Master order(s) regarding counseling”; (2) “make progress regarding his alienation of the children”; (3) “provide necessary releases for [his therapist] to provide regular reports to the Special Master and [Jody] regarding [Jeremy’s] progress”; and (4) pay Jody specific attorney fees and costs.
¶28 Jeremy asserts that the district court did not make appropriate findings regarding whether he had purged his contempt. As to the first, third, and fourth requirements imposed by the court, we agree that the district court did not clearly address Jeremy’s compliance.[3] However, that fact does not undermine the court’s determination that Jeremy had not purged his contempt. To purge the contempt, Jeremy was required to comply with all four of the requirements. Thus, his failure on even one of the requirements would support a determination that he had not purged his contempt.
¶29 The court made extensive findings regarding Jeremy’s failure to comply with the second requirement—that he make progress on his alienation of the children. Indeed, the court observed that “alienation of the children . . . is the most critical issue that the Court has taken into consideration” in concluding that Jeremy had “failed to purge his contempt.” The court’s findings regarding alienation were extensive and included detailed recitals of the events relating to contentious exchanges in February and July 2018, as well as the events relating to Jeremy’s support of Daughter’s scheme to change schools. Further, the court adopted the special master’s findings, which recited additional instances of parent-time interference and found that Jeremy had “not made consistent progress with the issues of alienation” and, despite “greater compliance and progress” initially following the First Contempt Order, had “fallen into old patterns, continuing to impact the children’s relationship with” Jody.
¶30 Jeremy does not assert that the evidence could not support these findings but instead reargues the evidence, relying solely on the testimony of his own therapist that Jeremy’s progress on alienation issues had been “very good.” But the district court discredited this testimony as unreliable because it believed that, “whether intentionally or unintentionally,” Jeremy had given the therapist “a grossly distorted history of this case,” so the therapist did “not have an understanding of what is actually going on.”[4] Further, the court made extensive findings concerning events that demonstrated Jeremy had not made progress on alienation issues. The underlying evidence supports these findings, and in turn, the findings support the district court’s determination that Jeremy had failed to purge his contempt.
B. Additional Contempt
¶31 Jeremy also asserts that he should not have been held in further contempt, but his arguments in support of this assertion lack merit.
¶32 To find someone in contempt, a court must find “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). Here, the court found all three of these elements. Jeremy does not directly challenge the court’s findings on these elements[5] but raises related issues that he claims precluded the court from finding him in contempt.
¶33 First, he takes issue with a statement the court made in its findings about a conflict between the parties over a trip to England that had occurred prior to the First Contempt Order. The court’s findings regarding alienation in the Second Contempt Order stated that it had “identified, with specificity, three circumstances that are not the only examples, but typify the behavior [Jeremy] has engaged in that encourages alienation between the minor children and [Jody].” The court then follows this introduction with the statement, “First, during the course of the evidentiary hearing, in the Court’s questioning of [Jeremy], the Court brought up the previous canceled trip to England and the findings the Court made regarding that event.” Jeremy asserts that it was inappropriate for the court to rely on incidents relating to the England trip to find him in further contempt because those events occurred before the First Contempt Order.
¶34 Admittedly, the inclusion of this statement here is somewhat confusing. Subparagraphs underneath this statement in the court’s order proceed to recite the details of the February 2018 parent-time incident and do not again refer to the England trip. In fact, the court does not mention or discuss the England trip beyond the above-quoted language. Moreover, the court goes on to discuss three distinct incidents, apart from the England trip, as examples of Jeremy’s alienating behavior—the February 2018 incident, the July 2018 incident, and the incident involving Daughter’s schooling.
¶35 Given the complete lack of any further discussion of the England trip and the fact that the court indicated its intent to discuss “three circumstances” that typified Jeremy’s behavior, we are inclined to believe that the statement about the England trip was misplaced and that it was the other three incidents, discussed in more detail, that formed the basis of the court’s contempt finding. The court made no findings or conclusions relating to the England trip but merely mentioned that it had questioned Jeremy about it. And the other three incidents, in addition to the other incidents identified in the special master’s findings, which the court adopted as part of the Second Contempt Order, provided ample support for the district court’s contempt finding. Thus, there is no indication in the Second Contempt Order that the court actually placed any weight on the England trip incident when finding Jeremy in further contempt.
¶36 Second, Jeremy asserts that the court’s findings improperly relied on certain affidavit evidence provided by Jody that he claims was not appropriately admitted. However, any error by the court in considering that evidence was invited when Jeremy indicated that he had no objection to the court considering affidavits “in lieu of direct testimony, so long as the party is then available for cross examination.” See Pratt v. Nelson, 2007 UT 41, ¶ 17, 164 P.3d 366 (“A party cannot take advantage of an error committed at trial when that party led the trial court into committing the error.” (quotation simplified)). Furthermore, at the evidentiary hearing, Jody reaffirmed the statements in her affidavit, and Jeremy took the opportunity to cross-examine her about them.
¶37 In short, we see no merit to any of Jeremy’s arguments challenging the basis for the court’s new findings of contempt. Indeed, the evidence of Jeremy’s alienating behavior was substantial, and the court’s findings were thorough. We do not hesitate to uphold the court’s additional contempt findings in the Second Contempt Order.
C. Change of Custody
¶38 Jeremy next argues that the district court exceeded its discretion by awarding a change of custody of Son as a sanction for his contempt, particularly where no petition to modify was pending. However, this particular sanction was stayed, and the stay was never lifted. Instead, the court entered a new order, pursuant to the parties’ stipulation, in July 2019. This order declared that “[c]ustody of [Son] shall remain [with Jeremy] based on the recommendation of the Special Master, who believes that [Jeremy] has (as of the date of the signing of this Stipulation) been in sufficient compliance with” the conditions imposed by the court in the Second Contempt Order. The order went on to indicate that the parties’ stipulation “resolves any and all issues related to . . . custody of [Son].” Moreover, Son turned eighteen in August 2020 and is therefore no longer subject to the jurisdiction of the court. See generally Utah Code Ann. § 15-2-1 (LexisNexis 2013) (“The period of minority extends . . . to the age of 18 years . . . .”); id. § 30-3-1(5)(d) (2019) (granting district courts jurisdiction over “the custody and maintenance of minor children” in a divorce).
¶39 Because the change-of-custody sanction was never implemented and Son is no longer subject to the jurisdiction of the court, we agree with Jody that this issue is moot. See State v. Steed, 2015 UT 76, ¶ 6, 357 P.3d 547 (“An argument is moot if the requested judicial relief cannot affect the rights of the litigants. In other words, an appeal is moot if the controversy is eliminated such that it renders the relief requested impossible or of no legal effect.” (quotation simplified)).
¶40 Jeremy nevertheless asks us to review this issue “because it is of wide concern, affects the public interest, is likely to recur, and yet evades review.” See Osguthorpe v. Osguthorpe, 872 P.2d 1057, 1058 (Utah Ct. App. 1994). But this does not appear to us to be an accurate statement. Indeed, our court has previously addressed this very issue. See Chaparro v. Torero, 2018 UT App 181, ¶ 40, 436 P.3d 339 (“A district court cannot avoid making [best interests] findings by modifying custody arrangements as a sanction.”); see also Blanco v. Blanco, 311 P.3d 1170, 1175 (Nev. 2013) (en banc) (“A court may not use a change of custody as a sword to punish parental misconduct, such as refusal to obey lawful court orders, because the child’s best interest is paramount in such custody decisions.” (quotation simplified)), quoted in Chaparro, 2018 UT App 181, ¶ 40. Thus, the issue is clearly not one that evades review, and it is one on which we have already provided guidance. Accordingly, we decline to consider this moot issue.
D. Other Sanctions
¶41 Finally, Jeremy asserts that “all sanctions, including attorneys fees, supervised parent-time, and the change of custody should be reversed.” However, we reject his arguments on this point because they are inadequately briefed. State v. Thomas, 961 P.2d 299, 304 (Utah 1998) (“It is well established that a reviewing court will not address arguments that are not adequately briefed.”).
¶42 First, he asserts that attorney fees for “things such as charges on December 17, 2018 regarding mediation discussions with a mediator and charges on July 11, 2018 regarding a separate case involving a Lis Pendens” were unrelated to the order to show cause and therefore should not have been included in the sanctions. This is the extent of his argument. He makes no attempt to explain specifically why these charges were unrelated to the show cause motion or even to identify all the charges he is contesting. Jeremy’s limited analysis is inadequate to challenge the propriety of the attorney fees sanction, and we therefore decline to address his argument.
¶43 Apart from Jeremy’s minimal discussion regarding the propriety of the attorney fees, he does not challenge the appropriateness of the sanctions. Instead, his argument alleges that the court “failed to make the required findings with respect to contempt.” See generally Marsh v. Marsh, 1999 UT App 14, ¶ 10, 973 P.2d 988 (explaining that a court cannot hold someone in contempt unless it finds “from clear and convincing proof that the contemnor knew what was required, had the ability to comply, and willfully and knowingly failed and refused to do so” (quotation simplified)). But this argument, too, is inadequate. Jeremy makes two points: (1) that he could not have “willfully refused to allow [Daughter] to attend school” because he did not have custody of her and (2) that Jody “failed to submit any evidence of [his] contempt.”
¶44 The first argument is irrelevant because the school issue was not that Jeremy did not allow Daughter to attend but that he, at best, “was complicit with [Daughter’s] lies and plans” and, at worst, “helped [Daughter] orchestrate her plot” not to attend school and that his actions exemplified “the behavior [he] has engaged in that encourages alienation between the minor children and” Jody. Moreover, other instances of alienation supported the court’s decision to hold Jeremy in contempt for violating provisions of the divorce decree pertaining to alienation, so even if we agreed with him that the school incident could not support the contempt finding, his failure to specifically challenge the other findings supporting the contempt would preclude us from reversing the court’s decision. Cf. Gilbert v. Utah State Bar, 2016 UT 32, ¶ 24, 379 P.3d 1247 (“[We] will not reverse a ruling of the district court that rests on independent alternative grounds where the appellant challenges only one of those grounds.”). As to his second argument, we have already addressed and rejected it. See supra ¶ 36. Thus, we reject Jeremy’s challenge to the court’s contempt sanctions.
III. Attorney Fees
¶45 Jody requests her attorney fees and costs on appeal on the ground that she was awarded fees below. “The general rule is that when a party who received attorney fees below prevails on appeal, the party is also entitled to fees reasonably incurred on appeal.” Robertson’s Marine, Inc. v. I4 Solutions, Inc., 2010 UT App 9, ¶ 8, 223 P.3d 1141 (quotation simplified). Although there are exceptions to this general rule, see, e.g., Liston v. Liston, 2011 UT App 433, ¶ 27 n.6, 269 P.3d 169, Jeremy has not argued that any exception applies here. Thus, because Jody has prevailed on appeal, we grant her request for fees and costs on appeal and remand for the district court to calculate the award.
CONCLUSION
¶46 Neither the Order Appointing Special Master nor the court’s interpretation and application of that order violated rule 53 of the Utah Rules of Civil Procedure. Further, Jeremy has not adequately alleged any error or abuse of discretion in the court’s determination that he had failed to purge his prior contempt and that he had engaged in additional contemptuous acts. Jeremy’s challenge to the change-of-custody sanction is moot, and his challenges to the other sanctions are inadequately briefed. Because Jody has prevailed on appeal and was awarded fees below, she is also entitled to fees on appeal. Accordingly, we affirm the Second Contempt Order but remand for the district court to calculate an award of fees and costs to Jody on appeal.
Utah Family Law, LC | divorceutah.com | 801-466-9277
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[1] Although details about Jay Jensen and Sandra Dredge are not found in the record, we take judicial notice, purely for the purpose of providing background information, that the former is a therapist and the latter an attorney. Both have practices in Utah County and have served as special masters in several domestic cases there.
[2] Even if we were persuaded that the court somehow erred in holding Jeremy in contempt based on the orders of the special master, it is unclear how that would alter the outcome of this case. The court’s contempt finding was not based solely on violations of the special master’s orders but rested in large part on his violation of those provisions of the divorce decree prohibiting alienation.
[3] The adopted findings of the special master did suggest that Jeremy had not “fully compl[ied] with the Special Master order(s) regarding counseling,” as he had not met with therapist for the nine months prior to the January 2019 hearing. However, the district court did not analyze Jeremy’s compliance with this mandate.
[4] Jeremy does not challenge the court’s determination that his therapist’s testimony was not credible but instead blames the special master and the district court for any distortion of the facts because the special master selected and the court appointed the therapist to function solely as an individual therapist for Jeremy and not to meet with other members of the family or evaluate the family as a whole. He asserts that if the therapist had been required to consult with others, the therapist would have had a fuller picture of the situation and that the lack of such consultation precluded Jeremy from complying with the court’s mandate that he make progress on his alienation issues. But even accepting Jeremy’s premise, these facts suggest only that the therapist’s lack of information from other sources might have limited his utility as a witness to Jeremy’s progress, not that Jeremy was precluded from making progress on his alienation issues. It was Jeremy who continued to make poor decisions by interfering with parent-time, supporting Daughter’s scheme to change schools, and generally undermining Jody. And it was Jeremy who, in meeting with the therapist, left out crucial information that could have helped the therapist better understand and help him with the alienation issues. The fact that Jeremy failed to make progress in spite of therapy does not come down to whether the special master or court ordered the therapist to meet with other individuals in the family. Ultimately, it was Jeremy’s responsibility to comply with the court’s order that he make progress on his alienation issues, and he failed to do so.
[5] Jeremy does attempt to challenge the court’s findings regarding the school incident, but he does so in the context of challenging the sanctions rather than in the context of challenging the contempt finding. In any event, we reject those arguments as discussed infra ¶ 44.
I cannot think of a scenario in which a parent (mother or father) has sole physical custody of the children and would have to pay any child support to the noncustodial parent. In that scenario it doesn’t matter if he/she earns more than the other parent; he/she will have no child support obligation to the noncustodial parent. It is possible, however (though not likely), that if the custodial parent earns more than enough to support the children on his/her own the court could order that the noncustodial has little to no child support obligation.
It gets more interesting if the parents are awarded joint physical custody. In Utah “joint physical custody” means that a parent who has the children no less than 110 overnights with the children is a joint physical custodian. Custody does not have to 50/50 for there to be joint custody awarded.
So I ran some calculations where the parent who has the child in his/her custody more nights than the other joint custodial parent grosses $10,000 per month and the other parent makes minimum wage (i.e., grosses $1,257 per month). This little hypothetical proves that, depending upon the division of overnights, a parent who makes more money than the other parent AND who has the children in his/her custody more than the other parent can, under Utah’s statutory child support guidelines, wind up being ordered to pay child support to the other parent.
One of the biggest worries (perhaps the biggest) for a parent going through divorce is the question of child custody.
A common misperception is that “child custody” means simply who your children will live with after you and your ex-spouse have divorced. “Child custody” has multiple meanings, however: legal and physical custody.
Legal custody.
Legal custody is the rights, responsibilities and authority of a parent to make decisions for the child(ren). This includes decisions regarding school and extra-curricular involvement, religious or moral upbringing and health and general welfare decisions for the child(ren). Legal custody can be “joint” or “sole,” meaning that divorced parents can exercise legal custody jointly or legal custody can be awarded to just one of the two parents to exercise. Joint legal custody is the most commonly awarded custody arrangement. Unless it can be proven that a parent is unfit to be entrusted with joint legal custody, the presumption in Utah law is that the parents will be awarded joint legal custody of their children.
Under a joint legal custody arrangement, both parents have equal rights to make decisions regarding their child(ren).
Physical custody.
Physical custody is the determination of where the children reside physically following a divorce. As with legal custody, physical custody may be “joint” or “sole” or, if there are more than two children, the court can “split” physical custody between both parents, with some children residing with one parent, and some children residing with the other.
Even under a “sole physical custody” arrangement, the other parent (who is known as the “non-custodial parent” will still be given “parent-time”[1] (what was formerly known as “visitation”) with the children, unless the noncustodial parent is found to be unfit to exercise parent-time.
If a parent spends 110 overnights or less with the children each year, he/she is a “noncustodial” parent. If a parent spends 111 or more overnights with the child(ren), then that is considered by Utah law to be joint physical custody. So take note: while the court can award the parents equal periods of physical custody, joint physical custody does not require that the parents have equal periods of physical custody.
Under a “joint physical custody” arrangement, parent-time will be split between the two parents and their homes.
If parents do not agree upon matters of the legal custody, physical custody, and parent-time awards, the judge will decide these issues for them after holding a trial.
The court will take into account many factors before making its legal custody, physical custody, and parent-time orders.
For a list of all of the factors a court considers in making its legal and physical custody awards, review these sections from Title 30, Chapter 3 of the Utah Code:
Section 10.2. Joint custody order — Factors for court determination — Public assistance.
Section 10.3. Terms of joint legal or physical custody order.
If either party is a military service-member, the court must consider additional factors for servicemembers: see Utah Code Section 78B-20-306 through 309:
Section 306. Grant of caretaking or decision-making authority to nonparent.
If the court awards joint legal and/or joint physical custody, it must adopt what is known as a “parenting plan”. Without a parenting plan, joint legal and/or joint physical custody cannot be awarded.
Parenting Plan
Utah law requires that a parent who wants joint legal and/or joint physical custody must file a proposed parenting plan. A proposed parenting plan (whether merely for joint legal custody or joint physical custody, or for an award of both joint legal and joint physical custody) must include the following provisions:
When going through a divorce, one of the most common issues is child custody. A common misperception about child custody is that it is simply who your children will live with after you and your ex-spouse have divorced. That’s only part of the story.
In Utah, there are two kinds of child custody to be addressed and resolved: “legal custody” and “physical custody”.
Legal custody
Legal custody deals with the rights, responsibilities and authority of a parent to make decisions for the child(ren). This includes decisions regarding school and extra-curricular involvement, religious or moral upbringing, and health and general welfare decisions for the child(ren).
Physical custody
Physical custody is where the children will reside following a divorce. This type of custody may be “joint custody” or “sole custody”.
Joint Physical Custody
Whether you are awarded joint or sole physical custody depends not upon the number of hours a parent spends with the child(ren), but on the number of “overnights” the child will spend at the noncustodial parent’s residence). You might think that “joint custody” means that each parent has an equal or near-equal number of overnights with the children. Not so. In Utah, joint physical custody “means the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support[.]” (Utah Code § 30-3-10.1(3)(a)) Translated, § 30-3-10.1(a) means that if a parent has 111 overnights or more per year with his/her child(ren), he/she is a joint physical custodian.[1]
Sole Physical Custody
Under a “sole custody” arrangement, the parent who is not awarded sole custody is referred to in the court orders as “the noncustodial parent”. But don’t let the term “sole custody” mislead you. Even under a “sole physical custody” arrangement, the other parent (the noncustodial parent) will still be awarded visitation or what is now known as “parent-time”.
Parent-time
Parent-time is the amount of time the child(ren) will spend with the noncustodial parent.
The parent-time schedule in Utah Code Section 30-3-35provides a suggestedminimumnumber of overnights[2] that a noncustodial parent be awarded.
Under the provisions of § 30-3-35, the noncustodial parent is awarded the following overnight periods with the child(ren):
Every other Friday and Saturday night (alternating weekends beginning at 6 p.m. on Friday until 7 p.m. on Sunday), and
Certain specified holidays that overlap with and/or extend certain weekends, with the net effect being some additional overnights the noncustodial parent exercises.
During odd numbered years, the noncustodial parent is entitled to overnight parent-time on the following holidays:
Martin Luther King, Jr. beginning 6 p.m. on Friday until Monday at 7 p.m. unless the holiday extends for a lengthier period of time to which the noncustodial parent is completely entitled;
subject to Utah Code § 30-3-35(2)(i), spring break beginning at 6 p.m. on the day school lets out for the holiday until 7 p.m. on the evening before school resumes;
July 4 beginning 6 p.m. the day before the holiday until 11 p.m. or no later than 6 p.m. on the day following the holiday, at the option of the parent exercising the holiday;
Labor Day beginning 6 p.m. on Friday until Monday at 7 p.m., unless the holiday extends for a lengthier period of time to which the noncustodial parent is completely entitled;
the fall school break, if applicable, commonly known as U.E.A. weekend beginning at 6 p.m. on Wednesday until Sunday at 7 p.m. unless the holiday extends for a lengthier period of time to which the noncustodial parent is completely entitled;
Veterans Day holiday beginning 6 p.m. the day before the holiday until 7 p.m. on the holiday; and
the first portion of the Christmas school vacation as defined in Utah Code Subsection 30-3-32(3)(b) including Christmas Eve and Christmas Day, continuing until 1 p.m. on the day halfway through the holiday period, if there are an odd number of days for the holiday period, or until 7 p.m. if there are an even number of days for the holiday period, so long as the entire holiday period is equally divided.
During even numbered years, the noncustodial parent is awarded every other Friday and Saturday night (alternating weekends beginning at 6 p.m. on Friday until 7 p.m. on Sunday) and certain specified holidays:
President’s Day beginning at 6 p.m. on Friday until 7 p.m. on Monday unless the holiday extends for a lengthier period of time to which the noncustodial parent is completely entitled;
Memorial Day beginning at 6 p.m. on Friday until Monday at 7 p.m., unless the holiday extends for a lengthier period of time to which the noncustodial parent is completely entitled;
July 24 beginning at 6 p.m. on the day before the holiday until 11 p.m. or no later than 6 p.m. on the day following the holiday, at the option of the parent exercising the holiday;
Columbus Day beginning at 6 p.m. the day before the holiday until 7 p.m. on the holiday;
Thanksgiving holiday beginning Wednesday at 7 p.m. until Sunday at 7 p.m.; and
the second portion of the Christmas school vacation as defined in Utah Code Subsection 30-3-32(3)(b), beginning 1 p.m. on the day halfway through the holiday period, if there are an odd number of days for the holiday period, or at 7 p.m. if there are an even number of days for the holiday period, so long as the entire Christmas holiday period is equally divided.
The custodial parent is entitled to the odd year holidays in even years and the even year holidays in odd years.
Also, under Utah Code § 30-3-35, each year the noncustodial parent may exercise “extended parent-time” which is up to four consecutive weeks (28 days) when school is not in session at the option of the noncustodial parent, including weekends normally exercised by the noncustodial parent, but not holidays.
This means that the total number of overnights, including weekends, holidays and extended summer time that a noncustodial parent will receive under Utah Code Section 30-3-35 is:
89 overnights during odd number years (when parent-time begins on the first alternating weekend of the year);
93 overnights during odd number years (when parent-time begins on the second alternating weekend of the year);
88 overnights during even number years (when parent-time begins on the first alternating weekend of the year); and
92 overnights during even number years (when parent-time begins on the second alternating weekend of the year).
So a noncustodial parent subject to parent-time under the statutory minimum schedule in § 30-3-35 would be awarded approximately 90 overnights per year.[3]
Although § 30-3-35 is not binding on judges, many will use this—shamefully—as a “standard” for assigning parent-time, unless there is reason to deviate from the standard, or if the parents agree on a different arrangement.
Another option for parents and the court to consider is Utah Code § 30-3-35.1. Under this section, the court has the option of awarding time greater than the minimum parent-time schedule of § 30-3-35.
Under § 30-3-35.1, a parent who might otherwise have been relegated to parent-time under § 30-3-35 can be awarded 145 overnights per year by imposing a schedule that consists of:
Every Wednesday (or some other mid-week day, other than Friday or Monday)
Every other Friday
Every other Saturday
Every other Sunday
Additionally, the holiday schedule in § 30-3-35 will apply, except that in all instances that would under § 30-3-35 end after 6:00 p.m. instead end the morning after the holiday period when the child returns to school that morning, or at 8:00 a.m. if there is no school that morning.
Under 30-3-35.1, each year the noncustodial parent may also exercise “extended parent-time” which is up to four consecutive weeks (28 days) when school is not in session at the option of the noncustodial parent, including weekends normally exercised by the noncustodial parent, but not holidays.
Under Utah Code § 30-3-35.1. then, the noncustodial parent will have the following number of overnights:
157 overnights during odd number years (when parent-time begins on the first alternating weekend of the year);
165 overnights during odd number years (when parent-time begins on the second alternating weekend of the year);
158 overnights during even number years (when parent-time begins on the first alternating weekend of the year); and
163 overnights during even number years (when parent-time begins on the second alternating weekend of the year).
As you can see, although Utah Code § 30-3-35.1 provides that a parent awarded shared custody receives 145 overnights, that parent actually receives closer to an average of 160 overnights, depending on the year and when the noncustodial parent’s alternating weekend falls. Don’t forget to take that into account when calculating child support. Why? Because child support is based upon the number of overnights the children spend with each parent.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] Remember also that parent-time does not include merely overnights with the child(ren). Under Utah Code § 30-3-35(2)(a), noncustodial parents get, in addition to the overnights awarded, one weekday (per week, not every other week) for several hours; either from the time the child’s school is regularly dismissed until 8:30 p.m. or from approximately 9:00 a.m. when school is not in session that day. Noncustodial parents also get to celebrate the child’s birthday (either on the actual birthdate or the day before or the day after) beginning at 3 p.m. until 9 p.m., and get to spend Halloween on October 31 or the day Halloween is traditionally celebrated in the local community from after school until 9 p.m. if on a school day, or from 4 p.m. until 9 p.m.
[2] While the schedule in § 30-3-35 is followed by many parents and court, remember this: § 30-3-35’s schedule is a statutory guideline, not a mandate. Parents can create and agree upon their own “custom-made” custody and parent-time schedule, and your divorce case judge can also create a “custom-made” custody and parent-time schedule, if your judge feels it appropriate.
[3] Note: the exact number of overnights a parent will have may vary based on the length of the child(ren)’s school breaks. The number of overnights listed here were calculated with a child having two days off school for fall break, two days off school for spring break, and two weeks off school for winter break.
I wonder which state in the U.S. has the highest rate of awarding joint physical custody of children in divorce. Unfortunately, I wouldn’t be the least bit surprised if Utah isn’t it, would not the least bit surprised if it’s not even close.
Joint physical custody is clearly not always the right thing for every child, but ask children of divorce, whether they are still young children or adults, and they’ll tell you how much they miss/missed the non-custodial parent, how much they resented their time with that parent being limited and restricted, and how badly the relationship with that parent suffered (and usually deteriorated) as a result.
Spouses divorce, but divorcing parents don’t want to divorce their children. But our child custody laws and the way they are administered virtually force divorcing spouses to fight over custody of their children. Can you imagine what child custody would look like, how much simpler, less expensive and less distressing it would be for all, if it rarely, if ever, entered the minds of judges and parents that child custody should or could be an issue? If joint physical custody and joint legal custody where the rule, instead of the exception?
Take the profit motive out of child custody awards, and that would also do a lot to make a presumption of joint physical custody more popular, as well as more sensible.
The best interest of the child standard is the current standard that guides custody awards, and it is a bad standard (the standard should be the best interest of the family, both individually and collectively, but I digress); even so, the custody award that truly subserves the best interest of the child is essentially, necessarily, and by definition a custody award that is the best for the child (not merely adequate or workable or expedient).
With parental rights being one of the most fundamental human and constitutional rights, with parents naturally being far more aware of and interested in meeting the needs of children far better than any government can, and with the mountain of proof showing the damage done to fatherless and motherless children, then unless one parent has been shown to be clearly unfit to exercise custody of his or her own child, or if there is so much animus between one parent and another that they cannot live together, I don’t see how anyone can seriously argue that sole custody is best for any child. The “best parent” is both parents.
A family-friendly state cannot be such without respecting and fostering all that makes families and parent-child relationships strong and beneficial for parents and children alike.
Joint custody has to be such that it doesn’t take from the parents and children more than it gives back. When parents live in different cities, or even in different neighborhoods, then joint custody may a parent feel more “connected” to his or her children, but the children can feel isolated because they are, in fact, isolated. Unless Mom’s and Dad’s houses are within walking distance of each other, unless living with Mom and with Dad also means staying in the same neighborhood, where they are able to attend the same church and engage in the same weekly, athletic and extracurricular activities with the same friends, then half the benefits of joint custody are often lost.
Some parents’ circumstances won’t allow them to share joint custody. Some parents (few, but they exist) don’t want joint custody. Some parents aren’t fit to share custody, and some children don’t want joint custody either.
Notwithstanding, the ludicrously overwhelming majority of children want joint custody. And if money weren’t a factor in the child custody award, the ludicrously overwhelming majority of parents want joint custody. The notion that all divorcing parents must fight or want to fight over “child custody” is absurd.
With extraordinarily rare exception (to the point that the exceptions aren’t even worth considering), normal children of two fit parents don’t want their relationships with either of their parents curtailed, infringed, or damaged, period. And in divorce they certainly don’t want their relationships with either of their parents curtailed, infringed, or damaged any more than necessary. So now I ask you (rhetorically, because this simply isn’t debatable): which child custody presumption really serves the best interest of children better: a presumption of sole custody (which is Utah’s statutory presumption), or a presumption of joint custody on an equal time-sharing basis?
Utah Family Law, LC | divorceutah.com | 801-466-9277
What are the chances of a ballot measure in CA for a rebuttable presumption that child custody should be 50/50 if both parents wish at least 50%?
Slim.
This isn’t important to enough people to get it on the ballot, and even if it were, the culture isn’t ready to make a presumption of 50/50 custody law.
The day when the presumption will be 50/50 is coming, but not right now.
Utah Family Law, LC | divorceutah.com | 801-466-9277
When non-lawyers think of joint custody, I get the impression that they think of it this way:
The children live half the time with Mom and half the time with Dad.
This is certainly a joint custody arrangement that many divorced and unmarried parents follow, but it is not the only definition of joint custody.
I practice in Utah, so here is how Utah defines “joint custody.” There are two forms joint custody: joint physical custody and joint legal custody. This is long, but worth reading to understand how Utah defines joint custody.
(1)(a) “Custodial responsibility” includes all powers and duties relating to caretaking authority and decision-making authority for a child.
(b) “Custodial responsibility” includes physical custody, legal custody, parenting time, right to access, visitation, and authority to grant limited contact with a child.
(2) “Joint legal custody”:
(a) means the sharing of the rights, privileges, duties, and powers of a parent by both parents, where specified;
(b) may include an award of exclusive authority by the court to one parent to make specific decisions;
(c) does not affect the physical custody of the child except as specified in the order of joint legal custody;
(d) is not based on awarding equal or nearly equal periods of physical custody of and access to the child to each of the parents, as the best interest of the child often requires that a primary physical residence for the child be designated; and
(e) does not prohibit the court from specifying one parent as the primary caretaker and one home as the primary residence of the child.
(3) “Joint physical custody”:
(a) means the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support;
(b) can mean equal or nearly equal periods of physical custody of and access to the child by each of the parents, as required to meet the best interest of the child;
(c) may require that a primary physical residence for the child be designated; and
(d) does not prohibit the court from specifying one parent as the primary caretaker and one home as the primary residence of the child.
JOINT PHYSICAL CUSTODY
30-3-10. Custody of children in case of separation or divorce — Custody consideration.
(1) If a married couple having one or more minor children are separated, or their marriage is declared void or dissolved, the court shall make an order for the future care and custody of the minor children as it considers appropriate.
(a) In determining any form of custody, including a change in custody, the court shall consider the best interests of the child without preference for either parent solely because of the biological sex of the parent and, among other factors the court finds relevant, the following:
(i) the past conduct and demonstrated moral standards of each of the parties;
(ii) which parent is most likely to act in the best interest of the child, including allowing the child frequent and continuing contact with the noncustodial parent;
(iii) the extent of bonding between the parent and child, meaning the depth, quality, and nature of the relationship between a parent and child;
(iv) whether the parent has intentionally exposed the child to pornography or material harmful to a minor, as defined in Section 76-10-1201; and
(v) those factors outlined in Section 30-3-10.2.
(b) There is a rebuttable presumption that joint legal custody, as defined in Section 30-3-10.1, is in the best interest of the child, except in cases where there is:
(i) domestic violence in the home or in the presence of the child;
(ii) special physical or mental needs of a parent or child, making joint legal custody unreasonable;
(iii) physical distance between the residences of the parents, making joint decision making impractical in certain circumstances; or
(iv) any other factor the court considers relevant including those listed in this section and Section 30-3-10.2.
(c) The person who desires joint legal custody shall file a proposed parenting plan in accordance with Sections 30-3-10.8 and 30-3-10.9. A presumption for joint legal custody may be rebutted by a showing by a preponderance of the evidence that it is not in the best interest of the child.
(d) A child may not be required by either party to testify unless the trier of fact determines that extenuating circumstances exist that would necessitate the testimony of the child be heard and there is no other reasonable method to present the child’s testimony.
(e) The court may inquire of a child and take into consideration the child’s desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the child’s custody or parent-time otherwise. The desires of a child 14 years of age or older shall be given added weight, but is not the single controlling factor.
(f) If an interview with a child is conducted by the court pursuant to Subsection (1)(e), the interview shall be conducted by the judge in camera. The prior consent of the parties may be obtained but is not necessary if the court finds that an interview with a child is the only method to ascertain the child’s desires regarding custody.
(2) In awarding custody, the court shall consider, among other factors the court finds relevant, which parent is most likely to act in the best interests of the child, including allowing the child frequent and continuing contact with the noncustodial parent as the court finds appropriate.
(3) If the court finds that one parent does not desire custody of the child, the court shall take that evidence into consideration in determining whether to award custody to the other parent.
(4) (a) Except as provided in Subsection (4)(b), a court may not discriminate against a parent due to a disability, as defined in Section 57-21-2, in awarding custody or determining whether a substantial change has occurred for the purpose of modifying an award of custody.
(b) The court may not consider the disability of a parent as a factor in awarding custody or modifying an award of custody based on a determination of a substantial change in circumstances, unless the court makes specific findings that:
(i) the disability significantly or substantially inhibits the parent’s ability to provide for the physical and emotional needs of the child at issue; and
(ii) the parent with a disability lacks sufficient human, monetary, or other resources available to supplement the parent’s ability to provide for the physical and emotional needs of the child at issue.
(c) Nothing in this section may be construed to apply to adoption proceedings under Title 78B, Chapter 6, Part 1, Utah Adoption Act.
(5) This section establishes neither a preference nor a presumption for or against joint physical custody or sole physical custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.
(6) When an issue before the court involves custodial responsibility in the event of a deployment of one or both parents who are servicemembers, and the servicemember has not yet been notified of deployment, the court shall resolve the issue based on the standards in Sections 78B-20-306 through 78B-20-309.
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