It is, to the best of my knowledge, the law of the state that issued the alimony award. You will need to check with an attorney in both the state that issued the alimony award and the state where the ex-spouse has relocated to be sure.
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
Emily Adams, Freyja Johnson, and Cherise Bacalski,
Attorneys for Appellant
Brent M. Johnson, Attorney for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Von Del Mason Jr. appeals the district court’s order finding him in contempt. We affirm.
BACKGROUND
¶2 Mason and his ex-wife, who were embroiled in contentious post-divorce proceedings, attended a hearing regarding the ex-wife’s relocation to Arizona. Before the judge ruled, he told the parties, “I don’t want any talking to each other. I’m not open for any debate. . . . I’ll give you my ruling and we can all leave, whatever your opinion is about it.” After the judge
made his ruling, which was adverse to Mason, he announced, “[W]e are adjourned.” Immediately thereafter Mason proclaimed to the judge, “You are a disingenuous, intellectual liar.” Following that statement, the court recording was turned off for approximately one minute. However, in a written order entered that same day, the judge recited that during that break “[s]everal times the court suggested that Mr. Mason should stop talking” and later “instructed Mr. Mason to stop talking, but he continued with similar accusations and disrespectful comments.” When the recording was turned back on, the following exchange took place:
Mr. Mason: That’s the truth, sir. And I have every right to tell you that.
The Court: Mr. Mason, you are in contempt.
Mr. Mason: Go figure.
The Court: I don’t appreciate—
Mr. Mason: I don’t appreciate you. You’re not— you’re dishonest.
. . . .
The Court: —you’re trying to make this personal.
Mr. Mason: No, you’ve made it personal, sir. You said this was your courtroom. This is not your courtroom, sir. You have a job. You were an antitrust lawyer.
The Court: I told you repeatedly to stop talking. You’re not listening. You are in contempt. I’m tired of it.
. . . .
Mr. Mason: You’re a disingenuous liar, sir.
The Court: You are in contempt.
Mr. Mason: Okay. Enjoy it.
¶3 Based on Mason’s behavior in its presence, the judge found Mason “guilty of contempt pursuant to Utah Code 78B-6301(1) and (5)” for disrupting its proceedings and disobeying its order to stop talking and sentenced him to forty-eight hours in jail. The next day, however, the court “suspend[ed] the balance of the jail time” and ordered Mason released from jail. Mason now appeals his contempt conviction.
ISSUES AND STANDARDS OF REVIEW
¶4 As a threshold issue, we must determine whether Mason’s appeal is moot in light of the fact that he has already completed his sentence. If “the requested relief cannot affect the rights of the litigants, the matter is moot and we will not consider it.” Gardiner v. York, 2010 UT App 108, ¶ 30, 233 P.3d 500 (quotation simplified). And we consider the issue of mootness as a question of law. See State v. Legg, 2018 UT 12, ¶ 12, 417 P.3d 592 (explaining that mootness is reviewed “de novo”).
¶5 Mason raises several substantive challenges to the district court’s contempt order. First, he asserts that the court denied his right to counsel. Next, Mason asserts that he could not be held in contempt for statements he made after the court had adjourned and that the court exceeded its discretion in holding him in contempt because the court did not impose a clear order. Mason did not preserve these issues for our review, but he asks that we nevertheless review them for plain error and exceptional circumstances.
¶6 Normally, “[w]hen a party fails to raise and argue an issue in the trial court, it has failed to preserve the issue, and an appellate court will not typically reach that issue absent a valid exception to preservation.” State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443. Plain error and exceptional circumstances are such exceptions. However, here the State raised the issue of mootness and briefed Mason’s challenges to the court’s contempt order on their merits. And as discussed below, we agree with the State that the issues Mason raises fail on their merits. Where this is the case, we possess the discretion to reject claims on their merits, even when those claims have not been properly preserved. See State v. Kitches, 2021 UT App 24, ¶¶ 27–28. We elect to exercise that discretion here, and after first determining that Mason’s appeal is not moot, we address, and reject, Mason’s claims on their merits.
ANALYSIS
Mason’s Appeal Is Not Moot
¶7 “A challenge to a conviction of criminal contempt is not moot if there is a possibility that collateral legal consequences may result from the conviction.” Gardiner v. York, 2010 UT App 108, ¶ 33, 233 P.3d 500. The State maintains that there is no possibility of collateral legal consequences, asserting that a criminal contempt conviction will not appear in Mason’s criminal record and is not the type of criminal conviction that can be used for impeachment purposes. However, even assuming, without deciding, that the State’s assertions are correct, the State does not respond to Mason’s argument that “because this criminal contempt conviction comes in the midst of a family law case where child custody is involved, a record of criminal contempt may affect future decisions on custody.” Cf. State v. C.H., 2008 UT App 404U, para. 2 (explaining that a criminal contempt conviction may have “ramifications on future investigations or adjudications by the Division of Child and Family Services” and could therefore affect a person’s right to parent their children). “The burden of persuading the court that an issue is moot lies with the party asserting mootness,” State v. Legg, 2016 UT App 168, ¶ 9, 380 P.3d 360 (quotation simplified), aff’d, 2018 UT 12, 417 P.3d 592, and we cannot say with certainty that Mason’s contempt conviction could have no possible impact on future child custody determinations or in future encounters with the legal system. Thus, we agree with Mason that this appeal is not moot.[1]
Mason Was Not Entitled to the Appointment of Counsel in a Direct Contempt Summary Proceeding
¶8 Mason argues that the district court improperly denied his right to be represented by counsel during the proceeding in which it found him in contempt and imposed a sanction. Mason argues that he was entitled to the assistance of counsel in these criminal contempt proceedings and that the court’s failure to advise him of that right or to facilitate the appointment of counsel violated his constitutional rights and prevented him from adequately challenging the merits of the contempt finding. Although a defendant in most criminal proceedings—including many criminal contempt proceedings—generally has the right to counsel, see Turner v. Rogers, 564 U.S. 431, 441 (2011); United States v. Dixon, 509 U.S. 688, 696 (1993), the Supreme Court previously held, in Cooke v. United States, 267 U.S. 517 (1925), that such a right does not exist in summary criminal contempt proceedings involving conduct committed in the presence of the judge, see id. at 534 (“There is no need of evidence or assistance of counsel before punishment, because the court has seen the offense. Such summary vindication of the court’s dignity and authority is necessary.”).
¶9 Mason asserts that subsequent Supreme Court case law acknowledging that “[c]riminal contempt is a crime in the ordinary sense” and that “criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings,” International Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 826 (1994) (quotation simplified); see also Argersinger v. Hamlin, 407 U.S. 25, 37 (1972) (“[A]bsent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.”), should be interpreted as repudiating the Court’s previous position that the appointment of counsel is not required in summary criminal contempt proceedings. However, the Supreme Court has continued to reaffirm the exception for summary criminal contempt. See Turner, 564 U.S. at 441 (citing Cooke with approval and stating that “an indigent defendant [has] the right to state-appointed counsel in . . . criminal contempt proceedings (other than summary proceedings)” (quotation simplified)); Dixon, 509 U.S. at 696 (explaining that “constitutional protections for criminal defendants,” including the right to the assistance of counsel, “apply in nonsummary criminal contempt prosecutions just as they do in other criminal prosecutions” (emphasis added)). Although these more recent holdings may not address the issue head-on, the Court’s continued reference to the exception without repudiating Cooke leaves us with no basis, under the federal constitution, for recognizing a constitutional right to the assistance of counsel in summary criminal contempt proceedings. Because Mason had no right to counsel, the court could not have erred by not informing him of such a right or by choosing not to appoint counsel to assist him in the summary proceeding.
III. We Reject Mason’s Challenges to the Court’s Contempt Finding
¶10 The court found Mason in contempt based on both subsections (1) and (5) of Utah Code section 78B-6-301. Mason raises challenges with respect to the court’s findings under both provisions.
The Court Did Not Err by Holding Mason in Contempt After Stating That Proceedings Were Adjourned
¶11 In his challenge to the contempt order, Mason asserts on appeal that the court erred in holding him in contempt under Utah Code section 78B-6-301(1), because his comments occurred after the judge had stated that proceedings were adjourned. That subsection defines contempt as “disorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to interrupt the course of a trial or other judicial proceeding.” Utah Code Ann. § 78B-6-301(1) (LexisNexis 2018) (emphasis added). Mason asserts that the plain language of subsection (1) limits the definition of contemptuous behavior to “behavior that occurs during a formal court proceeding, not after it has adjourned.” He maintains that because the judge had announced, “[W]e are adjourned,” before Mason’s statements, the judge was no longer “holding the court” and that Mason’s actions therefore could not have “interrupt[ed] the course of a trial or other judicial proceeding.” Id.
¶12 We disagree with Mason’s formalistic interpretation of what constitutes a judicial proceeding or “holding the court.” We acknowledge Mason’s assertion that disorderly or insolent behavior toward a judge outside of court cannot justify a finding of contempt under subsection (1) of the contempt statute. See Robinson v. City Court, 185 P.2d 256, 257–58 (Utah 1947) (overturning a contempt conviction based on behavior that occurred while the contemnor and the judge were near or in a courthouse elevator because “[t]he judge was not holding court, he had already adjourned the morning session, he was on his way out of the building, and no trial or other judicial proceedings were then in progress”). But we do not agree that the contempt statute should be so rigidly interpreted in a situation involving a litigant who engages in contemptuous behavior while in the courtroom and directly before the judge. See Commonwealth v. Williams, 2000 PA Super 165, ¶¶ 5, 21–24, 753 A.2d 856 (rejecting the defendant’s assertion that his action of “raising his middle finger and stating, ‘F—k You’” to the judge as he “was being led from the courtroom” could not have obstructed the administration of justice, explaining that his actions “belittl[ed] the entire process of the administration of justice” and that “had the Court not acted in response to the [defendant’s] actions it would have eroded the Court’s authority in the eyes of all those present”); Rhoad v. State, 641 S.E.2d 35, 37 (S.C. Ct. App. 2007) (explaining that a finding of direct contempt against a defendant who made an obscene gesture to his trial counsel on his way out of the courtroom was justified because “[r]egardless of whether [the defendant’s] hearing had concluded, [the defendant] failed to show proper decorum in the courtroom and exhibited a disrespect for the court”).
¶13 Here, although the adjournment of the hearing had been announced, the court proceedings had not actually concluded. See Williams, 2000 PA Super 165, ¶ 22 (“Court proceedings are concluded after the defendant leaves the courtroom, the trial judge goes to the next case or adjourns court and leaves the courtroom.” (emphasis added) (quotation simplified)). Mason’s conduct occurred in the courtroom while the judge was still on the bench,[2] and he made his comments, directed at the judge, immediately after the judge announced the adjournment of the hearing but before adjournment had been accomplished. Simply stating that court was adjourned was not equivalent to being out of court. Nor did the court’s interest in maintaining order evaporate simply because it had announced the adjournment of Mason’s hearing.[3] “It is essential to the proper administration of . . . justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated.” Illinois v. Allen, 397 U.S. 337, 343 (1970). Because Mason’s conduct fell within subsection (1)’s definition of contempt, the court’s contempt finding was not error.
Mason Cannot Demonstrate That the Court Abused Its Discretion in Finding That He Had Disobeyed a Court Order
¶14 Mason also maintains that the court abused its discretion by finding him in contempt under Utah Code section 78B-6301(5). Under that subsection, a person can be held in contempt for “disobedience of any lawful judgment, order or process of the court.” Utah Code Ann. § 78B-6-301(5) (LexisNexis 2018). “[T]o prove contempt for failure to comply with a court order it must be shown that the person cited for contempt knew what was required, had the ability to comply, and intentionally failed or refused to do so.” Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988). Mason asserts that the judge did not clearly order him to stop talking and therefore could not properly hold him in contempt for talking.
¶15 In his written contempt order, the judge described his earlier verbal orders to Mason by stating that he had “instructed the parties . . . that there should be no talking despite what either side thought of the court’s decision” and that after Mason began making “disrespectful comments toward the court,” the judge “suggested that Mr. Mason should stop talking” and “instructed Mr. Mason to stop talking.” Mason points out that before issuing his ruling, the judge actually ordered the parties not to talk to each other rather than ordering them not to talk at all. Thus, he maintains that the order was unclear as to what he was required to do. See id.
¶16 But even accepting Mason’s argument regarding the judge’s initial order not to talk, the record shows that after Mason began making disrespectful comments, the judge “instructed” Mason not to talk anymore. Nevertheless, Mason “continued with similar accusations and disrespectful comments even after he was taken into custody by bailiffs.” It was this behavior that the judge identified as disobedience to “the court’s order to stop.” We agree with the State that Mason’s disregard of the judge’s instruction to stop talking after he had begun could constitute contempt, and we cannot say that the court abused its discretion by finding Mason in contempt on that basis. Moreover, because a district court has discretion to deal with contemptuous actions occurring in its presence, the judge did not have to let Mason “wear himself out” before imposing a sanction. In addition, even if there had been error in the court’s contempt finding under section 78B-6-301(5), it would have been harmless in light of the additional grounds for contempt it found under section 78B-6-301(1). See supra ¶¶ 11–13.
CONCLUSION
¶17 Although we determine that this appeal is not moot, we conclude that a person accused of direct contempt, committed in the presence of the court, is not entitled to the appointment of counsel in a summary contempt proceeding. Further, the district court did not abuse its discretion in holding Mason in contempt for his insolent behavior under the facts presented here. Accordingly, we affirm the district court’s contempt order.
My ex-wife tonight, in a fit of anger, told me that she and the kids will be moving out of state. There’s no reason–like a job or school or even remarriage–for her to move out of state.
I’m not sure how serious she is, but on the chance it does happen, how does that affect custody and parent time? We have joint custody, with her as custodial parent, and our decree says she has tentative final say, subject to my right to bring it to mediation.
As things stand now, odds are (odds are) that you will lose this fight, if it goes to court.
Why?
The “kids already spend more time in Mom’s custody than in Dad’s argument” is a good one and one that Mom will almost surely use. And let’s be honest: Mom will never claim she decided to move to Missouri “in a fit of anger.” It is ludicrous to believe that your ex-wife would ever admit in court that she is moving out of spite. Of course she’ll never fess up to that. She will deny it. She and her shyster attorney will it come up with plausible sounding reasons for the relocation. So you have to ask yourself: how will I win an argument against A) the parent who has custody the majority of the time; B) who is the all-important mother; and C) who will have no compunction against lying to improve your odds of success?
HOWEVER,
You might snatch victory from the gaping jaws of defeat, if you can show, among other things, that her move is in fact a spiteful move, or not one born of necessity, or contrary to preserving/fostering the best interest of the children, or that her move would do the children more harm than good, or that it would take the children not only from you, but from a crucial and broad extending family and friends support system, etc.
Another way is to take action to prevent her from moving. What kind of action? One thing I’ve found effective is to tell the parent who is contemplating a move that if she moves to Missouri, you will too. You’ll move to the same neighborhood so that you can ensure that you’re close to the children and then move for joint physical custody and a modification of child support due to the change in circumstances.
Your most likely path to success may not lie in trying to seek vindication within the system
Finding a way to defeat your ex-wife machinations using methods that are legal but within your power to control may be the more effective way (in various ways, whether a matter of time, money, effort, frustration, and damage to your reputation and relationship with your children). Without other arguments going for you, it would be naive to hope to persuade the judge or commissioner that the kids are better off with Dad when the children spend less time with him than with Mom.
If you can’t makes sense of it, can you at least understand it? Yes.
The simple, if unpopular, fact is that generally courts favor the mothers in these situations. It’s not fair. It’s sexist. The courts find excuses for it anyway. And you have to remember that it’s not a matter of what you know to be the case or even what your ex-wife knows to be the case, but what you can prove to the court and what stories the court will and will not believe. Most (not all, but most) judges and commissioners in family law matters are shockingly inattentive and apathetic in these situations. They often shamelessly prejudge such cases and believe they have the whole thing worked out before they read your pleadings, if they read your pleadings.
I’ve seen many cases just like yours where the parents share joint custody, with one parent spending more time with the kids than the other (even if it’s just a few days or weeks), then one of the parents decides to relocate, and the heartbroken parent who’s not moving who is trying desperately to preserve the relationships with the kids and wondering why it is that one parent can just up and leave with impunity.
I hope I’ve explained adequately why it is that a person in your position is at a clear disadvantage. It’s not fair, but it’s reality. You need to know what you’re really dealing with (not what you appear to be dealing with on the surface) before you can react in any kind of successful way.
Please understand that I am not saying there is no hope. While you have several factors working against you, I’ve suggested how you might overcome those disadvantages.
Utah Family Law, LC | divorceutah.com | 801-466-9277
My ex-wife tonight, in a fit of anger, told me that she is going to move to another state with our kids (her current boyfriend lives there).
I’m not sure how serious she is, but on the chance it does happen, how does that affect custody and parent time?
We have joint custody, but she has the children in her custody a about a month more than I do each year, and our decree provides that my ex-wife has tentative final say on legal custody issues, subject to my right to bring it to mediation or review by the court.
ANSWER:
As things stand now, odds are (odds are) that you will lose this fight. Sorry, but it’s the truth. Why, and what can you do to improve your odds?
First, there is a bias in favor of awarding children to mothers. This bias is weakening and continues to weaken, but it’s still there. It’s easier to overcome than it’s ever been, but it’s still something you will likely have to contend with.
Second, under the terms of your divorce your ex has the kids in her custody more than you do, so when determining who will have primary physical custody of the children after the move, the presumption is that we keep the children with the parent who already has them in her custody more of the time already under the current provisions of the decree. And the fact that she has that damnable “final decision-making” authority also serves to marginalize you as a parent in this situation.
Third, and let’s be honest: Mom will never claim she decided to move to Missouri “in a fit of anger” or otherwise out of spite, and courts are reluctant to believe such a thing (so unless you have conclusive proof or at least some extremely compelling evidence of a “spite move,” you may actually be better off not even raising the subject for fear of looking like a paranoid crank).
The simple, if unpopular, fact is that courts favor the mothers in these situations. And you have to remember that it’s not a matter of what you know to be the case or even what your ex-wife knows to be the case, but what you can prove to the court and what stories the court will and will not believe. Some judges and commissioners prejudge cases and believe they have the whole thing worked out before they review all of the evidence or review it fully.
I’ve seen countless cases just like yours where you have joint custodial parents, one parent spending more time with the kids than the other, and then one of the parents decides to relocate, and the heartbroken parent who’s not moving who is trying desperately to preserve the relationships with the kids and wondering why it is that one parent can just up and leave with impunity.
The idea that your ex-wife would ever admit that she is moving out of spite is ludicrous. Of course she’ll never fess up to that. She will deny it. She and her shyster attorney will come up with plausible sounding reasons for the relocation. So you have to ask yourself: how will I win an argument against the parent who has custody the majority of the time and who is the mother and who will have no compunction against lying to improve your odds of success?
It is naive to hope to persuade to judge or commissioner that the kids are better off with Dad when the dad that the children currently spend less time with than the mother.
HOWEVER,
You may be able to snatch victory from the gaping jaws of defeat, if you can show, among other things, that her move is a spiteful move, not one born of necessity or preserving/fostering the best interest of the children, that her move would do the children more harm than good, that it would take the children not only from you, but from a crucial and broad extending family and friends support system, etc. While marrying a man who lives out of state or whose job requires him to move out of state is a legitimate argument, moving merely to be closer to a boyfriend is a pretty lame excuse for moving.
Another way to improve your odds is to take action to prevent her from moving. What kind of action? One thing I’ve found effective is to tell the parent who is contemplating a move that if she moves to Missouri, you will too. You’ll move to the same neighborhood so that you can ensure that you’re close to the children and then move for joint physical custody and a modification of child support due to the change in circumstances. Easier said than done, I know, but if you can manage it, it has a strong preventative effect. Your most likely path to success (saving money, time, effort, frustration, and damage to your reputation and relationship with your children) is not trying to seek vindication within the system, but trying to find a way to defeat your ex-wife machinations using methods that are legal but within your power to control.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Vanderzon v. Vanderzon – 2017 UT App 150 – August 17, 2017
THE UTAH COURT OF APPEALS
HEIDI KIRSTEN VANDERZON,
Appellant,
v.
JOHN MATTHIAS VANDERZON, Appellee.
Opinion
No. 20140946-CA
Filed August 17, 2017
Third District Court, Silver Summit Department
The Honorable Todd M. Shaughnessy No. 114500013
Diana J. Huntsman, Sherri L. Walton, Jason T.
Schow, Michael D. Zimmerman, Julie J. Nelson, and Clemens A. Landau, Attorneys for Appellant
David S. Dolowitz, James M. Hunnicutt, and Shane A. Marx, Attorneys for Appellee
JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGE
JILL M. POHLMAN[1] concurred. JUDGE GREGORY K. ORME concurred in the result.
[1] Judge Stephen L. Roth participated in this case as a member of the Utah Court of Appeals. He retired from the court before this decision issued.
ROTH, Judge:
¶1 Heidi Kirsten Vanderzon and John Matthias Vanderzon[2] divorced by bifurcated decree in March 2013.
[2] Because they share a last name, we refer to the parties individually by their first names for convenience.
Several issues were reserved for trial following entry of the decree, including child custody, alimony, and attorney fees. In September 2014, the trial court issued its final decree of divorce, which addressed all of the remaining issues. Heidi appeals from that decree, challenging the court’s orders regarding custody, alimony, and attorney fees. We affirm in part and vacate in part and remand.
BACKGROUND
¶2 Heidi and John married in Virginia in 1997, where they continued to live for many years. In 2008, Heidi moved with their three children to Park City, Utah, while John remained in Virginia. The couple formally separated two years later, and Heidi filed for divorce in Utah in January 2011.
¶3 Following the entry of the bifurcated decree of divorce, a bench trial was held during which the court heard evidence related to the issues remaining between the parties, including child custody, alimony, and attorney fees. On September 5, 2014, the court issued its findings of fact and conclusions of law as well as its final decree of divorce, which resolved all remaining issues.
Custody
¶4 The court awarded the parties joint legal custody of the children and established a joint physical custody arrangement under which John would have substantial parent time but Heidi would remain the children’s primary caregiver. At the time of the trial in 2014, the parties had been living separately for over five years. Heidi rented a home in Park City, Utah, where she cared for all three of the parties’ minor children, who attended school nearby. John continued to live in Virginia, working as he had for many years in the Washington, D.C. area. After Heidi moved to Park City, John traveled to Utah on weekends to see his family. However, once the divorce proceedings began, John’s access to his children and the parties’ long-distance co-parenting efforts became a significant source of conflict.
¶5 A custody evaluator, Dr. Valerie Hale, was appointed to address the custody issues in the case. Her evaluation included “numerous interviews with Heidi and John” and their children, as well as on-site home visits in both Utah and Virginia. She prepared a “detailed and exhaustive report” and testified at trial. Dr. Hale recommended “that the children go back to Virginia.” She stated that the “distance between the parents hasn’t been working for a variety of reasons on a variety of levels” and noted that the children “didn’t express an intense attachment . . . to Park City,” but had instead communicated “a temporary feeling.” She emphasized the importance of providing the children with as stable and complete a relationship as possible with each of their parents, which would include ready access to both John and Heidi, along with proximity to relatives, most of whom lived in the eastern United States. She stated that it was particularly important that the children “get to have access to Dad and Mom . . . in a spontaneous way, . . . not according to a strict schedule but in a way that lets them approximate as naturally as they can the need to exploit each parent.”
¶6 When asked how far divorced parents could live from each other and still manage the kind of parental interaction she recommended, Dr. Hale cited research that indicated that “if parents live more than 75 miles apart, . . . the non-residential parent participation . . . drops off precipitously,” and that “parents being within 45 minutes’ drive” is ideal, because it allows for “natural flexibility” in parenting. Noting that Virginia is “traffic-y,” Dr. Hale ultimately recommended that Heidi should live within forty-five minutes of John if she relocated to northern Virginia.
¶7 In reaching its custody determination, the court “relie[d] heavily” on Dr. Hale and found “her written report and [testimony] at trial to be thoughtful, thorough, and sound.” The court decided that a joint physical custody arrangement was in the best interests of the children, with Heidi as the primary caregiver. The court also determined that it was in the children’s best interests to relocate with Heidi to Virginia where John resided. For most of the divorce proceeding, Heidi had indicated that she was not willing to move back to Virginia, but on the second day of trial she told the judge that if he ultimately ordered the children to be relocated to Virginia, she would “follow the children and be with the children.” In its final decree, the court noted that Heidi had “voluntarily agreed to relocate to Virginia so that she can continue to act as the primary caregiver for the children.”
¶8 The court included in its findings and its final decree certain provisions designed to facilitate the children’s transition from Utah to Virginia. The court emphasized that the transition “must be handled carefully and responsibly and with as little disruption to the children as is possible,” and to that end the decree ordered the parties to “develop a transition plan” with the assistance of a transition specialist. The decree required the parties to complete the children’s move to Virginia “no later than January 1, 2015,” but, anticipating that Heidi might not be ready to move immediately from Park City, the court made provisions for their temporary custody with John during the period between the children’s relocation and Heidi’s own move to Virginia. In connection with these transitional arrangements, the court made an effort to ensure that Heidi would move close enough to John to implement the custody evaluator’s recommendation that the location of the children’s residence facilitate spontaneous interactions with both parents: “If Heidi is not residing in Virginia and within 25 miles of John’s residence at the time the children move, then the children will live with John and he will act as the primary caregiver . . . until Heidi relocates.” Then, “[u]pon Heidi’s relocation to Virginia within 25 miles of John’s residence, the children will live with her, [and] she will resume her role as primary caregiver.”
Alimony
¶9 The trial court ordered John to pay Heidi $6,400 per month in alimony. The court noted that it was required to consider several factors in making its alimony award, including Heidi’s “financial condition and needs,” Heidi’s “earning capacity or ability to produce income,” and John’s “ability . . . to provide support.” See Utah Code Ann. § 30-3-5(8)(a)(i)-(iii) (LexisNexis 2013). The court found that Heidi had monthly expenses of $14,758, which included $4,000 of child-related expenses that it noted were “essentially offset” by the child support award of $3,613. In deciding the appropriate amount of income to impute to Heidi, the court relied on the opinions of a vocational expert. Heidi had not worked outside the home during the marriage, but before marrying, she had obtained bachelor’s degrees in History and Russian, with a minor in Soviet Studies, and she had worked as a Russian translator at a law firm from 1990 to 1997. The expert opined that, based on Heidi’s college degrees and the results of vocational testing, “the best option[] for [Heidi] would be public relations specialist,” which had an entry-level salary of about $34,150 yearly, or $2,846 per month before taxes and other deductions. The court ultimately imputed income in that amount to Heidi. After subtracting Heidi’s gross imputed income and the monthly child support payments from her expenses, the court concluded that Heidi had $8,300 of unmet need.
¶10 The court then determined that John’s monthly gross income was $26,667 per month, yielding a net income (i.e., after taxes and other deductions) of $19,733 per month. The court then deducted the $3,613 child support payment, which left John with $16,120 to pay his own expenses and support Heidi. The court then subtracted John’s monthly expenses of $10,000, leaving surplus in the amount of $6,120, which it noted “is close but ultimately insufficient to satisfy . . . Heidi’s unmet need” of $8,300. In arriving at its ultimate alimony determination, however, the court turned to a report and separate calculations prepared by John’s alimony expert. The report assumed that the parties would enjoy equal custody of the children. As a result, its stated goal was to equalize the parties’ standards of living essentially by equalizing the parties’ budgets, reasoning that both parties would need an equal monthly cash flow to provide an equal standard of living for themselves and their children. Based on a number of calculations not easily reconciled with the trial court’s own findings, the report indicated, as the court noted, that “a total monthly support obligation (alimony plus child support) of $10,000 would . . . result in a net, after tax income to [Heidi] of $10,240” and to John “of $10,239.” The court concluded that by using the report’s total support calculation, “both parties’ after tax cash flow would essentially be identical” and “would leave both parties with an essentially identical shortfall in the amounts needed to meet their monthly needs.” As a result, the court adopted the report’s $10,000 “monthly support obligation” figure, and, after deducting John’s child support payment, ordered John to pay the rounded-up balance of $6,400 as alimony to Heidi for a period equal to the length of the marriage.
Attorney Fees
¶11 After the trial concluded, the court issued a May 28, 2014 minute entry (the Minute Entry), as well as its preliminary findings of fact and partial decree, which required the parties to submit proposed findings of fact and conclusions of law by July 9, 2014. The Minute Entry also set out the procedure for each party to request attorney fees:
To the extent either party is requesting that the court allocate some but not all of their attorneys’ fees or costs to the other side, or that the court require the other side to bear the fees and costs incurred in connection with particular tasks or phases of the case, they must provide a calculation of the fees and costs incurred for the particular task or phase at issue. If a party fails to provide a separate calculation of the fees and costs incurred for particular tasks or aspects of the case, the court will not grant those fees and costs. This is because, given the time this case has been pending and the amount of fees incurred, it would be impossible for the court to try and determine from billing records alone how to allocate fees and costs to particular issues in the case. If a party is requesting that the court allocate all of their fees and costs to the other side, they may simply submit a consolidated affidavit of fees and costs. If all the court receives is a consolidated affidavit of fees and costs, it will treat this as a request to allocate all of their fees and costs to the other side.
¶12 Subsequently, Heidi requested in her proposed findings of fact that she be awarded all of her attorney fees or, in the alternative, only those fees associated with pursuing discovery related to John’s employment with and sale of his interest in Sun Management, a company that John owned for a time with his brother. In her request for fees, Heidi did not provide either “a consolidated affidavit of fees and costs” to support her full fee request or “a separate calculation of the fees and costs incurred for” the Sun Management discovery. Instead, she requested that the court give her fourteen days to provide “an updated and complete affidavit of Attorney’s Fees” for either her full fees or the fees related only to the Sun Management discovery. John did not request an award of his own attorney fees; rather, in his proposed findings, he stated that no fees and costs should be awarded to either party.
¶13 The court ordered that each party bear his or her own costs and attorney fees. As pertinent to this appeal, the court concluded that awarding Heidi all her fees would be “patently unreasonable” and “manifestly unjust” because Heidi bore “responsibility for at least half—if not more—of the excessive fees and costs that have been incurred.” The court denied Heidi’s alternative request for fees associated with the Sun Management discovery for three primary reasons. First, the court found that the expenses Heidi incurred were “offset by fees and costs she forced John to incur as a result of her own litigation tactics.” Second, the court noted that “technically John’s brother, not John, [was] responsible for unnecessarily driving up the cost of the Sun Management discovery.” And finally, “Heidi, like John, failed to comply with the court’s May 28, 2014, Minute Entry and has thereby waived any right to recover this portion of her fees.”
Heidi’s Post-Judgment Motion
¶14 Following entry of the final decree of divorce, Heidi filed a motion to amend the judgment under rules 52 and 59 of the Utah Rules of Civil Procedure. Heidi requested two modifications to the court’s decision relevant to this appeal. First, she asked the court to “adjust the order to allow the children to complete the current school year in Park City” rather than relocating to Virginia by January 1, 2015. Second, she asked the court “to clarify” the twenty-five-mile proximity requirement by “[i]ncreasing the radius [of the proximity requirement] to 45 miles, and/or tethering [her] location to a school within a reputable district,” which she asserted “would serve the children’s best interest” and would help to avoid “further court involvement.” Heidi also requested that the court “clarify that [she] is not required to relocate with the children if John’s decision to change his residence causes her to be outside of the radius.”
¶15 The court denied Heidi’s motion. First, it determined that the motion to amend was untimely. Second, the court determined that none of issues she raised “are properly the subject of a motion to amend the judgment.” In particular, the court noted that the decree did not “prohibit either party from seeking relief from the court” about the transition deadline or the “proximity of [Heidi’s] residence to [John’s] residence” if the “transition specialist concludes that complying with the court’s orders . . . would not be in the children’s best interest.” As a result, the court concluded that Heidi’s requests were “purely speculative.”
ISSUES
¶16 First, Heidi argues that the trial court’s twenty-five-mile proximity requirement impermissibly infringes on her constitutional rights to travel and to parent because the requirement is not justified by a compelling interest or narrowly tailored to meet that interest. In particular, she claims that the court erred when it tied her award of primary physical custody to her compliance with the proximity requirement and then refused to relent by not allowing her to choose a location in Virginia “more convenient and affordable for her.”
¶17 Second, Heidi argues that the trial court erred in its alimony calculations and determinations.
¶18 Third, Heidi argues that the trial court erred by denying her request for attorney fees incurred while pursuing discovery related to John’s association with Sun Management.
ANALYSIS
I. The Twenty-Five-Mile Proximity Requirement
¶19 Heidi argues that the trial court erred when it “conditioned the grant of primary custody to her” on living within twenty-five miles of John’s residence. In particular, she argues that the court’s proximity requirement is unconstitutional because it infringes on her fundamental rights to travel and to parent and because the twenty-five-mile requirement “is not narrowly tailored to achieve a compelling state interest.”
¶20 “We review custody determinations under an abuse of discretion standard, giving the trial court broad discretion to make an initial custody award.” Grindstaff v. Grindstaff, 2010 UT App 261, ¶ 3, 241 P.3d 365 (citations and internal quotation marks omitted). We “will affirm the trial court’s custody award so long as the trial court’s discretion is exercised within the confines of the legal standards we have set, and the facts and reasons for the decision are set forth fully in appropriate findings and conclusions.” Id. (citation and internal quotation marks omitted). As we discuss below, Heidi has not preserved her constitutional arguments or persuaded us that the court plainly erred in setting the proximity requirement or refusing to alter it as she requested in her post-judgment motion.
A. Interpretation of the Decree’s Proximity Requirement
¶21 As an initial matter, Heidi characterizes the court’s proximity requirement as engrafting a continuing condition on her award of primary physical custody, requiring her to forfeit custody if she chooses to live outside of the twenty-five-mile radius set by the court (or if John moves to a new residence outside of the twenty-five miles and she declines to relocate in response). As she explains it, “[t]he court overreached Heidi’s agreement to live in Virginia when it conditioned the grant of primary custody to her on her living within ‘25 miles of John’s residence,’” and she requests that we vacate the court’s proximity requirement and instead instruct the court to amend its decree so that Heidi “may continue to have primary custody so long as she lives within the 45 mile radius she agreed to in her post-trial motions.”[3]
[3] Heidi has not challenged the proximity requirement on any legal basis other than its constitutionality. As a consequence, we presume that the court’s overall best interests findings— including the proximity requirement—are otherwise supported by the evidence and in accord with applicable law. See Elmer v. Elmer, 776 P.2d 599, 602 (Utah 1989).
But we do not interpret the trial court’s order as broadly as Heidi does. Rather, the court’s proximity requirement is more properly seen as an initial determination of the children’s best interests in the context of the imminent relocation to Virginia, subject to modification in light of changing circumstances and aimed at ensuring that the children’s transition to Virginia would be “as smooth as possible.” And we believe that the trial court did not exceed its discretion in making this determination.
¶22 The court determined that the children should relocate to Virginia to be closer to John and to extended family in the area, a decision Heidi does not challenge and with which she agreed during trial. The court ordered that Heidi must live within twenty-five miles of John upon relocation to Virginia only after a careful analysis of the custody factors and the children’s best interests. The court determined that “the most critical issue” related to custody was that both parties live “in close proximity to one another so that each parent [could] be meaningfully involved in the children’s lives.” For several years before the trial, the parties had lived across the country from each other, with the children separated geographically from John. The trial court found that, during this time, both parties had “demonstrated a very poor capacity . . . to foster a positive relationship between the children and the other parent” and that Heidi in particular had “taken unreasonable positions and ha[d] minimized the importance of John having regular, uninterrupted contact with the children.” As a result, the long-distance arrangement had been “extraordinarily difficult and damaging to the children,” leading the court to conclude that the proximity issue—and ensuring the opportunity for ongoing, meaningful interaction with each parent—was “[m]ore important than who was the primary caregiver.” In fashioning the proximity requirement, the court relied upon the custody evaluator’s recommendations. The evaluator had recommended that both parents and the children live in Virginia and that the parents reside no more than a forty-five-minute drive from each other, which she stated would be less than forty-five miles due to traffic congestion in northern Virginia near the Washington, D.C. area.
¶23 Further, the court concluded that both Heidi and John were “fit and proper parents,” but it ultimately resolved their “competing claims” in Heidi’s favor because she had been the children’s primary caregiver. See Thomas v. Thomas, 1999 UT App 239 ¶ 7, 987 P.2d 603 (explaining that if there are “competing claims to custody between fit parents under the ‘best interests of the child’ standard, considerable weight should be given to which parent has been the child’s primary caregiver” (citation and internal quotation marks omitted)). As a result, although Heidi was granted primary physical custody, she was nonetheless the relocating party, along with the children. The court accordingly determined that it would be in the best interests of the children for Heidi, upon relocating from Park City, to establish her new residence within twenty-five miles of the place where John was already residing in the Washington, D.C. area. Seen in this light, the court’s decision to describe the twenty-five-mile requirement as specifically applicable to Heidi recognized the practicalities inherent in the circumstances, with the focus on establishing and maintaining the children’s ready access to both parents.
¶24 The court also saw the children’s transition to permanent residence in Virginia as posing particular challenges for their well-being and specifically addressed the transition process in the decree. The court ordered the children to be relocated to Virginia by January 1, 2015, and emphasized that, notwithstanding the mid-school-year transition, their move “must be handled carefully . . . with as little disruption as is possible.” The court ordered the parties to work out a transition plan with a transition specialist to ensure that the move “will be as smooth as possible.” And focusing on a potential complication in the timing of Heidi’s move, the court gave instructions for how the parties were to handle the transition if, “at the time the children move,” “Heidi is not residing in Virginia and within 25 miles of John’s residence.” In that event, the court ordered, physical custody would transfer temporarily to John—“the children will live with John and he will act as the primary caregiver for the children until Heidi relocates,” whereupon Heidi “will resume her role as primary caregiver.”
¶25 And, significantly, following the entry of the final decree, the court indicated that the proximity requirement was based on what it determined to be the best interests of the children at the time of trial but that it was not intended to rigidly apply if the circumstances on which it was based proved materially different than anticipated, even if brought to light during the transition period. In particular, the court stated that the twenty-five-mile requirement “does not prohibit either party from seeking relief from the court in the event the transition specialist concludes that complying with the court’s orders concerning the deadline for the transition or the proximity of [Heidi’s] residence to [John’s] residence would not be in the children’s best interest.” The court noted that, as a consequence, Heidi’s arguments about potential issues with the twenty-five-mile requirement—issues she reasserts on appeal—were “purely speculative” at the time of her motion because neither Heidi nor the children had moved to Virginia at that point and no transition plan had yet been worked out.
¶26 Viewed in this light, the court’s proximity requirement cannot reasonably be interpreted as subjecting Heidi’s award of primary custody to a continuing risk of forfeiture. Rather, it was aimed at ensuring that, as an initial matter, the parties reside close enough to each other to meet the custody evaluator’s recommendation for optimum parental involvement. And because John was already settled and living in Virginia, the proximity obligation was reasonably addressed to Heidi, who would be choosing a new residence upon moving back to Virginia. The court’s order was also entered before either the children or Heidi had relocated and therefore before the parties had any practical experience with the proximity requirement. Indeed, the court itself seemed to suggest that the proximity requirement was an initial determination that was flexible and could be re-evaluated in the event that the transition specialist determined it was not in the children’s best interests. And the decree’s provision for a change of custody to John if “Heidi is not residing in Virginia and within 25 miles of John’s residence” must be interpreted in this context. It is not a continuing threat of automatic transfer of custody from Heidi to John at any time she is residing more than twenty-five miles from him. Rather, the court’s order regarding temporary transfer of custody was fashioned to address potential issues surrounding the relocation of the children to Virginia and the possibility that Heidi’s transition would take additional time.
¶27 Thus, in the context of the parties’ circumstances, the court’s best interests findings, and its transition concerns, we do not think that the decree can be reasonably interpreted to tether Heidi’s residence in Virginia to a twenty-five-mile radius of wherever John might choose to live, on pain of automatically losing primary physical custody of the children to him. To be sure, Heidi is not free under the decree to simply move outside the twenty-five-mile radius without first persuading the court that it will not be detrimental to the children’s interests, but neither can John force her to relocate or lose custody simply by moving further away. Cf. Larson v. Larson, 888 P.2d 719, 723 (Utah Ct. App. 1994) (explaining that requiring forfeiture of primary physical custody if the custodial parent chooses to move is not appropriate unless “there [is] compelling evidence” to justify a determination that removing children from their lifelong primary caregiver is in the children’s best interests).
B. Heidi’s Constitutional Arguments
¶28 Heidi claims that, even though she agreed to relocate to Virginia, the court was not justified in narrowing her choice of where to live to within a twenty-five-mile radius of John’s residence. In particular, she challenges the court’s rejection of her proposal that the proximity requirement be expanded to forty-five miles or be defined by the bounds of a suitable school district rather than John’s residence. Heidi bases her challenge to the proximity requirement on constitutional grounds, arguing that it impermissibly infringes on her constitutional rights to travel and to parent her children. John argues that Heidi has not preserved her constitutional arguments, and we agree.
¶29 “As a general rule, claims not raised before the trial court may not be raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346. To preserve an issue for appeal, “the issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue,” Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 14, 48 P.3d 968, and “the fact that a party is asserting constitutional claims does not excuse him from complying with the preservation rule,” Donjuan v. McDermott, 2011 UT 72, ¶ 21, 266 P.3d 839; see also Holgate, 2000 UT 74, ¶ 11 (explaining that the preservation requirement applies to “constitutional questions”). We will therefore not address unpreserved constitutional claims unless the appellant “can demonstrate that exceptional circumstances exist or plain error occurred.” Holgate, 2000 UT 74, ¶ 11 (citation and internal quotation marks omitted).
¶30 Heidi contends that her constitutional challenges were preserved because the trial court itself twice acknowledged that it did not have authority to order her to relocate from Utah to Virginia. But the trial court’s statements did not mention any constitutional limitations on its authority. The court’s first reference to its authority to order a parent to move was when it responded to the custody evaluator’s recommendation that it would be in the children’s best interests to be “located with their mother and father in Virginia” by stating, “You understand I don’t have the jurisdiction to ask Ms. Vanderzon to do anything in terms of where she lives.” The trial court’s second reference involved a similar statement in its findings and conclusions regarding custody that “it does not have the authority to order either parent to relocate and does not do so here”—a statement made in a footnote to its acknowledgement that the parties themselves had resolved the major issue related to proximity by each volunteering to relocate depending on which parent was awarded primary custody. While these statements certainly demonstrate that the court recognized it lacked authority to order either parent to move to Utah or Virginia, they cannot be interpreted to suggest that the court harbored any doubt, whether constitutionally-based or otherwise, about its authority to make determinations about the children’s best interests, such as the optimal distance between their parents’ residences. Likewise, these statements cannot be reasonably interpreted to suggest that the court had in mind the questions Heidi raises on appeal relating to her constitutional rights to travel and parent. Cf. Kell v. State, 2012 UT 25, ¶ 11, 285 P.3d 1133 (concluding that an issue was preserved where the district court essentially provided its own opportunity to rule on an alleged error being challenged on appeal by deciding “to take up the question” itself below and “conduct[ing] a thoroughgoing analysis” of the issue). In other words, the court in this case did not “take up” the question of how to approach its best interests determinations in light of the specific constitutional rights Heidi raises on appeal. Cf. id.
¶31 Further, as Heidi appears to acknowledge, she did not bring her constitutional arguments to the trial court’s attention during trial. Nor did she make any reference to the constitution in her motion to amend judgment, even though she raised the issue of the proximity requirement there. Cf. Dickman Family Props., Inc. v. White, 2013 UT App 116, ¶¶ 12–13, 302 P.3d 833 (concluding that the appellants had not preserved an argument for appeal where they had been “unambiguously alerted” during a bench hearing regarding the court’s “conception” about the point of law they disputed but failed to bring their argument “to the court’s attention” at that time or in their subsequent objection to the court’s proposed order). Thus, it does not appear that Heidi ever presented the court with an opportunity to consider whether its twenty-five-mile proximity order was constitutionally impermissible in light of Heidi’s rights to travel and to parent. Cf. Brookside Mobile Home Park, 2002 UT 48, ¶ 14; see also Wolferts v. Wolferts, 2013 UT App 235, ¶ 22, 315 P.3d 448 (concluding that the appellant did not preserve the constitutional argument she made on appeal that “limiting her participation to only cross-examination of the witnesses deprived her of her constitutional right to testify and present evidence,” where she made a general objection about the court’s constraints on her presentation of testimony but “did not assert [to the trial court] that she had a constitutional right” to call witnesses and testify).
¶32 Nevertheless, Heidi contends that if her constitutional arguments are unpreserved, we should review them for plain error. “To demonstrate plain error, a defendant must establish that (i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful . . . .” Holgate, 2000 UT 74, ¶ 13 (brackets, citation, and internal quotation marks omitted). “To establish that the error should have been obvious to the trial court, the appellant must show that the law governing the error was clear at the time the alleged error was made. Thus, an error is not obvious if there is no settled appellate law to guide the trial court.” Thomas v. Mattena, 2017 UT App 81, ¶ 13, 397 P.3d 856 (citations and internal quotation marks omitted). An error is prejudicial if, “absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant.” Berkshires, LLC v. Sykes, 2005 UT App 536, ¶ 21, 127 P.3d 1243 (citation and internal quotation marks omitted). Heidi contends that the error was so obvious that the trial court even twice acknowledged “that it did not have authority to do what it ultimately did.” And she argues the error was prejudicial because it “infringed upon [her] right to travel, to choose where she lives, and to parent the way she sees fit, without analysis of whether the twenty-five-mile radius was in fact justified by a compelling state interest.”
¶33 We do not agree that the alleged error would have been obvious to the trial court. As we have noted, the court acknowledged only that it could not order her to relocate; it did not suggest that it could not make a custody determination about the children’s best interests in light of Heidi’s particular constitutional rights. And Heidi has not otherwise demonstrated that the law governing the alleged constitutional errors was clear in Utah at the time the court made its ruling. See State v. Dean, 2004 UT 63, ¶ 18, 95 P.3d 276 (explaining that an error was not obvious where both Utah and federal case law “was not sufficiently clear or plainly settled” on the issue being challenged); Larsen v. Johnson, 958 P.2d 953, 956 (Utah Ct. App. 1998) (concluding that an alleged error was not obvious under plain error review where “the law in Utah and in other jurisdictions is unsettled on this point”).
¶34 For example, Heidi contends that “the federal constitutional right to travel includes the right to choose where one lives and the right to intrastate travel,” and she cites several federal cases in support, including Saenz v. Roe, 526 U.S. 489, 500 (1999), and Jones v. Helms, 452 U.S. 412, 417–18 (1981). But these cases did not involve a state court’s authority to decide where a child should live in the context of a best interests determination in a custody case. E.g., Saenz, 526 U.S. at 492–98 (presenting a challenge under the Privileges or Immunities Clause of the Fourteenth Amendment to the United States Constitution to a state statute that limited the level of welfare benefits to newlyarrived state residents who had resided in the state for less than twelve months); Jones, 452 U.S. at 414–15 (presenting a challenge under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution to a state statute that increased the degree of offense from misdemeanor to felony if a parent willfully and voluntarily abandoned his or her dependent child and then left the state). She also contends that “[s]everal states have recognized the right of intrastate travel as a component of the right of interstate travel,” citing In re White, 158 Cal. Rptr. 562, 567 (Cal. Ct. App. 1979), and In re Marriage of Guffin, 2009 MT 169, ¶ 11, 209 P.3d 225. The courts in those cases determined that there is a right to intrastate travel within their own states and under their own constitutions, but expressly noted that no such right has been found under the federal constitution. See, e.g., In re White, 158 Cal. Rptr. at 567 & n.3; In re Marriage of Guffin, 2009 MT 169, ¶ 11 (explaining that “[t]he federal decisions confirming the right of interstate travel have expressly not decided whether intrastate travel is part of the same right”); see also D.L. v. Unified School Dist. No. 497, 596 F.3d 768, 776 (10th Cir. 2010) (explaining that, under the Fourteenth Amendment, the “substantive due process rights to travel and to establish a residence” “apply only to interstate travel,” not intrastate travel). Heidi cites no Utah case law suggesting that the right of interstate travel has been interpreted to include the right to intrastate travel, much less in the context of a determination of a child’s best interests in a custody context. Nor has she pointed us to any dispositive federal case. Thus, she essentially asks us to decide as a matter of first impression based on an analysis of federal and other-state case law that, in Utah, the Federal Constitution’s right to interstate travel includes the right of intrastate travel and the right to establish a residence, and then apply this concept to circumscribe a trial court’s authority in a custody case to make determinations about where children ought to reside based on their best interests under all the circumstances. To establish that the error should have been obvious to the trial court, Heidi “must show that the law governing the error was clear at the time the alleged error was made.” See Dean, 2004 UT 63, ¶ 16. Heidi has not met that burden here.
[4] Heidi also argues that the court impermissibly conditioned her primary custody award on living within twenty-five miles of John’s residence by requiring her to forfeit her custody if she relocated outside of the twenty-five-mile radius. We have explained that the court’s orders cannot reasonably be interpreted in the way she suggests. Supra ¶¶ 26–27.
¶35 Heidi also argues that the proximity requirement impermissibly infringes on her right to parent, which includes the right to choose where her children live and go to school. She contends that “[t]he right to parent is a fundamental right in Utah” and that Utah has recognized that an infringing action is subject to strict scrutiny review. See Jones v. Jones, 2013 UT App 174, ¶¶ 10–11, 25, 307 P.3d 598, aff’d, 2015 UT 84, 359 P.3d 603. She then argues that the court’s proximity order is “not narrowly tailored to achieve a compelling state interest.” However, “parental rights are not absolute,” see id. ¶ 11, and Heidi concedes that Utah has not “determined what constitutes a ‘compelling state interest’ when determining whether a parent’s right to custody can be conditioned on a parent living in a particular location.” Nonetheless, she contends that we should “look to other areas of Utah law, and the law of other states, for guidance,” essentially conceding that these contentions, too, involve a matter of first impression in Utah. It necessarily follows that it would not have been obvious to the trial court that its proximity requirement—one made in the context of its custody determinations regarding the children’s best interests— impermissibly infringed on her right to parent. See Dean, 2004 UT 63, ¶¶ 16, 18.
¶36 Accordingly, Heidi has not borne her burden of demonstrating that the court plainly erred in failing to consider her constitutional rights to travel and parent in adopting the proximity requirement or in declining to adopt her proposed alterations to it.
II. The Alimony Determinations
¶37 Heidi argues that the court erred when it calculated alimony. In particular, she contends that the court erred by imputing too much income to her, calculating alimony based upon her gross rather than her net monthly income, failing to equalize the shortfall between the parties, and failing to consider the tax consequences of Heidi’s alimony award. She contends that her arguments are preserved, but also that if they are not, we should review them for plain error.
¶38 As we discussed above, to preserve an issue for appeal, “the issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue.” Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 14, 48 P.3d 968. Heidi appears to claim that her arguments were preserved because the trial court addressed the subject matter on which her arguments are based in its preliminary findings of fact and partial decree of divorce and in the court’s subsequent findings of fact and conclusions of law. This is essentially the same preservation argument she made with regard to her constitutional claims discussed above, and it fails for the same reason. While the court’s own findings and orders indicate that the court considered the components of an alimony determination, they do not demonstrate that the court considered the particular arguments Heidi now makes on appeal or that Heidi provided the court with an adequate opportunity to correct the errors she now asserts. See Dickman Family Props., Inc. v. White, 2013 UT App 116, ¶¶ 9, 12–13, 302 P.3d 833. Thus, we conclude that her specific arguments regarding the court’s alimony determinations have not been preserved for appeal, see id., and we review them for plain error.
¶39 “To prevail on a claim of plain error, the appellant must show obvious, prejudicial error.” State v. Hare, 2015 UT App 179, ¶ 9, 355 P.3d 1071. We conclude that the court’s equalization analysis constituted plain error and remand for further proceedings. And because the issues Heidi raises about income imputation and child care may arise again in the course of the court’s reconsideration of its alimony award on remand, we briefly address them as well.
A. Income Equalization
¶40 Heidi argues that the court failed to properly equalize the parties’ incomes in the course of its alimony determination. In particular, she contends that the court “assigned almost all of the shortfall” in income to her. She also argues that the trial court erred by using her gross income to calculate her unmet needs while using John’s net income to determine his ability to pay and that the court erred by failing to equally divide the tax consequences of her alimony award between the parties.
¶41 “Trial courts have considerable discretion in determining alimony . . . and [determinations of alimony] will be upheld on appeal unless a clear and prejudicial abuse of discretion is demonstrated.” Jensen v. Jensen, 2008 UT App 392, ¶ 5, 197 P.3d 117 (alteration and omission in original) (citation and internal quotation marks omitted). Alimony determinations require a trial court to consider three factors relevant here: “(i) the financial condition and needs of the recipient spouse; (ii) the recipient’s earning capacity or ability to produce income; [and] (iii) the ability of the payor spouse to provide support.” Utah Code Ann. § 30-3-5(8)(a)(i)-(iii) (LexisNexis 2013); see also Bakanowski v. Bakanowski, 2003 UT App 357, ¶ 8, 80 P.3d 153.
¶42 In considering an alimony award, “the court should first assess the needs of the parties, in light of their marital standard of living.” Dobson v. Dobson, 2012 UT App 373, ¶ 22, 294 P.3d 591. If the court finds that the recipient spouse—here, Heidi—is “able to meet her own needs with her own income based upon the expenses she reasonably incurred, . . . then it should not award alimony.” Id. However, if the court finds that the recipient spouse is not able to meet her own needs, “then it [should] assess whether [the payor spouse’s] income, after meeting his needs, is sufficient to make up some or all of the shortfall between [the recipient spouse’s] needs and income.” Id. If the parties’ combined resources are insufficient to meet both parties’ needs, the court should “equalize the incomes of the parties.” See id. (citation and internal quotation marks omitted).
¶43 Equalization of income is “better described as equalization of poverty” or, more specifically, as the equalization of “shortfall.” Kidd v. Kidd, 2014 UT App 26, ¶ 26, 321 P.3d 200 (citation and internal quotation marks omitted). This approach is reserved for use “only in those situations in which one party does not earn enough to cover his or her demonstrated needs and the other party does not have the ability to pay enough to cover those needs.” Sellers v. Sellers, 2010 UT App 393, ¶ 3, 246 P.3d 173. “When this situation arises, the trial court must determine how to equitably allocate the burden of insufficient income that occurs when the resources that were sufficient to cover the expenses of a couple must now be stretched to accommodate the needs of two individuals living separately.” Keyes v. Keyes, 2015 UT App 114, ¶ 39, 351 P.3d 90. Because both the propriety of and the calculations necessary for equalization are tied to findings regarding the parties’ respective needs and income, a court must conduct an adequate needs analysis to properly equalize shortfall. See Dobson, 2012 UT App 373, ¶ 21; Batty v. Batty, 2006 UT App 506, ¶¶ 4–6, 153 P.3d 827 (explaining that it is improper for the court to award alimony “as simply an income equalization concept” without going through the required needs analysis (internal quotation marks omitted)). And we have also concluded that a court exceeds its discretion by inequitably dividing the shortfall between the parties. See Keyes, 2015 UT App 114, ¶¶ 38–42 (concluding that the court abused its discretion in its equalization analysis when its award to the wife left the husband “with essentially no income for basic necessities”). This is because “[t]he purpose of equalization is to ensure that when the parties are unable to maintain the standard of living to which they were accustomed during marriage, the shortfall is equitably shared.” Kidd, 2014 UT App 26, ¶ 26.
¶44 In this regard, we have observed that “[e]xact mathematical equality of income is not required, but sufficient parity to allow both parties to be on equal footing financially as of the time of the divorce is required.” Howell v. Howell, 806 P.2d 1209, 1213 n.3 (Utah Ct. App. 1991). This principle recognizes that, under circumstances where one spouse’s legitimate needs exceed the other spouse’s, an unequal division of available income may still result in an equitable sharing of the shortfall. See, e.g., Kidd, 2014 UT App 26, ¶¶ 25–26 (affirming a shortfall equalization where the receiving spouse shouldered a heavier financial shortfall in circumstances where the payor spouse had to exert “extra effort” to attain his income because he had to commute and work in a remote location and had higher monthly expenses as a result, including approximately $900 a month for transportation and rent related to his work); cf. Hansen v. Hansen, 2014 UT App 96, ¶¶ 3–4, 13, 325 P.3d 864 (affirming an equalization analysis that left both parties with an equal monthly shortfall of $521).
¶45 We conclude that the trial court in this case plainly erred by equalizing monthly income between the parties even though it had determined that Heidi’s reasonable needs were significantly greater than John’s, thus burdening her with an inequitable portion of the shortfall between the parties’ resources and the expenses of maintaining separate households. We also conclude that the court plainly erred by using Heidi’s gross income to calculate her needs while using John’s net income to assess his ability to provide support. And because the court will be required to reassess its overall alimony determinations, the court may reconsider on remand whether to equitably allocate the tax consequences of the alimony award between the parties.
1. Failure to Equalize the Parties’ Income Shortfall
¶46 The trial court made findings related to the three basic alimony factors. The court imputed gross monthly income to Heidi of $2,846 but did not determine what her net monthly income would likely be with that level of gross pay. It found that her demonstrated monthly expenses were $14,758, which included child-related expenses. And after deducting Heidi’s imputed gross monthly income and the $3,613 it had awarded for child support, the court determined that she was left with an unmet monthly need of “roughly $8,300.”
¶47 The court found that John’s gross monthly income was $26,667 but then went on to reduce that figure by taxes and other deductions to arrive at a net monthly income of $19,733. After deducting John’s $3,613 child support obligation from his net monthly income, the court determined that John was left with $16,120 to meet his monthly expenses. The court then found that John’s demonstrated expenses were $10,000 per month and that he was therefore left with a monthly surplus of $6,120 to help support Heidi, which was “ultimately insufficient to satisfy Heidi’s unmet need” of $8,300. As a result, the court’s analysis demonstrated that the parties’ combined resources were insufficient to meet their needs, thus requiring the court “to ensure that . . . the shortfall is equitably shared.” Kidd, 2014 UT App 26, ¶ 26.
¶48 Rather than use its own findings to equalize the shortfall, however, the court instead turned to schedules and calculations offered by John’s alimony expert. John’s expert had prepared schedules for both parties, with separate calculations for Utah and Virginia. The schedules used the court’s income determinations for both parties and accounted for tax consequences for each, but they did not appear to incorporate the court’s findings of either parties’ needs. Rather, the expert’s calculations claimed to be based upon the assumption that John and Heidi would equally share custody of the children and reside in the same state and that, as a result, the parties would each incur the same expenses in order to maintain equivalent standards of living. In other words, the expert appears to have assumed that the parties’ living expenses would be equal, and his calculations proposed to equalize the parties’ standards of living by equalizing their income. The expert’s schedules thus represented that awarding Heidi a total support payment—child support and alimony—of roughly $10,000 per month would give both parties a net monthly income of about $10,240, which the expert asserted would allow both parties to maintain equivalent standards of living.
¶49 The trial court adopted the expert’s Virginia schedule and, based on the expert’s calculations, decided that the schedule’s recommendation of a $10,000 total support award would accomplish the task of equitably equalizing the parties’ net monthly incomes. The court then calculated John’s alimony obligation by deducting the monthly child support payment it had previously ordered him to pay—$3,613—from the $10,000 overall support obligation, arriving at a figure of $6,387, which it rounded up to a $6,400 alimony award to be paid monthly by John to Heidi. The court stated that this would provide both parties with an “essentially identical” “after tax cash flow” and “would leave both parties with an essentially identical shortfall in the amounts needed to meet their monthly needs.”
¶50 Heidi contends, in essence, that the court plainly erred when it determined that the recommendations of John’s expert equalized the shortfall between the parties. We agree. Even under the higher burden of persuasion attendant to a plain error review, we conclude that the error should have been obvious based on the court’s own findings that the parties had materially disparate needs, and that it was prejudicial because it resulted in a facially inequitable alimony award.
¶51 Before the court turned to the report of John’s alimony expert, it had determined that there was an approximately $2,180 shortfall in the combined income available to meet Heidi’s needs (John’s available $6,120 subtracted from Heidi’s $8,300 unmet need). And the court apparently concluded that the calculations of John’s expert resolved the shortfall equitably. But nowhere in the report do we see any reference to the needs determinations that the court made for each party after trial. In other words, the expert report does not appear to have analyzed alimony in terms of the parties’ needs using the actual needs the court ultimately determined. Instead, the expert stated that his recommended support award for Heidi was based upon the assumption that the parties would share custody equally and would incur equal expenses to support themselves and their children, a conclusion that appears to be significantly different from the court’s own determination. The expert did not attempt to equitably equalize the parties’ shortfall in light of their disparate needs. Thus, by resting its decision on the expert’s recommendation of a total support award in the amount of $10,000, the court seemed to arrive at an alimony award that failed to equalize the parties’ combined shortfall in available income in light of the court’s own differential needs analysis. See Jensen v. Jensen, 2008 UT App 392, ¶ 13, 197 P.3d 117 (explaining that it is improper to equalize parties’ incomes without the traditional needs analysis).
¶52 In this regard, Heidi’s contention—that the court’s reliance on the expert’s calculations left her with the burden of nearly all of the shortfall—has merit. Before adopting the expert’s calculations, the court determined that Heidi had an unmet need of $8,300, after deducting her imputed income and child support. The court then concluded that John had $16,120 available to cover his expenses and to support Heidi after child support and taxes and ultimately determined that John had $6,120 left for Heidi’s support. The court’s $6,400 alimony award thus left Heidi with a $1,900 monthly shortfall ($6,400 subtracted from her demonstrated unmet need of $8,300). In contrast, this award left John with only a $280 monthly shortfall (the $6,400 award subtracted from the $6,120 he had available to pay). Put another way, between the court’s alimony award, child support, and imputed income ($6,400 plus $3,613 plus $2,846), Heidi appears to have been left with $12,859 in income to meet $14,758 of expenses. In contrast, the court’s alimony and child support awards appear to have left John with $9,720 in income ($19,733 in income minus combined support of $10,013) to meet his monthly needs of $10,000. Thus, because the court had already determined that the expenses of each party were reasonable, its decision to equalize income rather than shortfall—even though Heidi’s needs were greater than John’s—appears to have left Heidi to bear significantly more of the burden of insufficient resources than John.
¶53 Granted, it is nearly impossible for us to reconcile the components of the court’s needs analysis with the assumptions that the expert relied on to reach the conclusions in the report on which the court relied. As a result, we may have misunderstood key underpinnings of the court’s ultimate alimony determination based on that report. But absent further explanation by the court to reconcile the apparent analytical disparities between the court’s own needs determinations and the expert’s calculations, the trial court’s alimony award appears to be facially inequitable. See Keyes v. Keyes, 2015 UT App 114, ¶ 39, 351 P.3d 90 (explaining that “the burden of insufficient income” must be “equitably allocate[d]” between the parties for purposes of equalization); see also Roberts v. Roberts, 2014 UT App 211, ¶ 22, 335 P.3d 378 (vacating and remanding the district court’s alimony award where the findings were inadequate to address and resolve the issues raised regarding alimony). And this inequity seems obvious, based on the contrast between the court’s own determination that the parties had significantly differing needs and the expert’s assumption of equal living expenses for both.
¶54 Accordingly, we must vacate the alimony award and remand for further consideration or, in the alternative, for the court to more adequately justify it based on the evidence at trial.
2. The Failure to Consider Both Parties’ Tax Consequences
¶55 Heidi also argues that the court plainly erred by imputing gross income to her for purposes of its needs analysis but calculating John’s income available for support based on his net income. We agree.
¶56 It is well settled that alimony awards should be equitable. See Utah Code Ann. § 30-3-5(8)(e) (LexisNexis 2013) (explaining that courts are required to “consider all relevant facts and equitable principles” in making alimony awards); Jones v. Jones, 700 P.2d 1072, 1074 (Utah 1985) (explaining that “the trial court may make such orders concerning property distribution and alimony as are equitable”). Heidi is correct that the court imputed gross income to her in determining her ability to support herself, while using John’s net income to determine his ability to provide support to her. In its preliminary findings and conclusions, the court imputed to Heidi a gross yearly income of $34,150, based upon the vocational expert’s report. The vocational expert did not adjust her estimated income for resulting taxes; the expert simply noted that as a public relations specialist, Heidi could earn $34,150 yearly or $2,845.83 monthly. The court imported this preliminary imputation determination into its final findings and conclusions, noting that it had previously ruled that “Heidi is capable of earning $2,846.00 per month,” and imputing that amount to her. The court did not determine what her net monthly income would be, and it used the gross monthly income to ultimately calculate her unmet needs.
¶57 By contrast, the court distinguished between John’s gross and net income. In particular, it found that while John’s monthly gross income was $26,667, his net monthly income was $19,733.
In doing so, the court noted that neither party provided it with “an effective tax rate or with after tax income of the parties,” but by averaging John and Heidi’s effective tax rate based on several years of the parties’ tax returns, the court applied “an effective tax rate of 26%” to John’s income, something it did not do with Heidi’s. The court then used John’s net income to calculate his ability to support Heidi.
¶58 To be sure, we recognize that the trial court ultimately relied upon John’s alimony expert’s calculations in determining alimony, and the expert’s calculations did appear to account for income taxes for both parties. As a result, based upon what the court purported to do below, the ultimate alimony determination did account for income tax consequences for Heidi as well as John. But, as we have explained, it does not appear that the expert’s ultimate alimony recommendation accounted for the disparate needs findings that the court actually made, and we have been unable on appeal to reconcile the court’s reliance on the expert’s calculations with the court’s actual needs findings.
¶59 Thus, as it stands, and because the court will be required to re-evaluate the alimony determination and its reliance upon John’s alimony expert’s calculations on remand, it seems obvious from the court’s own findings that it calculated Heidi’s needs based on her gross monthly income and John’s ability to support her based on his net monthly income. It would be inequitable to calculate the parties’ respective incomes in this way, should the court decide to use its own income calculations on remand, because it would result in Heidi’s ability to support herself being unrealistically overvalued and, as a consequence, her unmet needs being understated in comparison to John’s ability to provide support. Thus, if the court assesses John’s ability to meet Heidi’s needs on a net basis, it should ensure that Heidi’s ability to meet her own needs is also assessed on a net basis. Cf. McPherson v. McPherson, 2011 UT App 382, ¶¶ 13, 15–16, 265 P.3d 839 (explaining that “[a] sufficiently detailed finding regarding . . . the payor spouse’s ability to pay . . . includes consideration of the payor spouse’s tax obligations,” and concluding that the court had exceeded its discretion in part by calculating the husband’s alimony obligation using his gross, not net, income).
3. The Failure to Consider the Tax Consequences of the Alimony Award
¶60 Heidi also argues that the trial court plainly erred by failing to equitably divide the tax consequences of its alimony award between the parties. She contends that, because she will be taxed on her alimony award while John can deduct it from his gross income in calculating his taxable income, the tax effect of the award should be allocated equitably between them. For example, she argues that the court should have determined the taxes Heidi will pay on the alimony award, divided that amount in two, and required each party to bear exactly half of this burden. This would further increase her alimony award and decrease her shortfall, but it would certainly increase John’s shortfall, as well.
¶61 On remand, the trial court must revisit the alimony award and may consider allocating the tax burden of the alimony award between the parties, should it determine that it is appropriate to do so in the interests of equity. In making this observation, we note that, contrary to what Heidi appears to argue, an equitable alimony award does not necessarily mean that the parties must share burdens in exact mathematical equality. See Howell v. Howell, 806 P.2d 1209, 1213 n.3 (Utah Ct. App. 1991) (explaining that “[e]xact mathematical equality of income is not required, but sufficient parity to allow both parties to be on equal footing financially as of the time of the divorce is required”). Rather, in awarding alimony, the court must “consider all relevant facts and equitable principles.” See Utah Code Ann. § 30-3-5(8)(e) (LexisNexis 2013). And in no case may the trial court award Heidi more alimony than her demonstrated need. Bingham v. Bingham, 872 P.2d 1065, 1068 (Utah Ct. App. 1994) (explaining that the recipient spouse’s demonstrated needs “constitute the maximum permissible alimony award”).
B. Imputation of Income to Heidi
¶62 Next, Heidi argues that the court plainly erred by “fail[ing] to adhere to the required imputation analysis set forth” in Utah Code section 78B-12-203(7). See Utah Code § 78B-12-203(7) (LexisNexis 2012).[5]
[5] Utah Code section 78B-12-203 was recently amended, with the amendment to take effect in May 2017. We cite the provisions in effect at the time of the trial.
She also contends that the court failed to take into account child care needs as required by section 78B12-203(7)(d). In this regard, she asserts that “[b]ecause the court failed to enter adequate findings, and because the vocational expert’s report is significantly lacking, the court was authorized . . . to impute to Heidi only the federal minimum wage.” As we have noted, Heidi did not bring her arguments related to income imputation and child care needs to the attention of the trial court, and therefore, they were not preserved below. She requests that we address these issues under the plain error doctrine, contending that the error was obvious because “the trial court failed to adhere to the statutory scheme plainly set forth” in section 78B-12-203(7) and that the error was harmful because the court imputed too much income to her. We conclude that the court did not plainly err.
¶63 In determining an alimony award, the trial court is required to consider the recipient spouse’s “earning capacity or ability to produce income.” Utah Code Ann. § 30-3-5(8)(a)(ii) (LexisNexis 2013). A trial court “may impute income to an underemployed spouse.” Fish v. Fish, 2010 UT App 292, ¶ 14, 242 P.3d 787 (citation and internal quotation marks omitted). Any income imputation must “be based upon employment potential and probable earnings as derived from employment opportunities, work history, occupation qualifications, and prevailing earnings for persons of similar backgrounds in the community.” Utah Code Ann. § 78B-12-203(7)(b). “If a parent has no recent work history[,] . . . income shall be imputed at least at the federal minimum wage for a 40-hour work week,” and if greater income is imputed, “the judge . . . shall enter specific findings of fact as to the evidentiary basis for the imputation.” Id. § 78B-12-203(7)(c). Nonetheless, income may not be imputed if “the reasonable costs of child care for the parents’ minor children approach or equal the amount of income the custodial parent can earn.” Id. § 78B-12-203(7)(d)(i). We conclude that Heidi has not demonstrated that the trial court plainly erred in its findings or by adopting the vocational expert’s report and testimony to support its decision to impute income.
¶64 Heidi argues that the trial court’s findings supporting its decision to impute income are inadequate. She also argues that the court’s findings cannot be “inferred from the vocational expert’s report or testimony,” because the vocational expert’s analysis “does not account for the fact that Heidi lacks the skills to obtain employment without spending time and money to update those skills”; does not address Heidi’s concerns regarding other barriers to employment; and “says nothing about [Heidi’s] employability in Virginia.” Finally, Heidi claims that neither the expert nor the court considered the cost of child care in relation to her earning capacity or any special needs of her children as the imputation statute requires.
1. The Court’s Imputation Findings and the Vocational Expert’s Report
¶65 Heidi is correct that the trial court’s own findings in support of its imputation determination were not exhaustive: “Based on the testimony of the vocational expert, . . . and the parties, the Court determined that the income of $34,150 per year should be attributed to [Heidi].” And according to the imputation statute, because it was undisputed that Heidi had “no recent work history,” the court was required to “enter specific findings of fact as to the evidentiary basis” to justify imputing more than federal minimum wage. See Utah Code Ann. § 78B-12-203(7)(c). However, we may affirm if we can infer the necessary findings from the vocational expert’s report and testimony. See Rayner v. Rayner, 2013 UT App 269, ¶ 11, 316 P.3d 455 (explaining that we may affirm “the trial court’s decision to impute income, absent outright expression of the statutorily mandated finding, if the absent findings can reasonably be implied” by the evidence (citation and internal quotation marks omitted)). And here, the expert’s report addresses all of the factors required by section 78B-12-203(7)(b), which states that income imputation “shall be based upon employment potential and probable earnings as derived from employment opportunities, work history, occupation qualifications, and prevailing earnings for persons of similar backgrounds in the community.”
¶66 The report addressed Heidi’s “potential and probable earnings” based on employment possibilities the vocational expert identified as within Heidi’s capabilities, concluding that among the best options were public relations specialist, market research analyst, and general sales representative. The expert included comparisons of the entry-level salary and earnings potential for each of the options. She noted that Heidi had bachelor’s degrees in History and Russian with a minor in Soviet Studies, and that she had worked as a Russian translator from 1990 to 1997. While the expert concluded that Heidi’s skills as a Russian translator were likely not “transferable at present due to the length of time since she has used the Russian language,” she also noted that Heidi’s occupational qualifications nevertheless included her college education and degrees, as well as some computer skills. The expert accordingly recommended entrylevel positions that would capitalize on her degrees as well as allow her to gain experience in another field. In this regard, the report indicated that a bachelor’s degree was required for two of the three recommended positions—entry-level public relations specialist and market research analyst.
¶67 The vocational expert’s testimony at trial corroborated the information she included in her report. She testified that, based on Heidi’s education and the results of vocational testing, she “thought that some of the best options for [Heidi] would be public relations specialist, also market research analyst, and then a general sales representative.” And she testified about the starting salary for each of the three options as well as a salary Heidi could attain if she maximized her earning potential—for the public relations specialist the entry-level salary was $34,150 yearly, or approximately $2,846 per month.
¶68 Contrary to Heidi’s claims, the expert’s analysis does address barriers to Heidi’s employment. For example, the expert addressed “the fact that Heidi lacks the skills to obtain employment without spending time and money to update those skills.” The expert testified that Heidi would need to “update her skills in some areas to qualify for these positions,” such as computer skills, but she considered those challenges to be relatively “small things,” requiring, for example, about three months of training for a maximum cost of $300 to $400 to update Heidi’s computer skills.
¶69 The expert also “address[ed] Heidi’s concerns regarding other barriers to employment.” The report listed Heidi’s perceived barriers, including her mandatory volunteer commitments at her children’s schools, child care needs, the jobs she could qualify for not offering her enough money, re-entering the work force after a lengthy employment gap, the added stress of being a working mother, and being able to pursue more education. The expert acknowledged during trial that these were barriers that Heidi might “face getting back into the workforce.” In addition, the report mentioned other employability deficits the expert considered applicable, such as Heidi’s lack of up-todate computer skills, recent work experience, and a return-towork plan. Because all of these concerns about Heidi’s employability were included in the report and in the expert’s testimony, it cannot be obvious that the expert failed to address them or that the trial court failed to take them into account in making its imputation determination and ultimately accepting the evaluator’s recommendations. See Rayner, 2013 UT App 269, ¶ 11.
¶70 Further, Heidi has pointed to no evidence presented to the trial court that would have elevated her particular employability concerns above those normally experienced by other working parents. Indeed, as to child care, the only evidence she points to on appeal is her testimony that she would have to find surrogate care to “have the kids taken care of” while she worked. Cf. id. (explaining that missing findings may be harmless where “the undisputed evidence clearly establishes the factor or factors on which findings are missing” (citation and internal quotation marks omitted)). And she does not identify any other evidence presented at trial that might have undermined the significance of her college degrees in the vocational expert’s and the court’s determination that she would be qualified for entry-level positions with starting salaries higher than the federal minimum wage. Cf. id. It cannot be plain error for a trial court to rely on the conclusions and recommendations in a vocational expert’s report and testimony to impute income when the report and testimony address the required factors in Utah Code section 78B-12-203 and the party challenging the determination presented limited or no evidence to refute the relevant areas of the expert’s assessment.
¶71 Finally, while Heidi is correct that the report does not address her employability in Virginia, the vocational expert testified that she considered only Utah employability because Heidi “had indicated that she’d planned to stay [in Utah].” As the trial court also noted, before trial Heidi “maintained that under no circumstances would she move back to Virginia” and she did not retract that position until the second day of trial. We cannot fault either the expert or the court for failing to consider employability in Virginia under the circumstances. Cf. State v. Winfield, 2006 UT 4, ¶ 15, 128 P.3d 1171 (explaining that, under the invited error doctrine, appellate review of an issue is precluded because “a party cannot take advantage of an error committed at trial when that party led the trial court into committing the error” (citation and internal quotation marks omitted)).
2. The Statutory Exceptions to Income Imputation
¶72 Heidi also argues that the court plainly erred by “overlook[ing] the question of child care” contrary to the requirement of Utah Code section 78B-12-203(7)(d). She contends that the trial court ought to have factored in the cost of child care in Virginia to determine whether that amount “approach[ed] or equal[ed] the amount of income [she] could earn.” See Utah Code Ann. § 78B-12-203(7)(d)(i) (LexisNexis 2012). She also argues that the court ought to have considered whether “unusual emotional or physical needs” of her children
“require[d] [her] presence in the home.” See id. § 78B-12203(7)(d)(iv). But Heidi has pointed to no evidence presented at trial regarding the costs of child care in either Utah or Virginia. And even if she had, the trial court ordered that “[t]he parties shall share equally any reasonable or work related child care costs” and awarded Heidi child support of roughly $3,600 a month. Thus, to the extent that Heidi might incur child care costs while working, both parties would bear those costs, alleviating some strain on her income. Similarly, she has identified no evidence that her children had unusual needs that would preclude her from working.
¶73 Because income imputation was a significant issue at trial and Heidi has not identified any point during or after trial that she called any imputation exception to the trial court’s attention, it would not have been obvious to the trial court that Heidi’s potential child care costs or her children’s particular needs implicated statutory exceptions to imputation of income in her case. It cannot be plain error for a court to make no findings about such an issue when it was not raised, and Heidi cannot show prejudice if the trial court was provided no evidence from which it might have made a different decision. Berkshires, LLC v. Sykes, 2005 UT App 536, ¶ 21, 127 P.3d 1243 (explaining that an error is prejudicial if, “absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant” (citation and internal quotation marks omitted)).
III. The Trial Court’s Attorney Fees Determinations
¶74 Heidi argues that the trial court erred in denying her request for attorney fees and costs related to her discovery efforts involving John’s interest in and work with Sun Management. She contends that the court failed to consider the required factors for awarding fees. And she contends that the trial court’s reasons for denying fees are otherwise “inconsistent, inequitable, and unsupported by the record.” We affirm the trial court’s attorney fees determination.
A. Failure to Consider the Attorney Fees Factors
¶75 Heidi first argues that the court failed to consider the appropriate factors for awarding attorney fees. Quoting Ouk v. Ouk, 2015 UT App 104, 348 P.3d 751, she asserts that although “the decision to award fees and the amount of such fees are within the trial court’s discretion,” the trial court failed to address the required factors: “evidence of the financial need of the receiving spouse, the ability of the other spouse to pay, and the reasonableness of the requested fees.” See id ¶ 16 (citations and internal quotation marks omitted). And she contends that the reasons the court did give for its denial of fees are incorrect as a matter of law.
¶76 Below, Heidi requested that the trial court award her all the fees and costs she had incurred in the case and, in the alternative, she asked for an award of the fees related to the Sun Management discovery. Both requests were made under Utah Code section 30-3-3, which provides,
[I]n any action to establish an order of custody, parent-time, child support, alimony, or division of property in a domestic case, the court may order a party to pay the costs, attorney fees, and witness fees, including expert witness fees, of the other party to enable the other party to prosecute or defend the action.
Utah Code Ann. § 30-3-3(1) (LexisNexis 2013). In determining whether to award fees under this section, the trial court must consider the requesting spouse’s financial need, the other spouse’s ability to pay, and the reasonableness of the fees. See Ouk, 2015 UT App 104, ¶ 16.
¶77 On appeal, Heidi does not challenge the trial court’s decision to deny an award of all her fees. Rather, she contends that the court failed to consider the required factors in denying her Sun Management fees request. But by focusing on only the court’s findings related to Sun Management, Heidi fails to consider the court’s decision in the context of all of its findings related to attorney fees. Our approach to interpretation of judicial orders is similar to the way we interpret contracts. Iota LLC v. Davco Mgmt. Co., 2016 UT App 231, ¶ 33, 391 P.3d 239. “In interpreting a contract, [w]e look to the writing itself to ascertain the parties’ intentions, and we consider each contract provision . . . in relation to all of the others, with a view toward giving effect to all and ignoring none.” WebBank v. American Gen. Annuity Service Corp., 2002 UT 88, ¶ 18, 54 P.3d 1139 (alteration and omission in original) (citation and internal quotation marks omitted); see also New York Ave. LLC v. Harrison, 2016 UT App 240, ¶ 21, 391 P.3d 268 (explaining that we interpret a contract “as a whole” according to its plain language). Thus, rather than focusing narrowly on the court’s denial of Heidi’s request for the Sun Management discovery costs and fees, we consider the court’s decision in relation to all of the findings and determinations it made as to the parties’ requests for attorney fees.
¶78 This approach is especially appropriate here for two reasons. First, Heidi requested an award of fees for the whole case or, in the alternative, for only the Sun Management portion, and she requested both under section 30-3-3(1). And second, the court analyzed her request for Sun Management-related attorney fees in a single order addressing that narrower request within the broader context of its observations on the parties’ approach to the whole litigation. Viewed in that light, it is apparent that the court addressed the required factors in denying Heidi her fees and costs.
¶79 In its final findings of fact and conclusions of law, the court found,
At the beginning of this case, the parties had roughly $1.8 million in liquid assets available to them jointly, and this fund was used to pay both parties’ attorneys’ fees and costs. Because these joint funds were available to and were used by the parties to fund the litigation, the court cannot conclude that either party is in greater need of funds for the litigation or that either party lacked sufficient resources to pay for attorneys’ fees and costs.
¶80 The court also noted that the total attorney fees in the case amounted to approximately $1.2 million—in other words, that the fees spent had not yet exceeded the assets available for fees. But it noted that nevertheless “substantially all of the assets available for division among the parties have been spent by them on attorneys’ fees and costs—which, of course, the parties are perfectly free to do.”
¶81 The trial court also made findings regarding the reasonableness of the fees the parties had incurred in the case as a whole. The court found that “the custody issues in this case [were] unusually complex and contentious” and “warranted an unusual amount of attorney and expert costs.” However, the court noted that “the majority of the money spent in this case was on matters unrelated to the custody determination.” Instead, it found that “[b]oth parties have litigated essentially every issue in this case aggressively and unreasonably.” And it found that “both parties have caused the fees and costs in this case to skyrocket out of control.” Focusing specifically on Heidi’s approach to the litigation, the court noted that she “chose to employ numerous different lawyers and law firms to represent her in the course of this case, filed numerous unnecessary motions, resisted what should have been simple issues to resolve, and sought several continuances, all of which drove up the cost.” And it concluded that “both parties made a conscious, fully-informed decision to devote to this legal battle the vast majority of the financial resources available to this estate.” Based on this reasoning, the court determined that awarding Heidi all her fees would be “manifestly unjust,” a determination she does not challenge on appeal.
¶82 With respect to the Sun Management fees in particular, the court denied Heidi’s request “for at least the following reasons”: (i) the Sun Management discovery fees and costs were “offset by fees and costs she forced John to incur as a result of her own litigation tactics”; (ii) “John’s brother, not John, is responsible for unnecessarily driving up” the discovery costs, though the court noted that it believed “John played a considerable role in this”; and (iii) Heidi “failed to comply with the court’s May 28, 2014, Minute Entry” setting out the requirements for submission of fee requests.
¶83 When viewed as a whole, the court’s findings clearly address the statutory factors. The court found that Heidi had no need for assistance because funds for litigation expenses remained available in the marital estate, and that due to the unreasonable litigation tactics of both parties, the fees incurred had “skyrocket[ed] out of control.” Indeed, the court found that both parties had “litigated essentially every issue” in the case unreasonably, a statement broad enough to encompass the issues related to Sun Management discovery. Heidi fails to deal with or challenge these findings in her opening brief.[6] Cf. Duchesne Land, LC v. Division of Consumer Prot., 2011 UT App 153, ¶ 8, 257 P.3d 441 (explaining that an appellant must address the basis of the district court’s decision to persuade a reviewing court that the district court has erred).
[6] For the first time in her reply brief, Heidi seems to acknowledge that the court’s finding regarding the availability of litigation funds from the $1.8 million in the marital estate addressed the “need” factor, and in doing so, she contends that this finding is not sufficient to resolve the issue of Heidi’s need or John’s ability to pay, particularly in light of the parties’ relative earning potentials and the harsher effect of the marital estate’s dissipation on Heidi. However, this is essentially an attack on the correctness of the court’s overall need finding, and one that Heidi did not attempt to make in her opening brief. Thus, because she raises this argument for the first time in her reply brief, we decline to address it. “[W]e do not consider arguments raised for the first time in an appellant’s reply brief.” Mower v. Simpson, 2012 UT App 149, ¶ 39, 278 P.3d 1076.
¶84 Further, the court’s specific findings related to the Sun Management fees necessarily incorporate the court’s overall findings regarding the needs and financial resources of the parties and the reasonableness of the fees that have been incurred. See WebBank v. American Gen. Annuity Service Corp., 2002 UT 88, ¶ 18, 54 P.3d 1139. Indeed, the court’s finding that the fees Heidi incurred through discovery are offset by fees and costs she forced John to incur flows directly from its overarching conclusion that both parties had unreasonably increased the costs of litigation in the case and that each had made “a conscious, fully-informed decision to devote to this legal battle the vast majority of the financial resources available.”[7]
[7] To the extent Heidi argues that the court’s assessment of the attorney fee factors is not supported by the record, Heidi’s entire challenge on this point is one sentence: “Moreover, the court’s decision is incorrect as a matter of fact because its decision does not comport with the record.” This is insufficient to persuade us that the court’s factual findings are clearly erroneous, and we decline to address this contention further.
We cannot fault the court for declining to award Heidi her requested fees after it had determined that she not only did not need an award of fees to “enable [her] to prosecute” the issues related to Sun Management, see Utah Code Ann. § 30-3-3(1) (LexisNexis 2013), but also that her request was unreasonable in light of her overall strategy of “aggressively and unreasonably” litigating “every issue,” see Dahl v. Dahl, 2015 UT 79, ¶¶ 176, 177–79 (concluding that the appellant’s fee request was unreasonable where the “litigation strategy . . . was inefficient, ineffective, and unjustifiably costly”). See also Osguthorpe v. Osguthorpe, 804 P.2d 530, 537 (Utah Ct. App. 1990) (per curiam) (“Before a court will award attorney fees, the trial court must find the requesting party is in need of financial assistance and that the fees requested are reasonable.”).
B. The Denial of Attorney Fees on Other Grounds
¶85 Heidi also claims that, even if the court did address the statutory factors, the court’s denial of Sun Management fees was otherwise “inconsistent, inequitable, and unsupported by the record.” For example, she points out that although the court found that Heidi’s own litigation tactics offset the fees she incurred related to the Sun Management discovery, John’s brother testified that Sun Management paid its own fees, which she asserts allowed Sun Management “to drive up litigation at Heidi’s expense,” without John himself incurring any “corresponding expense.” She contends that, as a matter of equity, the court should have required John to bear half of the Sun Management fees personally rather than “requiring Heidi to bear her share of attorney fees while John shares his attorney fees with his company.” She also contests the trial court’s alleged finding that she drove up the costs related to the custody litigation, contending that John was to blame for driving up those costs.
¶86 But a court making its attorney fees determination in a divorce case under section 30-3-3(1) is not required to “equalize the pain in attorney fees and punish both parties equally for unnecessarily aggravating the litigation.” Attorney fees under section 30-3-3 are not punitive in nature or awarded to equalize the “pain” of the litigation between the parties. Cf. Roberts v. Roberts, 2014 UT App 211, ¶ 47, 335 P.3d 378 (explaining that “the purpose of divorce proceedings should not be to impose punishment on either party” (citation and internal quotation marks omitted)). Rather, they are awarded based on a court’s assessment of the circumstances surrounding the receiving party’s need for the fees to “prosecute or defend” the case. See Utah Code Ann. § 30-3-3(1); Connell v. Connell, 2010 UT App 139, ¶ 29, 233 P.3d 836 (explaining that, under section 30-3-3(1), “the moving spouse’s need is a sine qua non” of the award); Ostermiller v. Ostermiller, 2008 UT App 249, ¶ 7, 190 P.3d 13 (explaining that “so long as [the wife] has sufficient resources to meet her needs [for attorney fees], [the husband] need not pay [the wife’s] attorney fees, even if he has more money at his disposal with which to pay his own fees and will have more money to spare than will [the wife]”), aff’d in part, rev’d in part on other grounds, 2010 UT 43, 233 P.3d 489. As a result, for purposes of section 30-3-3(1), whether Sun Management instead of John paid the discovery fees is not relevant to the court’s assessment of whether Heidi needed an award of fees to enable her to pursue discovery of Sun Management.
¶87 Further, Heidi’s contention regarding the court’s view of her role in the custody litigation is misplaced. The court made no finding that suggested Heidi was primarily responsible for driving up the fees related to custody of the parties’ children. Instead, it found that Heidi had been responsible “for at least half—if not more—of the excessive fees and costs that have been incurred” throughout the entire case, and that although the custody issues in the case were “unusually complex and contentious,” “the majority of the money spent in this case was on matters unrelated to the custody determination.” (Emphasis added.) Thus, to the extent that Heidi is challenging the court’s characterization of her role specifically in relation to the custody fees as a way to argue that the court’s decision was incorrect, we see no support for her contention in the court’s attorney fees decision.
¶88 Accordingly, we are not persuaded that the court exceeded its discretion when it denied Heidi her request for fees related to Sun Management discovery.[8]
[8] Heidi also argues that the trial court erred by concluding that she waived her entitlement to attorney fees related to Sun Management by failing to comply with the procedure set out in its Minute Entry. However, because we conclude that the court’s denial of her fee request was within its discretion and supported by its findings, we do not reach the issue of whether the court incorrectly determined she had waived her fee claim.
Contrary to Heidi’s assertions, the court did consider the required factors, and we do not agree that the court’s decision otherwise exceeded its broad discretion. As a result, we also deny Heidi’s request for attorney fees on appeal. See Tobler v. Tobler, 2014 UT App 239, ¶ 48, 337 P.3d 296 (explaining the general rule that “we award appellate attorney fees and costs when a party was awarded fees and costs below and then prevails on appeal” and declining to award the wife the attorney fees incurred for her successful appeal because the “district court expressly ordered both parties to bear their own attorney fees and costs”).
CONCLUSION
¶89 Heidi appealed the court’s decisions in this case in three areas, contending that the court erred in requiring that she reside in Virginia within twenty-five miles of John; that various of its alimony determinations were improper; and that she should have been awarded partial attorney fees and costs below.
¶90 We conclude that the court did not err in establishing the proximity requirement. Regarding alimony, we conclude that the court did not err by imputing income to Heidi based upon the vocational expert’s report. However, we have decided that the court may have erred by relying upon John’s alimony expert’s calculations in the way it did. In the alternative, we have determined the court’s explanation of its equalization decision to be inadequate to support a conclusion on appeal that it was equitable. We also conclude that the court erred by using Heidi’s gross income to calculate her needs while using John’s net income to determine his ability to pay. On remand, the court may also consider, in its discretion, whether to allocate the tax consequences of its alimony award as a matter of equity. Finally, we conclude that the court did not err in declining to award Heidi partial attorney fees and costs.
¶91 Accordingly, we remand the case to the trial court for further proceedings consistent with our decision.
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