What is the proper language to request a change of the child custody order in family law court?
What you want to accomplish is not the kind of thing that you have good odds of accomplishing successfully on your own, as a non-lawyer. Indeed, the odds are against you doing this correctly.
Seeking a modification of a child custody order is a matter of much more than merely finding “the right words” (although being clear and accurate in one’s choice of words in legal documents is crucial). The “proper language” to use to seek a modification of an existing child custody order is not a matter of a few sentences or paragraphs, and there is no such thing as one and only one particular way to phrase a request for a modification of the child custody award and to phrase the arguments for why that should occur.
My guess is that you either don’t have enough money to retain the services of an attorney to help you or don’t want to spend the money on an attorney’s help, but this is a situation in which not getting a good attorney’s assistance could be the difference between success and failure.
Many people who are not experienced lawyers have somewhat strange, often incredibly oversimplified, and erroneous beliefs about the way the law and the courts function.
Many people are afraid to consult with lawyers for fear that the lawyers will try to charge them extortionate amounts of money. I sympathize. There are many lawyers who do just that (I am a lawyer, so I know). But if you will shop around extensively, you can find a good lawyer who delivers value for what he or she charges you. When you find such a lawyer, it some of the best money you’ll ever spend. People who represent themselves in court and who don’t know what they’re doing don’t get do overs for the mistakes they make.
Many people believe that if what they want makes all the sense in the world to them, then it will make all the sense in the world to the courts. In my experience, just the opposite is true. What often make sense to people unfamiliar with the legal system is not the way the legal system functions. This is not to say that everything in the legal system is nonsensical, but a lot of what people believe the law is or should be is not the way the law is or works.
Bottom line, consult with an attorney. Find out what you need to do, find out how much it will cost, then find a way to afford it. It’s far less expensive in the long run than the risks you run in trying to do it yourself.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Julie J. Nelson and Alexandra Mareschal, Attorneys for Appellant
Todd R. Sheeran, Attorney for Appellee
JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred.
TENNEY, Judge:
¶1By statute, a district court must ordinarily find that a material and substantial change in circumstances occurred before modifying the custody provisions in a divorce decree. In this appeal, we’re asked to answer two main questions about this statute.
¶2First, if a decree is silent about whether one of the parents has legal custody of a child, is the district court later required to find that there was a material and substantial change in circumstances before determining whether that parent has legal custody in the first instance? We conclude that a material and substantial change in circumstances is not required in such a scenario.
¶3Second, in situations where the custody modification statute is applicable, can a custodial parent’s attempt to sever a years-long relationship between the noncustodial parent and a child legally qualify as a material and substantial change? We conclude that it can.
¶4 Based on these two conclusions, we affirm the modifications at issue.
BACKGROUND [10] The Divorce Decree
¶5Nicole and Bryant Widdison were married in June 2004. They had two children during their marriage, Daughter and Son. Bryant is Daughter’s biological father, but Nicole conceived Son with another man during a brief separation from Bryant. Nicole and Bryant reconciled before Son’s birth, however, and Bryant was in the delivery room when Nicole gave birth to Son. Bryant is listed on Son’s birth certificate, and Son bears Bryant’s surname.
¶6Nicole and Bryant divorced in July 2015. Daughter was ten years old at the time, and Son was about three and a half. The divorce decree (the Decree) was largely based on a stipulation between Nicole and Bryant.
¶7In the portions relevant to this appeal, the Decree provided:
Physical Custody: Nicole shall have physical custody of both said minor children. Bryant will remain on Son’s birth certificate unless or until he is challenged by some other legitimate party who prevails in a court of law.
. . . .
Legal Custody: The parties shall have “joint legal custody” of Daughter.
. . . .
Parent-Time/Visitation: Bryant shall be entitled to reasonable parent-time with Daughter. Reasonable parent-time shall be defined as the parties may agree. However, if the parties are not able to agree, Bryant shall be entitled to the following parent-time:
. . . .
2) . . . Bryant may have two (2) overnights each week to coincide with the days that he is off work with the parties’ oldest child, Daughter[,] during the school year. . . . During the Summer months Bryant may have three overnights every other week and two overnights on the alternating weeks. . . . As for the youngest child, Son, parent-time will be at Nicole’s sole discretion . . . .
3) Bryant shall also be entitled to holidays and summer parent-time as articulated in U.C.A. § 30-335 . . . .
. . . .
Child Support: . . . Based on [the parties’] incomes, and a sole custody worksheet (even though the parties have a different parent-time arrangement and with the benefit and consent of counsel after being informed and involved), Bryant shall pay Nicole child support in the amount of $450.00 each month for the one female child (Daughter). . . . Any reference to a financial obligation[] or child support in this document shall be interpreted as applying only to the older child (Daughter).
(Emphases added.)
¶8As noted, the Decree gave Nicole “sole discretion” over whether Bryant could spend parent-time with Son. During the first three years after the divorce, Nicole “regularly and consistently allowed Son to exercise time with Bryant.” Her usual practice was to allow Son to accompany Daughter whenever Daughter visited Bryant. Since the Decree entitled Bryant to spend a little over 30 percent of the time with Daughter, this meant that Bryant spent a little over 30 percent of the time with Son during those years too.
The Modification Petitions
¶9In November 2016, the State filed a petition to modify the Decree to require Bryant to pay child support for Son. The State’s petition noted that Son was born during Nicole and Bryant’s marriage, and it asserted that Bryant was Son’s presumptive legal father under Utah Code § 78B-15-204(1)(a) (LexisNexis 2018)11, which states that a “man is presumed to be the father of a child if,” among others, “he and the mother of the child are married to each other and the child is born during the marriage.” The State noted that “[n]o child support has been ordered for this child.” It accordingly asked the court to “find[] Bryant to be the legal father of Son” and order him to pay child support for Son.
¶10In his answer to the State’s petition, Bryant agreed that he “is the presumptive father” of Son and expressed his “desire[]” to “be treated as the natural father of Son” “for all intents and purposes.” Bryant also asked the court for an order granting him joint legal and physical custody of Son, as well as a “clarification of his rights and duties, namely parent-time with Son.”12
¶11 In September 2018, Bryant filed his own petition to modify the Decree. There, Bryant asserted that he “has been the only father figure that Son has known,” and he argued that he “should be presumed and considered the legal father of Son.” Bryant also argued that “[t]here has been a significant, substantial and material change in circumstances that has occurred since the parties’ Decree of Divorce concerning custody, parent-time, and child support, such that modification of the Decree of Divorce is in the best interests of the minor children.”13
Motion for Temporary Relief
¶12 About two months after Bryant filed his petition to modify, Nicole suddenly cut off Bryant’s parent-time with Son. After she did, Bryant filed a motion for temporary relief, asking the court to award him “his historical/status quo parent time with both the minor children” until his petition to modify was resolved.
¶13 The matter went before a court commissioner, and a hearing was held in which Bryant and Nicole and their respective attorneys were present. During the hearing, the commissioner heard how often Son accompanied Daughter during her visits with Bryant. At the close of the hearing, the commissioner ordered Nicole to “immediately resume Bryant’s historical/status quo parent time with both minor children” and to “allow Son to follow the parent-time schedule of Daughter, consistent with the historical parent-time exercised by Bryant.”
¶14 Nicole objected to the commissioner’s recommendation, but the district court overruled that objection. The court instead agreed to temporarily “modify the stipulation to reflect what the parties themselves were actually doing regarding parent time.” The court surmised that “reducing the visitation the parties themselves were doing” might “be harmful to the child.” The court continued that it “could also be argued that such visitation is helpful and beneficial to the child, especially since both children will be doing visitation together and parents have the right of visitation with their children.” Nicole was thus ordered to give Bryant “the same parent-time with Son, consistent with Bryant’s parent time with Daughter,” while Bryant’s petition to modify was pending.
The Relocation Proceedings
¶15 A short time later, Nicole requested an expedited phone conference with the court, explaining that the company she worked for was requiring her to relocate to California. After a hearing, the commissioner recommended that “[t]he children . . . remain in Utah until the Court changes the Order regarding custody and parent time.”
¶16 During the hearing, the commissioner further noted that “[c]onspicuously absent from Nicole’s argument [was] anything—from this Court’s perspective—showing she’s considering the child’s perspective.” In particular, the commissioner explained that
Son has shared time with the older sibling going to Bryant’s home. Nicole has regularly and consistently allowed this child to exercise time with Bryant. In [November] of 2018, Nicole disagreed. And I agree, she does have the discretion to make decisions with regard to Son. From the child’s perspective, however, one child goes with Dad and the other doesn’t, because Bryant stepped on Nicole’s toes. She says, I’m establishing boundaries; you don’t get to see this child. That’s fine if this child is a car or a refrigerator. Son [is] a person who has Bryant’s surname, who has been exercising time—from what I can see—[a] full seven years.
The commissioner further explained that “there’s been enough of a change, enough consistency for this younger child, that he has followed the older child, has the same surname [as Bryant], [Bryant’s] name’s on the birth certificate that has not been changed, to follow [Daughter’s parent-time] schedule.”
¶17 Nicole did not object to the commissioner’s recommendation, and she hasn’t relocated in the meantime.
The District Court’s Ruling on Bryant’s Petition to Modify
¶18 A bench trial was held in November 2019 to settle the issues raised in Bryant’s petition to modify and Nicole’s request to relocate. The district court later entered an order titled “Amended Findings of Fact and Conclusions of Law on Petitioner’s Relocation Request,” which addressed both the relocation request and the broader issues regarding Bryant’s legal and physical custody.
¶19 In its order, the court first concluded that the petition to modify was “appropriate in that there have been material changes in circumstances warranting modification of the parties’ Decree in the children’s best interests, which have not previously been adjudicated.” The court did not, however, more specifically identify what those “changes in circumstances” were.
¶20 Second, the court concluded that Nicole had “failed to rebut the presumption of paternity that exists in this case.” In the court’s view, Nicole had not shown by a “preponderance of the evidence that it would be in the best interest of Son to disestablish the parent-child relationship that has been created and substantiated by both of the parties over many years.” The court then “enter[ed] an adjudication that Bryant is the father of Son” and modified the Decree to “impose as to Son parental obligations” on Bryant, “including the obligation to pay child support for Son.”
¶21Third, the court “award[ed] Bryant joint legal custody of Son on the same terms as the Decree provide[d] for Daughter.”
¶22 And finally, the court ruled that Nicole was “free to relocate.” If she did, the court awarded Bryant parent-time with both children under the terms set forth in Utah Code section 303-37(6) (Supp. 2021). If Nicole stayed in Utah, however, the court awarded Bryant “parent time with Son on the same terms as was occurring with Daughter.”
¶23 That same day, the court issued a separate “Order Modifying Decree of Divorce.” This order reiterated that Bryant is “adjudicated to be the legal father of both Daughter and Son,” that Bryant now bore “all parental obligations in accordance with Utah law,” including the “obligation to pay child support” for both children, and that Bryant had “joint legal custody of both children on the same terms set forth in the [original] Decree with respect to Daughter.” The court further repeated the parent-time schedule that was set forth in its ruling on the relocation request—i.e., it awarded Bryant parent-time with Son on the same terms that he had with Daughter. It then declared that, “[e]xcept as modified by this Order, the parties’ Decree remains in full force and effect.”
ISSUES AND STANDARDS OF REVIEW
¶24 Nicole challenges the district court’s decisions to give Bryant (1) legal custody of Son and (2) parent-time with Son. We review a district court’s decision to modify a divorce decree, as well as a court’s parent-time determination and custody award, for abuse of discretion. See Stephens v. Stephens, 2018 UT App 196, ¶¶ 20–21, 437 P.3d 445; MacDonald v. MacDonald, 2017 UT App 136, ¶ 7, 402 P.3d 178.
¶25 As discussed below, we regard one portion of the ruling in question as a determination of custody in the first instance. “A district court’s award of custody is reviewed for abuse of discretion.” Taylor v. Elison, 2011 UT App 272, ¶ 8, 263 P.3d 448. As also discussed below, another portion of Nicole’s argument turns on whether the circumstances at issue can legally qualify as a change in circumstances. We review that decision for correctness. See Toone v. Toone, 952 P.2d 112, 114 (Utah Ct. App. 1998) (“[I]n this case, we are presented with a question of law regarding what constitutes a substantial change of circumstances, which is reviewed for correctness.”).
ANALYSIS
¶26“While there are several tools that can generally be used to modify final judgments, one tool that is specific to family law cases is the petition to modify.” McFarland v. McFarland, 2021 UT App 58, ¶ 25, 493 P.3d 1146 (quotation simplified); see also Ross v. Ross, 2019 UT App 104, ¶ 11, 447 P.3d 104 (“[R]ule 106 establishes a general rule . . . that any changes to divorce decrees must be brought about by the filing of a petition to modify.”). “Parties in family law cases may use this tool, in accordance with applicable statutes and rules, to seek modification of various provisions of decrees.” McFarland, 2021 UT App 58, ¶ 25.
¶27 “On the petition of one or both of the parents,” the governing statute allows a court to “modify or terminate an order that established joint legal custody or joint physical custody” if “the circumstances of the child or one or both parents . . . have materially and substantially changed since the entry of the order to be modified” and the modification “would be an improvement for and in the best interest of the child.” Utah Code Ann. § 30-3-10.4(1) (LexisNexis 2019). This is a “bifurcated procedure,” Hogge v. Hogge, 649 P.2d 51, 53 (Utah 1982), and Utah courts have consistently referred to it as a “two-step” process, Doyle v. Doyle, 2011 UT 42, ¶ 24, 258 P.3d 553. See also Becker v. Becker, 694 P.2d 608, 610–11 (Utah 1984). Notably, it’s also a sequential process, in that a court cannot “reopen[] the custody question until it has first made a threshold finding of substantially changed circumstances.” Doyle, 2011 UT 42, ¶ 25 (quotation simplified).14
¶28 As explained above, the district court made a number of changes to the Decree, and Nicole now challenges two of them on appeal: the decision to award Bryant legal custody of Son and the decision to grant Bryant parent-time with Son. We address each in turn.
I. Legal Custody
¶29 Nicole first challenges the district court’s decision to award Bryant joint legal custody of Son. Nicole claims that, “[u]nder the decree, [she] had sole . . . legal custody of Son,” and she then argues that under the two-step process described above, the district court erred by granting legal custody to Bryant without first providing any “analysis regarding a change in circumstances.” In her view, “[t]he district court disregarded the custody . . . arrangements from the decree and awarded joint [legal] custody of Son as if the decree had never been entered.”
¶30Nicole’s argument, however, is based on a false premise— namely, that the Decree had awarded her sole legal custody of Son. But it hadn’t. The Decree had a separately enumerated “Legal Custody” subsection. That subsection stated that “[t]he parties shall have ‘joint legal custody’ of Daughter.” (Emphasis added.) This provision said nothing about Son, and no other provision in the Decree purported to establish whether Nicole had legal custody of Son (let alone sole legal custody), or instead whether Bryant did (or didn’t) have any form of legal custody of Son himself. Instead, on this, the Decree was silent.15
¶31But the court was legally required to make a legal custody determination for Son. The Utah Code states that courts “shall enter . . . an order of custody”—both legal and physical—when a “married couple’s marriage is declared void or dissolved.” Utah Code Ann. § 30-3-10(1) (2019) (emphasis added). The term “shall,” of course, has long been regarded as a command. See, e.g., Lay v. Lay, 2018 UT App 137, ¶ 12, 427 P.3d 1221.16
¶32 The Decree’s silence impacts how we view Nicole’s arguments on appeal. Again, the Decree is silent about whether Bryant (or any other putative father) had legal custody of Son, and it likewise said nothing about whether Nicole (or any other mother) had legal custody of Son. So the question here is whether the court could correct this oversight without having to first determine that there had been a sufficient change in circumstances to warrant modification.
¶33 We conclude that a change in circumstances was not required for the court to correct the Decree in this manner. As noted, the change-in-circumstances requirement is set forth in Utah Code section 30-3-10.4. This requirement “serves multiple interests.” Doyle, 2011 UT 42, ¶ 25. “First, because a custody decree is predicated on a particular set of facts, that decree is res judicata,” so “the changed-circumstances requirement prevents an unnecessary drain on judicial resources by repetitive litigation of the same issue when the result would not be altered.” Miller v. Miller, 2020 UT App 171, ¶ 17, 480 P.3d 341 (quotation simplified). “Second, the changed-circumstances requirement protects the custodial parent from harassment by repeated litigation.” Id. (quotation simplified). And third, “the requirement protects the child from ‘ping-pong’ custody awards,” id. (quotation simplified), thus emphasizing “the importance of a stable and secure homelife for children who are shifted from one parent figure to another” and ensuring that custody issues are not frivolously or infinitely “reopen[ed],” Hogge, 649 P.2d at 53–54 (quotation simplified).
¶34 None of these concerns are implicated here. To the contrary, since the question of whether Bryant had legal custody of Son was unaddressed in the Decree, there was nothing for the court to “reopen” or change. Id. at 53. Thus, properly understood, Nicole isn’t really challenging a decision to modify a prior determination that Bryant should (or shouldn’t) have legal custody of Son. Rather, what Nicole is actually challenging is a decision that, in effect, decided legal custody in the first instance. Because of this, we conclude that no change in circumstances could reasonably be required. After all, if it were true that a court couldn’t correct an omission of a required determination without pointing to a change in circumstances, divorce decrees like this one would be left indeterminate about key issues such as who had legal custody of a child. And the effect of such omissions would be felt by both the children and the parents, all of whom would be left without the guidance and certainty that custody determinations are intended and required to provide. We decline to create, let alone endorse, such an approach.
¶35Our determination thus leaves the remaining question of whether the court exceeded its discretion when it awarded joint legal custody of Son to Bryant in the first instance. We conclude that it didn’t.
¶36 “Under both the United States Constitution and the constitution of [Utah], a parent possesses a fundamental liberty interest in the care, custody, and management of the parent’s child.” Utah Code Ann. § 80-4-104(1) (Supp. 2021). Because of this, legal custody is linked to the fact of parentage. Our supreme court, for example, has held that a father has “legal custody of [his] [c]hild by virtue of his paternity,” In re adoption of B.B., 2017 UT 59, ¶ 81, 417 P.3d 1, and the same would of course be true for mothers by virtue of their maternity. Indeed, by statute, Utah law “presume[s] that a parent automatically enjoys legal custody” of his or her child, and this is so because of “the fundamental liberty interest of a parent concerning the care, custody, and management of the parent’s child.” Id. (quotation simplified). The legislature has also established “a rebuttable presumption that joint legal custody” “is in the best interest of the child.” Utah Code Ann. § 30-3-10(3) (2019).
¶37Here, Son was born during Nicole and Bryant’s marriage, so Bryant was legally “presumed to be” Son’s father. Id. § 78B15-204(1)(a) (2018). And while this presumption of paternity can be overcome, the district court concluded that it was not. Instead, in the same ruling at issue on appeal, the court declared Bryant to be Son’s legal father, and Nicole has not challenged that paternity decision on appeal.
¶38 As also noted, however, Bryant’s now-established paternity of Son presumptively gave him joint legal custody of Son too, based in part on Bryant’s own constitutional interests in the care and raising of Son, who is his child. See In re adoption of B.B., 2017 UT 59, ¶ 81. In her arguments to us, the only reason that Nicole gives for overcoming this presumption is the fact that the initial Decree was silent about whether Bryant had legal custody of Son. But as we’ve explained, that omission was a legal error. And when the district court was alerted to that error, it appropriately fixed it. Once the court did, the result was that Bryant—who was present at Son’s birth, was listed on Son’s birth certificate, and has acted as Son’s father since birth—was now Son’s legal father, which meant that he was presumptively entitled to legal custody of Son too.
¶39 In short, under these circumstances, no change in circumstances was required, and we see no abuse of discretion in the court awarding legal custody of Son to Bryant in the first instance.
II. Physical Custody
¶40 Nicole next challenges the district court’s decision to modify the Decree’s provisions regarding parent-time with Son. As set forth below, we first clarify (A) the nature of the modification, (B) the district court’s reasons for it, and (C) the standard of review applicable to Nicole’s particular challenge. We then hold that (D) the change in circumstance at issue can legally support a modification of custody.
A. The Nature of the Modification
¶41 The Decree was silent about legal custody of Son, but it wasn’t silent about physical custody. Instead, it affirmatively gave Nicole “physical custody of both said minor children”—i.e., both Daughter and Son. And while the Decree then set forth a delineated parent-time schedule for Daughter, it left Bryant’s parent-time with Son to “Nicole’s sole discretion.”
¶42In the ruling at issue, the district court modified this. The court removed Nicole’s “sole discretion” over parent-time for Son and set forth two alternative parent-time schedules. If Nicole remained in Utah, Bryant would have parent-time with Son “on the same terms as was occurring with Daughter.” If she moved to California, however, Bryant would have one weekend per month with both children as well as additional time with them during the summer. See Utah Code Ann. § 30-3-37(6) (2019).
¶43Although this ruling was couched in terms of parent-time, the parties have both suggested in their briefing that this amounted to a modification of physical custody of Son. We agree.
¶44 Physical custody and parent-time “are conceptually distinct.” Ross, 2019 UT App 104, ¶ 14 n.3. “Physical custody has long been understood to involve much more than actual possession and care of a child,” instead implicating the right and “legal responsibility to provide supervision and control” of a child. Hansen v. Hansen, 2012 UT 9, ¶ 15, 270 P.3d 531. By contrast, the term “parent-time” more narrowly refers to the amount of time that a parent is entitled to spend with the child. See generally Utah Code Ann. §§ 30-3-34 to -36 (2019 & Supp. 2021) (setting forth minimum, optional, and equal parent-time schedules as well as parent-time considerations for special circumstances).
¶45 That said, the terms are intertwined because, “[b]y statutory definition, there are two kinds of physical custody— sole physical custody and joint physical custody,” and “the dividing line” between the two is largely “based on the number of overnight visits enjoyed by each parent.” McFarland, 2021 UT App 58, ¶ 36. When a child “stays with each” of his or her “parent[s] overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support,” each of the parents has joint physical custody of the child. Utah Code Ann. § 30-3-10.1(3)(a) (2019). But when a child stays with one parent overnight for less than 30% of the year, the parent who has over 70% of the overnights is considered to have sole physical custody of the child. See id.; Utah Code Ann. § 78B-12-102(15) (Supp. 2021); McFarland, 2021 UT App 58, ¶ 36.
¶46 Here, the Decree did not specifically determine whether Nicole had “sole” or “joint” physical custody of either of the children. But at least with regard to Son, the Decree effectively awarded Nicole sole physical custody because it gave her “sole discretion” whether Son would spend any parent-time with Bryant at all. And, critically for this appeal, the Decree also awarded Bryant what amounted to joint physical custody of Daughter. After all, the dividing line is 30% of the overnights, and 30% of the 365 days in a year is roughly 110. In the proceedings below, the commissioner reviewed the Decree and determined that the parent-time schedule gave Bryant more “than the 110 overnights,” which accordingly meant that Bryant had “joint physical custody” of Daughter. Thus, when the district court later equalized Bryant’s parent-time with Son to match the parent-time he had with Daughter, it in effect modified the Decree to give Bryant joint physical custody of Son too.17
B. The Basis for the District Court’s Change-in-Circumstance
Determination
¶47 As noted, the district court determined that “there have been material changes in circumstances warranting modification of the parties’ Decree in the children’s best interests, which have not previously been adjudicated.” But the court did not specifically delineate what those changes were. Because of this, Nicole initially asks us to reverse the modification based on the court’s failure to provide any “analysis as to why a custody modification was justified” under the required change-in-circumstances test.
¶48 We acknowledge that the district court’s ruling on this could have been more clear. But even so, “a trial court’s failure to make explicit findings supporting its decision does not, alone, warrant reversal so long as the basis for the trial court’s ruling is readily apparent from the record.” In re A.S., 2014 UT App 226, ¶ 7, 336 P.3d 582; cf. State v. Pecht, 2002 UT 41, ¶ 34, 48 P.3d 931 (explaining that “where the record as a whole sufficiently” indicates the basis for the court’s ruling, “an absence of written findings will not invalidate the trial court’s conclusions”).
¶49Here, the court expressly concluded that there had been a change in circumstances, so the court was plainly cognizant of the requirement and believed that it had been met. And from our review of the record, we believe that the basis for the court’s determination is sufficiently apparent. In its ruling regarding the temporary orders, the court temporarily “modif[ied] the stipulation to reflect what the parties themselves were actually doing regarding parent time.” The court surmised that “reducing the visitation the parties themselves were doing” might “be harmful to the child” and that “visitation is helpful and beneficial to the child, especially since both children will be doing visitation together and parents have the right of visitation with their children.” It thus ordered Nicole to give Bryant “the same parent-time with Son, consistent with Bryant’s parent time with Daughter,” while Bryant’s petition to modify was pending. This initial decision demonstrated two key things: (1) the court intended to equalize Bryant’s parent-time with Daughter and Son, and (2) it more specifically intended to prevent Nicole from “reducing” Bryant’s parent-time with Son.
¶50 The court’s ruling on Nicole’s relocation request (which, again, accompanied the modification ruling) was consistent with these goals. There, the court ruled that Bryant should be declared Son’s father—a determination that, again, Nicole has not challenged on appeal. Notably, in doing so, the court expressed its intention to not allow Nicole to “disestablish the parent child relationship” between Bryant and Son “that has been created and substantiated by both of the parties over many years.”
¶51 Together, these orders reflect the court’s intention to formally recognize and now protect Bryant’s relationship with Son. From all this, we believe it is “readily apparent from the record,” In re A.S., 2014 UT App 226, ¶ 7, that the change in circumstances found by the court to support modification included: (i) the changes in Bryant’s relationship with Son (namely, the three years of additional parent-time bonding, as well as Bryant’s new status as Son’s legally recognized father), and (ii) Nicole’s recent attempts to cut off Bryant’s access to Son.
C. Standard of Review
¶52 Nicole next argues that Bryant’s further-developed relationship with Son and her decision to cut off parent-time between the two could not legally qualify as a change in circumstances under the custody modification statute. As noted in the Standard of Review section above, supra ¶ 25, we regard this as a legal question that is reviewed for correctness. In light of our past caselaw, this warrants some explanation.
¶53 This court has previously held that a district court’s “determination regarding whether a substantial change of circumstances has occurred is presumptively valid, and our review is therefore limited to considering whether the [district] court abused its discretion.” Nave-Free v. Free, 2019 UT App 83, ¶ 8, 444 P.3d 3 (quotation simplified); accord Christensen v. Christensen, 2017 UT App 120, ¶ 10, 400 P.3d 1219; Doyle v. Doyle, 2009 UT App 306, ¶ 7, 221 P.3d 888, aff’d, 2011 UT 42, 258 P.3d 553. We reaffirm our adherence to this general rule here.
¶54 On occasion, however, we have held that the abuse-of-discretion standard applies to a district court’s “ultimate determination regarding the presence or absence of a substantial change in circumstances.” Peeples v. Peeples, 2019 UT App 207, ¶ 11, 456 P.3d 1159 (emphasis added); accord Harper v. Harper, 2021 UT App 5, ¶ 11, 480 P.3d 1097. But when we have been presented with an argument that didn’t challenge the court’s “ultimate determination” of whether certain facts constituted a material and substantial change in circumstances, but instead contended that particular facts or developments simply couldn’t be legally considered as part of the court’s analysis, we have treated those questions as questions of law for which we give the district court’s ruling no appellate deference.
¶55 Our decision in Toone v. Toone, 952 P.2d 112 (Utah Ct. App. 1998), is illustrative. There, after a divorce had been finalized, federal laws regarding military pensions changed; and if those new laws were applied to the parties’ divorce, they would have allowed the ex-wife a larger share of her ex-husband’s military pension. See id. at 113–14. The ex-wife accordingly filed a petition to modify, asserting that the change in laws amounted to a change in circumstances that justified modification of the divorce decree. Id. We disagreed. See id. at 114. Notably, while reaffirming the rule that a district court’s “modification determination” is reviewed “for an abuse of discretion,” we regarded the particular question before us as being “a question of law regarding what constitutes a substantial change of circumstances, which is reviewed for correctness.” Id.
¶56 Another case proceeded similarly. In Davis v. Davis, 2011 UT App 311, ¶ 6, 263 P.3d 520, we construed a party’s argument that certain events “could not be used as evidence” in the change-in-circumstances analysis as a legal question that we reviewed for correctness.
¶57This distinction, though perhaps subtle, is important, and it accords with how standards of review operate. The “primary function of a standard of review is to apportion power and, consequently, responsibility between trial and appellate courts for determining an issue.” State v. Levin, 2006 UT 50, ¶ 19, 144 P.3d 1096 (quotation simplified). In this sense, the standard of review determination “allocate[s] discretion between the trial and appellate courts” based on an assessment of “the relative capabilities of each level of the court system.” Id. (quotation simplified).
¶58 Again, the statute in question here requires a court to determine whether there was a material and substantial change in circumstances. See Utah Code Ann. § 30-3-10.4(2)(b)(i) (2019). The evaluation of whether a particular change was material or substantial enough calls for a weighing of facts and circumstances. District courts are in a better position than we are to do such weighing, which is why those ultimate determinations receive discretionary deference. But if a party instead makes a threshold argument that a particular kind of fact or development can’t legally be used in the weighing at all, that argument essentially asks us to establish the permissible boundaries of the district court’s discretionary decision-making authority. Such a question is legal in nature, which is why that aspect of the ruling is reviewed for correctness.
¶59 In her opening brief, Nicole argues that the change in circumstances identified by the district court “is not the sort of ‘change’ that justifies modification under Utah law.” (Emphasis added.) In her reply brief, Nicole similarly asserts that the district court “did not find[] changed circumstances that qualify under Utah law.” (Emphasis added.) She accordingly asks us to review the district court’s decision for correctness, rather than an abuse of discretion. So viewed, we don’t understand Nicole to be challenging the court’s weighing of the permissible facts. Rather, we understand Nicole to be making a legal argument about whether the court could even consider the change in relationship between Son and Bryant in the intervening years and Nicole’s subsequent, unilateral decision to cut off their parent-time as a material change in circumstances. Because her argument is legal in nature, we review this aspect of the ruling for correctness.
D. The Change in Circumstances
¶60 Properly understood, the question, then, is whether the change in circumstances identified above can legally qualify as a change in circumstances under Utah law. We conclude that it can.18
¶61 As noted, the statute requires a determination that “a material and substantial change in circumstance has occurred.” Utah Code Ann. § 30-3-10.4(2)(b)(i) (2019). A chief “goal” of this required determination is to give children “some measure of certainty and stability” after their parents or guardians have separated. In re E.H., 2006 UT 36, ¶ 2, 137 P.3d 809. Indeed, the supreme court has suggested that children are “entitled” to “permanence and stability” moving forward. Id. ¶ 16.
¶62 For good reason. The “emotional, intellectual, and moral development of a child depends upon a reasonable degree of stability in the child’s relationships to important people and to its environment.” Elmer v. Elmer, 776 P.2d 599, 602 (Utah 1989). Both the supreme court and this court have recognized that stability is paramount with respect to “custody arrangements.” Hogge, 649 P.2d at 54; see also Kramer v. Kramer, 738 P.2d 624, 626 (Utah 1987) (recognizing that “stable custody arrangements are of critical importance to the child’s proper development”); Taylor v. Elison, 2011 UT App 272, ¶ 22, 263 P.3d 448 (recognizing the “general policy of maintaining custodial stability to the extent it is reasonable and wise to do so while [a child’s] parents seek to resolve their differences” and that “it is generally in the best interests of the child to remain with his or her existing custodial parent”).
¶63 This stability interest is one of the driving forces behind the change-in-circumstances requirement, which “provide[s] stability to children by protecting them from ‘ping-pong’ custody awards.” Chaparro v. Torero, 2018 UT App 181, ¶ 39, 436 P.3d 339 (quotation simplified). “Absent such a requirement, a decree of divorce would be subject to ad infinitum appellate review and readjustment.” Foulger v. Foulger, 626 P.2d 412, 414 (Utah 1981). Thus, the understood “rationale” for this requirement is “that custody placements, once made, should be as stable as possible unless the factual basis for them has completely changed.” Kramer, 738 P.2d at 627 (quotation simplified).
¶64 But this leads to the problem that the district court was confronted with here. Again, the parent-child relationship between Bryant and Son had existed since birth, had solidified in the several-year period after the divorce, and had just now been officially recognized as a matter of law. Despite this, Nicole had recently invoked her authority under the Decree to cut off Bryant’s access to Son entirely, thus amounting to something akin to complete custodial interference.
¶65 The legislature, however, has recognized that “each divorcing, separating, or adjudicated parent is entitled to . . . frequent, meaningful, and continuing access with the parent’s child consistent with the child’s best interest,” Utah Code Ann. § 30-3-32(2)(b)(ii) (Supp. 2021) (emphases added), and that, absent evidence of abuse or harm to the child, “it is in the best interests of the child to have both parents actively involved in parenting the child,” id. § 30-3-32(2)(b)(iii) (emphasis added). True, such relationships can be altered or even severed by operation of law. But here, the Decree was the product of a stipulation, not a court determination, and no court has ever determined that it was not in the best interests of Son to have a relationship with Bryant.
¶66 Given that Bryant has now been adjudicated to be Son’s father, we believe that the court could legally conclude that this change, coupled with Nicole’s concomitant attempt to undermine their ability to have any relationship at all, warranted a modification of the Decree to protect the father-son relationship moving forward.
¶67 Nicole, however, resists this conclusion. She argues that her decision “to allow (or not allow) parent-time” is not “the type of change in circumstances that justifies modification under Utah law.” We disagree.
¶68As a starting point, we note that Nicole’s argument has no support in the controlling statutory text. Section 30-3-10.4(2)(b)(i) requires a court to find that “a material and substantial change of circumstance has occurred.” There is nothing in the text of this statute that creates the limit suggested by Nicole—i.e., the statute doesn’t prevent a district court from concluding that a custodial parent’s efforts to cut off a years-developed relationship between a child and the noncustodial parent qualifies as such a change.
¶69Nicole nevertheless points to two cases that, in her view, support her proposed limitation. But we don’t find either case to require a different result here.
¶70 First, Nicole relies on a passage from Doyle in which the supreme court “adopted a general rule” under which “the asserted change” in circumstances must be related to the “parenting ability or the functioning of the presently existing custodial relationship,” rather than the “parenting of the noncustodial parent.” 2011 UT 42, ¶ 41 (quotation simplified).
¶71 But while Doyle referred to this as a “general rule,” it never said it was an “exclusive” one. Indeed, in the very next sentence, Doyle recognized “an exception to the general rule” that was based on a prior Utah case. Id. Doyle itself thus shows that this “general rule” is subject to judicially recognized exceptions.
¶72Moreover, section 30-3-10.4(1)(a) itself provides that, in a petition to modify, the petition or affidavit must “allege[] that admissible evidence will show that the circumstances of the child or one or both parents . . . have materially and substantially changed since the entry of the order to be modified.” (Emphasis added.) By allowing a modification to be based on a change in the circumstances of “the child or one or both parents,” the legislature directly contemplated that a change in circumstances of any of the parties—the child or either parent—can provide the basis for a modification. So while Doyle’s statement provides some guidance, we do not understand it to be an inviolable limitation of the sort proposed by Nicole.
¶73 Second, Nicole claims that in Crouse v. Crouse, 817 P.2d 836 (Utah Ct. App. 1991), we adopted a rule under which a noncustodial parent’s strengthened relationship with a child cannot qualify as a change in circumstances for purposes of a subsequent modification request. We disagree with Nicole’s interpretation of Crouse.
¶74 In Crouse, the mother had been given primary physical custody of the children after the divorce, but she had then allowed the children to “spen[d] almost equal time” with their father in the ensuing years. Id. at 837. Based in part on this allowance of extra time, the father later requested a modification of the decree to give him “primary physical custody” over the children. Id. The district court denied his modification request, and we affirmed that decision. Id. at 837, 840.
¶75Nicole points to a passage from our affirmance in which we recognized that the “fact that Mrs. Crouse has been generous in sharing physical custody with Mr. Crouse is not a ground to change physical custody; if anything, it supports leaving primary physical custody with Mrs. Crouse, as it shows that she has lived up to the responsibilities of a custodial parent.” Id. at 839.
¶76In contrast to Nicole, however, we don’t read this passage as having determined that, as a matter of law, a district court cannot consider such facts in its analysis. It’s significant that we were affirming the district court’s denial of a petition to modify in Crouse. It’s also significant that the same section of the opinion began with a reminder that a “trial court’s decision concerning modification of a divorce decree will not be disturbed absent an abuse of discretion,” id. at 838, and that we then referred to the court’s “discretion” three more times in that section, id. at 838– 39. Thus, properly understood, Crouse was not establishing rules about the facts that a court could legally consider. Rather, Crouse was giving deference to the district court’s determination that the facts before it were not enough to satisfy the requisite standard.
¶77 Moreover, we also note that the district court’s use of its discretion in Crouse was consistent with the understood purpose behind the change-in-circumstances requirement. The mother there had originally been awarded primary physical custody, and after she let the children “spen[d] almost equal time” with their father over a period of a few years, the father asked the court to grant him “primary physical custody” as a result. Id. at 837. In this sense, the father’s request, if granted, would have created instability in the children’s lives by changing their primary caregiver.
¶78 The opposite is true here. Again, Bryant had acted as Son’s father since birth. After Nicole then allowed Son to continue developing this relationship with Bryant over the course of several post-divorce years, Nicole changed her mind and decided to cut off their relationship, thus essentially leaving Son fatherless. Put simply, the effect of our decision here is consistent with Crouse, not inconsistent with it. There, we affirmed a district court decision that preserved stability in the children’s lives. And here, we’re likewise affirming a district court decision that preserved stability in the affected child’s life.
¶79 In sum, the statute does not impose the limitation proposed by Nicole, and we think that doing so ourselves would be inconsistent with Utah caselaw, the importance of parent-child relationships, the protections given to those relationships by constitution and statute alike, and the modification statute’s recognized goal of promoting stability in children’s lives. We therefore conclude that a district court can legally determine that a unilateral attempt by a custodial parent to sever a child’s years-developed relationship with his or her noncustodial parent can constitute a substantial and material change in circumstances, thereby allowing the court to proceed to the best interests step of the modification analysis. We accordingly affirm the district court’s conclusion that a change in circumstances occurred here.
¶80 Having done so, we add two cautionary notes to this decision. First, Nicole suggests that a ruling like this one will essentially penalize a custodial parent for being generous with the noncustodial parent’s ability to exercise parent-time. We’re sensitive to this concern. But again, a district court can’t proceed to the best-interests step of the analysis based on just any change in circumstances. Rather, the court must first determine that the change is “material and substantial.” Utah Code Ann. § 30-3-10.4(2)(b)(i). Whether a particular increase or decrease in parent-time is enough to qualify will be circumstance-dependent, and we have no need to more specifically cabin the district courts’ discretionary authority here. But in light of Nicole’s concern, we do note that the change in question in this case was from something akin to 30% of the time to 0%. We’re simply holding that a court can regard such a dramatic alteration of the existing parent-child relationship to be a material and substantial change in circumstances.
¶81 Second, we again note that, even when a district court concludes that a change in circumstances has occurred, this does not mean that the court must modify the decree. Again, this is a two-step analysis, and under the second step, a court can only modify a decree if it finds that the modification “would be an improvement for and in the best interest of the child.” Id. § 30-3-10.4(2)(b)(ii). Thus, even in a circumstance like this one, a district court could still determine that modification is not appropriate if it concludes that the proposed modification would not be in the best interests of the child.
¶82 In this sense, our decision today does not restrict the district courts’ options. Rather, it keeps them open. We simply hold that, in a case like this one, a district court can determine that a material and substantial change in circumstances has occurred—not that it must, and not that it must then make any particular ruling regarding the best interests of the child.19
CONCLUSION
¶83 For the foregoing reasons, we affirm the district court’s decision to give Bryant joint legal and physical custody of [decision ends here inexplicably].
Utah Family Law, LC | divorceutah.com | 801-466-9277
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
I have custody of my child. He left to go to his mom’s last Friday for the weekend. He is refusing to come home because he wants to live there. What happens now?
I will answer this question in the context of my experience as a lawyer in the jurisdiction where I practice divorce and family law, which is Utah.
And that answer is: realistically speaking, probably nothing.
As a divorce and family law attorney, I have been on both sides of this issue, meaning I’ve represented the parent with custody of the child who won’t come back, and I’ve also represented the noncustodial parent to whose house the child has “fled” and won’t leave.
This is a weird area of Utah law because you’ll hear the legislature and the courts tell you that children don’t get to choose where they live, and then when children do that very thing (i.e., refuse to live where the court orders them to live), the courts find themselves essentially powerless to change anything. At least that’s my experience over the 24 years I’ve been in practice.
Briefly, if the children are old enough that they cannot be physically controlled by a parent and forced into a car from the noncustodial parents house back to the custodial parent’s house, then the courts are usually not going to intervene. This means that a court will, in fairness and realistically, tell the parents that pragmatically there’s really nothing that they ought to do to enforce the child custody order if the child himself or herself is old enough to put up a fight and/or call the police and/or DCFS and report you for child abuse if you try to force them into the car to go back to the custodial parent’s house. Besides, the child who is old enough to put up a fight is also likely old enough to run away from the noncustodial parents home if anyone tries to force him or her to reside with a parent with whom the child doesn’t want to live.
And so, you get in a situation where the child is disobeying the court’s custody order, but most courts either don’t have the cats to hold the child in contempt of court or don’t feel it is appropriate to sanction a child who won’t comply with the court’s child custody orders. Yet these same courts will also often refuse to modify the child custody award because they don’t want to acknowledge that children, of all people, have the de facto power to defy court orders with impunity.
Next, you need to be aware of the possibility that your custodial parent ex will try to blame you for your child refusing to return to the custodial parent’s home, regardless of whether that is true. Many times, a perfectly innocent noncustodial parent will tell his or her acts and the court, “Look, I’ve told the child what the court order is and that both our and I are expected to comply. But the child refuses to comply anyway. Now what you want me to do? Kick the child out and lock the door behind him?” Some courts sympathize with that predicament, others don’t buy it. Which means it is entirely possible that you would be held in contempt of court for doing absolutely nothing wrong, if the court believes you enticed or coheirs the child to say he or she wants to stay with you. So you need to keep that in mind.
So if you are a noncustodial parent of a child who refuses to reside with the court ordered custodial parent, then you must ask yourself a few questions:
First, if the child refusing to live with the custodial parent because the child is a spoiled brat who has no legitimate reason for refusing to live with the custodial parent? If the answer is yes, then you as the noncustodial parent have both a legal and moral obligation to talk the child into going back to the custodial parent’s home, or if persuasion doesn’t work, imposing limitations and restrictions and punishments upon the child so that the child won’t get the impression that he or she is in charge.
Second, if the child is refusing to reside with the custodial parent because the custodial parent is truly neglectful and/or abusive, and if you have independently verifiable proof of this, you have the option of petitioning the court to modify the child custody award, changing the custodial parent from your ex to you. While that petition is pending, your child may refuse to return to the custodial parent’s home, and for reasons at least you and the child know to be valid. Whether the court allows your child to stay with you depends upon how your court views the situation and what is best for the child.
If you find yourself in this kind of situation, whether you are the custodial parent or the noncustodial parent, this is one of those situations where you need to seek good legal advice immediately, to help ensure that neither you nor the child is victimized.
Utah Family Law, LC | divorceutah.com | 801-466-9277
I am the noncustodial parent. Our child came to my house for parent-time and now refuses to leave because he wants to live with me. What happens now?
I will answer this question in the context of my experience as a lawyer in the jurisdiction where I practice divorce and family law, which is Utah.
This is a weird area of Utah law because you’ll hear the legislature and the courts tell you that children don’t get to choose where they live, and then when children do that very thing (i.e., refuse to live where the court orders them to live), the courts find themselves essentially powerless to change anything. At least that’s my experience over the 24 years I’ve been in practice.
Now before some of you start licking your lips and scheming, thinking, “I’m the noncustodial parent, but I can change that by simply telling our child to choose to refuse to return to the custodial parent’s house,” you need to be aware of the realities.
If you’re the noncustodial parent and your child or children are under the age of 14 or so, and they claim that they don’t want to live with the custodial parent, there’s a very good chance that the court is going to believe that you are a puppet master who coached the children or otherwise induced or coerced them into claiming they want to live with you. That may not be true, but you’re going to be met with that kind of skeptical presumption. So if you are the noncustodial parent with young children who you assert claim they don’t want to live with the custodial parent, you have an uphill battle ahead of you. If you are the noncustodial parent and a father, you have an almost impossibly uphill battle ahead of you.
If, however, your children are 14 years or older, and you are the noncustodial parent with whom your children say they want to live, it will be harder for your ex and/or the court to presume that the children are lying and/or don’t have good reasons for wanting to live with you. Again, if you are the father making this claim, your claim will be met with more skepticism than if you were the noncustodial mother making such a claim. Why is this? Because there is a pernicious belief in the legal system that fathers are generally worse parents than our mothers, that fathers don’t want custody of their children, and that the only reason fathers would seek custody of their children is to avoid paying child support. As a result of these beliefs, fathers who seek custody of their children are met with not just skepticism, but often derisive skepticism. Forewarned is forearmed.
So, if you are a noncustodial parent who is good and decent, and your child honestly and sincerely comes to you saying, “mom/dad, I can’t stand living with the custodial parent anymore, and I want to live with you,” how do you proceed?
First, if the child refusing to live with the custodial parent because the child just wants to spend more time with you and/or less time with the custodial parent, and the custodial parent is not neglecting or abusing the child in any way, then you as the noncustodial parent have both a legal and moral obligation to talk the child into going back to the custodial parent’s home, or if persuasion doesn’t work, imposing limitations and restrictions and punishments upon the child so that the child won’t get the impression that he or she is in charge. At the same time, the custodial parent needs to acknowledge the child’s desires to spend more time with the noncustodial parent as being a legitimate concern that needs to be addressed and resolved, and that usually means the custodial parent agreeing to give the child and the noncustodial parent more time together. If the custodial parent refuses to do the right thing, you may ask whether it’s wise to petition the court for a modification of the child custody award, so that you and the child get more time together. Unfortunately, odds are that if you file a petition to modify child custody and the only basis for your petition is the child’s desire to spend more time with you, you will probably lose. While it is technically and conceivably possible to win such a petition, usually the courts in Utah require more than just the child’s desire as the basis for a modification. And what form does this “more” take? Typically, you would have to show that the custodial parent is neglecting and/or abusing the child to get a modification of the child custody award.
Second, if the child is refusing to reside with the custodial parent because the custodial parent is truly neglectful and/or abusive, and if you have independently verifiable proof of this, you have the option of petitioning the court to modify the child custody award, changing the custodial parent from your ex to you. While that petition is pending, your child may refuse to return to the custodial parent’s home, and for reasons at least you and the child know to be valid. Whether the court allows your child to stay with you depends upon how your court views the situation and what is best for the child.
If you find yourself in this kind of situation, whether you are the custodial parent or the noncustodial parent, this is one of those situations where you need to seek good legal advice immediately, to help ensure that neither you nor the child is victimized.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Can the other parent send someone I’ve never met to pickups and drop-offs for our child?
Can the other parent send someone I’ve never met to pickups and drop-offs for our child when custody order only lists the parents? What would I file with the court to contest this? Would the court just add that person to the order?
Before I address your questions, I suggest you honestly examine the bases for your concerns. Are you honestly worried about this situation, or do you see an opportunity to denigrate your ex and make trouble for your ex in court?
So you’re asking at least three questions here.
First, can the other parent send someone you have never met to pick up or drop off your child when the court’s order states identifies no one other than the parents as the ones who pick up and drop off the child for custody and parent-time exchanges? The answer: If the order can be interpreted or construed to provide that the parents certainly can pick up and drop off, but that permission or authorization to pick up or drop off the child is not limited solely to the parents, then a parent can have someone else to pick up or drop off the child. On the other hand, if the order can be interpreted or construed to provide that permission or authorization to pick up or drop off the child is restricted solely to the parents, then you could argue that if one of the parents fails to pick up or drop off the child personally and instead sends someone else to pick up or drop off the child, that parent is violating the court’s order.
Your next question was: what would I file with the court to contest this? Well, obviously if the court order allows for persons other than the parents to pick up or drop off the child, there would be little point to complaining to the court about it unless you could demonstrate that the person or people the other parent is designating to pick up or drop off the child is harming, attempting to harm, or threatening to harm the child in some significant way.
If the court order prohibits persons other than the parents to pick up or drop off the child, you are wise to ask whether it’s worth the time, effort, hassle, risk, and money to do so if all the other parent is likely to do is file a motion or petition to authorize people other than the parents to pick up or drop off the child. If there is no statute in your jurisdiction that prohibits persons other than parents to facilitate custody or parent-time pickups and drop-offs, if the parent can show that he or she has a legitimate need for the help with pickups and drop offs, and if the person or persons who are not parents but who are picking up or dropping off the child is or are responsible adults who are doing a good job with pickups and drop-offs and doing neither the child nor the parent any harm, you need to ask yourself whether complaining to the court is fair and reasonable for you to do. If the only reason you want to complain is because you like to stir the pot and/or try to cause your ex trouble with the court, you should re-think that position.
HUGH LYNN BJARNSON,
Appellant,
v.
JENNIFER LOU BJARNSON,
Appellee.
Opinion
No. 20190734-CA
Filed October 16, 2020
Fourth District Court, Provo Department
The Honorable Derek P. Pullan
No. 164400963
Aaron R. Harris, Attorney for Appellant
Rosemond G. Blakelock and Megan P. Blakelock, Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN
concurred.
ORME, Judge:
¶1 Hugh Lynn Bjarnson and Jennifer Lou Bjarnson were married in 2008. In 2016, Hugh[1] filed for divorce, and the parties separated three months later. Following a bench trial, the district court entered a decree of divorce in 2019. The court’s alimony determination is the sole point of contention on appeal.
¶2 Following the couple’s separation, Jennifer moved in with her ailing mother, with whom she had also lived between the time she separated from a former husband and when she moved in with Hugh. She could not recall how long she had lived with her mother the first time but said that she had done so “briefly.” Her mother’s residence is a fully furnished three-level home, on five acres, in which Jennifer had her own bedroom. When she moved in following her separation from Hugh, she did not pay rent, although she provided care to her mother and testified that she paid her mother’s water assessment. Jennifer asserted at trial that she could not afford to rent an apartment at that time and was “living there because [she had] nowhere else to live.” It was entirely unclear how long she would remain there.[2]
¶3 The court determined that Jennifer was entitled to a monthly alimony award of $1,830, $1,000 of which accounted for her anticipated monthly housing expense, as reflected in her financial declaration. But because she was not obligated to pay rent while living with her mother, the court ordered Hugh to make alimony payments “for the length of the marriage in the amount of $830 per month until . . . Jennifer secures her own housing,” at which time the “alimony will increase to $1,830 per month.” Hugh appeals.
¶4 Hugh’s argument is limited to the prospective aspect of the district court’s alimony award. He does not challenge the $830 monthly obligation currently payable. Instead, he contends that the court exceeded its discretion by ordering a prospective increase in his alimony obligation based upon an uncertain future event. We agree.
¶5 Although “trial courts have broad latitude in determining whether to award alimony and in setting the amount, and we will not lightly disturb a trial court’s alimony ruling, . . . we will reverse if the court has not exercised its discretion within the bounds and under the standards we have set.” Rule v. Rule, 2017 UT App 137, ¶ 11, 402 P.3d 153 (quotation simplified). See also State v. De La Rosa, 2019 UT App 110, ¶ 4, 445 P.3d 955 (“Trial courts do not have discretion to misapply the law.”) (quotation simplified). We conclude that it was legal error for the district court to order a prospective increase in alimony based on a possible future event without first finding when—or even whether—such an event will occur. Instead, the court should have reserved the question of a possible change in alimony for a later petition to modify the alimony award should Jennifer’s housing situation change.
¶6 “A prospective change in alimony alters the award to which the recipient spouse would otherwise be entitled based on the trial court’s anticipation of a future event that will materially change the parties’ circumstances.” Boyer v. Boyer, 2011 UT App 141, ¶ 15, 259 P.3d 1063. But because “the trial court will be better able to make an educated adjustment when and if [a possible future] event actually occurs,” id., “prospective changes to alimony are disfavored,” Richardson v. Richardson, 2008 UT 57, ¶ 10, 201 P.3d 942. Indeed, they are appropriate “only as to future events that are ‘certain to occur within a known time frame.’” MacDonald v. MacDonald, 2018 UT 48, ¶ 40, 430 P.3d 612 (quoting Richardson, 2008 UT 57, ¶ 10). Thus, in Richardson, a prospective change in alimony was appropriate where it was based on events that were certain to occur on specified dates. See 2008 UT 57, ¶¶ 10–11. In contrast, “a plan to retire, without actually retiring, would be insufficient to justify a prospective alimony reduction.” Id. ¶ 10.
¶7 Here, the district court ordered Hugh to pay a prospective alimony increase of $1,000 per month when “Jennifer secures her own housing.” Other than noting that Jennifer was “residing with her mother rent free right now,” the court made no factual findings regarding her future housing. It did not find that it was “certain” that Jennifer would secure her own independent housing, much less that it would occur “within a known time frame.” See id. Indeed, it could not have so found absent any indication that Jennifer was actively searching for independent housing, that she intended to move out of her mother’s home within a certain timeframe, or that her current living arrangements would be short-lived. The amount of the appropriate increase was also necessarily speculative. The $1,000 may have been a solid estimate based on current conditions, but either high or low depending on when and whither she relocates—if she does. The prospective modification to the alimony award was thus improper under Richardson and its progeny, even though the court’s desire for efficiency is understandable.
¶8 Jennifer argues that “[h]ousing was not considered by the court to be some ‘future’ event.” Rather, she contends the court ordered the alimony increase with the goal of “restor[ing] the parties to the same standard of living that existed during the marriage,” and because an independent living situation had been Jennifer’s standard of living during her marriage, the court properly determined that she was entitled to monthly alimony payments in the amount of $1,830. In support of this argument, she relies on Sauer v. Sauer, 2017 UT App 114, 400 P.3d 1204, in which we affirmed the trial court’s decision to base part of its alimony award on the payee’s future expected housing expenses. See id. ¶ 10. In Sauer, the trial court based its decision on the facts that the payee “live[d] in a trailer on a friend’s property” and that “it [was] unknown how long a person can survive on the good nature of a friend.” Id. (quotation simplified). We noted that the court’s “determination ma[de] conceptual sense” because “[i]n the aftermath of a separation, a party may temporarily return to his or her parents’ home, shelter with friends, or become homeless and thus incur no actual housing expenses.” Id. ¶ 10 n.3. In such situations, “the court may consider what constitutes a reasonable rental or mortgage payment in the relevant area for housing similar to the housing previously shared by the parties.” Id.
¶9 Although the district court in this case would have been entitled to make such a determination if it had found that Jennifer’s living situation with her mother was a temporary byproduct of the divorce, as with the examples mentioned in Sauer, the court took a different course. Instead of ordering Hugh to immediately begin making monthly payments of $1,830—as would have been consistent with the approach taken in Sauer— the court determined that a monthly alimony award of $830 was sufficient to maintain Jennifer’s standard of living while she lived with her mother. The court then made the $1,000 increase in alimony conditional on Jennifer securing her own housing at some later date. The increase was unquestionably a prospective change to its alimony award because it was based “on the trial court’s anticipation of a future event that will materially change the parties’ circumstances,” i.e., a change in Jennifer’s living situation. See Boyer, 2011 UT App 141, ¶ 15. Thus, the court erred in ordering the prospective increase without first concluding that the material change was “certain to occur within a known time frame.” See Richardson, 2008 UT 57, ¶ 10.
¶10 To be sure, the uncertainty of whether or when Jennifer would secure her own independent living arrangement does not undercut her ability to do exactly that at some future date and to seek a corresponding increase in the amount of her alimony. The district court already determined that she would be entitled to an increase in that event. But the proper procedure for seeking an increase in alimony, should she eventually secure other housing, would be for her to file a petition to modify the alimony award. See Utah Code Ann. § 30-3-5(10)(a) (LexisNexis Supp. 2020). Where an anticipated event is too speculative for the court to consider in its alimony determination at the time of divorce, as is the case here, “the court may . . . delay the determination” by entering “findings indicating that the future [event] has not been considered in making the present award” because material information regarding the future event was unavailable to the court at the time of the divorce decree, thereby avoiding future dismissal of the petition to modify on foreseeability grounds. MacDonald, 2018 UT 48, ¶ 35 (quotation simplified). See id. ¶¶ 34–36, 40–41.
¶11 We therefore vacate the portion of the court’s decree prospectively increasing the alimony award and remand for the court to enter the necessary findings so that the issue is preserved for future resolution and the determination can be made later upon a petition to modify, with any “foreseeability” argument Hugh might otherwise be inclined to make being effectively foreclosed.[3]
Utah Family Law, LC | divorceutah.com | 801-466-9277
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[1] Because the parties share the same surname, we refer to them by their first names, with no disrespect intended by the apparent informality.
[2] Nothing in the record or briefing suggests that Jennifer’s living situation has changed subsequent to entry of the divorce decree.
[3] Because Hugh prevails on appeal, we deny Jennifer’s request for attorney fees, premised on rule 33 of the Utah Rules of Appellate Procedure.
In my opinion, the answer is: usually, not much. At least at first.
Take it from me: I’ve been a divorce and family lawyer now for 23 years and most (most, not all) courts don’t really do as much as people feel they should do to ensure that there will be hell to pay if child custody orders are violated (especially if the violator is the mother).
Harsh words, I know. Politically incorrect words, yes? And still no less true.
What can the penalties be for violating child custody orders? Generally speaking:
fines
compensatory service (like picking up trash on the interstate, volunteering at soup kitchens, etc.)
jail (only in the most egregious cases, if the court has the will to impose it)
orders that the noncompliant parent submit to counseling and/or take parenting and anger management classes and other such nonsense
Now if one repeatedly and unrepentantly violates custody orders with impunity the court could respond by modifying the custody order, but for that to occur the violations usually have to be highly voluminous and/or egregious.
Utah Family Law, LC | divorceutah.com | 801-466-9277
If one parent has bedbugs and the children will not sleep at the parents home, does the other parent have to make a motion for full custody? Can the parent without bedbugs be sanctioned for failure to coparent?
I am glad you asked this question because in reading it and thinking about it I finally conceived of a way to express in words the problem that most non-lawyers encounter when asked this type of question.
Your question, and many questions like it, is grounded in a belief that the court will see your case and the issues raised in your case purely from your perspective. You cannot take such a thing for granted. It’s an easy trap to fall into (frankly, we all do), and a trap that causes a lot of people tremendous disillusionment and frustration with the legal system. While I am no raving fan of the modern legal system, it would be unfair to fault the legal system when it confronts issues over which reasonable minds can differ.
Here’s the key:
1) When analyzing a potential legal issue and your likelihood of success on an argument over that issue, don’t assume the court sees the issue as you do; indeed, don’t even presume that the court sees an issue at all.
2) Try seeing the issue as best you can A) from as many different reasonable perspectives as possible and then ask yourself whether your perspective is the most readily understandable and acceptable; and B) from the perspective your judge would most likely see the issue, or claim to see the issue, in the real world.
3) Argue only those issues A) that you believe you have a better than even chance of prevailing upon or B) that you can argue in good faith on the basis of principle, win or lose (meaning: you won’t act shocked or surprised or outraged if you lose an argument over a close issue over which you know reasonable minds can differ, nor will you smugly claim, with the benefit of hindsight, “Oh, our success was never in doubt.”)
OK, let’s conduct this analysis using your bedbugs scenario:
Even if a parent knows, from having witnessed it first-hand, that there are bedbugs at his or her ex-spouse’s house, that does not mean that the court must believe it. If a parent knows that the children refuse to go to the other parent’s house or refuse to sleep there (regardless of the reason), that does not mean that the court will believe it. Why? Because the court does not know what you know. This is why, when you seek relief and orders from courts are required to meet their burdens of proof, so that the court has sufficient factual and legal basis to grant the relief you seek.
And so questions like yours need to be analyzed on at least two levels: 1) Will the court believe your allegations?, and 2) If so, will the court take the actions you wanted to take?
Using your questions as a model:
Bedbugs and the modification of custody or parent-time
If a parent were only to come into court with just a bare, unverifiable claim that there are bedbugs in the other parent’s home, in my mind that would not rise to the level of proof by a preponderance of the evidence, and so if I were the judge, I could not conclude as a matter of fact that the allegation is true. And where an argument/request for sole custody rests on the other parent having bedbugs in his/her house, if I were the judge I would have to rule against that argument/request.
If a parent were to come into court with verification of his/her claim that there are bedbugs in the other parent’s home, that fact alone would not determine that the children must be in the sole custody of the other parent. First, the question the court would have to ask and resolve is something to the effect of:
“Is the presence of bedbugs in the parent’s home a sufficiently compelling reason to deny that parent custody or parent time on that basis alone?”
“Are bedbugs a threat to the health or life of the children?” Or just a nuisance?
“If bedbugs are not a threat to the health or life of the children, can I, as the judge, conclude that having the children exposed to the mere nuisance of potential bedbug bites is still somehow a sufficiently compelling reason to reduce or eliminate the amount of time the children spend with parent whose home is infested with bedbugs?”
If the court were to conclude that the answer to that question is “no,” then the presence of bedbugs alone in the parent’s house would not be enough to win a motion or petition for sole custody.
If the court were to conclude that the answer to that question is “yes” (and it’s not a given that the answer will be “yes”[1]”), then the court could, on that basis alone, modify custody or parent time, IF the court could rationally explain why the mere presence of bedbugs is reason enough to reduce or eliminate the amount of time the children spend in the custody or care of the parent with bedbugs at his/her house.
But “yes” might also lead to an additional question or additional questions, such as: Can the parent with bedbugs at his/her house mitigate the problem so that there’s no need to modify custody or parent time? Is the parent with bedbugs at his/her house willing to take necessary and immediate measures to solve the problem? What if, until the bedbug problem is eliminated, we simply require the parent who has bedbugs at his/her house to exercise custody or parent time at a location other than the parent’s house?” So even if the court finds that bedbugs could be reason to modify custody or parent time that does not mean that the court necessarily must modify custody or parent time in response to the presence of bedbugs.
Will a Parent Be Sanctioned if the Kids Refuse to Spend Time at the Parent’s Home Where There are Bedbugs present?
I will analyze this question by starting with the presumption that the court has determined that there are bedbugs present in the other parent’s home.
The court might then ask, “Is the presence of bedbugs in that parent’s home justification for modifying the custody or parent time orders?” This could lead to:
“Are bedbugs a threat to the health or life of the children?” Or just a nuisance?
“If bedbugs are not a threat to the health or life of the children, can I, as the judge, conclude that having the children exposed to the mere nuisance of potential bedbug bites is still somehow a sufficiently compelling legal reason for the other parent to refuse to comply with the court’s custody and visitation orders as to the other parent?”
If the answer to the previous question is “no”, then the other parent likely will be sanctioned, BUT even then, it’s possible that the court good rule along the lines of something like this: “I do not find that the children’s exposure to bedbugs at this parent’s house constituted a justification for noncompliance with the custody and parent time orders, but I also find that the noncompliant parent was not noncompliant for malicious, self-serving, or bad faith purposes, but truly believed that the bedbugs posed a bigger problem in his/her mind than in the mind of the court. So I’m not going to sanction this parent in this instance because I don’t believe sanctions are appropriate. And I don’t believe sanctions are appropriate because I don’t believe sanctions are needed to motivate this parent to comply with court orders now that I have explained my analysis of the situation. As long as this parent understands that he/she cannot act as a law unto himself/herself, I’m willing to give the noncompliant parent the benefit of the doubt in this instance.”
If the answer to the previous question is “yes”, then the other parent cannot be sanctioned.
Utah Family Law, LC | divorceutah.com | 801-466-9277
In Utah (where I practice divorce and family law), yes, there are many possible ways to reduce child support. They may not be applicable to every child support payor, but there are ways:
If you can persuade the court that you do not earn and cannot earn in the future the amount of money upon which your current child support obligation is based, then child support can be reduced (that may be cold comfort, however, given that the reason for a reduced child support obligation is your reduced income);
Become disabled. This is kind of a corollary to way #1, in that if you become disabled that matters to the court to the extent your disability renders you unable to earn the amount of money upon which your current child support obligation is based.
If you can persuade the court that the child support payee is now earning (and will likely continue to earn in the future) more money than the amount of money upon which your current child support obligation is based, then child support can be reduced;
Other ways you can get child support reduced:
If custody of the child(ren) changes from the other parent to you. Obviously, you shouldn’t be paying child support to the noncustodial parent;
Material changes in the relative wealth or assets of the parties. If you are obligated to pay child support on the meager $2,400 you make per month, but your ex-wife or ex-husband is pulling down $20,000 take home pay per month, you could likely argue that you need all or most of the $2,400 for your own support in light of the fact that your ex has more than enough money to cover all the children’s financial support needs;
Material changes in the employment potential and ability of a parent to earn (if your ex has, since the child support order was issued, completed medical school or a PhD program or just obtained a Commercial Truck Driver license, etc.);
Material changes in the legal responsibilities of either parent for the support of others (for example: you have to take care of a parent or sibling or spouse or after-born child whose health or medical needs require you to quit or limit your employment for the sake of providing the care).
CAMERON MICHAEL COX,
Appellee,
v.
PAIGE CHARISSA HEFLEY,
Appellant.
Opinion
No. 20170903-CA
Filed April 18, 2019
Second District Court, Ogden Department
The Honorable W. Brent West
No. 134901221
David Pedrazas, Attorney for Appellant
Lauren Forsyth and Kristopher K. Greenwood,
Attorneys for Appellee
JUDGE KATE APPLEBY authored this Opinion, in which JUDGES JILL M. POHLMAN and RYAN M. HARRIS concurred.
APPLEBY, Judge:
¶1 Paige Charissa Hefley appeals the district court’s order on competing petitions filed by Hefley and her former spouse, Cameron Michael Cox, to modify their divorce decree. She argues that the court erred by enforcing their stipulation (the Stipulated Decree). We affirm.
BACKGROUND
¶2 Cox and Hefley divorced in February 2014. The original divorce decree awarded Cox primary physical custody of their two minor children subject to Hefley’s “reasonable parent-time.” In a separate December 2015 case, Hefley was deemed a “vexatious litigant”[1] and ordered “to obtain legal counsel before filing any future claim for relief, and to furnish security to assure payment of any opposing party’s reasonable expenses” (the Vexatious Litigant Order).
¶3 In January 2015, Hefley petitioned the district court to modify custody and parent-time. Cox counter petitioned, also requesting modifications to custody and parent-time. After more than two years of litigation on their competing petitions, Cox and Hefley signed the Stipulated Decree, which represented “a full and final agreement regarding all pending issues.” It stated, “Both parties . . . stipulate to be fully bound by the following terms and conditions.”
¶4 The Stipulated Decree “entitled [Hefley] to parent-time as the parties may agree in writing.” But absent such agreement, Hefley would receive three days of unsupervised parent-time on alternating weeks. Hefley’s unsupervised parent-time was conditioned on her complying with the following terms: (1) “submit to a comprehensive psychological evaluation by a qualified licensed psychologist” and obtain a “diagnosis, a therapy/treatment plan, and a medication plan”; (2) “initiate, maintain and successfully complete all treatment recommendations, medication recommendations, and related items”; (3) not have “any criminal charges, suicide attempts, or mental health hospitalizations”; (4) “not have any illegal and/or un-prescribed drugs or medications in her home, nor allow the children to be in the presence of any person who is under the influence of any illegal drugs or un-prescribed medications”; and (5) not “permit the children to be around domestic violence.”
¶5 Cox and Hefley agreed to hire “a different licensed psychologist . . . to act as a third party neutral and mental health professional . . . to work with the parties to ensure that [Helfey] [was] following the court’s orders.” The Stipulated Decree required that the third party neutral have access to Hefley’s medical records and be allowed to meet with the “parties’ minor children and any other relevant party in this action, when necessary.” If Hefley failed to comply with the terms of the Stipulated Decree, the parties agreed that supervised parent-time would “be imposed until all appropriate treatment is recommended, complied with, completed, and the third party neutral has no safety concerns for the minor children.” The Stipulated Decree also provided, “If the parties do not comply with these terms, the third party neutral may make further restrictions to parent-time arrangements as deemed necessary.” Hefley agreed that she “shall not file any type of petition to modify in this case until she has successfully completed the terms and conditions stated herein, and complies with the [Vexatious Litigant Order].”
¶6 About one month after Hefley signed the Stipulated Decree, Cox filed it with the district court. The next day, Hefley filed an “objection to entry of modified decree of divorce” and “motion to strike [the Stipulated Decree].” Hefley asserted that her attorney was not aware of and had not approved the Stipulated Decree until after she signed it, and claimed Cox’s attorney “purposely went around [her attorney] and/or completely failed to seek his approval . . . prior to submitting the [Stipulated Decree] before the court.” Further, Hefley argued that the “terms of the [Stipulated Decree] are completely contrary to Utah law.” Specifically, she claimed the Stipulated Decree “transfer[s] the court’s judicial authority to a nonqualified individual to make legal rulings without being subjected to review by [the] court” and “unreasonably restricts [Hefley] from filing any petition to modify if it is in the best interest of the children.”
¶7 On September 26, 2017, the district court held a telephone conference at which it denied Hefley’s motion to strike the Stipulated Decree, overruled her objection to entry of the Stipulated Decree, and said it would sign the Stipulated Decree as it had been submitted. The court also instructed Cox’s attorney to “prepare an order.” On the same day of the telephone conference, the court signed and entered the Stipulated Decree.
¶8 On October 18, 2017, the district court signed and entered a proposed order on the telephone conference. It provided: (1) “[Hefley’s] objection to the entry of the [Stipulated Decree] is overruled”; (2) “[Hefley’s] motion to set aside the [Stipulated Decree] is denied”; and (3) “the court approved the stipulation of the parties and will sign the order on the [Stipulated Decree] as it has been submitted.”
¶9 Hefley filed a notice of appeal on November 8, 2017, giving notice of her appeal of the order on the telephone conference and the Stipulated Decree.
ISSUES AND STANDARDS OF REVIEW
¶10 First, Cox argues that this court lacks jurisdiction because Hefley’s “notice of appeal on the modified decree of divorce was untimely.” “An appellate court’s determination of whether it has jurisdiction to hear an appeal is a question of law.” Hall v. Hall, 2013 UT App 280, ¶ 6, 316 P.3d 970 (quotation simplified). “We address this argument first because a determination that the appeal is untimely would be dispositive.” Id.
¶11 Second, Hefley argues that the district court erred in denying her motion to strike the Stipulated Decree because her attorney did not receive or review it until after she signed it. “[A] district court’s decision to enforce a stipulation is reviewed for an abuse of discretion.” Prinsburg State Bank v. Abundo, 2012 UT 94, ¶ 10, 296 P.3d 709.
¶12 Third, Hefley argues that the court erred in entering the Stipulated Decree because its provisions are “contrary to Utah law.” “Although this court generally reviews the determination to modify a divorce decree for an abuse of discretion, insofar as that determination is based on a conclusion of law, we review it for correctness.” Id. (quotation simplified).
ANALYSIS
Timeliness of Appeal
¶13 Cox argues that this court lacks jurisdiction because Hefley’s notice of appeal was not timely filed. We disagree.
¶14 “An appeal may be taken from . . . all final orders and judgments . . . by filing a notice of appeal . . . .” Utah R. App. P. 3(a). Under the Utah Rules of Appellate Procedure, the notice of appeal “shall be filed with the clerk of the [district] court within 30 days after the date of entry of the judgment or order appealed from.” Id. R. 4(a). “If an appeal is not timely filed, this court lacks jurisdiction to hear the appeal.” Hall v. Hall, 2013 UT App 280, ¶ 6, 316 P.3d 970 (quotation simplified).
¶15 The timeliness of Hefley’s notice of appeal turns on when the district court entered a final and appealable order in this case. Cox argues that the final order was the Stipulated Decree, which was entered on September 26, 2017. Hefley disagrees, arguing that the final order was the order on the telephone conference, which was entered on October 18, 2017. Hefley filed her notice of appeal on November 8, 2017—more than thirty days after the Stipulated Decree was entered, but less than thirty days after the order on the telephone conference was entered.
¶16 “For an order or judgment to be final, it must dispose of the case as to all the parties, and finally dispose of the subject-matter of the litigation on the merits of the case.” Bradbury v. Valencia, 2000 UT 50, ¶ 9, 5 P.3d 649 (quotation simplified). That is, “a judgment is final when it ends the controversy between the parties.” Id. (quotation simplified). “[W]here further action is contemplated by the express language of [an] order, it cannot be a final determination susceptible of enforcement.” State v. Leatherbury, 2003 UT 2, ¶ 9, 65 P.3d 1180.
¶17 At the telephone conference, the district court overruled Hefley’s objection to entry of the Stipulated Decree, denied her motion to strike the Stipulated Decree, and said it would sign the Stipulated Decree as it had been submitted. But at that time, the court also instructed Cox’s counsel to prepare a separate order reflecting its decisions. Thus, although the court signed and entered the Stipulated Decree on September 26, “further action [was] contemplated” by the court because it had instructed Cox’s counsel to prepare a separate order. See id. (determining that a “signed minute entry” was not a final order when it required counsel to “prepare Findings of Fact and Conclusions of Law” (quotation simplified)); see also Utah R. Civ. P. 58A(e)(1) (“If a separate document is not required, a judgement is complete and is entered when it is signed by the judge and recorded in the docket.” (emphasis added)). For that reason, we conclude that the thirty day period to file a notice of appeal did not begin to run when the district court signed and entered the Stipulated Decree.
¶18 Instead, the thirty day period began to run when the court entered the order on the telephone conference. That order disposed of the case and ended the controversy between the parties. See Bradbury, 2000 UT 50, ¶ 9. And because the notice of appeal was filed within thirty days after the court entered the order on the telephone conference, this court has jurisdiction to hear Hefley’s appeal.
The Motion to Strike
¶19 Hefley argues that the district court erred in denying her motion to strike the Stipulated Decree. We disagree.
¶20 To start, we reject Hefley’s claim that the Stipulated Decree “should have been stricken” because it “was never signed by an attorney of record.” The Stipulated Decree is simply an agreement to settle the parties’ dispute. See Klein v. Klein, 544 P.2d 472, 476 (Utah 1975) (explaining that when parties enter “a stipulation pertaining to matters of divorce [and] custody,” “the same rules apply to binding [them] to such an agreement as apply to any other agreement”). District courts have “the power to enter a judgment enforcing a settlement agreement if it is an enforceable contract.” Goodmansen v. Liberty Vending Sys., Inc., 866 P.2d 581, 584 (Utah Ct. App. 1993).
¶21 Hefley does not dispute that she understood and voluntarily agreed to the Stipulated Decree. See Klein, 544 P.2d at 476 (affirming a district court’s decision to enter the parties’ stipulation when the district court “was not convinced that the plaintiff did not understand and voluntarily agree to the stipulation”).[2] Contrary to her assertions, litigants may enter a stipulation or settlement agreement without first obtaining the consent of—or even consulting—their attorneys. See John Deere Co. v. A & H Equip., Inc., 876 P.2d 880, 887 (Utah Ct. App. 1994) (determining that a settlement agreement “was enforceable despite the fact that it had not been reduced to writing [or] signed by the parties,” “nor did the attorneys of record sign and submit to the court a written stipulation”). Thus, we reject Hefley’s claim that the district court should have rejected the Stipulated Decree because it was not signed by the parties’ attorneys.
¶22 Next, Hefley asserts that Cox’s attorney acted “inappropriately” and in violation of the Utah Rules of Professional Conduct. This argument is equally unavailing. As this court has previously explained, “[w]hile compliance with the Utah Standards of Professionalism and Civility is encouraged of all attorneys, an attorney’s failure to comply is not grounds for setting aside a judgment.” Aghdasi v. Saberin, 2015 UT App 73, ¶ 9, 347 P.3d 427. We stop well short of determining that Cox’s attorney violated any professional rule. But even if we were to accept Hefley’s assertion that Cox’s attorney “violate[d] the Utah Rules of Professional Conduct,” that conclusion, by itself, would not require reversal in this case. See id.
¶23 In short, we affirm the district court’s decision to deny Hefley’s motion to strike the Stipulated Decree.
III. The Terms of the Stipulated Decree
¶24 Hefley argues that the district court erred in entering the Stipulated Decree because its terms are contrary to Utah law. First, she contends that the Stipulated Decree authorizes the third party neutral to “restrict [her] parent-time and custody . . . based upon arbitrary and capricious decisions that are unreviewable by the court.” Second, she claims the Stipulated Decree “unreasonably restricts [her] from filing a petition to modify in this matter.”[3] As explained below, we reject both of these arguments.
The Third Party Neutral
¶25 Hefley argues that the Stipulated Decree “transfer[s] the court’s judicial authority to a nonqualified individual to make legal rulings without being subjected to review by the court.” We disagree.
¶26 Although “[t]he variety of agreements that disputing parties may reach is so vast as to defy cataloging them,” In re E.H., 2006 UT 36, ¶ 20, 137 P.3d 809, “there are certain agreements that so compromise the core responsibilities of the court that they cannot be honored,” id. ¶ 21. For example, parties may not enter an agreement that strips “the district court of its statutory charge to ensure that any custody arrangement or change of custody serves the child’s best interest.” R.B. v. L.B., 2014 UT App 270, ¶ 16, 339 P.3d 137.
¶27 Contrary to Hefley’s assertions, the Stipulated Decree does not allow the third party neutral to make legal rulings free of the district court’s review. In fact, it provides that the third party neutral cannot “make court orders.” As Cox asserts in his brief, “the third party is not . . . appointed to render an award or to resolve the case, but is there to make sure the parties comply with what they agreed to.”
¶28 The district court approved Cox and Hefley’s agreement to condition Hefley’s unsupervised parent-time on her compliance with various terms. Essentially, the parties stipulated—and the court agreed—that, if certain conditions were not satisfied, then supervised parent-time would be appropriate. See Utah Code Ann. § 30-3-34.5 (LexisNexis Supp. 2018) (establishing that “a court may order supervised parent-time if the court finds evidence that the child would be subject to physical or emotional harm or child abuse . . . if left unsupervised with the non-custodial parent”). The purpose of the third party neutral is “to act as a buffer between [Cox and Hefley] . . . so that [they] do not need to pry into the personal records of the other” and “to make sure [they] are completing and in compliance with the terms of [the Stipulated Decree].”
¶29 There is nothing wrong with this arrangement. The parties entered the Stipulated Decree to settle their dispute and advance the best interest of their children. We agree with Cox that he and Hefley were free to agree on a parent-time plan that “would work for them.” See In re E.H., 2006 UT 36, ¶ 20 (noting that “the law favors the settlement of disputes”); see also Utah Code Ann. § 30-3-33(1) (“Parent-time schedules mutually agreed upon by both parents are preferable to a court-imposed solution.”). “[P]arties may plan for contingencies and develop mechanisms to assess a child’s best interest outside of the court system.” R.B., 2014 UT App 270, ¶ 16.
¶30 Further, we disagree with Hefley’s claim that the third party neutral’s decisions regarding parent-time “are unreviewable by the court.” The Stipulated Decree does not intrude on the court’s “continuing jurisdiction to make subsequent changes or new orders . . . as is reasonable and necessary.” Utah Code Ann. § 30-3-5(3). “[T]his court has previously explained that where the parties’ stipulation is accepted by the [district] court and incorporated into its divorce order, the subject matter of the stipulation is within the continuing jurisdiction of the court.” Sill v. Sill, 2007 UT App 173, ¶ 11, 164 P.3d 415 (quotation simplified). And “even when the parties in a custody dispute agree to be bound by an evaluator’s findings, the district court retains the ultimate authority to preside over the proceedings, to satisfy itself that the evaluator’s recommendations were properly arrived at, and to enter a final order.” R.B., 2014 UT App 270, ¶ 14 (quotation simplified).
¶31 Here, by approving the Stipulated Decree, the court “merely agreed to follow a process for the determination of the best interests of [the children] and to uphold this process so long as it adequately served that end.” In re E.H., 2006 UT 36, ¶ 21. Indeed, Cox acknowledges that each party may file objections and motions, request relief from the court, and seek judicial review of any action taken by the third party neutral. Hefley gives us no reason to conclude otherwise. Thus, we reject her argument that the Stipulated Decree allows the third party neutral “to make legal rulings without being subjected to review by the court.”
Petitions to Modify
¶32 Hefley argues that the Stipulated Decree “unreasonably restricts [her] from filing any petition to modify in this matter.” Specifically, she claims “it prevents the court from ever addressing the best interest of the children or change in circumstances, even in the case of abuse and/or neglect.” We also reject this argument.
¶33 “[P]arties cannot stipulate away the district court’s statutory responsibility to conduct a best-interest analysis . . . to ensure that any custody arrangement . . . serves the child’s best interest.” R.B. v. L.B., 2014 UT App 270, ¶ 16, 339 P.3d 137; see also Sill v. Sill, 2007 UT App 173, ¶ 9, 164 P.3d 415 (determining that a “non-modification provision did not divest the court of its continuing jurisdiction” to consider a petition to modify alimony).
¶34 Here, the relevant language provides that Hefley “shall not file any type of petition to modify in this case until she has successfully completed the terms and conditions stated herein, and complies with the [Vexatious Litigant Order].” On appeal, Cox argues that this provision does not prevent Hefley from filing a petition to modify the Stipulated Decree. Instead, he asserts it requires only that Hefley comply with the Vexatious Litigant Order before filing such a petition. We agree with Cox that Hefley would be required to comply with the Vexatious Litigant Order “regardless of it being in the [Stipulated Decree].”
¶35 By statute, the district court “has continuing jurisdiction to make subsequent changes or new orders for the custody of a child and the child’s support . . . as is reasonable and necessary.” Utah Code Ann. § 30-3-5(3) (LexisNexis Supp. 2018). Thus, although Hefley must comply with the Vexatious Litigant Order, she may petition to modify the Stipulated Decree if “there have been changes in the circumstances upon which the previous award was based that are sufficiently substantial and material to justify reopening the question.” See Blocker v. Blocker, 2017 UT App 10, ¶ 11, 391 P.3d 1051 (quotation simplified).
¶36 In sum, we conclude that the terms of the Stipulated Decree are not contrary to Utah law.
CONCLUSION
¶37 This court has jurisdiction over Hefley’s appeal. The district court did not err in denying Hefley’s motion to strike the Stipulated Decree, and the terms of the Stipulated Decree are not contrary to Utah law. Accordingly, we affirm.
[1] Under rule 83 of the Utah Rules of Civil Procedure, “[a] court may find a person to be a vexatious litigant if the person, without legal representation, undertakes any of four types of vexatious conduct described in the rule, such as repeatedly filing nonmeritorious claims.” Strand v. Nupetco Assocs. LLC, 2017 UT App 55, ¶ 6, 397 P.3d 724; see also Utah R. Civ. P. 83(a). Further, “[r]ule 83 authorizes a court to impose restrictive orders . . . to curb the litigant’s vexatious conduct.” Strand, 2017 UT App 55, ¶ 5; see also Utah R. Civ. P. 83(b).
[2] Hefley asserts that her failure to consult counsel before signing the Stipulated Decree is particularly “distressing” because Cox had previously claimed that she “is mentally unstable.” We decline to address this issue because Hefley has not preserved it for appeal. See Sandusky v. Sandusky, 2018 UT App 34, ¶ 37, 417 P.3d 634 (“An issue is preserved for appeal only if it was presented to the [district] court in such a way that [the court] had an opportunity to rule on it.” (quotation simplified)). Hefley never suggested to the district court that mental instability prevented her from understanding or voluntarily entering the Stipulated Decree.
[3] 3. Hefley also argues that the Stipulated Decree “does not follow the Uniform Deployed Parents Custody, Parent Time, and Visitation Act.” See Utah Code Ann. §§ 78B-20-101 to -503 (LexisNexis 2018). But she has failed “to explain, with reasoned analysis supported by citations to legal authority and the record,” why she should prevail on this claim on appeal. Chaparro v. Torero, 2018 UT App 181, ¶ 32, 436 P.3d 339 (quotation simplified). Because this argument has been inadequately briefed, we do not address it further. See id.
AMELIA GAYATREE LEFEVRE,
Appellee,
v.
CASEY LEE MACKELPRANG,
Appellant.
Opinion No. 20171006-CA
Filed March 28, 2019
Sixth District Court, Panguitch Department
The Honorable Paul D. Lyman No. 154600028
Van Mackelprang and Julie J. Nelson, Attorneys for Appellant
Douglas L. Neeley, Attorney for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and KATE APPLEBY concurred.
HARRIS, Judge:
¶1 Casey Lee Mackelprang (Father) asked the trial court to modify the governing divorce decree (the Decree) to install him as the primary custodial parent or, at least, change the parenttime schedule to increase the number of nights his daughter (Child) spent at his house. After a trial, the court denied his request, and in addition ordered him to pay the full cost of a custody evaluation. Father now asks us to review the trial court’s conclusions, and we agree with Father that those conclusions were infirm. Accordingly, we vacate the trial court’s order and remand the case for further proceedings.
BACKGROUND
¶2 After nearly six years of marriage, Father and Amelia Gayatree LeFevre (Mother) divorced in August 2014. They had one child—Child—together, who was five years old at the time of the parties’ divorce.
¶3 For the first few years of their marriage, the couple lived in Cedar City, Utah with Child, who had some medical issues and required extra attention. According to Mother, she provided nearly all care for Child during this time period, even though she was taking classes at a university, and even though Father was not employed full-time. She maintained that Father often refused to help with child care, and when she needed someone to care for Child so that she could attend classes, she found it necessary to call upon her sister, her parents, and even a few friends, because Father was unwilling to do so himself. By the time Child was three, Father had never spent a night alone with Child and was not comfortable doing so.
¶4 Mother and Father separated in April 2012. At that point, both Mother and Father left Cedar City to live with family: Mother and Child moved to Boulder, Utah, and Father moved to Kanab, Utah. A few months later, however, in the late summer of 2012, Mother returned to Cedar City to begin work on a master’s degree. Father also soon returned to Cedar City, but the parties lived in separate residences. At that point, while Mother continued to act as Child’s primary caregiver, the parties worked out an informal parent-time arrangement in which Mother would take Child over to see Father on occasion but, because Father was still not entirely comfortable with caring for Child on his own, Mother was often present during these visits. Most of these visits were daytime visits for a few hours, although Father did care for Child overnight on a handful of occasions.
¶5 Mother filed for divorce in August 2012 and, in September 2013, the parties entered into a stipulated settlement agreement that designated Mother as Child’s primary physical custodian. The agreement ordered parent-time for Father every other weekend and every other Wednesday evening, a schedule that (although it did not mention the statute) was similar to the one set forth in Utah Code section 30-3-35. Nearly a year later, in August 2014, the trial court signed the Decree, incorporating the parties’ agreed-upon custody and parent-time arrangement.
¶6 During this period, Father and Mother each lived in Cedar City during the week, but on most weekends Mother traveled to Boulder to visit family and to work. Mother always took Child with her to Boulder for the weekends, even on the alternating weekends on which Father would have otherwise been entitled to parent-time, and at the time Father voiced no objection. Father also was not in the habit of exercising the regular mid-week visits to which he was entitled, instead depending on Mother to bring Child over to his house for many short weekday visits as her class schedule allowed. And Father did not exercise his right to a multi-week summertime visit in 2014, even though the stipulation entitled him to do so.
¶7 After nearly three years in Cedar City, Mother and Child moved back to Boulder in April 2015, and at this point Father began to regularly exercise the weekend parent-time and the multi-week summertime visits to which the Decree entitled him. Although Father did not exercise his mid-week visits due to the distance between Cedar City and Boulder, he began to make significant efforts to travel to Boulder to participate in important events in Child’s life, such as school programs and dance competitions, even when such events did not occur during his weekend. After a while, Father was of the view that things were going so well with his parent-time that he asked Mother if she would agree to increasing the number of overnights he had with Child, but Mother did not agree.
¶8 In November 2015, Father filed a petition to modify the Decree, requesting that the court alter the custody arrangement to designate him, rather than Mother, as the primary physical custodian. In the petition, among other things, Father argued that a modification was warranted because Mother’s move to Boulder in April 2015 constituted a substantial and material change in circumstances because Father was no longer able to see Child as often as he had when Mother was living in Cedar City. Father also argued that Mother was not spending a substantial amount of her parent-time with Child because she was working two jobs that required her to leave Child in the primary care of Child’s maternal grandmother. Mother opposed Father’s petition, and eventually filed a counter-petition requesting that the Decree be modified to remove redundant material, clarify issues, and make minor alterations to the parent-time schedule.
¶9 In November 2016, while the competing petitions were pending, Mother notified Father that she intended to relocate with Child to Las Vegas, Nevada. Mother proposed that the parties continue to follow the parent-time schedule set forth in the Decree until her move, at which point they should adopt the parent-time schedule found in Utah Code section 30-3-37(6). Father opposed Mother’s request, and asked the court to hold a hearing to consider Mother’s proposed move. Father also asked the court to appoint a custody evaluator to assess the parties’ situation, a request Mother opposed on the ground that no such evaluation was necessary. Mother argued, in the alternative, that if the court did appoint an evaluator, it should order Father to pay all costs associated with the evaluation.
¶10 In early February 2017, Mother and Child relocated to Las Vegas. Shortly thereafter, the court appointed a custody evaluator (Evaluator) and ordered Father to front the costs associated with the appointment, but stated that it would make a final allocation of costs at a later date. The court also postponed any hearing on Mother’s relocation to Las Vegas until after the completion of the custody evaluation. Around this same time, in early 2017, in addition to regularly exercising his weekend and summertime parent-time—which he had been doing since April 2015—Father began to travel to Las Vegas once a week to exercise regular mid-week parent-time with Child.
¶11 Over the next few months, Evaluator conducted a number of interviews with Father, Mother, and Child, as well as home studies during which she observed Child. On November 1, 2017, Evaluator issued her report, in which she recommended—with one important qualification—that the status quo should continue, with Mother acting as the primary residential parent and with Father exercising parent-time on alternating weekends and Wednesdays during the school year. The important qualification was that, if Father were to move to Las Vegas so as to be geographically closer to Mother and Child, she would alter her recommendation and urge the court to adopt the alternative parent-time schedule specified in Utah Code section 30-3-35.1 (section 35.1), which would result in Father having the right to five overnights (instead of two) in every two-week period.
¶12 After learning of Evaluator’s recommendations, Father almost immediately moved to Las Vegas.[1] Just a few weeks later, in mid-November 2017, the court held a trial on the competing petitions to modify. Evaluator testified about her report and evaluation, and recommended that, because Father had relocated to Las Vegas, the court should implement a custody and parent-time arrangement based on section 35.1. She opined that adopting section 35.1 would have a positive impact on Child and the proposed schedule would not hurt the bond Child has with Mother, but would strengthen the bond Child has with Father by providing Child an opportunity to develop a structure and routine with him during the additional mid-week and weekend overnights. Evaluator further opined that the proposed schedule would help reduce communication problems the parties had been experiencing under the current schedule because drop-offs during the school year would occur at school. She also offered her observation that Father was a good parent who since April 2015 had made significant efforts to spend quality time with Child, and opined that Father’s parenting actions over the past two-and-a-half years were more relevant than his actions during the first six years of Child’s life.
¶13 Evaluator also recommended that Father’s summertime parent-time should occur in one large block to reduce both the number of transitions between the parents as well as the amount of time Child spends in the car traveling back and forth from Las Vegas to Utah. Finally, in an effort to reduce the frequency of Father’s requests for virtual parent-time, Evaluator recommended that Father’s video or phone chats with Child should be held at scheduled times three days per week, and that the parties’ email communications regarding Child be restricted to a particular day per week to facilitate more predictable and reliable communication.
¶14 At the conclusion of the trial, and after hearing directly from both Father and Mother, the trial court took the matter under advisement. A few days later, the court issued a written ruling on the petitions to modify, making a few changes to the parties’ Decree. Among other alterations, the court ordered that Father’s summertime parent-time be exercised in one large block and that Father exercise virtual parent-time only during three half-hour periods scheduled during the week. The court denied all of Father’s other requests to alter the custody and parent-time schedule, including Father’s request that parent-time during the school year be implemented according to section 35.1.
¶15 On that point, the court determined that the four prerequisites for implementation of the section 35.1 schedule were not met, and made factual findings in support of that conclusion, including the following: that Father “did not participate actively in [Child’s] life until the last couple of years”; that Father’s “plan to accomplish effective communication is to have a designated email answering day per week” and that Father’s “plan . . . does not appear to be adequate”; and that Father “presented no evidence other than his hope” that increased parent-time would be in Child’s best interest. From these findings, the court made legal conclusions that Father “has not adequately been involved in [Child’s] life”; that Father “has failed to present a plan to accomplish effective communication”; and that Father “has failed to present evidence that it will be in [Child’s] best interest to have increased overnight visits.” Because it considered the statutory prerequisites unsatisfied, the trial court declined Father’s invitation to award him additional parent-time under section 35.1.
¶16 The court also ordered Father to pay all costs related to Evaluator’s report. Although it did not provide reasons for its decision, it did note that Father “asked for the child custody evaluation with the hope that somehow it would find in his favor and it did not, so he should pay its entire cost.”
ISSUES AND STANDARDS OF REVIEW
¶17 Father now appeals the trial court’s ruling on his petition to modify, and asks us to review two aspects of that ruling. Father’s main complaint is with the court’s decision not to implement a parent-time arrangement based on section 35.1. We review a trial court’s custody and parent-time determination for abuse of discretion, and review any underlying factual findings for clear error. See Vaughan v. Romander, 2015 UT App 244, ¶¶ 7– 8, 360 P.3d 761. “A finding is clearly erroneous only if the finding is without adequate evidentiary support or induced by an erroneous view of the law.” Hale v. Big H Const., Inc., 2012 UT App 283, ¶ 9, 288 P.3d 1046 (quotation simplified).
¶18 Second, Father argues that the trial court abused its discretion in ordering him to pay the entire cost of the custody evaluation. When reviewing a court’s decision to allocate costs pursuant to Utah Code section 30-3-3, “we use an abuse of discretion standard.” Peterson v. Peterson, 818 P.2d 1305, 1310 (Utah Ct. App. 1991).
ANALYSIS
I
¶19 The main issue presented on appeal is whether the trial court erred by concluding that the statutory prerequisites set forth in Utah Code section 30-3-35.1(2) were not met. We find infirmities in the trial court’s conclusions, and therefore determine that remand is necessary.
¶20 “In all custody determinations, the [trial] court’s primary focus must be on the best interests of the child.” Pingree v. Pingree, 2015 UT App 302, ¶ 7, 365 P.3d 713 (quotation simplified). Our legislature has determined that each divorced parent “is entitled to and responsible for frequent, meaningful, and continuing access with the parent’s child consistent with the child’s best interests.” Utah Code Ann. § 30-3-32(2)(b)(ii) (LexisNexis Supp. 2018). Relevant statutes prescribe a default minimum parent-time schedule “to which the noncustodial parent and the child shall be entitled,” id. § 30-3-35(2), unless either (a) “the court determines that Section 30-3-35.1 should apply” or (b) a parent can establish “that more or less parenttime should be awarded,” id. § 30-3-34(2). Under the default minimum parent-time schedule set forth in section 30-3-35, “the noncustodial parent is entitled to parent-time with the child during one weekday evening and on alternating weekends, which include Friday and Saturday overnights.” Lay v. Lay, 2018 UT App 137, ¶ 6, 427 P.3d 1221. This default statutory schedule affords the noncustodial parent two overnights in a typical twoweek period, and approximately ninety overnights during a typical calendar year (after holiday and summertime parent-time are accounted for).
¶21 As noted above, section 35.1 “provides an alternative statutory parent-time schedule” that—by extending weekend overnights by one night, and affording one weeknight overnight each week—offers the noncustodial parent the opportunity to enjoy five overnights in every two-week period, resulting in approximately 145 overnights in a typical calendar year See id. ¶ 7; see also Utah Code Ann. § 30-3-35.1(1)(a) (stating that the alternative schedule “is 145 overnights”).
¶22 A trial court may implement the alternative section 35.1 schedule only if “the parties agree or the noncustodial parent can demonstrate” the presence of at least four[2] factual circumstances: (a) that “the noncustodial parent has been actively involved in the child’s life”; (b) that either (i) “the parties are able to communicate effectively regarding the child,” or (ii) “the noncustodial parent has a plan to accomplish effective communications regarding the child”; (c) that “the noncustodial parent has the ability to facilitate the increased parent-time”; and (d) that “the increased parent-time would be in the best interest of the child.” Utah Code Ann. § 30-3-35.1(2). If all four of these elements are present, then the trial court may—but is not required to—implement the parent-time schedule set forth in section 35.1. See id. (stating that “the court may consider” the alternative schedule if the required factual elements are present); see also Lay, 2018 UT App 137, ¶ 13 (stating that “the noncustodial parent’s demonstration of the enumerated factors gives the court the discretion to consider the increased parenttime schedule, but there is no language in the statute making the court’s consideration of that schedule—much less its adoption— mandatory”).
¶23 In this case, the trial court determined that three of the four statutory prerequisites were not present, and therefore decided not to alter the parties’ parent-time arrangement to afford Father additional parent-time.[3] Father argues that the trial court’s determination is incorrect, and that all of the necessary prerequisites were in fact present on the facts presented at trial. In the discussion that follows, we examine each of the three remaining statutory prerequisites and, for the reasons set forth, we agree with Father that the trial court’s analysis was infirm.
A
¶24 The first of the three statutory requirements is that “the noncustodial parent has been actively involved in the child’s life.” Utah Code Ann. § 30-3-35.1(2)(a) (LexisNexis Supp. 2018). Father contends that he presented evidence conclusively demonstrating his active involvement in Child’s life. We agree.
¶25 At the outset of the discussion, it is important to note that the trial court did not actually make a finding or a conclusion to the contrary. The court’s specific finding was that Father “did not participate actively in [Child’s] life until the last couple of years,” implying that Father did participate actively in Child’s life during the “couple of years” prior to trial. (Emphasis added.) Indeed, the evidence presented to the court was overwhelming that, starting in approximately April 2015, Father exercised regular weekend and summertime parent-time according to the ordered schedule, and that he made extra effort as necessary to attend Child’s school functions and other celebrations in her life, even when those occurred outside his customary scheduled parent-time.
¶26 From this evidence, however, the trial court concluded that Father “has not adequately been involved in” Child’s life. In our view, this conclusion is not supported by the evidence presented, and is in any event not the conclusion required by the statute. Indeed, the word “adequately” does not appear in the statute, which instead asks the court to determine whether Father has been “actively” involved in Child’s life. See id. As noted above, at least for the thirty months prior to trial, Father was actively involved in Child’s life, as the trial court impliedly found.[4]
¶27 The only sensible explanation for the trial court’s conclusion is that the court was looking primarily at Father’s actions during the first six years of Child’s life, a period in which Father was not nearly as involved in Child’s life as he was during the thirty months leading up to trial. The relevant statute does not indicate whether a court should weigh recent behavior more heavily, and we certainly acknowledge that a parent who—in true “deathbed repentance” fashion—has been active in his child’s life for only a few days or weeks before trial may comfortably be considered to have not been actively involved in his or her child’s life, when that life is examined as a whole. But a parent who has—even in the eyes of his ex-spouse—been actively involved in his daughter’s life for the thirty-month period leading up to trial has clearly been “actively involved” in her life, and any finding or conclusion to the contrary is clearly erroneous and an abuse of discretion.
¶28 Accordingly, we agree with Father that he satisfied the first statutory prerequisite.
B
¶29 Next, the statute requires that Father demonstrate either (i) that “the parties are able to communicate effectively regarding the child,” or (ii) that he “has a plan to accomplish effective communications regarding the child.” Utah Code Ann. § 30-3-35.1(2)(b) (LexisNexis Supp. 2018). The trial court found that “[t]here is little meaningful communication between the parties,” and concluded that “[t]he parties do not communicate effectively.” Father does not challenge these determinations, and thereby concedes that he cannot meet the first statutory alternative. However, Father asserts that he presented a plan to address the parties’ communication issues, and argues that he can therefore meet the second statutory alternative. We agree.
¶30 The relevant statute requires only that Father present a plan for improved communication to the court; it does not require that Father’s plan be foolproof or even that Father’s plan—or any part of it—be adopted by the court. The statutory language requires only that the parent present a “plan to accomplish effective communication,” see id. § 30-3-35.1(2)(b), and Father did so here.
¶31 At trial, Father adopted and advocated for the communication plan recommended by Evaluator, which included several features designed to address the communication problems that the parties were experiencing. Among those were (a) limiting email communication between the parties to a “designated email day” on which both parents would be available to electronically express and respond to concerns regarding Child; (b) limiting Father’s virtual parenttime to three designated half-hour periods scheduled throughout the week, thereby limiting any ad hoc demands Father might make to speak with Child; and (c) maximizing the number of pickups and drop-offs that would occur at Child’s school rather than at Mother’s residence, thereby reducing the number of times Mother and Father saw each other.
¶32 The trial court ended up adopting one of these three recommendations in its ruling, in that it limited Father’s virtual parent-time to three scheduled half-hour periods each week. The court did not adopt the other two parts of this plan, perhaps in part because Mother expressed dislike for the “designated email day” idea, but the fact that the court declined to adopt Father’s plan in total does not mean that he did not have one. Indeed, the trial court itself referred to “[Father’s] plan” in its findings, later judging that plan to be inadequate. But an inadequate plan is still a plan, and the statute imposes no requirement that the plan be found by the court to be adequate. See id.
¶33 Under these circumstances, the trial court abused its discretion by concluding that Father “failed to present a plan to accomplish effective communication.” Father presented a plan for improved communication to the trial court, and thereby satisfied the second statutory prerequisite.
C
¶34 Finally, the statute requires that implementation of the alternative parent-time schedule would be “in the best interest of the child.” Utah Code Ann. § 30-3-35.1(2)(d) (LexisNexis Supp. 2018). Ordinarily, we afford a high degree of deference to a trial court’s “best interest” determination. See Vaughan v. Romander, 2015 UT App 244, ¶ 8, 360 P.3d 761 (stating that a trial court “has the discretion to establish parent-time in the best interests of the children,” and that a trial court’s “parent-time order” is reviewed for abuse of discretion (quotation simplified)). But here, the trial court did not engage in a traditional “best interest” analysis by weighing the evidence presented by each side and coming to a decision. Instead, the trial court stated flatly that Father had “presented no evidence other than his hope” that increased parent-time would benefit Child, and concluded that Father “failed to present evidence that it will be in [Child’s] best interest to have increased overnight visits.”
¶35 These statements are simply incorrect. Father presented quite a bit of evidence supporting his view that increased parenttime would be in Child’s best interest. Most significantly, Father presented the expert testimony of Evaluator, who offered her reasoned professional opinion that the best thing for Child— now that Father had relocated to Las Vegas and was closer to Mother and Child—would be for the court to implement the alternative parent-time schedule set forth in section 35.1. In addition, Father offered his own testimony along those same lines, and even cajoled Mother into acknowledging that Father was “a good father” and that she was in favor of Father and Child spending more time together (with the proviso that she preferred that the extra parent-time take place in the summertime, to cut down on the number of exchanges during the school year).
¶36 The trial court was certainly free to decline to credit Father’s evidence, and to give it less weight than Mother’s evidence.[5] Had it done so here, and articulated supported reasons for its decision, we undoubtedly would have affirmed that determination. But a trial court is not free to completely ignore a litigant’s evidence by making a “finding” that there is no such evidence when in fact there is.
¶37 Under these unique circumstances, we are not yet able to determine whether Father can (or cannot) satisfy the fourth statutory prerequisite. But the trial court’s stated reasons for rejecting Father’s position are unsupported, and are clearly erroneous and an abuse of discretion. We therefore must remand the case for further proceedings on this point, and specifically for the trial court to consider all of the evidence presented and to make a determination as to whether increased parent-time as per section 35.1 would be in Child’s best interest. Because all of the other prerequisites are met, if the trial court finds, on remand, that the “best interest” prerequisite is also met, the trial court will then be permitted to exercise its discretion, if it so chooses, to implement the alternative parent-time schedule. See Utah Code Ann. § 30-3-35.1(2) (stating that, if the statutory prerequisites are met, the court “may consider” the increased parent-time schedule); see also Lay v. Lay, 2018 UT App 137, ¶ 13, 427 P.3d 1221. (stating that, even where all of the statutory prerequisites are met, a trial court is not required to implement the alternative schedule, but may do so in its discretion).
II
¶38 The second issue Father raises on appeal is whether the trial court abused its discretion in ordering him to pay the entire cost of Evaluator’s report. In a case like this one, in which one party brings an action to establish an order of custody or parenttime, the trial court is statutorily authorized to make an award of costs. See Utah Code Ann. § 30-3-3(1) (LexisNexis 2013) (stating that “in any action to establish an order of custody [or] parenttime, . . . the court may order a party to pay the costs, . . . including expert witness fees, of the other party to enable the other party to prosecute or defend the action”). We have previously recognized that the relevant statute “is worded so as to afford divorce litigants a broader award of reimbursement, if need be, for the expenses of litigation, than those reimbursements authorized in other civil cases” in which costs are allocated according to who prevailed. Peterson v. Peterson, 818 P.2d 1305, 1310 (Utah Ct. App. 1991) (quotation simplified).[6] This rule is particularly appropriate in family law cases where many of the costs, including the cost of custody evaluations, relate to the best interests of the child and enable the court to make a reasoned determination on these important issues. See id.
¶39 While section 30-3-3(1) “empowers a court to use its sound discretion in determining whether to award costs based on need and ability to pay,” id., “the award or denial of such fees must be based on evidence of the financial need of the receiving spouse, the ability of the other spouse to pay, and the reasonableness of the requested fees,” Wilde v. Wilde, 969 P.2d 438, 444 (Utah Ct. App. 1998) (quotation simplified). “Failure to consider these factors is grounds for reversal on the fee issue.” Id.
¶40 Here, the trial court ordered each party to pay their own attorney fees and costs, but ordered Father to pay the entire cost of the custody evaluation. However, there is no indication in the court’s order that it considered the factors identified in Wilde, see id., including the parties’ financial ability to pay; indeed, the court gave no reasons at all for its decision to require Father to pay the entire cost of Evaluator’s report, other than to note that Father “asked for the child custody evaluation with the hope that somehow it would find in his favor and it did not, so he should pay its entire cost.”[7]
¶41 This conclusion is both inaccurate and contrary to the governing statute. Although Evaluator did not recommend that primary physical custody be changed from Mother to Father, Evaluator did recommend that Father be awarded additional parent-time if he moved to Las Vegas, which he did prior to trial. Accordingly, Evaluator’s recommendation at trial was that a parent-time schedule in accordance with section 35.1 should be implemented, which recommendation was in line with Father’s ultimate request at trial. In addition, the court’s conclusion that Father should pay the entire cost of the custody evaluation because the evaluation did not “find in his favor” is inconsistent with a proper subsection (1) analysis. As discussed above, while subsection (1) gives the trial court discretion in determining whether to award the costs of expert witness fees, an award of such fees must be based upon the parties’ ability to pay and the reasonableness of the fees, and not upon which party ultimately prevails. See Utah Code Ann. § 30-3-3(1); Wilde, 969 P.2d at 444. But instead of applying these factors, see Wilde, 969 P.2d at 444, the trial court appears to have erroneously allocated the cost of the custody evaluation by applying the “substantially prevailed” standard found in subsection (2), which is applicable only in actions to enforce—but not to establish—custody or parent-time arrangements, see Utah Code Ann. § 30-3-3(2).
¶42 Here, there is no indication that the trial court considered the appropriate factors. The absence of any such findings prevents a meaningful review of the trial court’s ruling, and we therefore remand the issue for further analysis. See Wilde, 969 P.2d at 444 (remanding the issue of fees and costs for reconsideration in light of the trial court’s failure to consider the needs of the parties and their ability to pay).
CONCLUSION
¶43 The trial court incorrectly—and prematurely—concluded that the statutory prerequisites to considering the section 35.1 parent-time schedule were not met in this case. The first three statutory prerequisites were in fact met, and the trial court’s ruling to the contrary was clearly erroneous. Also, the court incorrectly found that Father had submitted “no evidence” in his favor with regard to the fourth prerequisite. In addition, the trial court’s decision to order Father to pay all costs associated with Evaluator’s report appears to have been grounded in an inaccurate factual assumption as well as made pursuant to the incorrect statutory subsection. The trial court’s ruling with regard to parent-time and costs is hereby vacated, and this matter is remanded for further proceedings consistent with this opinion.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] Neither party contests the trial court’s continuing exercise of jurisdiction over this case, even after both parties relocated to Nevada. See Utah Code Ann. §§ 78B-13-201(1), 202, 207 (LexisNexis 2018); see also In re S.W., 2017 UT 37, ¶ 10, 424 P.3d 7 (noting that a court that originally has exclusive and continuing jurisdiction over a child custody matter may dismiss a case on jurisdictional grounds if it finds, after certain criteria are met, that it is “an inconvenient forum,” but may do so “only once a child custody proceeding has been commenced in another state” (quotation simplified)). Even if we were to assume that the statutory criteria are met here given both parents’ relocation, see Utah Code Ann. § 78B-13-202(1)(b), the trial court made no finding that it was an inconvenient forum, and there is no indication, on the record before us, that any child custody proceeding involving these parties has been initiated in Nevada.
[2] The statutory list of elements is not intended to be exhaustive. Indeed, the statute itself proclaims that the court may take into account “any other factor the court considers relevant.” Utah Code Ann. § 30-3-35.1(2)(e) (LexisNexis Supp. 2018).
[3] All parties, as well as the trial court, agreed that Father has the ability to facilitate the increased parent-time, and that therefore the third statutory prerequisite is satisfied. Seeid. § 30-335.1(2)(c).
[4] Subsection (3) of section 35.1 provides factors that courts “shall consider” in determining whether a parent has been actively involved in a child’s life. See id. § 30-3-35.1(3). Those factors include whether the parent has “demonstrated responsibility in caring for the child”; whether the parent has “involvement in day care”; whether the parent has a “presence or volunteer efforts in the child’s school and at extracurricular activities”; whether the parent assists the child with homework, and whether the parent is involved in “preparation of meals, bath time, and bedtime for the child”; and whether the parent has a strong bond with the child. Id. In this case, the trial court’s findings reveal no effort to apply these factors. In any event, as noted, the evidence clearly supports the conclusion that these factors weigh in favor of Father, at least for the thirty-month period prior to trial: Father had a strong bond with Child, demonstrated responsibility for Child’s care, and had a presence at Child’s extracurricular and school activities.
[5] But if a trial court declines to adopt the recommendation of a custody evaluator, “the court is expected to articulate some reason for rejecting that recommendation.” Zavala v. Zavala, 2016 UT App 6, ¶ 44, 366 P.3d 422 (quotation simplified).
[6] This standard also differs from the standard for awarding costs and fees in actions brought “to enforce” an alreadyestablished order in a domestic case. See Utah Code Ann. § 30-3-3(2) (LexisNexis 2013). In enforcement cases, the standard is similar to the one ordinarily used in civil cases: courts are authorized to award fees to “the party [that] substantially prevailed upon the claim or defense.” Id. In such cases, a trial court “may disregard the financial need of the moving party” because awards under this subsection “serve no equalizing function but allow the moving party to collect fees unnecessarily incurred due to the other party’s recalcitrance.” Connell v. Connell, 2010 UT App 139, ¶¶ 28, 30, 233 P.3d 836 (quotation simplified). Thus, the “guiding factor” when awarding costs under subsection (2) is “whether the party seeking an award of fees substantially prevailed on the claim [or defense].” Id. ¶ 28.
[7] We do not mean to suggest that a court, when deciding how to allocate the costs of a custody evaluation, is forbidden from taking into account the identity of the party who asked for the evaluator to be appointed. In many cases, potentially including this one, that fact might be relevant to any determination about whether the costs are “reasonable.” SeeWilde v. Wilde, 969 P.2d 438, 444 (Utah Ct. App. 1998). In appropriate cases, a court may even condition the grant of a motion to appoint a custody evaluator upon the movant paying the entire cost of the evaluation. In this case, however, that does not appear to be what the trial court did.
Is there any way to change the terms that were set for guardianship of my daughter in Iowa? I was forced into this by my ex’s sister when he passed away. I was approached by her lawyer after my ex’s funeral. She had already hired an attorney.
If the child is in Iowa and the guardianship was ordered in Iowa, then jurisdiction is likely in Iowa, and you’d need to consult an attorney who licensed to practice law in Iowa and who has expertise in guardianship law in that state.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Samuel M. Barker and Jeffrey A. Callister, Attorneys
for Appellant
Jennifer Neeley, Attorney for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in which JUDGES GREGORY K. ORME and DAVID N. MORTENSEN
concurred.
CHRISTIANSEN, Judge:
¶1 Ronald J. Nicholson appeals the district court’s termination of alimony he had been receiving from his ex-wife Paula Ann Thomas, formerly known as Paula Ann Nicholson. The district court determined that modification of alimony was warranted by Thomas’s retirement and that termination of alimony was proper because Nicholson’s monthly income exceeded his reasonable monthly needs. We conclude that the court adequately considered the factors required by statute and therefore affirm.
BACKGROUND
¶2 Nicholson and Thomas married in 1975, separated in 1999, and filed for divorce in 2003. After Nicholson and Thomas stipulated to a settlement, a decree of divorce was entered in 2008, with retroactive effect to 2007. Under that settlement, Nicholson received one parcel of real property, the proceeds from the sale of a second parcel of real property, and three vehicles; Thomas in turn received one parcel of real property subject to a mortgage and three other vehicles. Thomas also agreed to pay $850 per month in alimony to Nicholson for a period equal to the length of the marriage—32 years. The parties agreed that “alimony will be terminated upon [Nicholson’s] remarriage or cohabitation, or otherwise terminated or modified upon a material change of circumstances, including without limitation the parties’ retirement[.]” The stipulation was incorporated into the decree of divorce.
¶3 Upon her retirement in 2014, Thomas sought modification or termination of her alimony obligation. After a two-day hearing, the district court ruled that modification of the divorce decree was appropriate, found that Nicholson’s expenses did not exceed his income, and modified the divorce decree to eliminate the alimony obligation. Nicholson timely appealed.
ISSUES AND STANDARDS OF REVIEW
¶4 Nicholson first contends that the district court erred by failing to make or enter adequate findings regarding Thomas’s ability to pay alimony. Where an appellant asserts that the district court’s findings are legally inadequate to support its ruling, we review for correctness. See Fish v. Fish, 2016 UT App 125, ¶ 5, 379 P.3d 882; Robinson v. Robinson, 2010 UT App 96, ¶ 7, 232 P.3d 1081.
¶5 Nicholson further contends that the district court erred “in terminating alimony based on [his] current needs and ability to provide for those current needs when [his] needs and ability to provide have not changed since the time of the divorce.” Insofar as this is a challenge to the district court’s findings of fact, we review for clear error; where the district court’s ruling relies on its interpretation of the law, we review for correctness. See Olsen v. Olsen, 2007 UT App 296, ¶ 7, 169 P.3d 765.
ANALYSIS
¶6 The primary purpose of an alimony award, at least an initial one, is to “enable the receiving spouse to maintain as nearly as possible the standard of living enjoyed during the marriage and to prevent the spouse from becoming a public charge.” Paffel v. Paffel, 732 P.2d 96, 100 (Utah 1986); accord Connell v. Connell, 2010 UT App 139, ¶ 9, 233 P.3d 836. To achieve this end, the Utah Code requires a court to consider several factors when calculating the appropriate amount of alimony to award:
The court shall consider at least the following factors in determining alimony:
(i) the financial condition and needs of the recipient spouse;
(ii) the recipient’s earning capacity or ability to produce income;
(iii) the ability of the payor spouse to provide support;
(iv) the length of the marriage;
(v) whether the recipient spouse has custody of minor children requiring support;
(vi) whether the recipient spouse worked in a business owned or operated by the payor spouse; and
(vii) whether the recipient spouse directly contributed to any increase in the payor spouse’s skill by paying for education received by the payor spouse or enabling the payor spouse to attend school during the marriage.
Utah Code Ann. § 30-3-5(8)(a) (LexisNexis 2013).[1]
[1.] This statute has since been amended in a manner that does not affect our analysis of the issues on appeal.
¶7 After entering an alimony award, the district court retains “continuing jurisdiction to make substantive changes and new orders regarding alimony” when it finds that there has been “a substantial material change in circumstances not foreseeable at the time of the divorce.” Id. § 30-3-5(8)(i)(i); accord Williamson v. Williamson, 1999 UT App 219, ¶ 8, 983 P.2d 1103. “Once that finding has been made, the court must then consider at least the following factors in determining [a new alimony award]: (i) the financial condition and needs of the recipient spouse; (ii) the recipient’s earning capacity or ability to produce income; (iii) the ability of the payor spouse to provide support; and (iv) the length of the marriage.” Williamson, 1999 UT App 219, ¶ 8 (citation and internal quotation marks omitted). “These factors apply not only to an initial award of alimony, but also to a redetermination of alimony during a modification proceeding.” Id.
¶8 In short, once a court has determined that modification is appropriate pursuant to section 30-3-5(8)(i)(i), it must then consider at least the factors set forth in section 30-3-5(8)(a).[2]
[2.] Williamson’s list of four factors is drawn verbatim from the then-current version of the Utah Code. The relevant statute has since been expanded to seven factors and renumbered as Utah Code section 30-3-5(8)(a). The requirement that a court must consider the original four factors in a modification proceeding therefore likely applies with equal force to the three factors that have since been added. Here, however, neither party alleges that the district court erred by failing to consider the three new factors.
See, e.g., Busche v. Busche, 2012 UT App 16, ¶ 13, 272 P.3d 748 (explaining that the substantial-change-of-circumstances determination is a threshold step to be conducted before, and separately from, consideration of the statutory factors).
Thomas’s Ability to Pay Alimony
¶9 Nicholson first contends that the district court’s findings were “insufficient to support terminating alimony because [the court] made no findings as to [Thomas’s] ability to provide continuing support.”
¶10 “The standard for findings in modification proceedings is well established.” Williamson, 1999 UT App 219, ¶ 9. The district court “must make findings on all material issues, and its failure to delineate what circumstances have changed and why these changes support the modification made in the prior divorce decree constitutes reversible error unless the facts in the record are clear, uncontroverted and only support the judgment.” Whitehouse v. Whitehouse, 790 P.2d 57, 61 (Utah Ct. App. 1990). The findings “must be sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.” Id.
¶11 In this case, the district court determined that, although Thomas’s retirement was foreseeable and in fact foreseen at the time of the divorce, the specific language of the parties’ stipulation allowed for termination or modification of alimony based upon her retirement.[3]
[3.] According to Nicholson’s reply brief, he “does not dispute the trial court’s determination that the first step to alimony modification, the substantial material change threshold, was met.”
The court noted that Thomas had not taken an early retirement; rather, “she retired at a reasonable retirement age.” The court ultimately ruled that modification was appropriate and turned to the consideration of the factors listed in section 30-3-5(8)(a). But in its analysis of the factors, the court did not enter detailed written findings as to Thomas’s “ability . . . to provide support.” See Utah Code Ann. § 30-3¬ 5(8)(a)(iii) (LexisNexis 2013).
¶12 In isolation, the failure to enter written findings quantifying a certain factor does not necessarily indicate that a district court failed to consider that factor; rather, the lack of specific findings may be the result of the district court’s conclusion that the factor is not a “material issue[]” under the circumstances of the case at hand. See Whitehouse, 790 P.2d at 61 (noting the court’s obligation to “make findings on all material issues” (emphasis added) (citation and internal quotation marks omitted)). And the district court’s decision here, considered as a whole, shows that this is exactly what occurred.
¶13 The district court first determined that Nicholson did not have unmet financial needs. See Utah Code Ann. § 30-3-5(8)(a)(i), (ii) (requiring the court to consider the recipient spouse’s financial need and ability to meet that need). As a result, the court ruled that Thomas’s “income and assets are irrelevant to the [modification] inquiry.” In other words, it appears the district court reasoned that, because the recipient spouse¬ Nicholson—had no unmet need, further consideration of and explicit findings regarding the payor spouse’s ability to pay were not material to the court’s analysis.
¶14 We agree with the district court’s legal reasoning. Though it would have been the best practice and could have facilitated review of the decision on appeal, the district court did not first need to make explicit findings as to how much Thomas could afford to pay if there was no demonstrated financial need on Nicholson’s part. See Dobson v. Dobson, 2012 UT App 373, ¶ 24, 294 P.3d 591 (noting that “the trial court correctly indicated that without a compelling and extraordinary reason, it could not award [the recipient spouse] more alimony than her established needs, regardless of [the payor spouse’s] ability to pay”); see also Roberts v. Roberts, 2014 UT App 211, ¶ 14, 335 P.3d 378 (explaining that “regardless of the payor spouse’s ability to pay more, the recipient spouse’s demonstrated need must constitute the maximum permissible alimony award” (brackets, ellipsis, citation, and internal quotation marks omitted)); Sellers v. Sellers, 2010 UT App 393, ¶ 3, 246 P.3d 173 (agreeing that “unless the court determines that the party seeking alimony has insufficient income to meet his or her own needs, there is no occasion to consider the other section 30-3-5(8)(a) alimony factors”). Even in the absence of ability-to-pay findings regarding Thomas, the court’s ruling here is “sufficiently detailed and include[s] enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.” See Williamson, 1999 UT App 219, ¶ 9 (citation and internal quotation marks omitted). And once the finding that Nicholson had no unmet financial needs was made, there was no other legal result possible. See Dobson, 2012 UT App 373, ¶ 24. We therefore conclude that, in light of its other findings, the court’s limited consideration of and failure to enter specific findings about “the ability of the payor spouse to provide support” was not incorrect. See Utah Code Ann. § 30-3-5(8)(a)(iii).
Nicholson’s Need for Alimony
¶15 Nicholson also contends that “[t]he trial court erred in terminating alimony based on [his] current needs and ability to provide for those current needs when [his] needs and ability to provide have not changed since the time of the divorce.” His argument appears to be two-fold; first, that his needs were res judicata because modification proceedings had been initiated by a change in Thomas’s income rather than Nicholson’s needs, and second, that the court should have attempted to maintain the standard of living he enjoyed at the time of the divorce rather than his standard of living at the time of modification.
Res Judicata
¶16 Nicholson asserts that the district court’s modification analysis should have been limited to consideration of the alimony factor or factors in which it found a “substantial material change.” He argues that “[t]he other issues and factors in an initial alimony determination . . . are still res judicata.” To support this proposition, Nicholson selectively quotes Throckmorton v. Throckmorton, 767 P.2d 121, 123 (Utah Ct. App. 1988), which noted that “[t]he doctrine of res judicata applies in divorce actions.” But Nicholson neglects to mention that, two sentences later in that opinion, this court noted, “However, the application of res judicata is unique in divorce actions because of the equitable doctrine which allows courts to reopen alimony, support, or property distributions if the moving party can demonstrate a substantial change of circumstances[.]” Throckmorton, 767 P.2d at 123.
¶17 In any event, Utah law requires courts to reconsider certain factors in alimony modification proceedings, even when the door to modification has been opened only by a substantial and material change in a different factor. Section 30-3-5(8)(a) of the Utah Code prescribes a procedure for calculating the appropriate amount of alimony: “The court shall consider at least the following factors in determining alimony.” Because the legislature has not enacted separate procedures for initial and modification proceedings, the same procedure applies in both situations. And because the language of the statute requires a court to consider each of the statutory factors in the context of an alimony modification proceeding, previous findings (including those made during the initial alimony proceeding) have no preclusive effect under the doctrine of res judicata. See Williamson v. Williamson, 1999 UT App 219, ¶ 8, 983 P.2d 1103 (“Once [the modification] finding has been made, the court must then consider at least the following factors in determining alimony: (i) the financial condition and needs of the recipient spouse; (ii) the recipient’s earning capacity or ability to produce income; (iii) the ability of the payor spouse to provide support; and (iv) the length of the marriage.” (citation and internal quotation marks omitted)); supra ¶ 8 note 2.
¶18 We therefore conclude that the district court did not err by considering Nicholson’s need for alimony despite ruling that the substantial and material change necessitating modification was in Thomas’s retirement.
Time Frame for Needs Calculation
¶19 Nicholson next asserts that the district court erred by considering his financial needs at the time of the modification rather than his needs at the time of separation. Nicholson bases this assertion on the alimony statute’s pronouncement that, “[a]s a general rule, the court should look to the standard of living, existing at the time of separation, in determining alimony.” See Utah Code Ann. § 30-3-5(8)(e) (LexisNexis 2013).
¶20 As an exception to the “general rule,” the statute further provides that the court “may, in its discretion, base alimony on the standard of living that existed at the time of trial.” Id. We understand this exception to allow a court the discretion to consider the standard of living at the time the modification petition is tried. Such a reading comports with the rationale underlying alimony modification proceedings: adjustment to reflect changed financial circumstances.
¶21 Indeed, our statutes and case law provide that the court should consider both parties’ situations as of the time of the modification. See id.; Williamson, 1999 UT App 219, ¶ 11. The court is not required to impoverish one party to provide the marital standard of living to the other when such a standard could not be maintained if the parties were still married and shared their incomes. See, e.g., Earhart v. Earhart, 2015 UT App 308, ¶ 16 n.5, 365 P.3d 719 (noting that “when a payor spouse suffers an unintentional reduction in income, splitting or sharing the pain of the shortfall is an appropriate goal for alimony modification”).
¶22 We conclude that, under these circumstances, it was appropriate for the district court to base its analysis on Nicholson’s current financial situation. See e.g., Williamson, 1999 UT App 219, ¶ 11 (remanding to the district court with instructions to “consider current evidence of the parties’ financial situations” (emphasis added)).
III. Good Faith
¶23 Nicholson contends that the district court “erred in failing to recognize that [Thomas] was not acting in good faith when she entered into a stipulation with [Nicholson] in 2008.” Nicholson did not identify this issue in his statement of the issues presented for review, did not identify a standard of review, and did not address the issue’s preservation. See Utah R. App. P. 24(a)(5). We therefore reject this contention in its entirety.
Attorney Fees and Costs
¶24 Thomas seeks an award of attorney fees and double costs pursuant to rules 33 and 34 of the Utah Rules of Appellate Procedure. She contends that Nicholson’s appeal is “undoubtedly . . . for improper purposes” and that his “argument is not grounded in fact, warranted by existing law, and is not based on a good faith argument.”
¶25 Rule 33(a) requires us to award “just damages,” such as single costs, double costs, or attorney fees, if we determine that an appeal “is either frivolous or for delay.” An appeal is frivolous when it “is not grounded in fact, not warranted by existing law, or not based on a good faith argument to extend, modify, or reverse existing law.” Utah R. App. P. 33(b). Although Nicholson’s contentions are ultimately unsuccessful, under these standards, we do not consider his contentions frivolous or for delay. Consequently, we do not award damages.[4]
[4.] Rule 34(a) provides that “if a judgment or order is affirmed, costs shall be taxed against [the] appellant unless otherwise ordered.” We therefore award Thomas her costs reasonably incurred on appeal.
CONCLUSION
¶26 The district court’s consideration of Thomas’s ability to pay was adequate in light of the court’s determination that Nicholson had not demonstrated unmet needs. The district court did not err by analyzing the alimony modification factors set forth by statute. And the district court correctly considered the parties’ situations at the time of modification rather than at the time of the divorce or separation.
¶27 Affirmed.
Utah Family Law, LC | divorceutah.com | 801-466-9277