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Tag: Utah Court of Appeals

What Are the Standards for Appeal That Usually Apply in a Utah Case?

See 2024 UT App 54 – Tilleman v. Tilleman, which recites many of them:

¶26 . . . Generally, we review a trial court’s custody award for an abuse of discretion. See T.W. v. S.A., 2021 UT App 132, ¶ 15, 504 P.3d 163. “This discretion is broad; indeed, as long as the court exercises it within the confines of the legal standards we have set, and the facts and reasons for the decision are set forth fully in appropriate findings and conclusions, we will not disturb the resulting award.” Id. (quotation simplified). But whether the court correctly interpreted the legal standards set forth in sections 30-3-10 and 30-3-10.2 is a question of law that we review for correctness. See Ross v. Ross, 2019 UT App 104, ¶ 8, 447 P.3d 104. See also State v. De La Rosa, 2019 UT App 110, ¶ 4, 445 P.3d 955 (stating that because “trial courts do not have discretion to misapply the law,” “the abuse-of-discretion standard of review will at times necessarily include review to ensure that no mistakes of law affected a lower court’s use of its discretion”) (quotation simplified).

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

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

¶28  “We review the district court’s interpretation of statutory requirements for correctness” and “the court’s ultimate imputation of income . . . for abuse of discretion.” Burggraaf v. Burggraaf, 2019 UT App 195, ¶ 23, 455 P.3d 1071 (quotation simplified).

¶29  “We review a district court’s decision to award attorney fees pursuant to this statute (Utah Code § 30-3-3) for an abuse of discretion,” Gardner v. Gardner, 2019 UT 61, ¶ 16, 452 P.3d 1134, but review its underlying legal conclusions for correctness, see De La Rosa, 2019 UT App 110, ¶ 4.

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

2024 UT App 54 – Tilleman v. Tilleman

THE UTAH COURT OF APPEALS

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

Opinion No. 20210637-CA Filed April 11, 2024

Fourth District Court, Provo Department

The Honorable M. James Brady No. 164402522

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

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

ORME, Judge:

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

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

BACKGROUND[1]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

¶24      Father appeals.

ISSUES AND STANDARDS OF REVIEW

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

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

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

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

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

ANALYSIS

I. Legal Custody Factors

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

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

A.        Statutory Interpretation

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

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

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

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

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

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

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

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

B.        Consideration of All Relevant Factors

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

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

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

C.        Comparative Findings

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

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

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

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

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

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

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

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

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

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

II. Emotional Abuse

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

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

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

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

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

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

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

III. First Expert’s Testimony

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

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

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

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

IV. Mother’s Imputed Income

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

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

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

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

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

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

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

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

V. Attorney Fees and Costs

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

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

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

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

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

¶75      Subsection (2) provides,

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

[14] On this point, Father contends that our decision in Twitchell v. Twitchell, 2022 UT App 49, 509 P.3d 806, requires a trial court to make a finding on all evidence presented by either party. Father misinterprets that decision. In Twitchell, we determined that “to ensure that the trial court’s custody determination, discretionary as it is, is rationally based, it is essential that the court set forth in its findings of fact not only that it finds one parent to be the better person to care for the child, but also the basic facts which show why that ultimate conclusion is justified.” Id. ¶ 24 (quotation simplified). The premise of Twitchell is not that a court must make a specific finding regarding each piece of evidence, but simply that a court must make findings on the “basic facts” that support its ultimate conclusion.

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

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

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

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

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

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

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2024 UT App 43 – domestic violence appeal

State v. Arce – 2024 UT App 43

THE UTAH COURT OF APPEALS

STATE OF UTAH, Appellee, v. JOSE FELIPE ARCE, Appellant.

Opinion No. 20220006-CA Filed March 28, 2024

First District Court, Logan Department The Honorable Brandon J. MaynardNo. 191100762

Freyja Johnson, Emily Adams, and Hannah Leavitt-Howell, Attorneys for Appellant, assisted by law student Ryder Seamons[1]

Sean D. Reyes and Marian Decker, Attorneys for Appellee, assisted by law student Rebecca Barker

JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES RYAN D. TENNEY and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1        A domestic dispute ensued on an emotional evening after Jose Felipe Arce had returned home from attending the birth of a child he believed he fathered as a result of an affair. Arce does not dispute that an argument occurred. He denies, however, that he hit or choked his spouse (Wife). This appeal centers on Wife’s statements near the time of the event and her complete recantation at trial. Arce claims numerous errors, including that the trial court should not have allowed the State to compel Wife to invoke her Fifth Amendment right 47 times in front of the jury, a deputy should not have been allowed to vouch for a particular version of Wife’s testimony, the State and a witness should not have used the word “victim” 29 times, and these errors cumulatively prejudiced him. Although we do not endorse the approach taken by the trial court or the parties, we affirm the convictions.

BACKGROUND

¶2           The State charged Arce with, and the jury convicted him on, one count of aggravated assault (domestic violence) and five counts of domestic violence in the presence of a child. At the center of this appeal are the different versions of events as related by Wife. We recite the facts in a light most favorable to the jury’s verdict. See State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346.

Alleged Assault and Wife’s Statements in the Subsequent Hours and

Days

¶3           In July 2019, Arce visited the hospital for the birth of a child whom both Arce and Wife believed he may have fathered with another woman. Wife described the day as an emotional one filled with tears. When Arce returned from the hospital, the couple decided to take their kids swimming at a hot springs resort. The couple talked about the difficult situation on the drive there, with more crying from Wife. On the drive home, their conversation escalated into an argument while the children slept in the back seat. After Arce asked for forgiveness, Wife said she had forgiven him for “many things” but “this was just too much.” Arce pulled the car over, and Wife said that the two “couldn’t be together anymore.” Wife later told police and neighbors that after pulling over, Arce hit and choked her.

¶4          Arce then drove the family home, and he told the children to go inside. Wife later told police and neighbors that, as they continued arguing, Arce hit her, threw her to the ground, kicked her, pulled her hair, tried to choke her, and threatened to hit her with a beer bottle.

¶5          At this point, Wife ran to her neighbor’s (Neighbor) home. Neighbor could hear Arce yelling as she opened the door to find Wife out of breath, shaking, and crying. Wife was in a t-shirt with no pants. Neighbor and her husband (Neighbor’s Husband) believed Wife was seeking safety. Wife told them Arce was trying to hurt her. She also told the couple she wanted Arce out of the house. She then recounted the earlier fight that had happened during the drive home, including that after arriving home Arce had hit and kicked her and tried to choke her. Neighbor did not see any injuries on Wife. Neighbor’s Husband said that he saw “a red mark kind of on her collarbone on her left side.”

¶6          Neighbor’s Husband, a deputy sheriff, called police, who arrived fewer than ten minutes later. The responding officer (Deputy) interviewed Wife at Neighbor’s home that evening. Deputy testified that Wife appeared “extremely distraught,” “frantic,” and “emotionally distressed” and that she continuously wiped her eyes and nose from crying. During the interview, Wife told Deputy that Arce both struck and choked her. She also recounted that after returning home, Arce dragged her out of the car by her hair, threatened to hit her with a beer bottle, choked her, and slapped her. Deputy observed that the area under Wife’s right eye was “somewhat swollen” and that she had “some sort of reddish mark” on her collarbone that looked like it was beginning to bruise.

¶7          By that time, Arce had left the scene. Wife signed a request for a no-contact order and, with her children, went to emergency housing that the Deputy arranged. Wife also completed a lethality assessment. In the assessment, Wife indicated that she thought Arce might try to kill her. In an additional comment section, Wife noted that “having [Arce] at the home was a concern of safety for her.”

¶8          The following day, a police officer (Detective) interviewed Wife at her work. Wife again recounted the events, including Arce choking her, slapping her, grabbing her hair, throwing her to the ground, and threatening to hit her with a bottle. Wife also filled out a written statement during the interview with Detective recounting these same allegations. The top of the statement gave the following warning, “You are notified that the statements you are about to make may be presented to a magistrate or a judge in lieu of your sworn testimony at a preliminary examination. Any false statements you make and that you do not believe to be true may subject you to criminal punishment as a Class A Misdemeanor.” Wife signed the statement.

¶9          That same night, Deputy interviewed Arce by phone. Arce explained that he and Wife had taken the children to the resort “to have a good day” but Wife kept bringing up the infidelity and birth of the baby, so the two argued. Arce said that during the argument, he went through Wife’s phone, saw messages from another man, and asked, “[W]ho the f*** is this person?” When asked if he hit or choked Wife, Arce responded that he did not recall. Arce did, however, say that there was a miscommunication between them and that there was “some pushing and shoving.”

Wife’s Recantation and Testimony at Trial

¶10 The same day that Detective interviewed Wife, Deputy listened to a voicemail from Wife asking that all charges be dropped. When Wife later spoke with Deputy on the phone, she again asked that the charges be dropped. Wife explained that Arce “had a good job and that she needed help with the five children.”

¶11 At trial, Wife testified consistently with the prior statements she had made to law enforcement and her neighbors, however, she insisted that she made up the allegations of domestic violence against Arce. From the stand, Wife said, “This is why I wanted to just come up here because I hear all the charges and it’s really very selfish of me, you know. So this is why I’m sitting up here and I’m saying what really happened.” Wife testified that all the events occurred as she explained to law enforcement and the neighbors but that Arce never hit or choked her. Wife testified that after telling Arce they could not be together anymore, she told him to take her home, and he did. Wife testified that she opened the car door and sat on the edge of her seat while they continued arguing and yelling at one another but no physical altercation occurred.

¶12 When the State began asking her questions about police arriving the night of the incident and what she told them, the court stopped the questioning and excused the jury. The court explained to Wife that she had a right not to incriminate herself and that doing so would open her up to prosecution. The State asserted several times, “We won’t charge her.” The State also served Wife with a written notice of use immunity for purposes of the trial.[2] And the court provided her with the opportunity to speak with an attorney. Subsequently, Wife was appointed counsel.

¶13 Following a recess, the State asked that Wife be declared a hostile witness, allowing it to ask her leading questions, which the court granted. After speaking with his client, Wife’s counsel advised the court that Wife would be exercising her Fifth Amendment right moving forward. The State argued that the immunity it had offered Wife would protect her and that it was not the State’s intent “to ask the Court to hold [Wife] in this case in contempt” for refusing to testify. Wife’s counsel argued that the notice of use immunity was inadequate to protect her because it expressly did not grant immunity against a future perjury prosecution. The State again asked the court to treat Wife as a hostile witness. Arce’s counsel objected, arguing that the State knew weeks in advance that Wife might invoke her Fifth Amendment right. The State argued that knowing what Wife would do for weeks in advance was “a little bit of a stretch” and that its grant of use immunity was sufficient.

¶14        During further argument over whether to allow the State to treat Wife as a hostile witness, the State again said it would not seek to have the court hold her in contempt. The court ultimately granted the State’s request and received affirmation again from the State that it would not ask the court to hold Wife in contempt if she refused to testify.

¶15        The next day, the State retracted its written immunity offer and explained that it planned to ask Wife questions to which she could “choose to invoke the Fifth or to respond.” Wife’s counsel objected, arguing, “[T]he State’s going to try to . . . present their case by asking those questions and hearing the Fifth . . . . [T]hat’s just them trying to testify to the jury by the questions they’re asking.” The court disagreed, explaining that anything the State said was not evidence and that Wife could not make a “blanket” invocation of her Fifth Amendment right.

¶16 When Wife took the stand again, she invoked the Fifth Amendment 47 times in response to the State’s questions.[3] The State’s questions included asking Wife about the same things she had addressed the day before, prior to invoking her constitutional right to silence. Arce’s counsel did not object to or seek to limit the State’s leading questions or Wife’s invocations; neither did he request a mistrial.

Other Testimony at Trial

¶17 During the trial, the State called Neighbor, Neighbor’s Husband, Deputy, and Detective to the stand; each recounted the events and gave consistent testimony of the statements Wife made to them concerning the events during the evening in question— including the physical abuse she allegedly experienced at the hands of Arce.

¶18 During Deputy’s examination, the State asked, “And so ultimately what did your investigation lead you to believe happened that night?” Defense counsel made no objection. Deputy responded, “Based off all my observations and interview, I believe that the victim had been struck and choked and that there was a domestic violence assault that occurred.” The State then asked, “And I just want to emphasize, why is it that you believed that this truly happened?” Defense counsel again made no objection. Deputy answered,

I believe it truly happened given a number of things. Mainly, when I spoke to [Wife], she appeared to be honest and genuine in the emotion that she was describing things with was clearly emotional distress, upset that I’ve seen. And not every case is the same. I’ve seen other people who have been victims of assault act similar, so that’s why I believed it. She appeared to be honest and genuine.

¶19 During Detective’s testimony, the State moved to admit into evidence Wife’s written statement that was given under penalty of perjury, which the court allowed.

¶20 The State also called two expert witnesses. A clinical psychologist testified about patterns of domestic violence and that individuals experiencing abuse frequently stay in the relationship and/or recant their previous stories. And a pediatric nurse practitioner testified about strangulation, including that in over 50% of strangulation cases there are no visible injuries.

¶21 Throughout the trial, the State, Deputy, and Detective referred to Wife as “the victim” 29 times. And the State and its witnesses—primarily the clinical psychologist—used the term “victim” or “victims” generally an additional 45 times. The State also referred to Wife as the “alleged victim,” primarily during jury selection but also sporadically throughout the trial.

Closing Arguments and Verdict

¶22        In closing arguments, the State argued that the jury should believe Wife’s original statements to her neighbors and police as those were made instinctually to keep her family safe from a threat rather than out of “selfish[ness] or insincer[ity].” The defense argued that Wife had every reason to hate Arce but she wanted to set the record straight about her lies concerning the events of that night and that the State’s case fell apart without her lies.

¶23        During deliberation, the jury asked for access to the State’s “questions on day 2 to [Wife] when she pled the fifth.” The court did not grant the request.

¶24        The jury convicted Arce on all charges. Arce now appeals.

ISSUES AND STANDARDS OF REVIEW

¶25 Arce raises three issues on appeal. First, Arce argues that the trial court incorrectly allowed the State to compel Wife to invoke her Fifth Amendment right 47 times in front of the jury. We give trial courts “broad discretion to admit or exclude evidence, including lay witness testimony, and will disturb [a trial court’s] ruling only for abuse of discretion.” State v. Perea, 2013 UT 68, ¶ 31, 322 P.3d 624 (cleaned up). But the trial court must correctly interpret and apply the law. Id. ¶ 30. We review “the legal questions underlying the admissibility of evidence” for correctness. Dierl v. Birkin, 2023 UT App 6, ¶ 15, 525 P.3d 127 (cleaned up), cert. denied, 527 P.3d 1107 (Utah 2023).

¶26 Second, Arce argues that he received constitutionally ineffective assistance of counsel when his counsel (1) did not seek to limit or remediate the continued questioning of Wife by objecting, moving to strike both the questions and invocations, or asking for a curative instruction; (2) failed to object to Deputy improperly opining on and vouching for the credibility of Wife’s report the night of the incident; and (3) failed to object to the State and witnesses referring to Wife as “the victim” 29 times during the trial. “When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” State v. Reid, 2018 UT App 146, ¶ 17, 427 P.3d 1261 (cleaned up), cert. denied, 432 P.3d 1225 (Utah 2018).

¶27 Finally, Arce argues that under the cumulative error doctrine, the evidentiary error and ineffective assistance of counsel Arce received should undermine our confidence in the outcome of the trial. “We will reverse a jury verdict or sentence only if the cumulative effect of the several errors undermines our confidence that a fair trial was had.” State v. Lopez, 2019 UT App 11, ¶ 22, 438 P.3d 950 (cleaned up).

ANALYSIS

  1. Evidentiary Ruling

¶28 Arce argues that the trial court improperly overruled Wife’s counsel’s objection to the State questioning Wife despite knowing that she would invoke her Fifth Amendment right. Here, the trial court did not expressly say why it allowed the State, knowing Wife would invoke her constitutional privilege, to continually examine Wife. After Wife met with counsel and determined that she would invoke her Fifth Amendment right moving forward, the State asked the court to declare Wife a hostile witness and allow the State to continue examining her with leading questions. Wife’s counsel objected to declaring her hostile, arguing that the State already knew she would invoke her right for each question, which would allow the State, in Wife’s counsel’s words, to “present their case by asking those questions and hearing the Fifth” and to offer testimony “to the jury by the questions they’re asking.” The court responded that “anything [the State] says isn’t evidence, so it doesn’t matter.” And Wife’s counsel responded that the court should not allow it precisely because the State’s questions would not be evidence. The court disagreed and determined that the State could ask questions and that Wife could invoke her right to every question if she wanted to but she had to testify “if it [had] nothing to do [with a topic] that would incriminate her.” The court further determined that Wife’s invocation of her Fifth Amendment right could not be invoked in a blanket fashion and that she would have to invoke it for each question, as there may be some she could answer.

¶29 The State argues that regardless of the court’s reasoning, the court did not err because Wife waived her privilege by testifying earlier and recanting her story.[4] We note that the State did not make this argument during trial. Alternatively, the State argues that Wife never had the privilege to begin with because the State provided her with immunity.[5]

¶30 Notwithstanding each parties’ arguments, our review of the record indicates that Arce did not preserve this issue. It is “well within our prerogative to raise a preservation issue on our own initiative when it provides an alternative basis for affirmance, even if the State failed to brief the preservation argument.” State v. Malo, 2020 UT 42, ¶ 20 n.7, 469 P.3d 982. In Cook Associates, Inc. v. Warnick, 664 P.2d 1161 (Utah 1983), our supreme court confronted “[w]hether an objection by one party properly preserves an objection on appeal as to another party.” Id. at 1164. The supreme court followed what “[v]irtually every other jurisdiction that has considered the question has concluded,” which is that “an objection . . . by one or more parties at trial does not inure to the benefit of other parties who do not join in the objection.” Id. at 1164–65. In State v. Calliham, 2002 UT 86, 55 P.3d 573, two brothers charged with murder were tried together. Id. ¶¶ 1–3. Following their convictions, one brother (Brother 1) appealed. Id. ¶¶ 18–19. As part of his appeal, Brother 1 argued that the trial court’s decision to admit specific evidence was an error that violated his constitutional rights. Id. ¶ 32. However, our supreme court held that this issue was not preserved for appeal, as it was the other brother (Brother 2) who had objected—an objection which Brother 1 did not join at trial. Id. ¶ 33. “[Brother 1] did not join in [Brother 2’s] objections on the record or make any objection of his own,” thus preventing him from claiming on appeal that it prejudiced him or undermined his constitutional rights. Id.

¶31 Similarly, in the case before us, Arce was not the one who objected to Wife taking the stand, knowing she would invoke her Fifth Amendment right for every question—it was Wife’s counsel who made the objection. Arce did not join that objection.[6]

Therefore, as in Calliham, Arce has not preserved the right to now claim on appeal that the court erred in its decision to allow Wife to testify, which in turn allowed the jury to hear her invocations 47 times.[7]

¶32        And the issue needed to be “preserved in order to give the trial court an opportunity to address the claimed error, and if appropriate, correct it.” Kell v. State, 2012 UT 25, ¶ 11, 285 P.3d 1133 (cleaned up). Here, the trial court had no such opportunity. It is readily evident from our review of the record that the trial court was not focused on the impact these Fifth Amendment issues would have on Arce. Instead, the trial court ruled on this issue through the lens of its impact on Wife. Had Arce objected, the trial court may have fully engaged in an analysis of whether Wife’s Fifth Amendment right was waived or abandoned as the State suggests. But Arce made no such objection, and therefore the court engaged in no such analysis.

¶33        “As a general rule, claims not raised before the trial court may not be raised on appeal,” and it is “well-established” that this “preservation requirement applies to every claim, including constitutional questions.” Conner v. Department of Com., 2019 UT App 91, ¶ 48, 443 P.3d 1250 (cleaned up). Despite Arce’s arguments that he preserved this issue, the record does not support his assertions, as “a party must raise [the issue] before the [trial] court specifically, in a timely manner, and with support by evidence and relevant legal authority, such that the issue has been presented to the trial court in such a way that the trial court has an opportunity to rule on it.” Id. (cleaned up). As discussed, the record does not reflect an objection from Arce on the issue but instead from Wife, which did not allow the court to review the issue as it pertains to Arce. Therefore, the issue is not properly preserved, and we do not consider the merits of his claim.

  1. Ineffective Assistance of Counsel

¶34        “To prevail on an ineffective assistance of counsel claim, a defendant must meet the two-prong Strickland test: (1) counsel’s performance was objectively deficient and (2) the deficient performance resulted in prejudice.” State v. Fleming, 2019 UT App 181, ¶ 9, 454 P.3d 862 (citing Strickland v. Washington, 466 US 668, 687–88 (1984)), cert. denied, 462 P.3d 803 (Utah 2020). “[D]eficient performance is not determined in a vacuum; rather, it involves asking whether the strategy [counsel] employed was that of a reasonable, competent lawyer in the real-time context” of a trial. State v. Wilkes, 2020 UT App 175, ¶ 24, 479 P.3d 1142, cert. denied, 485 P.3d 944 (Utah 2021). “However, even where a court cannot conceive of a sound strategic reason for counsel’s challenged conduct, it does not automatically follow that counsel was deficient. . . . [T]he ultimate question is always whether, considering all the circumstances, counsel’s acts or omissions were objectively unreasonable.” State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350. And a defendant establishes prejudice by showing “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” State v. Gonzalez, 2021 UT App 135, ¶ 8, 501 P.3d 1205 (cleaned up). “That is, the defendant’s showing must undermine our confidence in the outcome.” Id. (cleaned up). The impact of such alleged errors must “be a demonstrable reality.” Id. (cleaned up).

¶35        “Because both prongs of the Strickland test must be met to establish ineffective assistance of counsel, we need not always address both prongs.” Fleming, 2019 UT App 181, ¶ 9 (cleaned up). “And if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice that course should be followed.” Gonzalez, 2021 UT App 135, ¶ 7 (cleaned up). Given the likelihood that similar events to those of this case can and will arise before the trial courts of this state, we address counsel’s alleged deficient performance, although we ultimately determine that Arce’s claims fail for lack of prejudice.

  1. Deficient Performance
  2. Invoking the Fifth Amendment

¶36 In addition to Arce’s arguments already discussed above regarding Wife’s invocation of her Fifth Amendment right, Arce argues that his counsel acted deficiently by not seeking to limit or remediate the State’s continued leading questions and Wife’s invocations by objecting, moving to strike both the questions and invocations, or asking for a curative instruction. Based on the reasoning in Mitchell v. United States, 526 U.S. 314 (1999), and In re Flint Water Cases, 53 F.4th 176 (6th Cir. 2022), competent counsel could reasonably choose not to take any of these actions, as Wife had waived her Fifth Amendment privilege by having voluntarily testified about the matter in question. A “witness . . . may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details.” Mitchell, 526 U.S. at 321. “When the witness testifies, the privilege is waived for the matters to which the witness testifies.” In re Flint Water Cases, 53 F.4th at 193 (cleaned up). Thus, Arce’s counsel, and correspondingly the trial court, could have concluded that Wife did not have the right to invoke the privilege. Therefore, we determine that Arce fails to show deficient performance.[8]

¶37 Arce claims his counsel should have objected and pointed the court to rule 403 (excluding evidence which is substantially more prejudicial than probative), rule 510(c) (disallowing comment by a judge or counsel about, or a factfinder making an inference from, the invocation of a privilege), or rule 611(a) (allowing a court to control the examination of witnesses so as to avoid wasting time or the harassment or embarrassment of a witness) of the Utah Rules of Evidence. Arce makes no effort, however, to provide us with the context of Wife’s 47 invocations or the depth of her earlier testimony.[9] While Arce discusses Wife’s trial testimony prior to the court’s interruption to allow her to consult her counsel, he provides the court no comparison of that testimony with the subject matter of the questions asked on cross-examination when she began invoking the Fifth Amendment. As a result, the briefing leaves us with no understanding about whether all 47 invocations were directly addressing matters about which Wife had already testified—particularly her recantation. Assuming the questions were simply cross-examination of statements made earlier in trial, Arce’s counsel would have no basis for an objection because the privilege would be waived. Furthermore, without an understanding of the depth of Wife’s earlier testimony, we cannot gauge whether 47 invocations corresponded in an impermissible or potentially prejudicial way to Wife’s prior trial testimony. Within the confines of the briefing provided to us, we cannot fault Arce’s counsel for failing to object or make other efforts to limit the testimony.

¶38        Given that there is an obvious basis to believe that Wife no longer possessed a Fifth Amendment privilege and where the briefing does not delineate any context for the questions for which the privilege was invoked, Arce has not overcome the presumption that his counsel acted reasonably, and we cannot conclude that Arce’s counsel was objectively deficient in his representation. State v. Hart, 2020 UT App 25, ¶ 20, 460 P.3d 604 (stating that to prove deficient performance a defendant must overcome a “strong presumption that his trial counsel rendered adequate assistance” (cleaned up)), cert. denied, 462 P.3d 805 (Utah 2020). We acknowledge that there certainly could be circumstances where compelling a witness to invoke a privilege 47 times would be troubling, but we can reach no conclusion about counsel’s failure to object to these questions here.

  1. Witness Opining and Vouching

¶39        Arce further argues that his counsel performed deficiently by failing to object to Deputy opining on and vouching for the credibility of Wife’s statement the night of the incident. Rule 608(a) of the Utah Rules of Evidence “permits testimony concerning a witness’s general character or reputation for truthfulness or untruthfulness but prohibits any testimony as to a witness’s truthfulness on a particular occasion.” State v. King, 2010 UT App 396, ¶ 44, 248 P.3d 984 (cleaned up); see also State v. Adams, 2000 UT 42, ¶ 19, 5 P.3d 642 (detective testifying “he did not believe [the victim] was coached” was inadmissible vouching); State v. Jones, 2020 UT App 161, ¶ 14, 478 P.3d 1055 (per curiam) (“[A]dmission of testimony that bolsters the credibility of another witness’s testimony on a particular occasion is improper.”); id. ¶ 18 (officer testifying regarding interview techniques for domestic violence victims did not violate rule 608 because he did not opine on the victim’s truthfulness on a particular occasion); State v. Lewis, 2020 UT App 132, ¶ 26, 475 P.3d 956 (police sergeant describing variations he sees in victims’ statements when multiple accounts are given was not bolstering, as “he did not directly opine on [the victim’s] credibility”); State v. Cegars, 2019 UT App 54, ¶¶ 23–24, 440 P.3d 924 (school counselor testifying that she did not believe the victim would fabricate allegations was inadmissible bolstering); State v. Vail, 2002 UT App 176, ¶¶ 15, 17, 51 P.3d 1285 (detective testifying that two victims of child sexual abuse “exhibited the indicators that she equated with trustworthiness” was inadmissible bolstering); State v. Stefaniak, 900 P.2d 1094, 1095 (Utah Ct. App. 1995) (social worker testifying that a victim of abuse “seemed to be quite candid” in an interview was inadmissible vouching (cleaned up)). For example, an officer cannot comment on whether a witness appeared “to be genuine” during an interview, as it is a direct comment on the witness’s truthfulness and clearly violates rule 608. State v. Bragg, 2013 UT App 282, ¶ 31, 317 P.3d 452 (cleaned up). We emphasize again today that the State’s use of a law enforcement officer’s testimony for bolstering and vouching in this manner is inappropriate. We perceive no strategic reason that Arce’s counsel would reasonably fail to object to this testimony.

¶40 But even so, Arce can prevail only if he establishes both deficient performance and prejudice. And for the reasons set forth in Part II.B, we conclude that he was not prejudiced by this deficient performance.

  1. Referring to Wife as “the Victim”

¶41        Finally, Arce argues that his counsel performed deficiently by failing to object to the State and witnesses referring to Wife as “the victim” 29 times in front of the jury. Our supreme court “recognize[s] the gravity of referring to witnesses as victims during a trial.” State v. Vallejo, 2019 UT 38, ¶ 102, 449 P.3d 39. In cases, such as the one before us, “where a defendant claims that the charged crime did not actually occur, and the allegations against that defendant are based almost exclusively on the complaining witness’s testimony—the trial court, the State, and all witnesses should be prohibited from referring to the complaining witness as ‘the victim.’” State v. Devey, 2006 UT App 219, ¶ 17, 138 P.3d 90. Though in this case we do not exclusively rely on such testimony because there was a “sort of reddish mark” on Wife’s collarbone and Arce told Deputy there was “some pushing and shoving,” we still restate today that the action of referring to the complaining witness as “the victim” by anyone in front of the jury is inappropriate. Again, we perceive no strategic reason that Arce’s counsel would reasonably fail to object to this testimony.

  1. Prejudice

¶42        Ultimately, Arce has not shown that any of these alleged errors prejudiced him. There is not a reasonable probability that but for Arce’s counsel failing to object further to the State’s questioning of Wife, moving to strike, or asking for a curative instruction, the result of Arce’s trial would be different. As mentioned, the jury heard testimony from four witnesses, each of whom told the same story, namely, that Wife said Arce hit and choked her that night. The testimony of these four witnesses matched Wife’s own words in the statement she gave to Detective. Furthermore, the reason Wife provided to Deputy for dismissing the charges was not that she had lied but that she needed Arce to keep his job as well as his help with their children. As we point out above, even Arce in his statement to Deputy admitted there was “some pushing and shoving,” which is inconsistent with Wife’s recantation. And Arce did not explicitly deny that he hit, kicked, or choked Wife, instead stating only that he could not recall doing so. Most reasonable jurors would think that physical assault is something that one would remember having committed. Furthermore, and perhaps most convincingly, Wife’s own statement to Detective was entered into evidence for the jury to read. In short, finding that none of these alleged errors undermines our confidence in the outcome of this case, each of Arce’s claims of ineffective assistance of counsel fails for lack of prejudice. Moreover, because none of these alleged errors were sufficiently prejudicial alone, we, for the same reason, conclude that the errors do not cumulatively undermine our confidence in the outcome of the trial.[10]

CONCLUSION

¶43 Arce’s claim that the court erred by allowing the State to repeatedly compel Wife to invoke her Fifth Amendment privilege in front of the jury fails because the issue was not preserved. Furthermore, Arce’s claims of ineffective assistance of counsel fail because his counsel’s failure to object to Wife’s invocations, Deputy’s vouching for Wife’s credibility, and repeated references to Wife as “the victim” do not present a reasonable probability that but for Arce’s counsel’s failure the result of the proceeding would have been different. We therefore affirm Arce’s convictions.

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


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

[2] A “grant of use immunity [prohibits] any prosecutorial use of [a witness’s] testimony or evidence gained from it” against the witness. State v. Morris, 2017 UT App 112, ¶ 17, 400 P.3d 1183, cert. denied, 409 P.3d 1049 (Utah 2017).

[3] The State argues that she invoked the Fifth Amendment 45 times, but the discrepancy of two invocations is not dispositive in this case, so we will use Arce’s number moving forward.

[4] Though we make our decision on preservation grounds, it appears the State is correct that a witness cannot testify about a subject and later invoke a Fifth Amendment privilege in order to avoid cross-examination on that same topic. See Mitchell v. United States, 526 U.S. 314, 321 (1999); In re Flint Water Cases, 53 F.4th 176, 193 (6th Cir. 2022). This issue is addressed further below. See infra ¶ 36.

[5] The State argues that a valid claim of privilege “turns in part on the likelihood of future prosecution.” A witness may not “employ the privilege to avoid giving testimony that he simply would prefer not to give,” Roberts v. United States, 445 U.S. 552, 560 n.7 (1980); instead, the witness must face real—not remote or speculative—dangers, Zicarelli v. New Jersey State Comm’n of Investigation, 406 U.S. 472, 478 (1972). Therefore, a grant of immunity nullifies the witness’s privilege as it forecloses the possibility of subsequent prosecution. State v. Morris, 2017 UT App 112, ¶ 18, 400 P.3d 1183, cert. denied, 409 P.3d 1049 (Utah 2017). Here, the State argues that while it did withdraw the written immunity offer, the offer was “irrelevant” as the State put on the record several times that it would not seek to have the court hold Wife in contempt for refusing to testify. We do not agree and fail to understand how a promise not to seek to have a trial court hold Wife in contempt is sufficient to rise to the level of granting her “effective blanket immunity,” as the State argues. Wife still faced the very real danger of prosecution for perjury, for which the State offered her no protection. Thus, the State did not provide Wife with immunity—either written or through promises not to charge her with contempt—and Wife’s Fifth Amendment privilege remained intact. However, the State is likely correct that the right had been waived for subjects about which she freely had already testified. And, as discussed, this issue was not preserved, so there is no need for further consideration of whether allowing the State to continue questioning Wife was an error and, if so, whether there was a reasonable likelihood of a more favorable outcome for Arce absent the questioning.

[6] Arce acknowledges that it was Wife’s counsel rather than his own who made the objection to Wife taking the stand knowing she would invoke her Fifth Amendment right. Despite this, Arce argues that the issue is preserved by primarily relying on Kell v. State, 2012 UT 25, 285 P.3d 1133. But Kell is distinguishable from the present case. In Kell, the question was whether an issue was preserved when the State opposed a criminal defendant’s rule 60(b) motion and the criminal defendant did not respond to the State’s arguments yet later sought to appeal the decision. Id. ¶¶ 9– 10. The State and a criminal defendant are not in an analogous adversarial position to the criminal defendant and nonparty witness, Wife, present here. Kell is simply inapposite.

[7] Arce does not claim the application of any exception to preservation.

[8] Arce points to State v. Bond, 2015 UT 88, 361 P.2d 104, for us to consider. But Bond is not particularly helpful here. The witness in Bond did not attempt to invoke his Fifth Amendment privilege to avoid answering a question regarding a subject about which he had testified previously. Id. ¶ 10Also, the analysis in Bond must be viewed in context. In Bond, the Utah Supreme Court was reviewing the denial of a motion for a mistrial—a trial court decision reviewed under an abuse of discretion standard—and an allegation of prosecutorial misconduct. Id. ¶¶ 13, 22. Thus, unlike the case before us, Bond does not address these issues as evidentiary rulings.

[9] We acknowledge that Arce has appended a transcript containing the invocations to his brief. But beyond the appendix, Arce’s brief makes no attempt to address the context of the invocations—referring to them only as a whole rather than providing any information as to the subject matter of the questioning that provoked them. Arce does not attempt to explain, for example, if one, two, or three questions might be permissible. Neither does he explain at which point the line would have been crossed to render his counsel’s inaction objectively unreasonable.

[10] “The cumulative-error doctrine requires us to reverse if (1) we determine, or assume without deciding, that two or more errors occurred and (2) we determine that the cumulative effect of those errors undermines our confidence that a fair trial was had.” ConocoPhillips Co. v. Utah Dep’t of Transp., 2017 UT App 68, ¶ 30, 397 P.3d 772.

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2024 UT App 28 – Smith v. Smith

2024 UT App 28 – Smith v. Smith

THE UTAH COURT OF APPEALS

JACQUELINE P. SMITH, Appellee,  v. DANIEL H. SMITH, Appellant.

Opinion

No. 20220697-CA  Filed March 7, 2024  Third District Court, Salt Lake Department  The Honorable Robert P. Faust  No. 194902295

David Pedrazas, Attorney for Appellant

Deborah L. Bulkeley, Attorney for Appellee

JUDGE AMY J. OLIVER authored this Opinion, in which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

OLIVER, Judge:

¶1        This divorce case illustrates why the sequence of determining alimony matters. We recently clarified the three-step procedure for alimony in Fox v. Fox, 2022 UT App 88, 515 P.3d 481, cert. denied, 525 P.3d 1263 (Utah 2022). Here, the district court ordered an alimony award of more than double the receiving spouse’s demonstrated need because it accounted for the marital standard of living at the end of the analysis instead of at the beginning. Because the district court employed a backward version of the three-step procedure for alimony, we vacate and remand.

BACKGROUND

¶2        Daniel H. and Jacqueline P. Smith separated after more than thirty years of marriage. Their divorce case proceeded to a one-day bench trial that mostly addressed alimony. Daniel[1] represented himself at trial. At the trial’s conclusion, the district court took several issues, including the alimony award, under advisement and issued a memorandum decision four days later.

¶3        On her financial declaration used at trial, Jacqueline indicated her monthly net income was $3,274.55 and her monthly expenses were $5,193.79. Jacqueline listed all her line-item expenses in the “current amount” column and left the “marital expenses” column blank. Jacqueline presented no evidence at trial of the parties’ marital standard of living and no evidence that any of her listed expenses were different during the marriage than they were at the time of trial. She testified only to the reasons she sought a divorce. The district court examined the expenses and adjusted some of the amounts, finding that Jacqueline had reasonable monthly expenses of $4,184.61. This left her with an unmet need of $910.06 per month.

¶4        Daniel’s financial declaration admitted at trial indicated his monthly net income was $7,757 and his monthly expenses—all listed in the “current amount” column and none in the “marital expenses” column—were $8,280. The district court similarly examined Daniel’s expenses and made adjustments, finding that Daniel had reasonable monthly expenses of $4,013.90 plus his child support obligation of $703 for a total monthly expense of $4,716.90, leaving him with a “positive income of $3,040.10 a month.”

¶5      The district court stated that it adjusted the parties’ expenses in “an effort to put them on relatively equal footing, recognizing that the parties’ level of expenses at the time of trial are not representative of their marital standard of living.” Rather than award Jacqueline alimony in the amount of her unmet need, the district court calculated alimony by equalizing the difference between Jacqueline’s monthly negative income and Daniel’s monthly positive income. The court reasoned that “it is fair and equitable to equalize the combined disparity of $3,950.16 per month” and awarded Jacqueline $1,975 per month in alimony. The alimony award exceeded Jacqueline’s demonstrated monthly need by $1,064.94.

¶6        The district court instructed Jacqueline’s counsel to draft proposed findings and a proposed decree based on the court’s ruling. Daniel, having obtained counsel since trial, objected to the proposed findings on multiple issues, including the alimony calculation. The district court entered the findings and decree without making any changes to the alimony award.

¶7        Daniel then filed a motion to amend the findings, arguing that the district court did not make sufficient findings to support an alimony award that exceeded Jacqueline’s demonstrated need. The district court held a hearing on the motion, and Daniel asked the court to “recalculate and redetermine the alimony” because a “spouse’s demonstrated need must constitute the maximum permissible alimony award.” The court explained the $1,975 alimony award “equalizes the net income of the parties for both of them. That keeps them akin as we can to the lifestyle to which they were accustomed during the time of the marriage.” Daniel asserted that equalization should occur only “when somebody has an excess need that the other party can’t meet.” And Jacqueline suggested the court make “some additional findings” to support what she viewed as its “appropriate” effort to consider the parties’ needs and “augment those needs with excess income.” The district court denied Daniel’s motion, leaving the alimony award at $1,975 per month.

ISSUE AND STANDARD OF REVIEW

¶8        Daniel challenges the district court’s alimony award.[2] “We review a court’s alimony determination for an abuse of discretion.” Fox v. Fox, 2022 UT App 88, ¶ 11, 515 P.3d 481 (cleaned up), cert. denied, 525 P.3d 1263 (Utah 2022). Although “we will not lightly disturb a trial court’s alimony ruling, we will reverse if the court has not exercised its discretion within the bounds and under the standards we have set.” Knight v. Knight, 2023 UT App 86, ¶ 17, 538 P.3d 601 (cleaned up).

ANALYSIS

¶9        “Under Utah law, the primary purposes of alimony are: (1) to get the parties as close as possible to the same standard of living that existed during the marriage; (2) to equalize the standards of living of each party; and (3) to prevent the recipient spouse from becoming a public charge.” Fox v. Fox, 2022 UT App 88, ¶ 15, 515 P.3d 481 (cleaned up), cert. denied, 525 P.3d 1263 (Utah 2022). An alimony award need not provide “for only basic needs but should be fashioned” in such a way “to approximate the parties’ standard of living during the marriage as closely as possible.” Id. (cleaned up). “The appropriate amount of any alimony award is governed by a multi-factor inquiry” now found in Utah Code section 30-3-5(10)(a). Miner v. Miner, 2021 UT App 77, ¶ 16, 496 P.3d 242. “[C]ourts must consider the statutory factors,” including “the financial condition and needs of the recipient spouse,” “the recipient’s earning capacity,” and “the ability of the payor spouse to provide support.” Rule v. Rule, 2017 UT App 137, ¶ 13, 402 P.3d 153; see also Dahl v. Dahl, 2015 UT 79, ¶ 94, 459 P.3d 276.

¶10      Thus, there are three steps to “the established process to be followed by courts considering an award of alimony.” Fox, 2022 UT App 88, ¶ 20 (cleaned up); see also Rule, 2017 UT App 137, ¶ 19. First, a court must “assess the needs of the parties, in light of their marital standard of living.”[3] Fox, 2022 UT App 88, ¶ 20 (cleaned up). Second, a court “must determine the extent to which the receiving spouse is able to meet his or her own needs with his or her own income.” Id. (cleaned up). Third, a court must “assess whether the payor spouse’s income, after meeting his or her needs, is sufficient to make up some or all of the shortfall between the receiving spouse’s needs and income.” Id. (cleaned up).

¶11      Here, the district court abused its discretion when it failed to properly follow this three-step process. Instead of considering the marital standard of living at step one when calculating each spouse’s need, the district court did so at step three, when it equalized the parties’ income. While we do not fault the court for wanting to “equalize the standards of living of each party,” as it is one of the purposes of alimony, see id. ¶ 15 (cleaned up), the court did not do so in accordance with the standards Utah appellate courts have established for an alimony determination.

¶12      In step one, the district court assessed both parties’ needs “at the time of trial” rather than in light of the marital standard of living. See id. ¶ 20. But it was not an abuse of discretion to have done so because neither Jacqueline nor Daniel provided any evidence of the marital standard of living. Indeed, both of their financial declarations listed their monthly expenses in the “current amount” column with nothing listed in the “marital expenses” column, despite the instructions on the form to complete both columns if one of the parties has requested alimony. It is incumbent upon the parties to present evidence of the marital standard of living if they want the district court to consider the expenses during the marriage that differ from the expenses at the time of trial. See Clarke v. Clarke, 2023 UT App 160, ¶ 62 (“If a party offers into evidence only time-of-trial expense amounts, and does not provide the court with any evidence of pre-separation expenses (to the extent they are different), that party has no right to complain when the court awards the time-of-trial amounts.”). And it is important that they provide such evidence, because step one—where the district court determines the parties’ reasonable expenses—is the place for taking the marital standard of living into account in the alimony calculation.

¶13      In step three, the district court then combined Jacqueline’s demonstrated need of $910.06 and David’s excess income of $3,040.10, “equalize[d] the combined disparity of $3,950.16,” and gave Jacqueline an alimony award of half that amount, $1,975. Daniel contends the district court should have capped the alimony award at the $910.06 monthly shortfall the district court calculated as the difference between Jacqueline’s income and her expenses. We agree with Daniel. “Regardless of the payor spouse’s ability to pay more, the recipient spouse’s demonstrated need must constitute the maximum permissible alimony award.” Roberts v. Roberts, 2014 UT App 211, ¶ 14, 335 P.3d 378 (cleaned up); Rule, 2017 UT App 137, ¶ 17 (“The receiving spouse’s needs ultimately set the bounds for the maximum permissible alimony award.”); Barrani v. Barrani, 2014 UT App 204, ¶ 30, 334 P.3d 994 (“An alimony award in excess of the recipient’s need is a basis for remand even when the payor spouse has the ability to pay.”); Bingham v. Bingham, 872 P.2d 1065, 1068 (Utah Ct. App. 1994) (“[T]he spouse’s demonstrated need must . . . constitute the maximum permissible alimony award.”). Thus, the district court abused its discretion when it awarded Jacqueline alimony in an amount greater than her demonstrated need.

¶14 We also caution district courts that they “should not calculate alimony by simply dividing the couple’s pre-separation expenses in half,” Clarke, 2023 UT App 160, ¶ 57, or by “presumptively award[ing]” half of the “total money the parties spent each month during the marriage,” Fox, 2022 UT App 88, ¶ 25. In other words, the proper way to take the marital standard of living into account is at step one “by assessing a party’s claimed line-item expenses in light of that standard.” Clarke, 2023 UT App 160, ¶ 59.

¶15      Here, the district court abused its discretion at step three when it took the parties’ “combined disparity of $3,950.16” per month and awarded half of that amount to Jacqueline. Regardless of how much income the payor spouse may have, the purpose of alimony is to meet the demonstrated need of the recipient spouse, not to redistribute all the income between the spouses. See Roberts, 2014 UT App 211, ¶ 14 (“[T]he core function of alimony is therefore economic—it should not operate as a penalty against the payor nor a reward to the recipient.”). And although “we accord trial courts broad discretion in dividing the shortfall and apportioning that burden” in the third step, such discretion is premised on the assumption the court “has properly determined that a shortfall exists between the parties’ resources and needs.” Rule, 2017 UT App 137, ¶ 21.

¶16 Sequence matters. See id. ¶ 22 (“Once the court has determined that there are insufficient resources to meet the baseline needs established by the marital living standard, the court should then equitably allocate the burden of the shortfall between the parties.” (emphases added)); see also Bakanowski v. Bakanowski, 2003 UT App 357, ¶ 12, 80 P.3d 153 (holding that “attempting to equalize the parties’ income rather than going through the traditional needs analysis” constitutes an abuse of discretion). Just as it is an abuse of discretion to “skip[] over the traditional needs analysis and move[] directly to address what it perceives to be insufficient resources,” see Rule, 2017 UT App 137, ¶ 23, it was an abuse of discretion here when the district court used the marital standard of living at step three to increase the amount of the alimony award beyond the demonstrated need.

¶17      As a final note, we reiterate that it is proper for a district court to consider the marital standard of living during step one of the alimony analysis, so long as the parties have presented such evidence. We would normally vacate the alimony award and remand the matter to the district court “for the court to reassess its alimony determinations in light of the marital standard of living.” Id. ¶ 32. But here, neither party presented evidence of their expenses during the marriage. Indeed, they both left the “marital expenses” column on their financial declarations blank. As a result, there is no evidence in the record from which the district court can make findings that Jacqueline’s expenses were different from what she listed. Thus, the district court’s finding that her demonstrated need was $910.06 limits “the maximum permissible alimony award” to that amount. See Wellman v. Kawasaki, 2023 UT App 11, ¶ 12, 525 P.3d 139.

CONCLUSION

¶18      The district court abused its discretion when it employed the incorrect analysis in computing Jacqueline’s alimony award. The court did not follow the three-step process required by Utah law. Accordingly, we vacate and remand the case to the district court for entry of an alimony award of $910.06 per month.

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


[1] Because the parties share the same last name, we refer to them by their first names for clarity, with no disrespect intended.

[2] Daniel also challenges the district court’s denial of his motion to amend the findings. But we need not reach this issue because we conclude the district court did not follow “the standards we have set” in its alimony calculation, see Knight v. Knight, 2023 UT App 86, ¶ 17, 538 P.3d 601 (cleaned up), and we remand the case on that basis.

[3] “The marital standard of living is that which the parties shared, and courts consider the parties as a single unit when evaluating that standard.” Knight, 2023 UT App 86, ¶ 32. In terms of alimony, “the marital standard of living analysis is about whether the parties’ proposed points of calculation are consistent with the parties’ manner of living and financial decisions.” Id. (cleaned up).

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In re H.H. – 2024 UT App 25 – termination of parental rights

In re H.H. – 2024 UT App 25

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF H.H. AND N.H.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

T.H. AND D.H., Appellants, v.  STATE OF UTAH,  Appellee.

Opinion

Nos. 20220803-CA and

20220820-CA

Filed February 29, 2024

Second District Juvenile Court, Farmington Department

The Honorable Jeffrey J. Noland

Nos. 1163279 and 1163280

Scott L. Wiggins, Attorney for Appellant T.H.

Emily Adams, Sara Pfrommer,

Hannah Leavitt-Howell, Marjorie Christensen, and

Melissa Jo Townsend, Attorneys for Appellant D.H.

Sean D. Reyes, Carol L.C. Verdoia, and

John M. Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE RYAN M. HARRIS authored this Opinion, in which

JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY

concurred.

HARRIS, Judge:

¶1        After a lengthy bench trial, the juvenile court found grounds to terminate the parental rights of D.H. (Father) and T.H. (Mother) (collectively, Parents) regarding their two youngest children, H.H. (Hannah) and N.H. (Noah).[1] The court found that Father was an unfit parent because he had subjected four of his children, including Hannah and Noah, to “serious emotional abuse,” inflicted through a strict and intimidating parenting style, that “resulted in two of the children considering suicide as an option to end the maltreatment.” As to Mother, the court found that her continued support of Father rendered her incapable of “exercising proper parental care.”

¶2        In its initial post-trial ruling, the court determined that it was in Hannah’s and Noah’s best interest for Father’s parental rights to be terminated, but that it was not in their best interest for Mother’s rights to be terminated. Instead, the court imposed a permanent guardianship arrangement in favor of an adult sibling (Oldest Sister). Later, however, after the guardian ad litem (the GAL) filed a motion for reconsideration, the court amended its initial ruling and ordered Mother’s rights terminated as well.

¶3        In separate appeals that we consider together in this opinion, Parents challenge the termination of their parental rights on several grounds, asserting chiefly that the “juvenile court process” that led to termination violated their constitutional rights and that the court erred in concluding that termination of their parental rights was strictly necessary. For the reasons that follow, we reject all of Parents’ arguments and affirm the court’s termination order.

BACKGROUND[2]

The Family Situation and the Initial Removal

¶4        Parents are the natural parents of six children: four daughters and two sons. By the time this case was initiated in 2018, the two oldest children (Oldest Sister and Older Brother) had reached adulthood and were living on their own. Some years earlier, when she turned eighteen but while she was still in high school, Oldest Sister moved out of Parents’ home because, in her view, Parents had created “a very horrible living situation” that left her “scared to go home.” In 2013, when Older Brother was seventeen and a junior in high school, he also elected, for apparently similar reasons, to move out of the family home; at that point, he moved in with Oldest Sister—who is some nine years older than Older Brother—and her husband (Brother-in-Law). The four younger children—Chloe, Felicity,[3] Hannah, and Noah—all still lived with Parents.

¶5        In May 2018, Utah’s Division of Child and Family Services (DCFS) received a report that Chloe—who was fifteen at the time—had confided to a teacher that her home life was so unbearable that she was considering suicide, on a “constant basis,” as a means of escape. As Chloe described it, Parents were constantly screaming and fighting and taking their anger out on the children. Physical violence, both real and threatened, and verbal abuse were tools that Parents—especially Father— frequently used against the children. Father also forced the children to do seemingly endless chores, and he required them to pay him for basic amenities like fresh food (as opposed to “expired” food storage), computer usage, and rides to school. Chloe told a DCFS caseworker that she was suicidal because “she couldn’t handle being home alone with [Father] all summer.”

¶6        Spurred by the report it received about Chloe’s suicidal ideations, DCFS conducted an investigation during the summer of 2018. Among other things, it administered a “suicide severity” test to Chloe and concluded that Chloe scored “very high.” When DCFS reported this score to Parents, they “both scoffed” and responded that Chloe was a “drama queen” who was “just trying to get attention.” At the end of the investigation, DCFS made a supported finding of “emotional maltreatment” against Parents and offered them “voluntary services” to assist them in improving the situation. DCFS also spoke with Oldest Sister, who was familiar with the family dynamics and the living situation at Parents’ home. Oldest Sister committed to keeping an eye on her siblings and promised to notify DCFS “if the situation escalated.”

¶7        DCFS then notified Parents, by letter, of its “emotional maltreatment” finding. When Parents received this letter, they became “enraged” and responded by “blam[ing] the children” and acting “very vindictive” toward them. In particular, Parents warned the children that, “if they were to speak with authority figures,” including “church leaders” or anyone at DCFS, about events occurring in the home, they would be “severely punished.”

¶8        Notwithstanding this warning, in August 2018 the three younger daughters—Chloe, Felicity (then fourteen), and Hannah (then twelve)—sought guidance from one of their church “young women” leaders (YW Leader). The family—including Parents as well as all six of their children—are practicing members of The Church of Jesus Christ of Latter-day Saints, a church that has relatively structured youth programs with local lay leaders

assigned to provide supervision and guidance. Both YW Leader and the president of the family’s local church unit (Branch President) had counseled the girls—without Parents’ knowledge—to “contact one of [them] if things got too bad at home and they needed an escape or someone to talk to.” When the girls sought YW Leader’s advice, she brought them in to meet with Branch President in his office at the local church.

¶9        As the meeting between the girls and Branch President was nearing its end, Father—having gotten wind of the meeting— appeared at the church; Branch President observed that Father was very upset and “quite agitated,” and Father demanded “to know what [the girls] were doing at the church.” Father “backed [the] girls into a corner” of Branch President’s office and “started angrily interrogating them” and “berating them in a loud, almost yelling tone” before then “turn[ing] on” YW Leader when she tried to intervene. The girls began “sobbing and begging him to stop.” Branch President, perceiving that the girls “were terrified,” also asked Father to stop, telling him that his behavior was “inappropriate.” Father then “angrily” “turned on” Branch President, put a “finger in [his] face,” and accused Branch President of “trying to divide his family.” He also “unloaded on” Chloe, “telling her that she was nothing but a drama queen and that if she hadn’t been threatening suicide just to get attention” the family “wouldn’t be in this mess.” His verbal assault was so fierce that Chloe “threw up her arms in front of her face” in an effort to protect herself. YW Leader was “shocked and quite upset” and “couldn’t believe what she was seeing.” Eventually, Father left the building, and after the incident, Branch President decided to take a step he’d never before taken in his years as a religious leader: he wrote a four-page single-spaced letter to DCFS describing the situation generally, and the incident at the church specifically, offering his view that the “terror and anguish the girls are experiencing” are “real” and that the situation requires attention. He requested that DCFS reopen the family’s case and that, “at a minimum,” the girls “be given a chance to be evaluated by professional counselors.”

¶10      Over the next few days, the situation in the family home continued to deteriorate. During this time, Chloe continued to talk about suicide, and she did so even more seriously; Brother-in-Law reported that Chloe was now saying that she had “a plan” for committing suicide. And Brother-in-Law reported that Felicity, for the first time, was also talking about suicide, even going so far as saying “it was the only way to escape this life as she could no longer deal with it.” On at least one occasion during this time frame, Felicity contacted DCFS to provide additional information.

¶11      Also during this time period, Parents often “cornered” the girls at home, separated them into “different rooms,” and “interrogat[ed]” them for “several hours” about whether they were “sharing information with” DCFS and, if so, what they had shared. During these interrogations, Parents would scream and yell, would threaten to send the children “to juvey,” and would tell them that they would be responsible if the “family was destroyed” and that, in that event, the children would end up in “foster care” where they would likely “be beat[en] and raped.”

¶12 On August 29, 2018, the day after an especially long evening interrogation, Felicity and Hannah went to school— which had just begun for the year—but were so distraught when classes ended that they were afraid to return home, so they contacted Brother-in-Law and asked him to pick them up. When Brother-in-Law arrived at the school, he found the girls “cowering” in the front office and “shaking uncontrollably,” behavior Brother-in-Law considered uncharacteristic; they also would not “let go of each other’s hands.” Brother-in-Law later reported that Felicity was “panicked out of her mind to have to return home to the situation” there. Brother-in-Law took the girls to his house, and he contacted DCFS; he told the caseworker that he “didn’t feel comfortable letting them go home because” he was concerned they might “hurt themselves.”

¶13 The DCFS caseworker assigned to the case traveled to Oldest Sister’s house and spoke with the girls, and she determined that “the family situation had risen to a dangerous level.” At that point, DCFS “sought and received a warrant for the removal” of all four minor children “from the custody and guardianship” of Parents. Later that evening, Parents arrived at Oldest Sister’s house and were served with the removal warrant. DCFS officials, accompanied by law enforcement, informed Parents that the children had been removed from their home. The children were eventually officially placed with Oldest Sister and Brother-in-Law; Hannah and Noah have remained in that placement ever since, and Chloe and Felicity remained in that placement until they reached adulthood.

The State’s Petition and the Shelter Hearing

¶14      The next day, the State filed a petition asking the court to award custody and guardianship of the children to DCFS. In its petition, the State discussed the situation in the home and asserted that both Chloe and Felicity had been having “suicidal thoughts and ideations” as a result. The petition included allegations of the constant chores Father required the children to perform, as well as Father’s requirement that the children pay him for basic necessities. It also included detailed allegations of verbal abuse by Parents, asserting that they were “swearing and spitting” in the children’s faces, calling them “little shits” and “worthless,” and telling the girls in particular that they were “ugly” and that Parents “wishe[d]” they hadn’t been born. The State alleged that Father used physical force as part of his dominion over the children, often “push[ing]” them and “pull[ing] the back of their hair.” Mother would sometimes “threaten[] to kill herself” and then disappear, causing the children distress and creating “panic”as they wondered whether Mother might have followed through with her threats. The State requested that the children be placed “in the custody and guardianship” of DCFS and that any visitation between Parents and the children be at the direction of DCFS and in consultation with a guardian ad litem.

¶15 At a shelter hearing held a few days later, the court considered evidence by proffer from several witnesses, including Parents, the four minor children, Oldest Sister, Brother-in-Law, the DCFS caseworkers, and Branch President.[4] At the conclusion of the hearing, the court found that the children were “suffering emotional harm” and there was “nothing and no services” that could be “placed into the home to ameliorate the harm.” Accordingly, the court concluded that the children could “not be safely returned” to Parents and awarded temporary custody of the children to DCFS, with Parents to have supervised visitation. The court also appointed the GAL to represent the interests of the children, and it later appointed attorneys to represent Mother and Father, separately.

The Failure of Group Therapy

¶16 During the fall of 2018, the court held hearings in the case on nearly a weekly basis, as disputes arose over even rather basic things. For instance, the State wanted all four children to have a mental health assessment, but Parents objected; the court held a hearing and ordered that the evaluations take place and that Parents were not allowed to attend them. The evaluations eventually occurred, and the children began therapy—both individual and group therapy—with a counselor in October 2018. Some of the group therapy was designed to include Parents; indeed, the court ordered that, for Chloe and Felicity, all visitation “shall be therapeutic until further order of the court.”

¶17 At first, the children were reticent to even see Parents, much less participate in group therapy with them. The therapist facilitating the group therapy (Therapist) asked the children— prior to the appointments with Parents—if there were “things that [Therapist] could put into place” that would help them “feel comfortable” with the arrangement, and the children—“together as a collaborative process”—came up with a set of guidelines they thought would help. Among other things, the children asked that there be “no hugs” between them and Parents, “no talking about money,” and “no talking about religion” or “church stuff.” Therapist communicated these child-created guidelines to Parents on October 24, 2018, just prior to the first group therapy session.

¶18      Parents objected to these guidelines, especially the “no talking about religion” rule, and at a hearing held just over a month later, the court removed the “no talking about religion” rule but overruled Parents’ objections to the other rules. During the short time the “no talking about religion” rule was in place, however, Parents—and Father in particular—pointedly refused to abide by it; indeed, Therapist later testified that Father brought up religion in “nearly every visit.”

¶19 For instance, during one session between Father, Felicity, and Chloe, Therapist had to ask Father “seven times” to stop talking about religion. In previous sessions, Therapist had asked Father to focus on “listening” to the girls, because he “spoke so much” during the sessions that the girls typically did not “have the opportunity to share” their feelings. But in this session, and despite Therapist’s attempts to intervene, Father continued his behavior of dominating the discussion and refusing to listen to the girls’ concerns, explaining that “he had the power from God, that he had the power of the priesthood” and they did not, which gave him the right to direct all decisions for the family generally and for the girls specifically. At times physically standing up and towering over the girls, he told them that Brother-in-Law had no right to take decision-making power away from Father and that “God gave [Father] the right” to make decisions for the children as he saw fit. The girls reacted by “hiding” and “cover[ing]” themselves with pillows, and “scoot[ing] closer together” in solidarity. They appeared “very defeated” and “stopped talking”; Therapist observed that they “completely withdrew and shut down and were done having any interaction at that point.”

¶20      As time went on, and recognizing that no progress could be made as long as Father dominated the discussion during therapy, Therapist attempted to make future sessions more “child-focused.” During one session, Chloe and Felicity “started to express” how they often felt bullied by Father, and he responded by stating “that people who get bullied . . . are victims because they allow themselves to be.” He told the girls that it was “their fault” that they were being bullied and that he had done “nothing” wrong. In an effort to get through to Father, Therapist then attempted a “role reversal” technique whereby Felicity would portray Father and Father would portray Felicity; the purpose of this exercise was to give Father an “understanding of how his children felt when he lectured them.” Once Felicity (pretending to be Father) began her lecture, Father “started fighting back instantly.” Therapist informed Father that he was not “doing the role reversal the right way” because, as Father had already explained, “he expects complete compliance” from the children when he lectures. To fully engage with the role-reversal exercise, Therapist instructed Father “to sit there” and “listen” just as he expected his children to do for him. This instruction angered Father, who turned on Therapist, declaring that she should not be “allowing his children to bully him” and that she was “undermin[ing] his parenting skills.” He also accused Therapist of “taking away his religious rights” by engaging in this role reversal, offering his view that Therapist was attempting to indoctrinate the children with her “secular views.”

¶21      In another session, Therapist instructed the children to write down the details of some of the different traumas they had experienced. The plan was to then have each child share their thoughts and have Father “meet the child[ren] emotionally” and “validate” their feelings, and then have an opportunity to explain the intention behind his actions. As the children began to explain what they had written, Father interrupted and began to argue and “discredit” what the children were saying. Father, who was now on his feet, tried to take control of the session, reaching out to grab the papers from the children so he could read them and address them in the manner he saw fit. At this point, Felicity asked “for a two-minute break,” which Therapist agreed would be a good idea. Watching the children defer to Therapist for permission to leave the room further agitated Father. He began telling Therapist that he was the one “who gets to decide what his children do” and that Therapist does not “get to undermine him and his parental authority.” Therapist tried to explain that it was okay to take a brief break, given that things were “getting rough,” and she stated that if Felicity needed a break, she should be allowed to have one. Father disagreed, situating himself in the doorway and blocking the exit. Therapist tried to maneuver Felicity around Father while gathering the children’s papers, at which point Father began “lunging” at Therapist and trying to snatch the papers out of her hands. Therapist was forced to hold the papers behind her back, telling Father the documents belonged to the children and he was not permitted to take them. Father started yelling that these were “his kids” and he was therefore “entitled” to see whatever they wrote on the papers. He then turned his anger on the children, telling them “it was time for them to be punished and that they need[ed] to have their consequence.” At this point, Therapist determined that the session was over, and she began escorting the children to the reception area. Father was following close behind, continuing his tirade and informing Therapist “what [he was] going to do to [Therapist], what [he was] going to do to the caseworkers, [and] what he’s going to do to the kids.”[5]

¶22 After that point, the therapists who had been working with the family came to the collective conclusion that group therapy sessions were doing more harm than good. For one thing, the sessions were “unproductive”; Father had “made it very clear, from the beginning, that he didn’t think [therapy] was necessary” and that he did not need to be there because “nothing needed to change” and he “wasn’t going to make changes.” In addition, and perhaps more significantly, the therapists “no longer felt that it was safe to continue having family therapy sessions that included [Father].” In particular, Therapist wrote in a report that, “[t]herapeutically speaking,” it would “be detrimental to the children to continue family therapy” because it would only further “damag[e] their relationship[s].” She believed, however, that it was critical that individual therapy still continue.

¶23 Given the tenor of the group therapy sessions, the GAL filed a motion to suspend all visitation—even in a therapeutic setting—between Father and the children. Father objected to this request, and he took the opportunity to advance his own view of the group therapy sessions. In a filing he made with the court, Father opined that the children were “being coached and groomed in an attempt to avoid reunification with” Parents. Father believed he—as religious leader of the family—had a right to review all recordings of the children’s individual therapy sessions, and he took issue with Therapist’s refusal to provide him any such recordings. Father concluded his filing with a request that a new therapist be appointed, one that would not engage in the “foisting of secular values” upon his family.[6] At a hearing in January 2019, the court ordered that therapeutic visitation with Chloe and Felicity be “discontinued until the issues are adjudicated.” But the court also indicated that the children “may visit” with Parents “if approved” by the DCFS caseworker and the GAL and “with input from the children’s therapists.” The court did not order that any change of therapists take place.

Mother’s Adjudication

¶24 Mother did not contest the allegations in the State’s petition, admitting to some of them and, with regard to the rest, electing to proceed pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure.[7] Based on the uncontested allegations in the petition, the juvenile court found that all four children were neglected as to Mother. The court determined that Chloe, Felicity, and Hannah were neglected because Mother subjected them “to mistreatment or abuse and/or” because they “lack[ed] proper parental care by reason of the fault or habits of [Mother], and/or” because Mother had “failed to provide proper and necessary subsistence, education or medical care when required or any other care necessary for [the] health, safety, morals or well being of the children.” The court determined that Noah was neglected because he was “at risk of being neglected or abused because another child in the same home [was] neglected or abused.”

¶25      At a dispositional hearing that took place a few weeks later, the juvenile court set reunification as the primary permanency goal, and it ordered that Mother receive reunification services and comply with a child and family plan (Mother’s Plan). In particular, the court ordered Mother to “complete a domestic violence assessment,” complete an “in home peer parenting” program, undergo a “neuro-psychological evaluation,” and “complete individual therapy.”

Father’s Adjudication

¶26      Father, on the other hand, elected to contest the allegations in the State’s petition, and the matter proceeded toward an adjudication trial, which was held over five trial days in March and April 2019. During the first day of trial, Father was represented by counsel, but he then requested that the court “replace his second appointed attorney”—Father had already switched appointed counsel once—which request the court denied. Father then elected to represent himself for the remainder of the trial, although the court determined that Father’s second appointed attorney should “continue as standby counsel.” During the trial, the court heard testimony from the four minor children, Branch President, several DCFS caseworkers, Oldest Sister, Brother-in-Law, and Father.

¶27 Following the trial, the court took the matter under advisement, and it issued a written decision in June 2019. In its conclusion, the court determined that all four minor children had “been emotionally abused” in a “continuing pattern of emotional maltreatment” by Father and that this “ongoing abusive environment has emotionally damaged the children.” The court’s findings, made in support of this determination, are remarkable and are worth describing in some detail.

¶28      The court found, by clear and convincing evidence, that the allegations contained in the State’s petition were generally correct. It found that, in May 2018, Chloe wrote an “alarming letter” to her teacher describing “her home environment” and expressing “her desire to kill herself on a constant basis.” The home environment in question was one dominated and directed by Father, who—in an ostensible attempt to “promot[e] the necessity and value of work and chores”—was “unhealthily” using these principles “to control and subjugate the children.” He assigned “continuous chores” to the children and demanded that each task be performed timely—often using the mantra “housework before homework”—and perfectly, assigning additional chores and requiring the children to stay home from school if chores were not performed to his satisfaction. And he required the children to pay him for even basic household privileges, like eating “fresh food” (as opposed to “expired food stores”), using the computer, and getting rides to school.

¶29      The court found that Father often used physical force—or the threat of it—to control Mother and the children. On one occasion, Father roughly “grabbed the car keys” from Mother’s hand, “which resulted in a cut on [Mother’s] hand.” On another occasion, Father “threw the family dog out the back door because the children would not kneel down for family prayer.” Once when Noah apparently did not kneel down fast enough for family prayer, Father threw “a headlamp” at him. Other times, Father “grabbed” the children “by the wrists to make them do something.” Father once “brought [Noah] to his feet by . . . grabbing the back of his hair,” and another time he “slapped [Hannah] on the mouth.”

¶30 The court found that Chloe was not the only one of the children experiencing suicidal ideations: it found that, “as a result of the continuing emotional trauma, [Felicity] felt trapped and became suicidal; she thought about dying as a way to escape the home.” Parents were not receptive or attentive to Chloe and Felicity in this regard; although Mother did take Chloe to one appointment for a mental health assessment, there was no follow-up or any actual treatment rendered and her “suicidal thoughts were not properly addressed.” Indeed, the children were told not to speak to anyone—including church leaders and DCFS officials—about the conditions in the home, and they were threatened with punishment if they did. Felicity was even told, by one of the Parents, that “if [Chloe] were to commit suicide, it would be her fault.”

¶31 The court also found credible Branch President’s account of his meeting with the girls in August 2018, and found that the meeting occurred as set forth in Branch President’s letter to DCFS (as described above). And it found that DCFS had acted appropriately by seeking a warrant for removal in August 2018.

¶32 The court then examined the statutory definition of “emotional abuse,” as well as Utah case law interpreting that definition. The court specifically noted that a finding of “abuse” requires a finding of “harm,” which—as applied to emotional abuse—requires a finding that a child has suffered “a serious impairment in the child’s growth, development, behavior, or psychological functioning.” With this standard in mind, the court concluded that all four children had been “emotionally abused by” Father and that, in addition, Chloe was also “a neglected child due to the lack of proper parental care” from Father. The court found that the threats Father constantly made to the children had “caused emotional upheaval” in their lives “and negatively impacted [their] development.” And the court found “a continuing pattern of emotional maltreatment of the children which [had] resulted in two of the children considering suicide as an option to end the maltreatment,” and it found that “these suicidal ideations and thoughts demonstrate a serious impairment to” the affected children’s “psychological functioning.” In particular, the court found that Father,

[t]hrough the use of chores, yelling, physical control, the use of access to food, the harm to a family pet, insulting comments, blaming and payment for basic things, and the daily arguing and sometime[s] physically aggressive behavior between . . . [P]arents that the children witness, . . . has created a hostile environment, which is manifested in the children feeling unsafe and being terrified of being at home with [P]arents.

The court concluded by noting that “this ongoing abusive environment has emotionally damaged the children.” While the court did not find “physical abuse as defined” by Utah law, it did conclude that “the children’s testimony was credible about the use of physical force to submit to the requests of [Father].” The court concluded that these “physical actions” on Father’s part “were part of” the “emotionally abusive parenting style” that he “used to intimidate and control the children.”

¶33 Father appealed the court’s adjudication order, but he raised only one argument—a procedural one—in his appellate petition. Specifically, he asserted that “the juvenile court lacked jurisdiction to enter the [adjudication] order because the adjudication trial was not held within sixty days after the shelter hearing,” which Father asserted was required by Utah law. Father mounted no appellate challenge to the substance of the court’s adjudication order. In an unpublished order, we rejected Father’s procedural argument and affirmed the adjudication order, concluding that Father had not preserved his procedural argument in the juvenile court and that Father could not demonstrate plain error.

¶34      Soon after the juvenile court issued its adjudication ruling, it held a dispositional hearing regarding Father. At the conclusion of that hearing, the court set a primary permanency goal of reunification and ordered that Father receive reunification services. The court also ordered that Father “comply with all of the provisions of” a child and family plan (Father’s Plan). Among other things, Father’s Plan required Father to obtain a mental health evaluation, follow any and all recommendations made by the evaluator, and participate in therapy.

The Permanency Hearing

¶35 A few months after entering its adjudication order regarding Father, the court held a permanency hearing, which took place over three trial days in September and October 2019. Again, the court heard testimony from members of the family as well as from therapists, DCFS caseworkers, and others. At the conclusion of the hearing, the court found, as to both Parents, that DCFS had made “reasonable efforts” to facilitate Parents’ compliance with their plans and to facilitate reunification.

¶36      With regard to Mother, the court found that she had made some positive efforts to comply with Mother’s Plan. In particular, Mother had “participated in visits with the children,” “obtained a psychological evaluation and engaged in therapy,” and completed an “assessment for domestic violence.” But the court also noted that Mother “continues to not give any credence to the children’s testimony about the conditions and treatment within the home” and, because of this belief, “no progress has been accomplished in family therapy.” As part of Mother’s Plan, Mother had also been instructed “to provide a safe and stable home.” The court found that Mother was not “capable or willing to do this given the continued denial of any concerns of emotional abuse of the children with her or [Father].” Thus, even though Mother had made some progress “on a number of the services ordered,” the court concluded that she had made insufficient progress “in the most essential areas of family therapy and personal insight to have the children safely returned home at this time or in the next 90 days.” For those reasons, the court terminated reunification services for Mother.

¶37      With regard to Father, the juvenile court found that he had “not substantially complied with” Father’s Plan. First of all, Father had refused “to obtain a mental health evaluation,” despite the fact that DCFS caseworkers had set up appointments for Father to receive the evaluation and had “encourage[d] him to complete” it “prior to the permanency hearing as it would show his efforts in the reunification process.” In addition, the court found that Father had failed to “participate in meaningful family therapy.” And most significantly, it found that Father had failed in his overarching task of providing “an emotionally safe or stable home to which the children may be returned.” The court specifically noted that Father, through his testimony at the hearing, had shown that there had “been no change in his perception of the facts which facilitated the [S]tate’s involvement.” Accordingly, the court terminated reunification services for Father and set adoption as the new “primary permanency goal” for the children, with a secondary goal of permanent custody and guardianship with Oldest Sister.

The Termination Trial

¶38 In October 2019, soon after the permanency hearing, the State filed a petition to terminate Parents’ parental rights regarding all four minor children. But due to a series of delays— caused by numerous factors, including motions to disqualify the judge, attempts to appeal certain orders, requests by both Parents for new counsel, disputes over discovery and subpoenas, and (most significantly) the emergence of the COVID-19 pandemic— the termination trial did not begin until July 2021. And the trial, once it began, was quite lengthy, spanning parts of nineteen trial days and involving the testimony of more than twenty different witnesses. Due to scheduling and pandemic-related concerns, the juvenile court was unable to hold the trial in one large block of time; instead, the trial occurred on scattered dates over the course of eleven months. In the meantime, both Chloe and Felicity turned eighteen and became adults, and they each chose to be adopted— as adults and in separate district court proceedings—by Oldest Sister and Brother-in-Law. By the time the termination trial ended, only Hannah and Noah were still minors and still within the jurisdiction of the juvenile court.

¶39      First to testify at trial were three DCFS caseworkers, who told the court that it had been difficult working with Parents, especially Father. One testified that whenever difficult subjects arose, Father would become “visibly upset,” raise his voice, and stand very close to her and wave his finger. Mother was less confrontational, but the caseworkers reported that the children felt that they could not be entirely honest with Mother “because they felt that she was just collecting information to use against them” and “that she was taking notes to provide to [Father].” At one point, one of the caseworkers had advised Mother that it would be “unlikely” that her reunification with the children would be successful “if [Mother] and [Father] were still together” and if Father continued to refuse to engage in services.

¶40 The court also heard about an incident in October 2019 when Father and a caseworker had gone with Chloe to visit a child psychiatrist (Psychiatrist) to discuss Chloe’s suicidal ideations. Psychiatrist testified that Father made it clear from the beginning that he was against the appointment because he believed there was “nothing wrong” with Chloe and that she “did not need medication.” Father became “confrontational” with Psychiatrist, in terms of both his “voice tone” and his “physical posturing,” and demanded to see a copy of Psychiatrist’s credentials. Father acted similarly toward Psychiatrist’s office staff. Psychiatrist found Father’s behavior so remarkably inappropriate that he wrote a letter to the court—the first time Psychiatrist had done so in decades of practice—asking that Father be kept away from his office and prohibited from contacting his employees regarding Chloe’s medical care.

¶41      Mother’s therapist testified that Mother felt that DCFS became involved only because the children had made up “a bunch of lies” just so they could have “an easier life.” Mother also had a habit, similar to Father’s, of raising her voice and shaking her finger at the therapist and would accuse her “of being involved” in “the efforts” to keep the children “away from [Mother].” The therapist met with Mother seventeen times, but she indicated that, “at the point of discharge,” Mother had made “little progress.”

¶42      The court also heard testimony—from DCFS caseworkers as well as from the psychologist tasked to perform the assessment—that Father refused to undergo a mental health evaluation, as ordered by the court pursuant to Father’s Plan. Father’s stated concern was that he did not want DCFS to have a copy of the psychologist’s eventual report, apparently because he believed that DCFS was “kind of out to get him”; the psychologist explained to Father that he had been retained by DCFS and therefore DCFS was going to get a copy of the report. The psychologist testified that he had completed more than 4,000 assessments for DCFS over several decades and that this was the first time anyone had refused to participate on the ground that they did not want DCFS to receive a copy of the report.

¶43 Mother, on the other hand, did participate in a mental health evaluation; the psychologist who performed her evaluation testified that Mother had dependent personality disorder, obsessive-compulsive personality disorder, and dementia. The psychologist went on to note that she could not rule out aphasia as another possible diagnosis but, to be certain, Mother would need to undergo an evaluation with someone more qualified in speech and language. According to this psychologist, someone in Mother’s position would likely struggle with daily life and would need “a lot of assistance and accommodations.”

¶44      Oldest Sister testified, and she offered her perspective on what it had been like to live with Parents; in addition, she told the court about one incident that took place after she had moved out. She recounted how she would sometimes return to Parents’ house to visit her siblings, and on one such occasion, Father struck Oldest Sister. The incident began with Father demanding that, while Oldest Sister was visiting, she “clean the house” for Parents. Oldest Sister decided to stand up to Father and tell him that she was happy to help around the house while she was visiting but that she was not there to be Father’s “maid.” At this, Father “backhanded” Oldest Sister, knocking her to the floor. While on the floor, Oldest Sister threatened to call the police, at which point Mother “jumped on top” of her, warning her not to call law enforcement and that if she did, it would “ruin” the family.

¶45      Oldest Sister also offered her account of the circumstances that caused DCFS to become involved in this case, and she described that she has a strong bond of love and affection for her siblings and that they are thriving in her care. She noted that she and Brother-in-Law have three children of their own, and she stated that her four siblings have integrated well with her three children. She also testified that her siblings “know that we love them no matter what” and that they are no longer “afraid.” She told the court that she was ready and willing to adopt all four of her siblings—she had not yet adopted Chloe and Felicity—even if it meant that her own relationship with Parents would suffer.

¶46 The court also heard testimony from all four minor children, which testimony we describe here in some detail.

¶47 Chloe’s Testimony: Chloe testified over two trial days in July and August 2021, just before she turned nineteen and was about to leave on a religious mission. Chloe described herself as a religious person, and she noted her appreciation to Parents for teaching her religious principles. But she expressed disagreement with the manner in which Father often exercised his authority within the family, offering her view that Father would “force” religion “down [the children’s] throats” and “use it against” them, which Chloe believed “was tearing [the family] apart.” She stated that it had been the children’s idea to prohibit Father from talking about religion during group therapy sessions. At home, Chloe had never felt like she could express herself or “say anything,” because Father always had to be “in control” and it was always “his way or the highway.” She described how the children were “scared” of Father and would sometimes hide in a closet, “all huddled up together,” because they were “terrified.” Chloe described instances where she had witnessed Father physically hurting members of the family. On one occasion, shortly before Older Brother had moved out, she saw Older Brother arguing with Father when Father “grabbed” Older Brother and “put him in a choke hold.” When Older Brother broke free of Father’s grasp, Chloe witnessed Father “push[ing] him down the stairs.” She confirmed that she had been “suicidal when [she] was in [Parents’] house.” When she told Father about it, his response was, “If you commit suicide, you’re going to go to hell.” She also confirmed that Father had interfered with a medical appointment in which she was attempting to see Psychiatrist to discuss medication and treatment. And she described how Father would make the children eat expired food, even sometimes when it had “mold on it” or when “the expiration date [was] . . . more than two or three or sometimes even five years past.”

¶48 In addition, Chloe offered her view that Father had not “done the things the [c]ourt asked him to do” in order to reunify with his children, and she stated that she did not think she could have meaningful contact with Father going forward. She viewed Father’s unwillingness to engage with reunification services as a sign that he “didn’t want us,” because if Father had wanted them, he “would have gone through the process” that the court set out instead of “fighting so hard to be like ‘I’m right and you’re not going to tell me what I can and cannot do’” regarding the children.

¶49      Chloe was more equivocal about Mother, stating that she believed she could potentially have a good relationship with Mother if Mother were no longer with Father, and that she and Felicity had expressed that sentiment to Mother at one point. In Chloe’s view, Mother acted merely as Father’s “puppet” and did not feel free to offer “her true feelings.” Mother reacted negatively to the girls’ suggestion that she should leave Father, telling Chloe, “[D]on’t you dare ever make me choose.”

¶50      Chloe acknowledged that, as an adult, she had chosen to be adopted by Oldest Sister and Brother-in-Law, and she stated that she had wanted that outcome all along, even when she had been a minor, and that she had chosen adoption because she wanted “a loving and supportive” place “to call home” and didn’t feel like she ever had that with Parents. She noted that there had been challenges, initially, transitioning from “sister to daughter overnight” in relation to Oldest Sister, but she described her life with Oldest Sister and Brother-in-Law as, on balance, “pretty freaking amazing.”

¶51      Felicity’s Testimony: Felicity testified in November 2021, about a month before she turned eighteen. She stated that her home with Parents was “really scary” and not “safe.” Parents “yelled all the time,” fed the children “expired” food unless they paid Father for fresh food, and made the children do endless chores that somehow could never be “done good enough.” She recalled one occasion in which Father kept her up until 2:00 a.m. on a school night because he thought she hadn’t cleaned the kitchen counters well enough; Felicity finally went to bed, but Father came into her room “and poured water over [her] head” to wake her up and made her “go finish” cleaning the counters. And she recalled another occasion in which Father threw her dog outside because she “didn’t kneel down for prayers fast enough.”

¶52 Felicity confirmed that, while she lived with Parents, she struggled with “anxiety and depression” and “thought about killing [her]self.” She perceived Parents as being unsupportive of her during this time; Mother in particular was resistant to helping Felicity obtain medication for her depression, telling her instead to just “read the scriptures.”

¶53      Since being placed with Oldest Sister and Brother-in-Law, Felicity has had visits with Parents, but she testified that she doesn’t like the visits. During the visits, Parents would “act like . . . everything’s fine” and would refuse to engage with the problems in the home. She stated that the visits with Father, in particular, didn’t go well. On one occasion, she asked to take a break while Father was talking to her, and Father became angry, telling her she was not allowed to leave the room while he was addressing her. After that visit, she and the caseworkers came up with a kind of “safe word” for her to use if she needed a break during a visit: she was to say that she needed to use the restroom.

¶54 She confirmed that group therapy with Parents had not been productive because Parents “would just deny” everything and would “refuse to say that they did something wrong.” She offered her perception that Parents, during the reunification period, “haven’t done anything to change.”

¶55      Finally, Felicity testified that she liked living with Oldest Sister and Brother-in-Law because “they’re kind and they care about” her and she feels like she is “actually loved.” She testified that she does not “want to have a relationship with” either one of her Parents and that she wanted to be adopted by Oldest Sister and Brother-in-Law. Indeed, in March 2022—before the trial ended but after she testified and after she turned eighteen—she elected to be adopted by Oldest Sister and Brother-in-Law.

¶56      Hannah’s Testimony: Hannah testified in September 2021, when she was fifteen. She confirmed that she and her siblings had been removed from Parents’ home because “it wasn’t really safe” there. She testified that there was “a lot of contention” in the home and that there was “so much screaming and yelling” that she and Noah would sometimes “go hide in a closet” because they were “really scared.” She discussed several incidents in which Father used physical force, once on Mother—when he forcibly “grabbed the keys” out of her hand—and sometimes on the children: she described Father throwing a “headlamp” at Noah and once “slapp[ing] her across the face.” Often, the yelling was about the children’s chores and involved Parents indicating that they were dissatisfied with the manner in which the children had performed their tasks. She said that “every time” Parents started yelling, she “was afraid they were going to hit” her, which caused her “anxiety” and was “really scary.” She testified that, in those situations, she “couldn’t talk back” because, if she did, she would “get in more trouble.”

¶57      She testified that the post-removal visits were “pretty scary at first” because she worried that Parents “were going to take all of their anger” about the removal “out on” the children. Hannah did not believe that the visits were productive, and she testified that she felt “released” and “happy” when visits with Father were “canceled.” She believed that the group therapy sessions, in particular, were unhelpful, largely because Parents refused to ever acknowledge that they might have done anything wrong.

¶58      And she testified that living with Oldest Sister and Brother-in-Law was “pretty awesome” because she feels “loved there” and feels “like someone cares for” her and that she wasn’t “scared anymore.” She told the court that she wanted to be adopted by Oldest Sister and Brother-in-Law, and that she would “run away” if she were forced to return to Parents’ home.

¶59 Noah’s Testimony: Noah testified in September 2021, a few weeks before his thirteenth birthday. He also testified that Parents’ home “wasn’t a safe environment” due to the constant “yelling and contention,” offering his view that “there was almost never . . . peace and happiness.” He recalled Parents waking him up by spraying him “with a water bottle,” and he recalled the headlamp incident.

¶60 His view of the post-removal visits was that he “didn’t really want to have them” because he didn’t “want to have a relationship with [Parents] anymore.” He found the visits “odd at first” but then, after a while, he just found them “boring” and “a waste of time” because Parents would just ask “the same questions.” He also believed that Parents “wouldn’t try and improve” themselves through the visits and group therapy.

¶61      And Noah testified that he “really like[s]” living with Oldest Sister and Brother-in-Law and that he wants to “live permanently” with them. He testified that Oldest Sister’s home is “a loving environment” where they “help each other . . . try to get better and improve.” He stated that he doesn’t “want [Parents] to be [his] parents,” and that he would not “feel safe” if he was returned to Parents’ custody. He expressed a desire “to have [Oldest Sister and Brother-in-Law] be [his] parents.”

¶62      Finally, the court heard extensive testimony from Parents. Father testified over three trial days and was the only witness to testify on two of those days. Mother also testified over three trial days. For the most part, in the interest of brevity, we present their testimony through our description of the juvenile court’s ruling, set forth immediately below. But in general, Parents refused to acknowledge that they had acted in any way inappropriately, and they defended their behavior as a means of instilling discipline and religious-based values in their children.

The Court’s Post-Trial Ruling

¶63 Following the presentation of evidence, the attorneys presented their closing arguments over parts of two days. After that, the juvenile court took the matter under advisement and, a few weeks later, issued a fifty-three-page written decision. In that decision, the court summarized the testimony that had been presented; in particular, the court spent some twelve pages summarizing Parents’ lengthy testimony.

¶64 The court noted that Father described Oldest Sister as “spoiled” and described Chloe’s expression of suicidal ideations as “play[ing] the suicide card.” Father acknowledged that he had awakened the children with water, thrown a headlamp at Noah, and “raised his voice” during the meeting with Branch President. But he justified these behaviors as merely strict religious-based parenting. The court noted Father’s stated belief that “the [State] had invaded his family” and was “taking over his stewardship,” as well as Father’s contention that the assigned therapists “had replaced his religious beliefs” by instituting rules for the therapy sessions with which he disagreed. And the court noted Father’s testimony that Branch President was “highly judgmental and lacking in integrity,” as well as Father’s stated belief that DCFS, Branch President, and Oldest Sister “got together with malice to engage in child kidnapping and child trafficking” so that Oldest Sister could “enslave[]” the children to “serve [her] family.”

¶65      With regard to Mother, the court noted that she had been married to Father for thirty-five years and “intends to stay married to him.” Mother testified that, at one point, the GAL and DCFS caseworkers told her that “she had to choose between [Father] and the children,” and that she “told them no, that they are not going to break up the family.” The court noted Mother’s belief that she had attempted to comply with Mother’s Plan, and that Mother “wants to have a special relationship with all of her children and would like the family to be together.”

¶66 After summarizing the voluminous testimony presented at trial, the court made certain findings and conclusions. It found that Father “uses religious, familial, and authoritative vocabulary to intimidate the children,” and that he “has used his physical presence” in that manner as well “by standing up, making his body larger, [and] power posing [to] the children.” The court found that Father “has not engaged in purposeful family therapy with the children to address the issues” in the case and that Father “has never acknowledged that he” might bear some responsibility for the situation. The court noted that the “family never moved from square one in talking about the real issues that led [Chloe] to be suicidal and had [Noah] and [Hannah] hiding in the closet.” The court declared that, “[w]ithout addressing and correcting the problems in the home as to parenting style and the environment, the children and [Father] will never have a healthy relationship.” The court found that “there does not exist a bond of love and affection between the children and [Father].” And it observed that Father certainly “has the constitutional right to parent his children” but that the “children also have the right to be free from emotional abuse.” In summary, the court found that Father “is an unfit parent” and that Hannah and Noah could not “safely be returned to [Parents’] home to reside with [Father] since he has made no efforts,” or “only token efforts,” to address and eliminate “the issues of emotional abuse which exist in the home.”

¶67    As to Mother, the court found that she “supported [Father] in his harmful treatment of the children as he tried to control their lives,” and that she “minimized the emotional maltreatment that was occurring in the home and the extent of the emotional trauma” the children experienced. It found that Mother “continues to deny . . . any emotional . . . maltreatment of the children,” that she “laughs when questioned about these things and continues to blame the children and [Oldest Sister] for [DCFS’s] intervention,” and that she “has never considered for a moment that she or [Father] have done anything untoward or harmful to the children.” The court found that Mother’s “continued association with [Father] puts the children at risk should they be returned to her custody and care.” The court found grounds sufficient to justify termination of her parental rights, concluding that Mother was “unable or unwilling to remedy the circumstances that caused the children to be in an out-of-home placement” and that she had made only “token efforts to eliminate the risk of serious harm to the children.”

¶68      Having found grounds sufficient to justify termination of Parents’ rights, the court then turned to the best-interest question. The court determined “that it is in the children’s best interest and strictly necessary to terminate” Father’s parental rights. The court considered whether to impose a permanent custody and guardianship arrangement with Oldest Sister and Brother-in-Law, but it did “not find this alternative to be in the children’s best interest.” The court noted that both Branch President and Psychiatrist had considered Father so aberrant that—in an effort to keep Father away from the children—they had each taken action they had never taken before. And the court noted that, “if permanent custody and guardianship were granted” to Oldest Sister, Father “would still be in the orbit of the two remaining [minor] children” and would be able to “assert[] his will as to basic medical and otherwise personal decisions in the care of the children.” For these reasons, the court concluded that the State had demonstrated, by clear and convincing evidence, that termination of Father’s rights was strictly necessary to advance the children’s best interest. The court therefore ordered that Father’s rights be terminated.

¶69 As to Mother, however, the court reached a different conclusion. The court first noted “the legislatively mandated position that wherever possible family life should be strengthened and preserved,” and it observed that the children were in the custody of a relative—Oldest Sister—and were not “in a home unrelated to” Parents. The court noted that the children’s visits with Mother had gone better than their visits with Father, and that their relationship with Mother—unlike their relationship with Father—does not cause “the children emotional or mental harm.” Accordingly, the court concluded that, with regard to Mother, “the children can be equally protected and benefited by an option other than termination.” The court therefore declined to terminate Mother’s rights, and it placed the children in a permanent custody and guardianship arrangement with Oldest Sister and Brother-in-Law.

The GAL’s Rule 59 Motion

¶70      Shortly after the issuance of the court’s initial post-trial ruling, the GAL filed a motion—grounded in rule 59 of the Utah Rules of Civil Procedure—requesting that the court reconsider its decision not to terminate Mother’s parental rights. The GAL asserted that, in making its decision not to terminate Mother’s rights, the court had viewed matters too much from Mother’s point of view and not enough from the children’s point of view. Mother opposed the motion.

¶71      During a hearing on the motion, the GAL began to discuss events that had occurred since the conclusion of the termination trial, and Mother’s counsel objected. The court determined that it would permit counsel to “put in a memorandum or affidavit” the “additional information supporting” its argument, and it would then allow all other parties “to file an affidavit or other response.” Following the hearing, the GAL filed with the court an affidavit from Brother-in-Law in which he described, among other things, the effects that post-trial visits with Mother had been having on Hannah and Noah.

¶72 A few weeks later, the juvenile court issued a written ruling granting the GAL’s motion. In the introductory paragraph of that ruling, the court noted that, in preparing to make its decision, it had reviewed “the filings and arguments of the parties, the oral argument on the [m]otion and the prior testimony from the termination trial and the original findings and order.” But the court made no specific mention, anywhere in its ruling, of the post-trial events described in Brother-in-Law’s latest affidavit. Instead, the court stated that it was reconsidering its prior ruling and, this time, it was ordering termination of Mother’s parental rights; it explained that, in its initial ruling, it had “failed to give the proper weight to the children’s expressed wishes to be adopted” by Oldest Sister and Brother-in-Law. The court noted that the “children have been direct in seeking to be adopted.” And it noted that it was statutorily commanded to “give the minor’s wishes added weight” if the minor in question was fourteen years old or older, a stipulation that, in the court’s view, applied to all of the children (Noah having recently turned fourteen). After reconsidering its prior decision in light of the added weight given to the children’s stated wishes, the court determined that termination of Mother’s rights was in the children’s best interest, and it therefore ordered that her rights be terminated.

ISSUES AND STANDARDS OF REVIEW

¶73      Parents now appeal, and they raise several issues for our review. First, they contend that the juvenile court violated their constitutional rights. “Constitutional issues, including questions regarding due process, are questions of law,” and the conclusions of the juvenile court on such issues are reviewed “for correctness.” In re adoption of K.T.B., 2020 UT 51, ¶ 15, 472 P.3d 843 (quotation simplified). Along with this argument, Parents also assert that the constitutional issues they raise indicate that the court erred in concluding that DCFS made reasonable efforts to facilitate reunification. To the extent that Parents’ constitutional arguments raise “reasonable efforts” questions, we review the court’s ruling more deferentially. See In re P.J.R., 2023 UT App 27, ¶ 24, 527 P.3d 1114 (“A court’s determination that DCFS made reasonable efforts to provide reunification services involves an application of statutory law to the facts that presents a mixed question of fact and law, requiring review of the juvenile court’s factual findings for clear error and its conclusions of law for correctness, affording the court some discretion in applying the law to the facts.” (quotation simplified)), cert. denied, 534 P.3d 750 (Utah 2023).

¶74      Second, Parents assert that their respective attorneys provided ineffective assistance of counsel at various points throughout the litigation. “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” In re D.G., 2022 UT App 128, ¶ 6, 522 P.3d 39 (quotation simplified), cert. denied, 527 P.3d 1106 (Utah 2023).

¶75 Third, Father argues that some of the juvenile court’s factual findings were against the clear weight of the evidence. “In order to overturn the juvenile court’s decision the result must be against the clear weight of the evidence or leave [this] court with a firm and definite conviction that a mistake has been made.” In re G.D., 2021 UT 19, ¶ 70, 491 P.3d 867 (quotation simplified).

¶76      Finally, while Parents do not take issue with the juvenile court’s ruling that statutory grounds for termination existed, Parents do challenge the court’s ruling that termination was strictly necessary to promote the children’s best interest. We review a trial court’s “best interest determination deferentially, and we will overturn it only if [the court] either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re D.S., 2023 UT App 98, ¶ 15, 535 P.3d 843 (quotation simplified), cert. granted, Jan. 25, 2024 (No. 20230877). But “because the evidentiary standard applicable in termination of parental rights cases is the clear and convincing evidence standard, we will assess whether the juvenile court’s determination that the clear and convincing standard had been met goes against the clear weight of the evidence.” Id. (quotation simplified).

¶77 Along with her best-interest argument, Mother raises an additional issue: she asserts that the juvenile court erred by allowing the GAL to submit new evidence of post-trial matters in support of the rule 59 motion. “We generally disturb a trial court’s grant or denial of a rule 59 motion only if it constitutes an abuse of discretion.” Bergmann v. Bergmann, 2018 UT App 130, ¶ 12, 428 P.3d 89 (quotation simplified). And we will not reverse that decision if the only errors in it were harmless. See State v. Loose, 2000 UT 11, ¶ 10 n.1, 994 P.2d 1237 (“We do not reverse a trial court for committing harmless error.”); Proctor v. Costco Wholesale Corp., 2013 UT App 226, ¶ 9, 311 P.3d 564 (“[A] harmless error does not require reversal.”), cert. denied, 320 P.3d 676 (Utah 2014).

ANALYSIS

  1. Constitutional Claims

¶78      We first address Parents’ assertion that the “juvenile court process” that resulted in the termination of their parental rights violated their constitutional rights. We describe Parents’ specific claims in more detail below, but before we discuss the particulars of those claims, we pause to emphasize two critical background points, one legal and one factual, that help frame our analysis.

¶79      The legal background point is straightforward and should go without saying: a parent has no general right, whether statutory or constitutional, to abuse or neglect a child for religious reasons.

¶80 Utah’s child welfare statutes regarding abuse of a child have no exceptions allowing abuse to occur on religious grounds. In the child welfare context, “[a]buse” means (among other things) “nonaccidental harm of a child” or “threatened harm of a child.” Utah Code § 80-1-102(1)(a). The governing statute specifies that “reasonable discipline” of a child does not constitute “[a]buse,” nor does “reasonable and necessary physical restraint or force” applied in defense from or protection of the child or others. Id. § 80-1-102(1)(b). But there is no statutory exception excusing abuse simply because it might be religiously motivated.

¶81      Similarly, in the child welfare context, “[n]eglect” includes “action or inaction causing . . . lack of proper parental care of a child by reason of the fault or habits of the parent,” and includes “action or inaction causing . . . failure or refusal of a parent . . . to provide proper or necessary subsistence or medical care, or any other care necessary for the child’s health, safety, morals, or well­being.” Id. § 80-1-102(58)(a)(ii), (iii). The statutory definition of neglect does include one religious-based exception: a parent who is “legitimately practicing religious beliefs and who, for that reason, does not provide specified medical treatment for a child” has not neglected that child. Id. § 80-1-102(58)(b)(i).[8] But other than this narrow exception, Utah’s statutes offer no room for a parent, on religious grounds, to take actions that would otherwise constitute neglect of a child.

¶82      Nor is there any constitutional right to abuse or neglect a child in the name of religion. To be sure, parents have a right to teach their children religious principles and to encourage them to comply with the tenets of a chosen religion. Kingston v. Kingston, 2022 UT 43, ¶ 24, 532 P.3d 958 (stating that “parents have a fundamental right” under the United States Constitution “to encourage their children in the practice of religion”). But such rights peter out where a parent’s religious practices result in mistreatment of a child. See Zummo v. Zummo, 574 A.2d 1130, 1154–55 (Pa. Super. Ct. 1990) (noting that parents are “free to provide religious exposure and instruction” to their child as they see fit, “unless the challenged beliefs or conduct of the parent are demonstrated to present a substantial threat of present or future, physical or emotional harm to the child” (quoted in Kingston, 2022 UT 43, ¶ 67)); see also Prince v. Massachusetts321 U.S. 158, 166–67 (1944) (stating that “the state has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare,” including in “matters of conscience and religious conviction,” and noting that the state’s “authority” in this regard “is not nullified merely because the parent grounds his claim to control the child’s course of conduct on religion or conscience”); Koch v. Koch, 207 So. 3d 914, 915 (Fla. Dist. Ct. App. 2016) (noting courts’ ability to restrict a parent’s rights where there is “a clear, affirmative showing that the [parent’s] religious activities . . . will be harmful to the child” (quotation simplified)); In re Edward C., 178 Cal. Rptr. 694, 699 (Cal. Ct. App. 1981) (“Mistreatment of a child . . . is not privileged because it is imposed in the guise of freedom of religious expression.”); Amos N. Guiora, Protecting the Unprotected: Religious Extremism and Child Endangerment, 12 J.L. & Fam. Stud. 391, 405 (2010) (“Religious belief and conduct cannot be used as justification for placing children at risk; government, law enforcement and the general public cannot allow religion to hide behind a cloak of ‘religious immunity.’”).

¶83 Next, the factual background point is simply this: as discussed above, Parents have already been adjudicated to have abused or neglected the children, and those adjudications were not substantively challenged on appeal.

¶84 With regard to Father, the juvenile court found—after a five-day adjudication hearing—that Father had “emotionally abused” all four children. The court specifically discussed the rather stringent statutory definition of “emotional abuse” and recognized that it required a finding that a child has suffered “a serious impairment in the child’s growth, development, behavior, or psychological functioning.” See Utah Code § 80-1-102(37)(b). But the court comfortably made such findings with regard to Father, concluding that Father had engaged in “a continuing pattern of emotional maltreatment of the children which has resulted in two of the children considering suicide as an option to end the maltreatment.” The court also found that Father had “created a hostile environment” for the children that caused them to suffer “emotional damage[],” and it found that Father’s “use of physical force” was part of the “abusive parenting style” that he “used to intimidate and control the children.”

¶85 With regard to Mother, the court determined—based on Mother’s own rule 34(e) admissions—that all four children were neglected. In particular, the court concluded that Chloe, Felicity, and Hannah were neglected because Mother subjected them “to mistreatment or abuse and/or” because they “lack[ed] proper parental care by reason of the fault or habits of [Mother], and/or” because Mother had “failed to provide proper and necessary subsistence, education or medical care when required or any other care necessary for health, safety, morals or well being of the children.” And the court found that Noah was neglected as to Mother since he was “at risk of being neglected or abused because another child in the same home is neglected or abused.”

¶86 Mother did not appeal the court’s adjudication order. Father did, but he raised only one argument—a procedural one— in his appellate petition; he mounted no appellate challenge to the substance of the court’s adjudication order. In an unpublished decision, we rejected Father’s procedural argument and affirmed his adjudication order.

¶87 Thus, Parents have been adjudicated to have abused or neglected the children, and those adjudications were either not appealed or were affirmed on appeal. In light of these facts, Father’s attorney agreed, at oral argument before this court, that the adjudication order is now part of the case and that we, for purposes of this appeal, must therefore take it “as it is.” As we understand it, this concession is in keeping with Utah law. An adjudication order is “final for purposes of appeal,” see In re S.A.K., 2003 UT App 87, ¶ 13, 67 P.3d 1037, and “where a final ruling or order of the trial court goes unchallenged by appeal, such becomes the law of the case, and is not thereafter subject to later challenge,” see SRB Inv. Co. v. Spencer, 2023 UT App 120, ¶ 29, 538 P.3d 231 (quotation simplified). We have, on several occasions, refused to allow parents to re-litigate adjudication orders in the context of appeals from later orders. See In re D.G., 2014 UT App 22, ¶ 5, 319 P.3d 768 (stating that “matters relating to the adjudication hearing are barred” from consideration on appeal from a termination order where the parent “did not appeal the adjudication order”); see also In re E.T., 2014 UT App 206, ¶ 2, 335 P.3d 394 (per curiam) (stating that where a parent “failed to timely appeal [an] adjudication order, we lack jurisdiction to consider an appeal of that order” in an appeal from a later order).

¶88 Given these background principles and facts, Parents cannot—and here make no serious attempt to[9]—argue that the adjudication findings should be reversed, or that their underlying abuse and neglect should be excused on religious grounds. Instead, they make narrower constitutional arguments.

¶89      They begin by asserting, in general terms, that the “juvenile court process” that led to the termination of their parental rights violated their constitutional rights to parent their children and, in particular, their right to encourage their children in the practice of religion. They then point out—citing Kingston, 2022 UT 43, ¶ 29— that “any state interference with parents’ right to encourage their children in the practice of religion . . . is subject to strict scrutiny.” And they conclude by arguing that their right to encourage their children regarding religion was infringed during the case, specifically asserting that DCFS “cannot have made reasonable efforts to provide reunification services if it does not employ the least restrictive means available.”

¶90 As examples of what they claim to have been “state interference” with their right to encourage the children in the practice of religion, Parents point to two things: (1) the rule Therapist put in place, at the behest of the children, that Parents not discuss religion with the children during family therapy sessions; and (2) the court’s refusal to grant Father’s request that Therapist be removed from the case and replaced with “a therapist more understanding of his religious beliefs.”[10] We find Parents’ arguments unpersuasive.

¶91 We first discuss Parents’ arguments regarding the rule forbidding them from discussing religion during family therapy. In this case, we need not decide whether Parents’ constitutional right to encourage their children in the practice of religion requires the State to allow Parents to offer such encouragement during therapy sessions provided by the State as part of reunification services. Nor do we need to decide—even assuming there is such a requirement—whether the rule imposed here satisfied strict scrutiny review by being “narrowly tailored to protect a compelling government interest.” Id. ¶ 61 (quotation simplified). Given the record before us, we may avoid these questions because even assuming, for purposes of the discussion only, that there was a constitutional violation in this regard, any such violation was clearly harmless here. See In re A.R., 2017 UT App 153, ¶¶ 11−13, 402 P.3d 206 (affirming the termination of a parent’s rights in the face of an asserted constitutional violation because, even if the court committed constitutional error, the error was harmless); see also In re I.M.L., 2002 UT 110, ¶ 9 n.3, 61 P.3d 1038 (“Generally, we avoid reaching constitutional issues if a case can be decided on other grounds.”). The evidence presented at the termination trial showed that Father paid no heed to the rule in any event and simply went ahead—against the children’s request, communicated through Therapist—and discussed religion with the children during the family therapy sessions.[11] Given Father’s refusal to follow it, Parents do not explain how the rule’s short-lived existence made any difference here; in particular, they make no effort to demonstrate how the therapy sessions would have been different or more productive had the rule not been in place. Moreover, and perhaps most significantly, the rule was only in effect for about five weeks, because the juvenile court ordered it removed at the first opportunity. As soon as Parents asked that the rule be removed, the court granted that request; Parents do not explain what the juvenile court could have done better or more speedily with regard to this rule. In short, we see no reasonable likelihood that the temporary imposition of a rule disallowing Parents to discuss religion during therapy sessions affected the outcome of the proceedings.[12]

¶92 Next, with regard to Parents’ second example of asserted “state interference”—their claim that they had a constitutional right to a therapist whose religious beliefs matched their own— we likewise reject Parents’ argument without entirely reaching its merits. Even if we assume—without deciding, and for purposes of the argument only—that Parents had a constitutional right to a therapist whose religious beliefs matched their own, Parents’ argument on this point nevertheless fails because Parents have not explained exactly how—or even whether—Therapist’s religious beliefs or practices differed from their own. The record is silent as to what Therapist’s religion was—we therefore do not know whether she was a member of Parents’ religion or not. And Father conceded, during his testimony, that his objection to Therapist was not based on whether she shared his religion or not, explaining that he doesn’t “just look at a person on an LDS basis.” He explained, instead, that he wanted the children to have a therapist who agreed with him on the “eternal values or principles” that he “believe[d] govern the universe.” But in his briefing, Father makes no effort to identify what those “values or principles” are, whether they derive from his religion or from some other source, or how they might have differed from Therapist’s religious beliefs and practices.

¶93 Indeed, the GAL argues, with some force, that Father’s objectionable behavior was not grounded in the tenets of any religion but, instead, simply amounted to Father’s personal belief that, as head of the household, he had the right to bully and intimidate his children and to say whatever he wanted whenever he wanted during family therapy sessions. After all, even Father’s own religious leader considered Father’s similar behavior during the meeting at the church to be inappropriate and by no means compelled by tenets of their shared religion. And it is noteworthy that all four children—even after removal and despite the abuse and neglect they experienced—have remained steadfast adherents of the religion they share with Parents. Thus, one might reasonably conclude that Father’s conflict with Therapist had nothing whatsoever to do with specific religious tenets and everything to do with Father’s personality. At a minimum, Parents have not carried their appellate burden of persuading us that the situation is otherwise. And we note that courts have rejected similar claims in analogous cases on the basis that the parent had not “establish[ed] a clear relationship between” his or her “religious faith” and the specific “discipline” imposed on the children. See, e.g.Jakab v. Jakab, 664 A.2d 261, 265 (Vt. 1995); see also In re H.M., 144 N.E.3d 1124, 1148 (Ohio Ct. App. 2019) (noting that the “record is scant on defining the parents’ actual religious beliefs” and whether they motivated the behavior in question).

¶94      For these reasons, we see no constitutional infirmity in the juvenile court’s refusal to grant Father’s request for a different family therapist in this case.

¶95      We note again that Parents’ overarching argument is that

“the State could not have made reasonable efforts if its actions do not pass strict scrutiny.”[13] Yet as to the two ways Parents allege that the State’s actions do not pass muster, Parents have in one instance failed to show any actual infringement of a constitutional right, and in the other they have failed to persuade us that reunification services would have been more successful in the absence of the alleged constitutional violation. Thus, we perceive no error in the juvenile court’s reasonable efforts determination, and we reject Parents’ claims that, during the “juvenile court process,” their constitutional rights were violated.

  1. Ineffective Assistance of Counsel

¶96 Next, Parents assert that they received ineffective assistance of counsel during the termination proceedings. “To establish [an] ineffective assistance of counsel claim, [a party] must show that counsel’s performance was objectively deficient and that counsel’s deficient performance prejudiced the case.” In re D.G., 2022 UT App 128, ¶ 9, 522 P.3d 39 (quotation simplified), cert. denied, 527 P.3d 1106 (Utah 2023). “Failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim,” and therefore we are “free to address [Parents’] claims under either prong.” In re C.M.R., 2020 UT App 114, ¶ 19, 473 P.3d 184 (quotation simplified).

¶97 Parents each make one argument in this regard. We first address Father’s contention that his attorney was ineffective for not objecting to “improper bolstering evidence” presented during the termination trial. Second, we address Mother’s argument that her attorney rendered ineffective assistance “by failing to object to” the terms of Mother’s Plan. For the reasons set forth below, we conclude that neither Father nor Mother has borne their burden of establishing that their attorneys rendered ineffective assistance.

  1. Father’s Claim

¶98      Father asserts that his attorney rendered constitutionally ineffective assistance by failing to object to certain testimony, offered by the State’s witnesses during the termination trial, that Father characterizes as “improper bolstering evidence.” Father points to three statements that he believes amounted to improper bolstering of the children’s accounts of things that happened in the family home. First, he points to Therapist’s statements that Chloe was “not exaggerating her symptoms or faking how she was feeling” when reporting suicidal ideations and seeking medication and that she was being “pretty honest” in her descriptions, as well as to Therapist’s similar statement that the threats of suicide that Chloe and Felicity had made were not “fabricated” and were not “attention getters.” Second, he complains about a different therapist’s testimony that “there was never anything that [Noah] or [Hannah] told [her] relating to their experiences” at home “that would lead [her] to believe they were being dishonest.” Finally, Father identifies Branch President’s testimony that, during his communication with Chloe, Felicity, and Hannah in the August 2018 meeting, he had no concerns that “the girls were making these things up.”

¶99      Father asserts that these statements were inadmissible and that a reasonable attorney would have objected to these statements in an effort to keep them out. He further asserts that, given the importance of the children’s credibility to the issues before the court, the admission of these statements was ultimately prejudicial to him and led the court to believe the children’s accounts over his own.

¶100 We have our doubts about whether a reasonable attorney would have objected to these statements, given the importance of many of them to therapeutic diagnosis and treatment. But even assuming, for the purposes of argument, that Father’s attorney performed deficiently by not objecting to these statements, the admission of these statements did not prejudice Father on the specific facts of this case. To establish prejudice, Father must do more than “show that the errors had some conceivable effect on the outcome of the proceeding.” State v. Samora, 2023 UT 5, ¶ 22, 529 P.3d 330 (quotation simplified). He bears the burden of demonstrating “that the decision reached would reasonably likely have been different absent trial counsel’s alleged errors.” Id. (quotation simplified). Father cannot meet that burden here.

¶101 By the time the termination trial rolled around, the court had already conducted numerous hearings in this case; most notably, it had held a five-day adjudication trial in which it had heard from the children and from various therapists and caseworkers, and it had already entered extensive findings and conclusions. In particular, as noted above, the court had already engaged in the process of determining whether Chloe and Felicity had felt genuine suicidal ideations, and concluded that they had; likewise, the court had already engaged in the process of determining whether Father had emotionally abused the children and concluded that he had. Given that the court had already made these findings, which were not substantively appealed, we cannot conclude that there is any reasonable likelihood that—absent the challenged statements—the court would, at the termination trial, have changed its entire outlook on the events in the home and made antipodally different findings than the ones it had already made at the adjudication trial.

¶102 Under these circumstances, Father cannot demonstrate that he was prejudiced by any deficient performance on the part of his attorney. Accordingly, his ineffective assistance of counsel claim necessarily fails.

  1. Mother’s Claim

¶103 Mother asserts that her attorney rendered constitutionally ineffective assistance by failing to object to the terms of Mother’s Plan and to “the State’s failure to provide the recommended services,” and by not requesting a “modified service plan” better tailored to Mother’s needs. According to Mother, “[r]easonable counsel would have understood the importance of the service plan and the services recommended by it,” and she maintains that, if she had received the benefit of a modified plan, there is a “reasonable likelihood that the court would not have determined that Mother had failed to complete the services.”

¶104 During the termination trial, the psychologist who evaluated Mother testified that Mother has dependent personality disorder, obsessive-compulsive personality disorder, and dementia, and that Mother might also suffer from aphasia but would need additional testing for that diagnosis to be confirmed. The psychologist opined that someone with Mother’s conditions would likely experience some struggles in daily life and may need “assistance and accommodations.” At the time, Mother’s attorney did not object to Mother’s Plan or assert that it should include any additional services to accommodate these diagnoses.

¶105 Now, however, Mother asserts that her attorney should have objected and should have requested that Mother’s Plan include additional services intended to assist Mother with these diagnoses and conditions. But here on appeal, Mother does not identify—let alone meaningfully discuss—any specific services she now wishes counsel would have requested, and she has therefore failed to demonstrate that she was prejudiced by counsel’s failure to make a request. Without identifying any specific services she would have liked to have received, it is impossible for her to show that such services would have been reasonably likely to have made a difference here, especially in the face of the established facts: that Mother was steadfast in her loyalty to Father, that she at all times refused to acknowledge any responsibility for the situation, and that she failed to undertake efforts to remedy the circumstances that caused the children to be in an out-of-home placement.

¶106 Like Father, Mother has not borne her burden of demonstrating that she was prejudiced by any deficient performance on the part of her attorney. Accordingly, her ineffective assistance of counsel claim likewise fails.

III. Challenges to the Juvenile Court’s Factual Findings

¶107 Next, we address Father’s assertion that a handful of the juvenile court’s factual findings were clearly erroneous and unsupported by the evidence presented at the termination trial. Father identifies four such findings; we discuss each of them, in turn, and conclude that none of them are problematic.

¶108 First, Father challenges the court’s finding that Chloe “spoke about suicidal thoughts while she lived at home.” This finding is amply supported by the evidence presented at the termination trial. Chloe testified, on direct, that she had told Father that she was “suicidal,” and that he responded by telling her that if she killed herself she would “go to hell.” On cross-examination, she explained that she had told Father that, when he treats her “like crap,” it makes her “feel like [she] just want[s] to commit suicide.” She did acknowledge that she made the comment in a kind of in-passing way, and that “it wasn’t like [she] sat [Father] down and said, ‘Dad this is a serious thing. I’m seriously considering [suicide].’” But this testimony is more than enough to support a finding that Chloe “spoke about suicidal thoughts while she lived at home.”

¶109 Moreover, the court had already found, in the adjudication trial, that Chloe’s suicidal ideations were genuine. In these earlier proceedings, the court had already learned that Parents had been informed of Chloe’s feelings well before the children were removed from the home and that they had downplayed any concerns, calling Chloe a “drama queen” and indicating that they did not believe her. Under these circumstances, ample evidence supported the court’s finding that Chloe spoke about her suicidal ideations while still living in Parents’ home.

¶110 Second, Father challenges the court’s characterization that Brother-in-Law testified that the children attended post-removal visits with Father “because it [was] what they [were] supposed to do and [they] [didn’t] engage very well.” Father asserts that the court’s characterization of Brother-in-Law’s testimony is inaccurate, and he points to a different statement Brother-in-Law made indicating that the children did not like the visits because “it interrupt[ed] their schedule.” While it’s true that Brother-in-Law said that the visits interrupted the children’s schedule, the record also shows that he testified that the children were “not very engaged” during visits but “[t]hey underst[ood] that’s what they [were] supposed to do, and so they [attended], begrudgingly sometimes, but they [were] there.” We fail to see how the juvenile court’s omission of Brother-in-Law’s additional statement that the visits interrupted the children’s schedule somehow renders the court’s finding erroneous.

¶111 Third, Father challenges the court’s statement that Noah testified that he would not feel “safe” at home. Father argues that this statement is erroneous because, as he sees it, Noah later “retracted that statement” and testified that he “didn’t mean to say safe.” Father then directs us to the portion of Noah’s testimony he believes supports his position. At this point in his testimony, Noah was being asked about the circumstances surrounding Oldest Sister’s departure from Parents’ home. He was specifically asked what he meant by his statement that she left because it “wasn’t safe.” Noah then clarified that he “probably didn’t mean to say safe” and that what he meant to convey was that Oldest Sister had gone through similar experiences to his own in living with Parents and that was the reason she left. But Noah’s statement that he did not mean to say that Oldest Sister left because it was not safe is not a retraction of his earlier statement that it was his personal belief that Parents’ house “wasn’t a safe environment.” Father mischaracterizes the record on this point and has fallen far short of persuading us that the court’s finding on this issue was clearly erroneous.

¶112 Finally, Father challenges the court’s finding that Brother-in-Law testified that the children “stopped hoarding food in their bedrooms.” Father argues that the actual testimony was about “hiding” food—not “hoarding” food—and asserts that there was no evidence that the children were malnourished or underfed while in Father’s care. We do not see a significant difference, in this context, between “hiding” food and “hoarding” food—however characterized, there is no question that the children secreted food in their bedrooms; Brother-in-Law explained that the children were “afraid to ask for more food” so they would take extra snacks to their bedrooms and “store” the food for later. Under these circumstances, we do not consider the court’s characterization of the evidence to have been clearly erroneous.

¶113 Accordingly, we reject each of Father’s challenges to the juvenile court’s factual findings.

  1. Best Interest/Strictly Necessary

¶114 Finally, we address Parents’ various challenges to the court’s conclusions that termination of their rights was strictly necessary to promote the best interest of Hannah and Noah. Both Parents raise a direct challenge to the substance of the court’s decision. In addition, Mother raises additional issues regarding the court’s handling of the GAL’s rule 59 motion. We first discuss Father’s substantive challenge, and then separately discuss Mother’s two arguments.

  1. Father’s Claim

¶115 Before the rights of any parent are terminated, the party seeking termination must establish (1) that “at least one of the enumerated statutory grounds for termination [is] present” and (2) that the “termination of parental rights [is] in the best interest of the affected children.” In re D.S., 2023 UT App 98, ¶ 16, 535 P.3d 843 (quotation simplified), cert. granted, Jan. 25, 2024 (No. 20230877). Parents do not challenge the juvenile court’s determination that sufficient statutory grounds for termination are present, but they do challenge the court’s conclusion that termination of their rights is in the children’s best interest.

¶116 The best-interest inquiry is “wide-ranging” and “asks a court to weigh the entirety of the circumstances” of a child’s situation, including “the physical, intellectual, social, moral, and educational training and general welfare and happiness of the child.” See In re J.M., 2020 UT App 52, ¶¶ 35, 37, 463 P.3d 66 (quotation simplified); see also In re H.F., 2019 UT App 204, ¶ 14, 455 P.3d 1098 (“The best-interest test is broad, and is intended as a holistic examination of all the relevant circumstances that might affect a child’s situation.” (quotation simplified)).

¶117 Our legislature has mandated that termination of parental rights is permissible only when such termination is “strictly necessary.” Utah Code § 80-4-301(1). Our supreme court has interpreted this statutory requirement to mean that “termination must be strictly necessary to promote the child’s best interest.” See In re B.T.B., 2020 UT 60, ¶ 60, 472 P.3d 827. Indeed, a court’s inquiry into the strict necessity of termination should take place as part of the best-interest inquiry that comprises the second part of the termination test. See id. ¶ 76 (“[A]s part of [the best-interest] inquiry, a court must specifically address whether termination is strictly necessary to promote the child’s welfare and best interest.”). And our supreme court has noted that

this part of the inquiry also requires courts to explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights. In some cases, alternatives will be few and unsatisfactory, and termination of the parent’s rights will be the option that is in the child’s best interest. But in other cases, courts should consider whether other less-permanent arrangements might serve the child’s needs just as well.

Id. ¶ 67 (quotation simplified). “If the child can be equally protected and benefited by an option other than termination, termination is not strictly necessary.” Id. ¶ 66.

¶118 In this case, the court seriously considered one non-termination option: imposing a permanent custody and guardianship arrangement in favor of Oldest Sister and Brother-in-Law. However, for various reasons, the court concluded that this option was not in the children’s best interest, and therefore it ordered termination of Parents’ rights. Parents each challenge the court’s conclusion in this regard.

¶119 With regard to Father, the court stated that it did “not find this alternative [of permanent custody and guardianship] to be in the children’s best interest,” and it offered “[a] couple of examples” to “illustrate the basis for this decision.” First, the court pointed to both Psychiatrist and Branch President, and noted that they had each found Father’s behavior to be so aberrant that they had taken action they’d never before taken: they sent letters to DCFS or to the court indicating their belief that Father was a danger to the children. Second, the court raised a concern about Father retaining residual parental rights, noting that, under a permanent custody and guardianship arrangement, Father “would still be in the orbit of” Hannah and Noah and could “assert[] his will as to basic medical and otherwise personal decisions in the care of the children.”

¶120 Father challenges the court’s best-interest determination, and he makes two arguments, one categorical and one fact-specific. First, Father asserts that parental rights can never be terminated where children are in a kinship placement, as these children are here with Oldest Sister. We reject this position. No Utah statute mandates this position, and we have never so held. See In re A.H., 2022 UT App 114, ¶ 49, 518 P.3d 993 (“We stop well short of holding that, where an acceptable kinship placement exists, it can never be strictly necessary to terminate a parent’s rights.”), cert. granted, 525 P.3d 1279 (Utah 2023). To be sure, “[i]f there exists a completely appropriate kinship placement through which the family can remain intact, the ‘strictly necessary’ showing becomes significantly harder to make.” Id. But such a showing is not impossible; indeed, staking out the categorical position Father advocates makes no sense in this context. It does not take much imagination to think of situations in which a parent’s relationship with a child is so harmful and abusive that it is strictly necessary, if the child’s best interest is to be promoted, to permanently sever that relationship, regardless of whether the child is placed with a relative. We therefore reject Father’s assertion that a parent’s rights can never be terminated if the children are placed with a relative.

¶121 Second, Father takes issue with the court’s residual rights concern. Here, Father points out that, in a permanent custody and guardianship situation, he would retain only four residual rights and duties: “(i) the responsibility for support; (ii) the right to consent to adoption; (iii) the right to determine the child’s religious affiliation; and (iv) the right to reasonable parent-time unless restricted by the court.” See Utah Code § 80-1-102(70)(a). Because the first of these is a duty and the last of these can be restricted by the court, Father asserts that we need be concerned only with the second and the third: Father’s right to consent to adoption and his right to determine the children’s religious affiliation. Father asserts that his residual rights would therefore not allow him to “assert his will” with regard to “basic medical and otherwise personal decisions,” as the juvenile court stated.

¶122 We acknowledge Father’s point, and we note our own recently expressed concern that juvenile courts may, in many cases, be overly concerned about parents retaining residual rights where permanent custody and guardianship arrangements are imposed. See, e.g.In re A.H., 2022 UT App 114, ¶ 55 (questioning “whether—in many cases . . . —a parent’s desire to re-engage in their child’s life should be viewed as negatively as the juvenile court appeared to view it”); In re D.S., 2023 UT App 98, ¶¶ 23–24 (explaining why that case was “not one of those cases” in which “fear of a parent’s residual rights might reasonably counsel in favor of terminating” a parent’s rights).

¶123 But we also note, again, that we review best-interest determinations “deferentially,” and we overturn them only if the court “either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re D.S., 2023 UT App 98, ¶ 15 (quotation simplified). On a couple of recent occasions, we have reversed juvenile courts’ best-interest/strictly-necessary decisions, even applying this deferential standard, because in our view “the evidence presented at trial did not constitute clear and convincing evidence that termination of [the parents’ rights] would be in the best interest” of the affected children. See In re A.H., 2022 UT App 114, ¶ 38; see also In re D.S., 2023 UT App 98, ¶ 31 (stating that, “[i]n the end, the facts of this case simply don’t add up to strict necessity”). But in other situations—like this one, for the reasons we discuss—the facts as presented at trial lend themselves to more than one possible conclusion. In such cases, our somewhat deferential standard of review will lead us to affirm, because either result will be supported by the facts of the case and will be within the discretion of the court.

¶124 In this vein, we draw an illustrative contrast between the facts of this case and the facts of In re D.S. In that case, the father was incarcerated, and he conceded that he was unable to care for his children and that therefore statutory grounds existed for termination of his parental rights. See 2023 UT App 98, ¶ 13. But he nevertheless resisted termination, asserting that it was not in the children’s best interest for that to occur. Id. ¶ 15. He had maintained regular virtual visits with the children throughout his incarceration—visits that had gone fairly well, although the children sometimes were bored during the visits— and he expressed a desire to “have a stronger relationship with” his children upon his release. Id. ¶ 11. The children were placed with the father’s own mother, who wanted to adopt them. Id. ¶¶ 9, 14. The juvenile court ordered the father’s rights terminated because it viewed adoption by the paternal grandmother as offering “stability,” and because it believed that adoption was necessary to “protect” the children “from [the father’s] desire to have ongoing and frequent visitation” after his release. Id. ¶¶ 13– 14.

¶125 We reversed the termination order. We noted that “there is no indication that [the father’s] continuing relationship with [the children] is harmful to them, rather than merely perhaps inconvenient.” Id. ¶ 24. In particular, we noted that there were no allegations of abuse or neglect regarding the father, and that the children had been “found only dependent—not abused or neglected—as to him.” Id. And we observed that, given “the absence of a ‘harmfulness’ component” to the father’s relationship with the children, there was “no basis for the juvenile court’s view that [the children] need ‘protections against [the father’s] commitment for increased and continued visitation.’” Id. ¶ 27. Relatedly, we noted the absence of any evidence that the father and the grandmother had “the sort of relationship where [the father] would be likely to exercise undue control over custody and care decisions in a guardianship arrangement.” Id. ¶ 32.

¶126 Finally, we placed “almost no stock in” the juvenile court’s reference to the desires of the children, for two reasons. Id. ¶ 29. First, the children were quite young—eleven and six—and the court had made no determination that they were old enough to offer a meaningful opinion as to the differences between adoption and guardianship. Id. Second, and more substantively, “the trial testimony did not support any finding on this issue more specific than that [the children]—quite understandably— wanted to remain in [their grandmother’s] care.” Id. ¶ 30. In particular, “no witness offered any testimony that could support a finding that either of [the children] actually understood and appreciated the distinction between adoption and guardianship, and that, based on that understanding, they preferred adoption.” Id.

¶127 In this case, by contrast, the operative facts are quite different. First, and most importantly, there is a significant “harm” component to this case that was entirely absent in In re D.S. Here, the juvenile court found—after a lengthy adjudication trial—that all four minor children had “been emotionally abused” in a “continuing pattern of emotional maltreatment” by Father and that this “ongoing abusive environment [had] emotionally damaged the children.” Father mounted no substantive appeal from these adjudicated facts, and he agrees that we must take those facts as they are. Moreover, Father failed to take advantage of any of the services provided to him to address his abusive behavior; indeed, the court found—in findings not appealed here—that Father had “made no efforts,” or “only token efforts,” to address and eliminate “the issues of emotional abuse which exist in the home.” At the conclusion of the termination trial, the juvenile court therefore had every reason to believe that Father— if allowed a continuing relationship with the children—would continue his abusive behavior just as he had in the past. Under the particular circumstances of this case, the juvenile court’s concern about residual rights was entirely justified.

¶128 Second, given the emotional abuse issues present here, there is also good reason to believe that Father—if allowed to retain residual rights—would leverage the fact that he still had parental rights to attempt to exercise undue control over custody and care decisions, and would not just limit his role to consenting to adoption and any change in religious affiliation. In the past, Father had attempted to exercise his domineering ways over Oldest Sister, even once “backhand[ing]” her when, as an adult, she declined his demand to clean his house during a visit. And the incident involving Father’s attempt to interfere with Chloe’s medical appointment—even after removal—is well-documented and has already been discussed. We therefore view the court’s finding regarding Father’s propensity to interfere in custody and care decisions as entirely supported by the record here.

¶129 Finally, the court in this case had strong evidence of what the children’s individual desires were. Unlike in In re D.S., all four of the children here, by the conclusion of the trial, were at least fourteen years old, and all of them were able to articulate clear opinions about what their desired outcome was. And all of them told the court, in no uncertain terms, that they wanted to be adopted by Oldest Sister and that they did not want to have any relationship with Father.[14] As noted below, the juvenile court was to give the children’s desires in this regard “added weight.” See Utah Code § 80-3-409(15).

¶130 For all of these reasons, then, we see no reversible error in the juvenile court’s conclusion that, in this case, it was in the children’s best interest for Father’s parental rights to be terminated. Such a decision was within the discretion of the juvenile court and was supported by the record.

  1. Mother’s Arguments

¶131 With regard to Mother, the court initially declined to terminate her rights, instead imposing a permanent custody and guardianship arrangement in favor of Oldest Sister. After consideration of the GAL’s rule 59 motion, however, the court changed course and terminated Mother’s rights along with Father’s, concluding that it had failed to give the proper weight to the children’s stated wishes for adoption.

¶132 Mother challenges the court’s termination order on two grounds. First, she asserts that the court erred by allowing the GAL to submit evidence, in connection with the rule 59 motion, of certain post-trial events. Second, she mounts a substantive challenge, similar to Father’s, to the court’s conclusion that termination of her parental rights was strictly necessary to promote the children’s best interest. We discuss these two arguments in turn.

1

¶133 After oral argument on the GAL’s rule 59 motion, the court allowed the GAL to submit a “Report and Recommendation” that included an affidavit from Brother-in-Law describing events that had occurred after the termination trial. Mother believes that the court erred by considering this “new evidence” in reaching its decision to terminate Mother’s parental rights. We take Mother’s point that evidence of post-trial proceedings should ordinarily play no role in considering whether to grant a new trial. See In re C.L., 2007 UT 51, ¶ 14, 166 P.3d 608 (“A motion for a new trial or amended judgment cannot be based on facts occurring subsequent to trial . . . .” (quotation simplified)). But even assuming, for the purposes of the argument, that the court erred by allowing the GAL to submit this evidence, any such error was harmless here because there is no indication that Brother-in-Law’s affidavit played any role in the court’s decision.

¶134 In its ruling granting the GAL’s motion, the court included an introductory paragraph informing the parties that, before making its decision, it had “review[e]d” rule 59, “the filings and arguments of the parties,” the “prior testimony from the termination trial,” and its “original findings and order.” The court made no specific mention of Brother-in-Law’s post-argument affidavit. And later in its order, when setting forth the actual basis for its decision, it explained that it was amending its initial order because “the children’s wishes or voice were not given proper weight” as mandated by governing statute. It noted again that it had reviewed its own “previous findings and conclusions” as well as “the trial testimony and exhibits,” especially the children’s testimony in which they were “direct in seeking to be adopted” by Oldest Sister. In explaining the substance of its decision, the court made no mention at all of any post-trial events or of Brother-in-Law’s affidavit, and it explained that the basis for its decision rested on entirely different grounds.

¶135 Under these circumstances, any error on the part of the court in allowing the submission of evidence of post-trial events did not affect the court’s grant of the GAL’s rule 59 motion. We therefore see no basis for reversal of the court’s rule 59 decision in the arguably improper submission of Brother-in-Law’s affidavit. See State v. Loose, 2000 UT 11, ¶ 10 n.1, 994 P.2d 1237 (“We do not reverse a trial court for committing harmless error.”).

2

¶136 Next, Mother challenges the substance of the court’s decision to terminate her parental rights. Here, we reach the same conclusion we reached in considering Father’s similar challenge: while the juvenile court could potentially have imposed a permanent custody and guardianship arrangement on these facts, we perceive no reversible error in its conclusion that termination of Mother’s rights was strictly necessary to promote the children’s best interest.

¶137 As an initial matter, the court correctly interpreted the statutes governing a child’s stated desires. Under Utah law, “if the minor desires an opportunity to address the juvenile court or testify,” the court “shall . . . allow the minor” to do so. Utah Code § 80-3-108(4)(a)(ii). Moreover, when “determining whether termination is in the best interest of the child,” the court should consider the relevant factors “from the child’s point of view.” Id. § 80-4-104(12)(b). The juvenile court heard from Hannah and Noah, and thereafter correctly noted that they “were straightforward in stating that they wished to be adopted by” Oldest Sister and Brother-in-Law. The court also noted that, when a minor is fourteen years old or older, “the juvenile court shall give the minor’s wishes added weight” and, if the court’s decision “differs from a minor’s express wishes,” then the court must “make findings explaining” its decision. Id. § 80-3-409(15). At the time the court issued its ruling, Hannah was seventeen and Noah was fourteen; the statute thus required the court to give their wishes “added weight.” And that is exactly what the court did. After further analyzing “the testimony and evidence from the trial on the termination petition, with emphasis on the children’s testimony, and with further review” of the relevant statutes, the court was persuaded that its previous order should be amended and that Mother’s parental rights should be terminated. We perceive no error in the court’s procedure in this regard.

¶138 Mother further challenges the court’s substantive decision, and we acknowledge that, with regard to her, certain factors weigh perhaps more in her favor—or, at least, not as strongly against her—than they do with regard to Father. Her relationship with the children was less actively harmful than Father’s, and there is little if any evidence that she tended to attempt to manipulate her relationship with Oldest Sister. We therefore understand, at some level, the juvenile court’s initial inclination to keep her relationship with the children intact, even while terminating Father’s.

¶139 But ultimately, we agree with the State and the GAL that sufficient evidence exists in this record to support the juvenile court’s reconsidered determination to terminate Mother’s rights as well. There was evidence supporting the conclusion that Mother’s relationship with the children was harmful, even if to a lesser extent than Father’s. And Mother adamantly elected to remain in a relationship with Father, an adjudicated emotional abuser who refused to take steps to remedy the situation. We have previously noted that juvenile courts “have minimal empathy for parents whose strong emotional ties to their spouses or significant others jeopardize their children’s safety.” See In re T.M., 2006 UT App 435, ¶ 20, 147 P.3d 529; see also In re G.B., 2002 UT App 270, ¶ 17, 53 P.3d 963 (upholding a juvenile court’s finding that termination of a mother’s parental rights was in the children’s best interest where the mother continued to foster a relationship with the children’s abusive father, “had no intention of separating from” him, and “continue[d] to deny that any abuse occurred”), cert. denied, 63 P.3d 104 (Utah 2002).

¶140 And the children were adamant that they wanted to be adopted and that they wanted no continuing relationship with Parents, a consideration to which the court was statutorily obligated to give “added weight.” See Utah Code § 80-3-409(15). Mother appears to recognize that the juvenile court’s decision came down to a “weighing of factors,” asserting in her appellate brief that the court “performed an inappropriate weighing of factors.” While a different judge might have weighed the factors differently and opted to keep Mother’s relationship with the children intact, we cannot say that the juvenile court, on this record, committed reversible error by exercising its discretion in the opposite direction.

CONCLUSION

¶141 In sum, Parents have not carried their burden of demonstrating any violation of their constitutional rights. Parents have also not established that either of their trial attorneys provided ineffective assistance. Additionally, we perceive no clear error in any of the challenged factual findings. The juvenile court’s determination that termination of Parents’ parental rights was strictly necessary to advance the children’s best interest was supported by the record, and we perceive no reversible error in the court’s grant of the GAL’s rule 59 motion.

¶142 Affirmed.

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


[1] Hannah and Noah are pseudonyms, which we elect to employ here to avoid continued and potentially confusing repetition of similar-sounding initials.

[2] In cases like this one, where parties are appealing the determination made following a termination trial, “we recite the facts in the light most favorable to the juvenile court findings.” In re S.T., 2022 UT App 130, n.2, 521 P.3d 887 (quotation simplified).

[3] Chloe and Felicity are also pseudonyms.

[4] All four children waived the clergy testimonial privilege to allow Branch President to testify at this and other proceedings throughout this matter.

[5] A second therapist also recalled this incident, later testifying that Father became “aggressive” and was yelling at Therapist about DCFS “framing his family” and how there was a “large conspiracy . . . brought on through DCFS” and “the State of Utah.”

[6] During later testimony, Father testified about the group therapy sessions and, specifically, about the issues he had with Therapist, and he attempted to explain his perception that Therapist did not have “the same values” as Father. When specifically asked whether he wanted a therapist who was a member of The Church of Jesus Christ of Latter-day Saints (LDS), Father stated that he doesn’t “just look at a person on an LDS basis.” He explained, instead, that he wanted the children to have a therapist who agreed with him on the “eternal values or principles” that he “believe[d] govern the universe.”

[7] Mother later asked the court to “set aside” her rule 34(e) plea and requested “that a new trial be ordered to address the allegations” in the State’s petition. See Utah R. Juv. P. 34(e). The basis for this request was that Mother claimed “she was not certain of what a [r]ule 34(e) proceeding involved and the resulting consequences.” The court denied Mother’s request, stating that Mother had “affirmatively waived her right to a trial” and that the court had “confirmed that she understood she was waiving her right to trial.” The court had even gone a step further and “had a colloquy specifically with [Mother] and her counsel wherein she indicated she understood” the implications of proceeding under rule 34(e) “and the resulting findings that would be made as a result of that course of action.”

[8] At the adjudication stage, Mother—the parent who was found to have neglected (as opposed to abused) the children—did not attempt to invoke this religious-based statutory exception. Nor does she invoke it here on appeal. Accordingly, as far as we are aware, this exception is not at issue in this case.

[9] 9. As noted, Parents do not challenge the determination that statutory grounds for termination of their parental rights were present in this case. But Parents do assert, in their briefs, that the State interfered with their “right to make value-based decisions regarding the upbringing” of the children. This argument is not independently developed, and—especially in light of Father’s attorney’s concession at oral argument—we do not interpret it as a frontal attack on the juvenile court’s adjudication findings. However, to the extent it is intended as such, we reject that challenge not only because it is inadequately briefed but also because any challenge to the adjudication findings needed to have been made in an appeal from the adjudication order. See In re D.G., 2014 UT App 22, ¶ 5, 319 P.3d 768.

[10] In addition to these two arguments, Mother complains—in passing, during the “constitutional” section of her brief—that the court improperly “utiliz[ed]” her “continued association with Father as evidence that she had failed to make adequate effort to adjust her conduct to substantially correct the circumstances that led to” the children’s removal. But Mother does not develop this argument; in particular, she makes no attempt to explain how this argument might have constitutional dimension. As noted, infra ¶ 139, it is not improper for a juvenile court to take into account, in making a termination decision, the fact that a parent insists on continuing a relationship with an abusive person.

[11] The rule also seemingly had little to no impact on Mother’s therapy sessions with the children. Mother testified that she only remembered being told about the children’s rules during the first two therapy sessions and, from her recollection, the children “brought all those things up” anyway.

[12] We also wonder whether there was any state action involved here at all, given that the rule in question was envisioned and requested by the children themselves. See In re adoption of B.Y., 2015 UT 67, ¶ 16, 356 P.3d 1215 (stating that the constitution protects “against state action,” not against “the actions of private parties”). But this issue was not briefed by the parties, and we therefore offer no opinion on the subject.

[13] While Parents couch their claim, at times, in the language of “reasonable efforts,” we note that their claim is not a traditional challenge to a juvenile court’s reasonable efforts determination. In particular, Parents do not directly argue that either of the two things they challenge—the requirement that they participate in family therapy with Therapist or the no-talking-about-religion rule—were not part of a “fair and serious attempt to reunify a parent with a child prior to seeking to terminate parental rights.” In re K.F., 2009 UT 4, ¶ 51, 201 P.3d 985 (quotation simplified).

[14] In this case, Parents make no argument that any of the children were too young, or were for any other reason incompetent, to offer trial testimony about their desires regarding placement, adoption, and their ongoing relationship with Parents.

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Lamb v. Lamb, 2024 UT App 16 – divorce, custody, business, home equity

2024 UT App 16

THE UTAH COURT OF APPEALS

JOSEPH EARL LAMB,

Appellee,

v.

SONYA ELIZABETH LAMB,

Appellant.

Opinion

No. 20210787-CA

Filed February 8, 2024

Third District Court, Salt Lake Department

The Honorable Robert P. Faust

No. 174904728

Mary Deiss Brown, Attorney for Appellant

Gregory G. Skordas, Gabriela Mena, and Allison R.

Librett, Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which

JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1 Joseph Earl and Sonya Elizabeth Lamb’s divorce was decided at a bench trial.[1] As relevant here, Joseph was awarded custody of their children, ownership of a family business, and half the equity of the marital home. Sonya now challenges the court’s custody determination and the award of the business. She also challenges the manner in which the court determined the equity in the marital home. We affirm the district court’s rulings in all aspects.

BACKGROUND[2]

¶2        Joseph and Sonya married in 2007 and separated in July 2017. We address separately each of the district court’s determinations with which Sonya takes issue.

The Custody of the Children

¶3        Joseph and Sonya have three children, all of whom were minors when they divorced in August 2021. In November 2017, at a hearing for temporary orders, Sonya’s counsel told the court that Sonya had been the children’s primary caregiver “until recently.” Sonya also admitted that she was arrested in July 2017 and was facing charges for possession and use of drugs, but she asserted that she had “taken responsibility,” had “stopped using drugs,” was “sober and more than capable of caring for the children and continuing on as their primary caregiver,” and had “been attending Narcotics Anonymous and Al-Anon meetings.” Sonya asserted that Joseph had a “serious drug addiction problem.” Joseph claimed that Sonya had vacated the marital home shortly before her arrest, and he revealed that he obtained a protective order against her. The court acknowledged the allegations both sides made against the other but noted that Joseph currently had the children in his care and was living in the marital home. The court then determined that Joseph should maintain “custody of the children on a temporary basis.”

¶4        Apparently, the children remained in the temporary custody of Joseph until the parties’ divorce trial, where the court received the testimony of a “reunification therapist” (Family Therapist), who had been hired by the parties after the custody evaluator had been “unable to perform an evaluation due to the children spending less than minimum time” with Sonya.

¶5        Based on the testimony of Family Therapist, which we recount when relevant in our analysis below, the court found that “unification” between Sonya and the two older children was “lacking” because of acrimonious relationships. The court noted that Family Therapist had testified that progress in reunification therapy would “influence what possible custody” Sonya might have in the future relative to the older children. The court determined that it was “in the best interest of the children that reunification therapy” continue to allow Sonya the opportunity “to reunify her relationship with the children.”

¶6        Accordingly, the court found that it was in the children’s best interest that Joseph be “awarded sole physical custody and final decision making authority,” with both parties being awarded joint legal custody. With regard to the youngest child, the court awarded supervised parent-time to Sonya one night a week. The court awarded Sonya no parent-time with the older two children. The court noted that supervised parent-time for Sonya would “be flexible” and might “increase after the current reunification issues” and Sonya’s “medical issues” were addressed. The court also stated that Sonya’s “non-use of cannabis” needed to be verified because marijuana use was “a contributing factor” that brought on her mental health episodes.

The Business

¶7        During their union, the parties were financially supported, at least in part, by a business that distributed supplies to gas stations. During the divorce proceedings, Joseph maintained that he was in the process of purchasing the business from his father but that he did not have the money to pay for it. Joseph explained that he drew a salary for his work with the business. In contrast, Sonya maintained that she and Joseph agreed to buy the business in 2010 and that they completed paying off the business in 2016. Sonya claimed that she and Joseph signed a document “to take over the business” but that she did “not have the document.” Sonya did produce a different document that explicitly stated the business was being sold only to Joseph.

¶8        The district court awarded the business to Joseph, along with all its debts and obligations. In addition, the court, apparently recognizing that the business was possibly still owned by Joseph’s father, ordered that any money Joseph borrowed against the marital home to purchase the business would “not be used to reduce the total equity in the home” so as to reduce Sonya’s share of the home’s value. In making this award to Joseph, the court was clear that it was basing its decision “on the testimony” provided by Joseph.

The Marital Home

¶9        Based on a Zillow estimate[3] provided by Sonya, the court determined the value of the marital home to be $998,659, but the equity in the home was reduced by mortgages and liens on the property. Joseph testified that three mortgages, totaling $402,000, were on the property.[4] And the home was additionally encumbered by eleven liens. Two of these liens, totaling $2,414, were attributed to Sonya and Joseph. The remaining nine, totaling $256,521, were tax liens and civil judgments incurred by the previous owner of the home.[5]

¶10      The court received evidence that when Joseph and Sonya purchased the home in November 2009, it was subject to some existing debt. Joseph testified as follows:

Counsel: “Was there anything particular about that purchase [of the home]?”

Joseph: “We didn’t have the credit or the means to get into a home at the time, so my brother is a real estate agent and he’s good friends with [the previous owner] and said, ‘Hey, this house is available. If you like it, I can probably get you into it.’ And so we took him up on that and (inaudible) that we had to take on (inaudible).”

Counsel: “So there were other debts on that house when you purchased it?”

Joseph: “Yes        I didn’t know about all of them at the time, but yes.”

Counsel: “What are those debts?”

Joseph: “There’s a lot of tax liens from [the previous owner] throughout the years. There’s a couple of (inaudible) from Sonya and I, medical bills that weren’t paid. . . .”

Counsel: “And have you paid off the tax liens? The liens on the house?”

Joseph: “No.”

Thus, in a somewhat unusual arrangement, the parties appear to have purchased the home subject to certain liabilities, even if they did not know the precise extent of those liabilities. Presumably, these liabilities would have been offset by a reduction in the purchase price, making the home more affordable.

¶11      Adding the mortgages and liens together for an amount of $660,935, the court determined that equity in the home was $337,724. The court ordered Joseph to pay Sonya $168,862 as her share of that equity.

¶12      Sonya appeals.

ISSUES AND STANDARDS OF REVIEW

¶13 Sonya identifies multiple ways in which she believes the district court erred. But “[f]or the sake of brevity,” we “consolidate these grounds” and “set out in the opinion only so much . . . as we deem necessary to a decision of the questions involved herein.” Patterick v. Carbon Water Conservancy Dist., 145 P.2d 503, 505 (Utah 1944), overruled on other grounds by Timpanogos Plan. & Water Mgmt. Agency v. Central Utah Water Conservancy Dist., 690 P.2d 562 (Utah 1984).

¶14      Sonya first contends that the district court abused its discretion in making custody and parent-time decisions because it lacked sufficient information to make those decisions. “We review custody determinations deferentially, and so long as the district 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, we will not disturb the resulting award.” Kingston v. Kingston, 2022 UT 43, ¶ 20, 532 P.3d 958 (cleaned up).

¶15      Sonya next contends that the district court’s findings were “entirely inadequate to explain” its reasoning for awarding ownership of the business to Joseph. “We review the legal sufficiency of factual findings—that is, whether the trial court’s factual findings are sufficient to support its legal conclusions— under a correction-of-error standard, according no particular deference to the trial court.” Brown v. Babbitt, 2015 UT App 161, ¶ 5, 353 P.3d 1262 (cleaned up).

¶16      Lastly, Sonya argues that the district court’s “procedures and decisions regarding the division of equity in the marital home were illogical and manifestly unjust.” “Determining and assigning values to marital property is a matter for the trial court, and an appellate court will not disturb those determinations absent a showing of clear abuse of discretion.” Mintz v. Mintz, 2023 UT App 17, ¶ 12, 525 P.3d 534 (cleaned up), cert. denied, 531 P.3d 730 (Utah 2023).

ANALYSIS

  1. A Note on Briefing

¶17      Sonya’s briefing is plagued by significant deficiencies and does not comply with the Utah Rules of Appellate Procedure for appropriate briefing. First, excluding the cases cited for the standards of review, Sonya cites only a single case in her opening brief, and she does so in a perfunctory fashion—making only a shallow attempt to explain its relevance to the issues. Sonya continues this trend in her reply brief, where she cites no cases at all. In this regard, she falls far short of appellate expectations. “A party may not simply point toward a pile of sand and expect the court to build a castle. In both district and appellate courts, the development of an argument is a party’s responsibility, not a judicial duty.” Salt Lake City v. Kidd, 2019 UT 4, ¶ 35, 435 P.3d 248; see also Utah R. App. P. 24(a)(8) (“The argument must explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal.”); id. R. 24(b)(3).

¶18      Second, in her statement of the case, Sonya fails to include a single citation to the record. This is in contravention of our clearly stated rule. See Utah R. App. P. 24(a)(6) (“The statement of the case must include, with citations to the record: (A) the facts of the case, to the extent necessary to understand the issues presented for review; (B) the procedural history of the case, to the extent necessary to understand the issues presented for review; and (C) the disposition in the court or agency whose judgment or order is under review.” (emphasis added)). We note that Sonya somewhat more adequately cites the record in the argument section of her brief, but that is not what the Utah Rules of Appellate Procedure require, and by ignoring the rules to suit her briefing preferences, she does little to bolster judicial efficiency.[6]

¶19      We point out these deficiencies not to ridicule, disparage, or shame counsel, but to provide warning that future briefing of this nature will likely be deemed inadequate and that any arguments on the merits may not be substantively considered by this court. This court receives hundreds of briefs each year. They vary in quality and in their adherence to the rules. We recognize that members of the bar have a lot on their plates and occasionally miss a typo or overlook a citation. But wholesale disregard of briefing rules is quite beyond the pale and can have unwelcome consequences for attorneys (and their clients) who choose this risky path. See Ostler v. Department of Public Safety, 2022 UT App 6, ¶ 27, 505 P.3d 1119 (“We . . . retain discretion to not address an argument that is inadequately briefed.” (cleaned up)); accord State v. Schwenke, 2007 UT App 354U, para. 2; State v. Garner, 2002 UT App 234, ¶¶ 8–13, 52 P.3d 467. And we hasten to point out that the risk of ignoring briefing requirements should come as no surprise to any attorney in Utah owing to our multiple references to the issue over the years. See Trees v. Lewis, 738 P.2d 612, 612–13 (Utah 1987) (stating that the merits of a dispute need not be reached if an appellant “has not supported the facts set forth in [a] brief with citations to the record” as required by rule 24(a)(6) of the Utah Rules of Appellate Procedure); State v. Price, 827 P.2d 247, 249 (Utah Ct. App. 1992) (“We have routinely refused to consider arguments which do not include a statement of the facts properly supported by citations to the record.”); Koulis v. Standard Oil Co. of Cal., 746 P.2d 1182, 1184 (Utah Ct. App. 1987) (“If a party fails to make a concise statement of the facts and citation of the pages in the record where those facts are supported, the court will assume the correctness of the judgment below.”). That we have exercised our discretion to address the merits of the issues on appeal here should not be taken as an imprimatur sanctioning inadequate briefing but as a conduit to raise awareness of the risk of ignoring the rules.

¶20 We take this occasion to recall the advice offered by our supreme court several decades ago:

If the questions involved in a case are of sufficient importance to justify asking this court to decide them, they are worthy of the careful consideration of counsel presenting them. It is the duty of attorneys practicing in this court to present to the court the authorities supporting their views and to assist the court in reaching a correct conclusion.

State v. Thomas, 1999 UT 2, ¶ 13, 974 P.2d 269 (cleaned up). With that, we remind counsel of their responsibility to assist the judiciary in advancing jurisprudence through diligent advocacy, adherence to our rules, and competent representation.

  1. Custody and Parent-Time
  2. Disclosure

¶21      Sonya argues that the district court erred in admitting Family Therapist’s testimony when Joseph had not timely disclosed him as an expert witness pursuant to rule 26 of the Utah Rules of Civil Procedure, which requires disclosure “within 14 days after the close of fact discovery.” Utah R. Civ. P. 26(4)(C)(i). Sonya’s briefing on this point leaves much to be desired. She entirely ignores what happened at trial, instead substituting her own retrospective take on what she believes should have happened without attempting to explain why her timeliness argument should now be considered. Providing some persuasive caselaw—which may or may not exist—would have gone far to support her argument. But like the rest of her briefing, this part is inadequate.

¶22      A review of the record shows that Sonya did not object to Family Therapist’s testimony on the grounds of untimely disclosure. Instead, Sonya argued that Family Therapist had “far exceeded any kind of mandate,” that he had not signed confidentiality waivers, and that allowing his testimony created patient privacy and ethical violations. In her objection at trial, rule 26 was mentioned only in passing and not in a way that would suggest she was objecting on timeliness grounds. It certainly would not have been clear to opposing counsel that a rule 26 timeliness issue was being raised such that he would have known to argue a harmlessness or good-cause defense for the failure to disclose, which would have been an easy argument to make given that both Joseph and Sonya had jointly retained Family Therapist and Sonya knew about Family Therapist several years before trial. And it would not have been clear to the district court that it was being asked to rule on a timeliness-based objection. For these reasons, Sonya did not preserve any such objection for appellate review. See State v. Centeno, 2023 UT 22, ¶ 57, 537 P.3d 232 (“It is well established that we will not address the merits of an unpreserved issue absent a showing that an exception to the preservation rule applies.”).

  1. Hearsay

¶23 Sonya additionally argues that Family Therapist’s testimony, insofar as he testified as a fact witness, “was inadmissible hearsay and based entirely on his conversations with the parties and their children as their reunification therapist.” Sonya’s hearsay argument is difficult to follow and poorly briefed. Instead of analysis in support of her hearsay argument, she provides scant and unsupported assertions.

¶24      Sonya objected below to Family Therapist’s testimony on the grounds that it was hearsay. But the court ruled that it was not hearsay, concluding that Family Therapist’s testimony was not offered “for the truth of the matter asserted.” Rather, the court ruled that the “focus of [the] questioning” was, first, to allow the court “to find out how [the children were] doing, if they’re capable of going forward” and, second, to identify the present “obstacles” to “structuring visitation with [Sonya].” On appeal, Sonya makes no attempt to engage with the court’s reasoning, instead limiting her analysis to a blanket assertion that “it [was] evident” Family Therapist was “allowed to testify as an expert, offering hearsay, opinions and recommendations in [a] manner that simply is not permitted by the Rules of Civil Procedure.” Such superficial and undeveloped argument is simply not persuasive, most especially because it does not address the alleged error in the court’s reasoning. It is well settled that appellants who fail to “address the district court’s reasoning” also fail to carry their “burden of persuasion on appeal.” See Federated Cap. Corp. v. Shaw, 2018 UT App 120, ¶ 20, 428 P.3d 12; see also Spencer v. Spencer, 2023 UT App 1, ¶ 27, 524 P.3d 165; Bad Ass Coffee Co. of Haw. v. Royal Aloha Int’l LLC, 2020 UT App 122, ¶ 48, 473 P.3d 624.

  1. Custody Factors

¶25 Sonya next argues that the court did not address the custody factors outlined in section 30-3-10 of the Utah Code, making its custody findings insufficient. More specifically, Sonya argues that the court’s factual findings were deficient due to the court’s reliance on the testimony of Family Therapist in making those findings.

¶26 Section 30-3-10 states that in “determining any form of custody and parent-time . . . , the court shall consider the best interest of the child and may consider . . . other factors the court finds relevant,” including factors for each parent articulated in the code. Utah Code § 30-3-10(2) (emphasis added). These factors a court may consider are “not on equal footing.” Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. Instead, “it is within the trial court’s discretion to determine, based on the facts before it and within the confines set by the appellate courts, where a particular factor falls within the spectrum of relative importance and to accord each factor its appropriate weight.” Id. (emphasis added). “And where significant evidence concerning a particular factor is presented to the district court, findings that omit all discussion of that evidence must be deemed inadequate.” Twitchell v. Twitchell, 2022 UT App 49, ¶ 21, 509 P.3d 806. Thus, to “ensure that the trial court’s custody determination, discretionary as it is, is rationally based, it is essential that the court set forth in its findings of fact not only that it finds one parent to be the better person to care for the child, but also the basic facts which show why that ultimate conclusion is justified.” Id. ¶ 24 (cleaned up).

¶27      Here, the factors about which the court received significant evidence concerned Sonya’s ability to function as a parent, which the court received as testimony from Family Therapist. As we have explained above, Sonya’s challenges to the admissibility of Family Therapist’s testimony fail, and we accordingly conclude that the district court acted well within its discretion in relying on his testimony.

¶28      Regarding Sonya’s ability to parent the two older children, Family Therapist testified that they were “very angry” with Sonya and “announced that they would never see or talk to her again.” Their anger was due to their religious sensibilities and Sonya’s announcement that she was pregnant by a man other than their father during the pendency of the divorce.

¶29      With regard to Sonya’s parenting, Family Therapist stated that the youngest child was very frightened after “his last visit with [Sonya] when she was struggling psychiatrically.” Moreover, Family Therapist also testified the youngest child was beginning to see himself as Sonya’s “partner,” resulting in the child “becoming parentified.”[7]

¶30 Family Therapist further indicated that while he was unaware of Sonya’s “current condition or functioning,” Sonya had been “hospitalized and diagnosed with some issues.” He asserted that “safety” needed to be addressed, meaning that Sonya required a psychiatric evaluation to demonstrate that her “situation” was “under control.” He also indicated that Sonya needed to work on “being forthright with medications.” Sonya, by her own admission, had “suffered an isolated manic episode” related to bipolar disorder and “called the police for assistance” because she was suffering from “visual and auditory hallucinations.”

¶31    Sonya’s briefing on this point misses the mark because it entirely relies on the assumption that Family Therapist’s testimony was inadmissible, an assumption we conclude is without foundation. See supra ¶¶ 21–24. She does not explain why, in light of Family Therapist’s admissible testimony, the court’s consideration of the statutory custody factors was insufficient. Sonya’s briefing makes no attempt to explain why the court is not allowed to rely on the evidence it receives when making custody decisions.

¶32 Moreover, Sonya does not identify any “significant evidence,” see Twitchell, 2022 UT App 49, ¶ 21, as to the other factors in section 30-3-10 that the court received but left unaddressed. Instead, her briefing advances an argument that is entirely conclusory and unsupported by record citation or legal authority:

Although § 30-3-10 gives broad discretion to the court as to the relevance and appropriate weight to give each factor, the district court in this case simply did not have any information that would allow it to make findings as to most of the statutory factors. For instance, the district court did not know who the primary caretaker of the children during the marriage was. The district court did not know anything about the marriage. The district court would not permit any testimony relevant to Joseph’s moral character or his history of drug abuse and sexual proclivities. The Court would not allow any testimony as to Joseph’s inability and unwillingness to co-parent with Sonya. At the end of the day, the Court simply sidestepped its responsibility as an independent factfinder and deferred to [Family Therapist].

This might be a good argument if Sonya had supported it with citations to the record and to legal authority. As this argument stands before us, we are unable to verify what it asserts. But we suspect that Sonya might be indulging in hyperbole here. Indeed, Sonya’s assertion that “the district court did not know anything about the marriage” is patently false. Our review of the record indicates that the court, in fact, knew quite a bit about the marriage, such as its financial situation, issues related to the children, and the problems that led to its demise, to name just a few topics within its familiarity. And with regard to Joseph’s alleged use of illegal drugs, we found only one instance (subsequently echoed by Sonya’s attorney) in the record where Sonya asserted before the district court that Joseph had a “cocaine habit.” But the district court was free to “disregard such testimony if it [found] the evidence self-serving and not credible,” since the factfinder “is in the best position to judge the credibility of witnesses.” See Clark v. Clark, 2023 UT App 111, ¶ 37, 537 P.3d 633 (cleaned up). An isolated allegation made in passing certainly does not amount to “significant evidence,” see Twitchell, 2022 UT App 49, ¶ 21, especially given the district court’s role as the factfinder to judge the credibility of witnesses, see Ouk v. Ouk, 2015 UT App 104, ¶ 14, 348 P.3d 751. And as to the other statutory custody factors that Sonya asserts the court left unaddressed, she has not pointed us to any significant evidence that the court received with respect to those factors.

¶33      Thus, unlike the situation in Twitchell, where we concluded “that the district court exceeded its discretion by failing to include in its findings any discussion of the evidence relating to the abuse allegations against [the mother], her alleged neglect of [the child,] and her moral character, as well as the effect that evidence had on its best-interest analysis,” see 2022 UT 49, ¶¶ 22–23, 25, here there simply wasn’t significant evidence presented regarding section 30-3-10’s other custody factors. This lack of evidence—insofar as there was a lack—was not the court’s fault; it was Sonya’s fault for not presenting it. After all, a court cannot be faulted for failing to consider evidence that was not presented to it. In contrast, given the substantial evidence the court did receive about the serious mental health issues Sonya faced, we conclude that the district court did not abuse its discretion in its consideration of the statutory factors when determining that awarding physical custody to Joseph was in the best interest of the children.

¶34 In sum, Sonya has failed to show that the district court abused its discretion in accepting and relying on the testimony of Family Therapist in making custody determinations or that the district court did not properly address the statutory factors in determining custody of the children.

III. Ownership of the Business

¶35      Both parties agree that the district court concluded that the business was not a joint marital asset. The district court awarded the business to Joseph “[b]ased on [Joseph’s] testimony.” Along with awarding the business to Joseph, the court stated that Joseph was “responsible for payment of the purchase price of the business.”

¶36      Sonya’s briefing on this point is challenging because it consists largely of recounting financial matters pertaining to the marriage but unrelated to the ownership of the business. She then asserts, with no discernible effort to explain why, that the “findings/conclusions were entirely inadequate to explain the Court’s reasoning for giving ownership” of the business to Joseph. Her argument is difficult to follow, but its essence, insofar as we can tell, appears to be that the court erred in believing Joseph’s testimony over hers.

¶37 We disagree with Sonya that the court erred in crediting Joseph’s testimony regarding the ownership of the business over Sonya’s. Again, the court stated in its factual findings that its award of the business to Joseph was “[b]ased on [his] testimony.” In making this credibility determination, the court acted well within its discretion. “[W]here there exists evidence sufficient to support a court’s rulings regarding a divorcing couple’s finances, that ruling will be upheld on appeal, even if evidence was presented that might have cut the other way.” Clarke v. Clarke, 2023 UT App 160, ¶ 27. This is because “the fact-finder is in the best position to judge the credibility of witnesses and is free to disbelieve their testimony. Even where testimony is uncontroverted, a trial court is free to disregard such testimony if it finds the evidence self-serving and not credible.” Ouk v. Ouk, 2015 UT App 104, ¶ 14, 348 P.3d 751 (cleaned up); see also Kimball v. Kimball, 2009 UT App 233, ¶ 20 n.5, 217 P.3d 733 (“[I]t is the trial court’s singularly important mission to consider and weigh all the conflicting evidence and find the facts.”).

¶38      Here, the district court was in the best position to judge the credibility of the parties. It clearly found Joseph’s testimony regarding the ownership of the business to be more credible. Sonya has provided no reasoned argument—apart from her assertion that she disagrees with it—as to why the district court’s conclusion that the business was not marital property was erroneous. Accordingly, Sonya has failed to meet her “burden on appeal to show that no reasonable person would take the view adopted” by the district court, and we therefore conclude that the district court did not err in awarding the business, along with its liabilities, to Joseph. See Ouk, 2015 UT App 104, ¶ 14.[8]

  1. Equity in the Marital Home

¶39      Sonya’s final claim is that the district court abused its discretion in dividing equity in the marital home. “In divorce actions, a district court is permitted considerable discretion in adjusting the financial and property interests of the parties, and its actions are entitled to a presumption of validity.” Gardner v. Gardner, 2019 UT 61, ¶ 18, 452 P.3d 1134 (cleaned up). Thus, in such proceedings,

we will reverse only if (1) there was a misunderstanding or misapplication of the law resulting in substantial and prejudicial error; (2) the factual findings upon which the award was based are clearly erroneous; or (3) the party challenging the award shows that such a serious inequity has resulted as to manifest a clear abuse of discretion. Because we can properly find abuse only if no reasonable person would take the view adopted by the trial court, appellants have a heavy burden to show that an alleged error falls into any of these three categories.

Id. (cleaned up).

¶40      Sonya’s claim focuses on three aspects of the court’s valuation of the home: (1) the mortgage amount, (2) the use of the Zillow estimate, and (3) the amount of the liens on the home. We address each in turn.

¶41      The Mortgage Amount. Sonya complains that the district court, based on Joseph’s testimony, should have used $298,000 as the amount owing on the mortgages rather than $402,000, an adjustment that would have benefitted her by increasing the equity she would have received. “Generally, the marital estate is valued at the time of the divorce decree or trial. However, in the exercise of its equitable powers, a trial court has broad discretion to use a different date, such as the date of separation, when circumstances warrant. If the trial court uses a date other than the date of the divorce decree, it must support its decision with sufficiently detailed findings of fact explaining its deviation from the general rule.” Rothwell v. Rothwell, 2023 UT App 50, ¶ 39, 531 P.3d 225 (cleaned up), cert. denied, 537 P.3d 1011 (Utah 2023). In response to Sonya’s motion for amended findings, the court explained, “[Joseph’s] statement of the mortgage balance of $298,000 was referring to the total amount of all three (3) mortgages. The Court also took that into evidence taking into account that it was [Joseph’s] best estimate according to what his monthly mortgage payments are and how much was deducted from the principal each month.” We understand this to mean that the court took into consideration that it was through Joseph’s extraordinary post-separation payment efforts that the mortgage amount had been reduced. Moreover, Sonya concedes in her reply brief that it was within the district court’s discretion to use the earlier mortgage total. Accordingly, we see no abuse of discretion in the court’s use of the date of the separation to determine the amount of the mortgages.

¶42      The Zillow Estimate. Sonya next complains that the home should have been valued at about $260,000 more than was indicated by the Zillow estimate the court used. The glaring problem with this aspect of Sonya’s complaint is that it was her counsel’s idea to use the Zillow estimate. In open court, her counsel looked up the estimate and announced it to the court. And the court proceeded to base its calculations on the very data Sonya’s counsel supplied. We simply will not countenance Sonya’s assertion that the district court erred in proceeding to use the estimate that Sonya herself, through counsel, provided. Sonya invited any error in this regard. See Somer v. Somer, 2020 UT App 93, ¶ 14, 467 P.3d 924 (“Where a party makes an affirmative representation encouraging the court to proceed without further consideration of an issue, an appellate court does not consider the party’s objection to that action on appeal.” (cleaned up)). In her briefing on appeal, Sonya points to nothing in the record that would have allowed the court to value the home using anything other than the Zillow estimate. Sonya does not challenge that the court acted on the only information it had and that Sonya herself provided. Accordingly, “given the absence of any expert financial testimony, . . . the paucity of assistance the parties offered the court,” and the representations made by Sonya’s counsel regarding the marital home’s value, we conclude that “the court in this instance made findings within its discretion and supported by the evidence it was given.” Clarke v. Clarke, 2023 UT App 160, ¶ 55.

¶43      The Liens. Sonya argues that the district court abused its discretion in counting third-party liens against the equity in the home. Given the evidence the court received, we see no error on the part of the court in this regard. Indeed, there was evidence to support the court’s determination that the third-party liens should be included in the calculation of the home’s equity. Joseph testified that when he and Sonya purchased the home, they did so knowing that they were assuming responsibility for some of the previous owner’s debts. This is an admittedly odd arrangement, but Joseph testified that they were willing to accept it because they were not in a financial position to purchase the home otherwise. Sonya offered no testimony or other evidence to contradict Joseph’s assertion, and she still points to nothing presented at trial that contradicted this evidence. Accordingly, we conclude that the factual findings that included the liability associated with the third-party liens were not clearly erroneous and that the court did not abuse its discretion in calculating the home’s equity.

CONCLUSION

¶44      Sonya has not demonstrated that the district court abused its discretion in its custody determination, in awarding the business to Joseph, or in its division of equity in the marital home. Affirmed.

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


[1] Because the parties share a surname, we refer to them by their given names.

[2] As addressed below, neither party’s briefs included sufficient citations to the record. This shortcoming has necessitated us combing the record to establish some semblance of a background, something we are not obligated to do. See State v. Wright, 2019 UT App 66, ¶ 47 n.6, 442 P.3d 1185 (explaining the parties’ duty to cite the record in appellate briefs), cert. denied, 456 P.3d 391 (Utah 2019). Accordingly, our recitation of the facts is necessarily minimal as we limit it to what is essential to resolve the issues on appeal.

[3] Neither party produced an appraisal of the home or an appraisal witness at trial, leading the court to ask the parties, “Does anybody have any valuation [of the home] at all?” Sonya’s counsel answered, “Well, we could do it [with] Zillow.” At this point, while in court, Sonya’s counsel looked up the value and reported, “According to Zillow as of today, the estimated value is $998,659.” No objection was lodged at trial to the court receiving this information. “Zillow is a commercial website that provides, among other things, an estimated market value for many residential properties.” Chaudry v. Chaudry, No. 1794, 2021 WL 2910977, at *9 n.7 (Md. Ct. Spec. App. July 12, 2021).

[4] This number reflected the amount owing at the time of separation. At the bench trial, Joseph testified that the amount was currently about $298,000.

[5] Joseph’s counsel provided a LexisNexis report as evidence of the liens on the home. This report was admitted as evidence with no objection.

[6] Nor did Joseph’s counsel provide a single citation to the record in his brief. This shortcoming is most unhelpful. While an appellee is not required to file a brief, see, e.g.AL-IN Partners, LLC v. LifeVantage Corp., 2021 UT 42, ¶ 19, 496 P.3d 76, we observe that if a brief is filed, it would behoove counsel to provide record citations. After all, and at the risk of stating the obvious, record citations are required because in their absence it’s difficult, and at times impossible, to figure out what the parties are referencing.

[7] “Parentification is often referred to as growing up too fast. Typically, it occurs when a child takes on parental responsibility for their siblings or even their parents, taking care of a sibling or parent physically, mentally, or emotionally. This can damage a child’s mental well-being and lead to long-term mental health conditions such as depression and anxiety.” Amber Felton, What Is Parentification, Web MD, https://www.webmd.com/parenting /what-is-parentification [https://perma.cc/N6TT-Y7QN].

[8] Sonya also argues that the district court violated her constitutional due process rights by its “ongoing interference” with her counsel’s presentation of her case. Quite frankly, apart from a litany of complaints about the court requiring counsel to keep her questioning relevant, the contours of her argument on appeal are difficult to discern, and she fails to cite a single case in support of the argument. Accordingly, we decline to consider her due process argument because it is inadequately briefed. See Utah R. App. P. 24(a)(8) (“The argument must explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal.”); see also Orlando Millenia, LC v. United Title Services of Utah, Inc., 2015 UT 55, ¶ 30 n.3, 355 P.3d 965 (“The briefing on this claim . . . is inadequate. [The appellant’s] briefing on this issue fails to cite any authority and makes no attempt to connect the law to the facts of this case.”).

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H.B. 20 “Parental Rights Amendments”

Today’s blog post treats House Bill 20, one of several proposed family law-related pieces of legislation for the 2024 Utah legislative session.

H.B. 20 is entitled “Parental Rights Amendments”

According the bill’s own “General Description,” this bill:

  • addresses the voluntary relinquishment of parental rights.
  • clarifies the requirements and procedure for an individual to consent to the termination of parental rights or voluntarily relinquish parental rights.

Utah Code Sections Affected (if passed): It would amend Utah Code § 80-4-307

Here is the proposed text:

24          80-4-307. Voluntary relinquishment — Irrevocable.
25          (1) The individual consenting to termination of parental rights or voluntarily

26     relinquishing parental rights shall sign [or confirm] the consent or relinquishment, or confirm a
27     consent or relinquishment previously signed by the individual, under oath before:
28          (a) a judge of any court that has jurisdiction over proceedings for termination of
29     parental rights in this state or any other state, or a public officer appointed by that court for the
30     purpose of taking consents or relinquishments; or
31          (b) except as provided in Subsection (2), any person authorized to take consents or
32     relinquishments under Subsections 78B-6-124(1) and (2).
33          (2) Only the juvenile court is authorized to take consents or relinquishments from a
34     parent who has any child who is in the custody of a state agency or who has a child who is
35     otherwise under the jurisdiction of the juvenile court.
36          (3) (a) The court, appointed officer, or other authorized person shall certify to the best
37     of that person’s information and belief that the individual executing the consent or
38     relinquishment, or confirming a consent or relinquishment previously signed by the individual,
39     has read and understands the consent or relinquishment and has signed the consent or
40     relinquishment freely and voluntarily.
41          (b) A consent or relinquishment is not effective until the consent or relinquishment is
42     certified pursuant to Subsection (3)(a).
43          (4) [A voluntary relinquishment or consent for termination of parental rights is
44     effective when the voluntary relinquishment or consent is signed and may not be revoked.A
45     consent or relinquishment that has been certified pursuant to Subsection (3)(a) is effective
46     against the consenting or relinquishing individual and may not be revoked.
47          (5) (a) The requirements and processes described in Section 80-4-104, Sections
48     80-4-301 through 80-4-304, and Part 2, Petition for Termination of Parental Rights, do not
49     apply to a voluntary relinquishment or consent for termination of parental rights.
50          (b) When determining voluntary relinquishment or consent for termination of parental
51     rights, the juvenile court need only find that the relinquishment or termination is in the child’s
52     best interest.
53          (6) (a) There is a presumption that voluntary relinquishment or consent for termination
54     of parental rights is not in the child’s best interest where it appears to the juvenile court that the
55     primary purpose for relinquishment or consent for termination is to avoid a financial support
56     obligation.

57          (b) The presumption described in Subsection (6)(a) may be rebutted if the juvenile
58     court finds the relinquishment or consent to termination of parental rights will facilitate the
59     establishment of stability and permanency for the child.
60          (7) Upon granting a voluntary relinquishment the juvenile court may make orders
61     relating to the child’s care and welfare that the juvenile court considers to be in the child’s best
62     interest.

The main reason for H.B. 20 is the questions that the recent Utah Court of Appeals case of State in Interest of A.G. (2022 UT App 126) raised about it. In that case,

4

Infants

Statute outlining steps for voluntary relinquishment of parental rights requires relinquishing parent to sign a document effectuating the relinquishment and if no such document is signed by the parent, the relinquishment is incomplete and ineffective. Utah Code Ann. § 80-4-307.

The Utah Court of Appeals described the issue this way:

¶1 This case requires us to determine whether, under the language of the governing statute [§ 80-4-307], parents who intend to relinquish their parental rights in connection with a child welfare proceeding may effectuate that relinquishment under oath orally in court, without ever signing anything, or whether they must at some point sign a document effectuating that relinquishment.

¶2 In this case, S.A. (Mother)—while under oath—told the juvenile court that she wanted to relinquish her parental rights to A.G., J.K., and D.K. (collectively, the Children), and that she was doing so knowingly and voluntarily. Relying on those sworn representations, the court accepted Mother’s relinquishment, and later entered an order terminating Mother’s parental rights. But Mother did not sign any document indicating that she was relinquishing her rights, and on that basis she challenged her relinquishment as incomplete and invalid. The juvenile court rejected that challenge, interpreting the governing statute as allowing relinquishment, under certain circumstances, without a signed document from the parent.

¶3 Mother now appeals that determination, asserting that the juvenile court’s interpretation of the governing statute was incorrect. We agree with Mother that the statute requires the relinquishing parent to—at some point—sign a document effectuating the relinquishment. Accordingly, we reverse the termination order and remand this case for further proceedings.

In describing the requirements of § 80-4-307, the court stated:

[T]to summarize, all relinquishments regarding children “in the custody of a state agency” or “under the jurisdiction of the juvenile court” must involve a juvenile court judge. See id. § 80-4-307(2). A parent who is relinquishing rights to any such children must “sign or confirm the consent or relinquishment under oath before” that judge. Id. § 80-4-307(1). The judge, in turn, must “certify to the best of [his or her] information and belief” that the parent who is “executing the consent or relinquishment” understands it and has “signed [it] freely and voluntarily.” Id. § 80-4-307(3). And the relinquishment “is effective when the voluntary relinquishment or consent is signed.” Id. § 80-4-307(4).

In its concluding paragraph, the Utah Court of Appeals stated:

CONCLUSION

¶25 The statute at issue here requires a person relinquishing parental rights to—at some point—sign a document effectuating the relinquishment. Even though Mother appeared in court and, under oath, indicated her willingness to relinquish her parental rights, she never signed a document to that effect. Accordingly, her relinquishment did not become effective, and the juvenile court erred by declining to set aside that nascent relinquishment and by proceeding to terminate her parental rights. We therefore reverse the juvenile court’s termination order and remand the case for further proceedings, which may include a rescheduled termination trial.

H.B. 20 was proposed to prevent future confusion by parents, attorneys, and judges in the future when confronting questions of whether a parent does in fact voluntarily relinquishment of parental rights.

Is H.B.20 a good idea, then? Yes, yes it is.

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

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THE UTAH COURT OF APPEALS STATE OF UTAH, Appellee, v. CODY BLAIR MURRAY, Appellant. Opinion

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

CODY BLAIR MURRAY,

Appellant.

Opinion

No. 20200890-CA

Filed May 18, 2023

Second District Court, Ogden Department

The Honorable Joseph M. Bean

No. 191902454

Emily Adams, Freyja Johnson, and Cherise Bacalski,

Attorneys for Appellant

Sean D. Reyes and William M. Hains,

Attorneys for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which

JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN

FORSTER concurred.

TENNEY, Judge:

¶1        After Cody Murray pleaded guilty to violating a protective order, the district court ordered him to pay the victim’s moving expenses and 12 weeks of lost wages as restitution. Murray now appeals that restitution order, arguing that his criminal conduct did not proximately cause either of those losses. On the moving expenses, we agree with Murray and reverse that portion of the order. On the lost wages, however, we conclude that there was sufficient evidence to link Murray’s criminal conduct to the claimed loss. We accordingly affirm that portion of the order.

BACKGROUND

¶2        Murray married C.M. in March 2018, and they lived together throughout their short marriage. On January 2 or 3, 2019, C.M. filed a report with law enforcement alleging that Murray had engaged in sexual intercourse with her without her consent while she was medicated and sleeping. On the same day that she filed this report, C.M. obtained a temporary protective order against Murray based on this same allegation.

¶3        On January 3, 2019, law enforcement served Murray with the protective order at the residence he shared with C.M., and Murray complied with the order by packing his belongings and leaving the residence. Within an hour of leaving, however, Murray asked a friend to contact C.M. on his behalf. As subsequently alleged in a probable cause affidavit, C.M. soon received “phone calls and text messages” from the friend’s phone in which the friend relayed messages that Murray “loved her” and “missed her.” As also alleged, while the friend was on the phone speaking to C.M., Murray “passed a paper note” to the friend asking him “to let C.M. know that [Murray] was scared.” C.M. reported these communications to law enforcement as a violation of the protective order.

¶4        The State later filed two cases against Murray. The two cases were filed separately and were not consolidated. In the first case, the State charged Murray with one count of rape. That charge was based on C.M.’s allegation that Murray had sexual intercourse with her without her consent while she was sleeping. That case was later dismissed.

¶5        In the second case, which is the case at issue in this appeal, the State charged Murray with one count of violating a protective order. See Utah Code § 76-5-108 (2018). This charge was based on Murray’s indirect communications with C.M. on January 3, 2019. In March 2020, Murray pleaded guilty to the charged offense. As a result of a plea deal, the charge was reduced from a class A misdemeanor to a class B misdemeanor. In his affidavit in support of the plea, Murray admitted that “[o]n or about January 3, 2019,” he “knowingly and intentionally communicate[d] with C.M. through a mutual friend . . . through phone calls and text messages.” Murray also agreed that he “may be ordered to make restitution to any victims of [his] crimes.”

¶6        Murray agreed to be sentenced at that same hearing. During the sentencing portion of the hearing, C.M.’s attorney asked the court to leave open C.M.’s restitution claim for the “one year statutory time limit,” informing the court that she would “submit any restitution” after receiving further documentation. The court left C.M.’s restitution claim open as requested.

¶7        In July 2020, the Utah Office of Victims of Crime (UOVC) filed a motion for restitution, asserting that it had paid C.M. a total of $6,264.47.[1] Of that amount, $5,520.28 was designated as reimbursement for “[l]oss of wages” and $744.19 was designated as reimbursement for “[r]elocation.”

¶8        Murray objected to UOVC’s motion for restitution and requested a hearing. At that hearing, UOVC’s attorney called two witnesses: (1) a representative from UOVC (Representative) and (2) C.M.

¶9        Representative testified that UOVC received C.M.’s application for restitution in November 2019. Representative testified that C.M. listed both the protective order violation and the alleged rape as the bases for her restitution claim. Representative further noted that in reviewing C.M.’s restitution claim, “the reparations officer indicated that the claim was approved based on both incidents”—the alleged rape and the protective order violation—because “they were so close together” that “the reparations officer couldn’t separate them into two separate claims.”

¶10      Representative testified that UOVC ultimately approved and paid C.M.’s expenses for “loss of wages” in the amount of $5,520.28, as well as “relocation” or moving expenses in the amount of $744.19, thus totaling $6,264.47. With respect to the lost wages claim, Representative testified that UOVC received a document from C.M.’s employer that explained “how much [C.M.] made at the time and how long she was out of work.” Representative said that UOVC also received a “health provider statement” that corroborated that C.M. missed work. Representative further said that from these documents and other verification efforts with C.M.’s employer, UOVC determined that C.M. missed “over 68 days” of work, and that it had then paid “12 weeks of lost wages” for the work C.M. missed from “January 3rd of 2019 through March 15th of 2020” at “[s]ixty-six percent of the full-time salary,” which in C.M.’s case amounted to $5,520.28.

¶11      With respect to the moving expenses, Representative testified that UOVC paid C.M. $744.19 to cover “reimbursement for movers.” Representative said that C.M. told UOVC that she had moved because “she didn’t feel comfortable in having [Murray] know where she lived.”

¶12      UOVC’s attorney then called C.M., who testified that she obtained the protective order against Murray because of the “actions he was making to [her] in [her] sleep.” C.M. also provided and referred to a note from a doctor indicating that C.M. had been seen because “[f]or the duration of her marriage her husband was sexually assaulting her in her sleep,” “[s]he was experiencing UTIs on many occasions from the sexual abuse,” and she had “[m]ajor depressive disorder” and “post-traumatic stress disorder.”

¶13      During C.M.’s testimony, UOVC’s attorney asked, “[A]s a result of the violation of the protective order, can you tell us what effect the violation of the protective order, the conduct that the defendant caused—what happened to you as a result?” C.M. responded that she suffered “severe panic attacks” and flashbacks, “live[d] in fear nearly every day,” felt a “[l]oss of trust of people in general,” and had “a hard time concentrating or focusing.” She said she had “severe depression” and was simply not “able to function like [she had] always been able to.”

¶14      UOVC’s attorney then asked if Murray’s conduct “in December or January of 2018, ’19 . . . interfere[d] with [her] ability to interact with people,” to which C.M. responded, “Definitely.” C.M. testified that because these issues “interfere[d] with [her] ability to work,” there were times where she had to take leave from work. She testified that the “very first time” she “took leave was for a doctor’s appointment . . . back in December of 2018” and that she was out of work periodically after that, thus agreeing with the suggestion from the attorney that she missed work “every few days, a couple hours here, a few hours there, a full day here, a few days there” until March 2020, when she was “out of work altogether and couldn’t work at all.” UOVC’s attorney asked if C.M.’s requests to take leave from work starting in “December of 2018” were “related to [Murray’s] conduct . . . that was occurring at that time,” and C.M. responded, “It was.”

¶15      With respect to the moving expenses, C.M. testified that she moved from the home she’d shared with Murray because the divorce decree ordered her to sell it. C.M. said that she moved in May 2020—17 months after Murray violated the protective order—and that her restitution request was based on the movers she had hired to assist with that move.

¶16      Murray didn’t call any witnesses at the restitution hearing. Instead, after UOVC’s attorney rested, each side presented closing arguments. UOVC’s attorney asked the court to order restitution for lost wages because C.M. had to take leave from work “[a]s a result of [Murray’s] conduct . . . because she wasn’t able to fully perform the job.” UOVC’s attorney asked for restitution for moving expenses because “it was [Murray’s] conduct which caused” C.M. to move and she “had reason to hide her whereabouts from” Murray out of fear.

¶17     Murray, however, argued that under the restitution statute, “restitution has to be tied directly” to the offense for which he’d been convicted—which, here, was a class B misdemeanor violation of a protective order. In Murray’s view, restitution for the lost wages was not appropriate because C.M. “missing all of [that] work . . . [could not] be tied” to his violation of the protective order (as opposed to the underlying rape allegation that the protective order was based on). Murray also argued that the moving expenses could not be tied to this conviction because C.M.’s decision to move was based on an order from the divorce decree requiring C.M. and Murray to sell the house.

¶18      At the close of arguments, the court ordered restitution in the amount of $6,264.47 to cover lost wages and moving expenses. In its oral ruling, the court noted that Murray was “alleged to have committed sexual offenses against [C.M.] in her sleep” in the latter part of 2018. The court said that it would “take the testimony of the witness at face value with regard to what she felt was a violation that caused the fear,” and the court then found that Murray’s “past history” of “sexual[ly] assaulting” C.M. “in her sleep” caused her “fear” and “anxiety.” With respect to C.M.’s missed work, the court found that “whatever happened, certainly enhanced or contributed to [C.M.’s] anxiety, depression, [and] fear,” and that “after the circumstances giving rise to whatever happened in December, there was a definite downturn with regard to [C.M.’s] ability . . . to work.” And with respect to the moving expenses, the court found that the “moving expenses [were] also reasonable and arising out of the crime that occurred.”

¶19      Murray objected to the court’s ruling. Murray argued that the court could “only tie restitution to what [Murray] was convicted of or pled guilty to, which would be the violation of the protective order,” and he further argued that the court should not “consider any of the alleged sexual misconduct” in its determination of restitution. In response, the court referred to the document submitted by C.M. in her restitution application, noting that “for the duration of the marriage, [Murray] was sexually assaulting [C.M.] in her sleep” and that she “was experiencing UTIs on many occasions from the sexual abuse.” The court observed that C.M. suffered from depression and post-traumatic stress as a result. Of note, the court then wondered whether these conditions were “exacerbated . . . or caused by a violation of a protective order,” “especially the loss of work after his commission of the violation of the protective order.” (Emphasis added.)

¶20      In a subsequent written restitution order, the court ordered Murray to pay UOVC a total of $6,264.47 for lost wages and moving expenses. In its Findings of Fact, the court found that C.M. “suffered emotional trauma as a result of [Murray’s] conduct in this case” and that her “fear, anxiety, and depression . . . rendered [her] unable to perform her duties and required her to miss work.” The court found that the trauma C.M. suffered “also caused her to relocate because she feared [Murray] and didn’t want him to know where she lived.” Murray filed a timely notice of appeal from that judgment.[2]

ISSUE AND STANDARDS OF REVIEW

¶21      Murray argues that the district court improperly ordered restitution for C.M.’s lost wages and moving expenses. “We will not disturb a district court’s restitution determination unless the court exceeds the authority prescribed by law or abuses its discretion.” State v. Calata, 2022 UT App 127, ¶ 12, 521 P.3d 920 (quotation simplified), cert. denied, 525 P.3d 1268 (Utah 2023). “To the extent that the district court made legal determinations in connection with its restitution analysis, we review those legal determinations for correctness.” State v. Oliver, 2018 UT App 101, ¶ 15, 427 P.3d 495 (quotation simplified). But when “a defendant argues that the evidence was insufficient to support a restitution order, the defendant must demonstrate that the clear weight of the evidence contradicts the court’s ruling.” State v. Chadwick, 2021 UT App 40, ¶ 6, 486 P.3d 90 (quotation simplified).

ANALYSIS

¶22      The Crime Victims Restitution Act (the CVRA) requires the district court “to determine restitution for any pecuniary damages proximately caused by the defendant’s criminal conduct.” State v. Blake, 2022 UT App 104, ¶ 9, 517 P.3d 414. Here, Murray challenges the court’s decision ordering him to pay C.M.’s moving expenses and her lost wages. In Murray’s view, his criminal conduct did not proximately cause either loss.

¶23      We first quickly dispense with the moving expenses issue. Murray argues that “[n]o evidence tied C.M.’s move from the marital home” to his criminal conduct, but that “the evidence on the record was that C.M. had to move because of the divorce decree.” Based on this, Murray argues that there was no basis for requiring him to pay these expenses as part of restitution. In its responsive brief, the State concedes this point. Having reviewed the record, we conclude that Murray’s argument and the State’s concession are well taken. We accordingly reverse that portion of the restitution order.

¶24      The remaining and principal issue on appeal, then, is whether the court also erred in ordering Murray to pay C.M.’s lost wages. On this, Murray argues that the court erred in two key respects: (I) by taking into account the alleged rape and (II) by then determining that Murray’s criminal conduct proximately caused C.M. to miss work. We address each argument in turn.

I. Alleged Rape

¶25      Murray argues that the district court improperly based the restitution order for lost wages on C.M.’s rape allegation, rather than limiting itself to considering the sole offense to which he had pleaded guilty: violating a protective order. We see no legal error in the court’s decision.

¶26      As a general rule, we “apply the law in effect at the time of the occurrence regulated by that law.” State v. Wilkerson, 2020 UT App 160, ¶ 24, 478 P.3d 1048 (quotation simplified). The version of the restitution statute in effect at the time of Murray’s sentencing provided that

[w]hen a defendant enters into a plea disposition or is convicted of criminal activity that has resulted in pecuniary damages, . . . the court shall order that the defendant make restitution to victims of crime as provided in this chapter, or for conduct for which the defendant has agreed to make restitution as part of a plea disposition.

Utah Code § 77-38a-302(1) (2019); see also id. § 77-38a-302(5)(a) (2019) (“For the purpose of determining restitution for an offense, the offense shall include any criminal conduct admitted by the defendant to the sentencing court or for which the defendant agrees to pay restitution.”).[3] Under these statutes, Murray therefore could not “be ordered to pay restitution for criminal activities for which he did not admit responsibility, was not convicted, or did not agree to pay restitution.” State v. Randall, 2019 UT App 120, ¶ 13, 447 P.3d 1232 (quotation simplified)

¶27      It’s true that Murray was not convicted of raping C.M. As noted, the separate criminal case that was based on the rape allegation was dismissed. It’s also true that Murray did not admit to raping C.M. in this case either. But contrary to Murray’s arguments, this doesn’t mean that his alleged sexual misconduct against C.M. could play no role in the court’s restitution analysis.

¶28      Again, Murray pleaded guilty to violating a protective order, and the elements of that offense were that Murray was “subject to a protective order” and “intentionally or knowingly violate[d] that order after having been properly served or having been present . . . when the order was issued.” Utah Code § 76-5­108(1) (2018). In his plea agreement, Murray acknowledged these elements and agreed that he had “committed the crime.” In the factual basis portion of the plea agreement, Murray further agreed that he had “knowingly and intentionally communicate[d] with C.M. through a mutual friend . . . through phone calls and text messages.” Pulling this together, the criminal activity for which Murray was convicted (by way of plea) included these key pieces:

·        Murray was subject to a protective order;

·         Murray intentionally or knowingly violated the protective order; and

·         Murray did so by knowingly and intentionally communicating with C.M. through a mutual friend through phone calls and text messages.

¶29      Once Murray was convicted of this offense, the district court could then order restitution for any damages that were “proximately caused” by that offense. State v. Ogden, 2018 UT 8, ¶¶ 31–48, 416 P.3d 1132.[4] Our supreme court has explained that restitution is intended “to compensate the victim for pecuniary damages,” as well as “to rehabilitate and deter the defendant, and others, from future illegal behavior.” State v. Laycock, 2009 UT 53, ¶ 18, 214 P.3d 104. Because the question before a restitution court is what damages were proximately caused by the offense, the court isn’t confined to just the narrow elements of the offense of conviction. Rather, while the “restitution statute requires that responsibility for the criminal conduct be firmly established, much like a guilty plea, before the court can order restitution,” “it is only the initial crime for which liability must be legally certain.” State v. Hight, 2008 UT App 118, ¶¶ 3, 5, 182 P.3d 922 (quotation simplified). Once guilt for the offense has been firmly established, the court then has “broad discretion, after reviewing the evidence presented at the restitution hearing,” to “order restitution for any pecuniary damages clearly resulting from” that offense. Id. ¶ 5 (quotation simplified). In other words, once the defendant is convicted of “criminal conduct,” the defendant can “be held responsible for all damages proximately caused by that conduct.” State v. Huffman, 2021 UT App 125, ¶ 9, 501 P.3d 564 (emphasis in original), cert. denied, 509 P.3d 198 (Utah 2022).

¶30      Our decision in Huffman is illustrative. Therethe defendant pleaded guilty to possessing drugs. Id. ¶ 7. Although the offense of drug possession doesn’t include, as an element, the destruction of property, we held that it was appropriate for the court to order restitution for damage that was done to the victim’s motorhome. This was so because evidence before the court established that the defendant’s possession of drugs inside the motorhome proximately caused those damages. Id. ¶¶ 12–14.

¶31      A similar dynamic is in play here. Again, Murray pleaded guilty to violating a protective order. In doing so, he acknowledged both the existence of the protective order and that he had violated its terms. Once these things were firmly established through the guilty plea, the court then had broad discretion to order restitution for any damage that was proximately caused by Murray’s criminal conduct.

¶32      When making that proximate cause determination, the court had at least some latitude to consider the conduct that had led to the protective order, and this is largely so because of the nature of the offense. After all, Murray wasn’t convicted of a crime because he contacted a stranger with whom he had no prior history. Rather, Murray was convicted of intentionally or knowingly contacting a person who had obtained a protective order against him. In this key sense, it was the protective order that made Murray’s communications criminal.

¶33      A protective order acts as a “mechanism” for giving victims a measure of “protection against their abusers.” State v. Hardy, 2002 UT App 244, ¶ 17, 54 P.3d 645; see also State v. Baize, 2019 UT App 202, ¶ 20 n.5, 456 P.3d 770. One of the principal ways that a protective order does this is by creating a legal barrier between the victim and the abuser. If a person who is subject to a protective order subsequently breaches that barrier, a court couldn’t realistically be expected to decide whether the victim was traumatized by the violative act by considering that act as if it had occurred in a vacuum. Given that the victim had previously obtained judicial protection from the person, the nature of the alleged prior conduct would very likely have some bearing on the interconnected questions of whether and why the illegal contact had proximately caused any trauma or harm to the victim (not to mention how much damage the victim had actually suffered).

¶34      In short, because Murray pleaded guilty to violating a protective order, the district court could consider the fact that C.M. had obtained a protective order against him as part of its restitution analysis. And from there, it then had discretion to consider the conduct that led to the issuance of the protective order, at least to the extent that such conduct could inform its decision about whether Murray’s actions proximately caused any harm to C.M.

II. Proximate Cause

¶35      Murray next argues that the evidence before the district court was insufficient to show that his criminal conduct proximately caused C.M. to miss 12 weeks of work. We disagree.

¶36      The “proximate cause standard requires a showing that the crime, in a natural and continuous sequence, unbroken by any new cause, produced the injury and that the injury would not have occurred absent the crime.” Blake, 2022 UT App 104, ¶ 9 (quotation simplified). The “burden is on the State to prove proximate cause,” State v. Morrison, 2019 UT App 51, ¶ 13, 440 P.3d 942, and this “requires proof of two elements: (1) but-for causation and (2) foreseeable harm,” State v. Watson, 2021 UT App 37, ¶ 15, 485 P.3d 946.

¶37      Proximate cause is generally a “fact question[] to be resolved by the fact finder.” State v. Barzee, 2007 UT 95, ¶ 81, 177 P.3d 48; see also Mackay v. 7-Eleven Sales Corp., 2000 UT 15, ¶ 7, 995 P.2d 1233 (noting that proximate cause is a fact question). Because of this, we review a district court’s finding of proximate cause for clear error. State v. Grant, 2021 UT App 104, ¶¶ 24, 35, 499 P.3d 176, cert. denied, 505 P.3d 56 (Utah 2022). Thus, when “a defendant argues that the evidence was insufficient to support a restitution order, the defendant must demonstrate that the clear weight of the evidence contradicts the court’s ruling.” State v. Chadwick, 2021 UT App 40, ¶ 6, 486 P.3d 90 (quotation simplified).

¶38      Here, we see no clear error in the court’s finding that Murray’s violation of the protective order proximately caused C.M. to miss 12 weeks of work.

¶39      At the restitution hearing, C.M. testified that she obtained the protective order because of “actions [Murray] was making to [her] in [her] sleep” that began “at the end of December of 2018.” She further agreed that this “conduct” was “the reason for the ongoing protective order.” Of note, C.M. then testified that, “as a result of the violation of the protective order,” she has “severe panic attacks,” “severe depression,” and flashbacks; that she “live[s] in fear nearly every day”; that she has a “[l]oss of trust in people” generally; that she has a “hard time concentrating or focusing”; and that she was unable “to function like [she has] always been able to.” (Emphasis added.) When C.M. was then asked whether “the problems” that she was having “interfere[d] with [her] ability to work,” she responded, “Definitely.” While she said that the “very first time” she “took leave was for a doctor’s appointment . . . back in December of 2018” (which would have predated Murray’s violation of the protective order), C.M. also agreed that she missed work “every few days, a couple hours here, a few hours there, a full day here, a few days there” until March 2020, when she was “out of work altogether and couldn’t work at all.” The district court determined that C.M.’s testimony was credible, and on appeal, we give deference to that credibility determination. See State v. Miles, 2020 UT App 120, ¶ 34, 472 P.3d 978 (noting that “because of the district court’s advantaged position in observing the witnesses firsthand, we defer to its credibility findings” (quotation simplified)); State v. Taylor, 2017 UT App 89, ¶ 10, 402 P.3d 790 (noting that “we accord deference to the trial court’s ability and opportunity to evaluate credibility and demeanor” (quotation simplified)).

¶40      As also noted, UOVC introduced evidence showing that C.M. missed “over 68 days” of work, and UOVC’s Representative testified that UOVC paid for 12 weeks of work that she missed “span[ning] from January 3rd of 2019 through March 15th of 2020” because that missed work was “related to the incident in this particular case, which is the violation of a protective order.” When coupled with C.M.’s testimony about the effects of the protective order violation itself on her psyche and her ability to function, this provided an evidentiary basis for the court to find that Murray’s criminal conduct proximately caused C.M. to miss this work.

¶41      Murray nevertheless pushes back on several fronts, none of which are availing.

¶42      First, Murray points to testimony showing that C.M. was traumatized by the alleged rape (as opposed to the protective order violation), as well as testimony establishing that C.M. began missing work even before the unlawful communication. Both things are, on this record, unquestionably true. But even if the alleged rape caused psychological trauma to C.M. on its own, and even if that trauma caused her to miss work (either before or even after January 3, 2019), this doesn’t mean that Murray’s violation of the protective order couldn’t proximately cause her to miss work too.

¶43      Again, if there was sufficient evidence to establish that C.M.’s losses were proximately caused by the communication, then those losses were compensable. The fact that the losses may have been linked to some other causal source does not change this. In civil cases, it has long been recognized that there can be multiple causes for an injury or a trauma. See, e.g.McCorvey v. Utah State Dep’t of Transp., 868 P.2d 41, 45 (Utah 1993) (confirming “there can be more than one proximate cause” of “an injury”); Steffensen v. Smith’s Mgmt. Corp., 820 P.2d 482, 486 (Utah Ct. App. 1991) (“There can be more than one proximate cause of an injury so long as each is a concurrent contributing factor in causing the injury.” (quotation simplified)). And this is true in a criminal case too. See, e.g.State v. Gonzales, 2002 UT App 256, ¶ 21, 56 P.3d 969 (“A defendant’s acts may be found to be the proximate cause of the victim’s death even if the victim actually died as a result of the combination of the defendant’s acts plus some other contributing factor.” (quotation simplified)).[5]

¶44      Here, we agree with Murray that C.M.’s trauma and associated anxiety from the violation of the protective order was likely linked in some measure to the alleged rape. As discussed above, however, the alleged rape was the very reason that C.M. had previously obtained a protective order against Murray. And as also discussed, C.M.’s testimony at the restitution hearing supported the conclusion that when Murray contacted her in violation of that order, this both exacerbated her prior trauma and caused additional trauma too, thereby further interfering with her ability to work. Given this sworn and court-credited testimony, we cannot conclude that it was against the clear weight of the evidence for the court to conclude that, even accounting for the trauma associated with the alleged rape, the violation of the protective order itself proximately caused C.M. to miss work.

¶45      Second, Murray argues that it could not have been “reasonably foreseeable that C.M. would miss 12 weeks of work” because he sent her “a single indirect text message.” As an initial matter, it’s unclear from the record if this case really does involve just a single text message. For “the purpose of determining restitution for an offense, the offense shall include any criminal conduct admitted by the defendant to the sentencing court or for which the defendant agrees to pay restitution.” Utah Code § 77-38a-302(5)(a) (2019). Here, the probable cause affidavit alleged that C.M. had “received phone calls and text messages” from Murray through their mutual friend. And in his plea affidavit, Murray agreed under oath that he “knowingly and intentionally communicate[d] with C.M. through a mutual friend . . . through phone calls and text messages.” On this record, the court could therefore assess the restitution question in light of Murray’s admission that there had been multiple communications.

¶46      In any event, whether viewed as multiple communications or even just a single communication, this argument still fails because the effect of the communication(s) can’t meaningfully be divorced from the surrounding context. Again, Murray wasn’t convicted of sending a message to a stranger with whom he had no prior history. Rather, Murray was convicted because he knowingly or intentionally communicated with C.M. in violation of a protective order. By communicating with C.M. despite the existence of an order from a judge that prohibited him from contacting her, Murray undermined the sense of distance and security that the protective order was intended to give her. Because of this context and history, we disagree with Murray’s assertion that it could not have been reasonably foreseeable that C.M. would be traumatized and miss work as a result.

¶47      Finally, Murray argues that the restitution order was at odds with our decision in State v. Bickley, 2002 UT App 342, 60 P.3d 582. We disagree. In Bickley, the defendant was charged with criminal nonsupport, and the “Amended Information listed the nonpayment period from February 1, 1997 to January 10, 2000.” Id. ¶ 3. After the defendant pleaded guilty to this offense, however, the district court awarded restitution for arrears that occurred prior to 1997. Id. ¶¶ 3–4. We reversed that decision on appeal, concluding that the court could not impose restitution for pre-1997 arrears “without making inferences.” Id. ¶ 12 (quotation simplified). Because of this, we held that it was not “firmly established” that the defendant was in fact responsible for the pre-1997 arrears. Id.

¶48      Bickley is readily distinguishable. The arrears at issue in Bickley plainly fell outside the conviction (which, again, was specifically limited to arrears that occurred from February 1997 on). As discussed above, however, the offense at issue here was the violation of a protective order, and that protective order was by definition linked to some prior conduct. Thus, unlike Bickley, it’s not at all clear that this restitution order was based on damages that fell outside of the offense at issue. In addition, there’s no suggestion that the district court in Bickley based its restitution award for the pre-1997 arrears on any evidence or testimony. Id. ¶¶ 2–4, 12. This is why we faulted the court for “making inferences” and imposing restitution for arrears that were not “firmly established.” Id. ¶ 12 (quotation simplified). But again, this was not the case here, where the restitution order was based on sworn testimony from the hearing itself.

¶49      In short, we can overturn the court’s proximate cause determination only if Murray has established “that the clear weight of the evidence contradicts the court’s ruling.” Chadwick, 2021 UT App 40, ¶ 6 (quotation simplified). Having reviewed the record, we conclude that C.M.’s testimony about the effects of the protective order violation on her psyche and her ability to function, coupled with the evidence presented by UOVC about the days that she missed at work, was sufficient to support the court’s finding that Murray’s criminal conduct proximately caused C.M. to miss this work, thereby causing these damages. Because the court’s ruling was not against the clear weight of the evidence before it, we affirm that determination.

CONCLUSION

¶50      The district court erred when it required Murray to pay $744.19 in restitution for moving expenses. We accordingly vacate that portion of the court’s order. But the court did not err when it ordered restitution in the amount of $5,520.28 for lost wages. We accordingly affirm the restitution award of $5,520.28 for lost wages.

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

Click to access State%20v.%20Murray20230518_20200890_52.pdf

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[1] UOVC was represented by an attorney from the Utah Attorney General’s office who serves as “agency counsel” for UOVC.

[2] In between the court’s oral and written rulings, Murray filed a motion to reconsider. But after the written ruling was entered, Murray filed a timely notice of appeal. Despite the fact that this notice of appeal had been filed, and over an objection from UOVC, the district court subsequently held oral argument on Murray’s motion to reconsider, after which it denied the motion.

On appeal, both parties now agree that Murray’s notice of appeal divested the district court of jurisdiction to rule on the motion to reconsider. We agree with the parties. Because the motion to reconsider was filed before the written ruling, it was a prejudgment motion to reconsider the oral ruling. While the court was “free to consider” what was essentially a request for “reargument” at “any time before entering the final judgment,” Gillett v. Price, 2006 UT 24, ¶ 7 n.2, 135 P.3d 861, the court did not do so. Instead, it issued the written final judgment. When Murray then filed his notice of appeal after that final judgment had been entered, his notice of appeal “divest[ed] the district court of jurisdiction.” Garver v. Rosenberg, 2014 UT 42, ¶ 11, 347 P.3d 380. Of note, our supreme court has held that a prejudgment motion to reconsider does “not toll the time for appeal once a final judgment [is] entered.” Gillett, 2006 UT 24, ¶ 7 n.2. We likewise see no basis for holding that a prejudgment motion to reconsider would somehow undermine the finality of a written final judgment or allow the court to retain jurisdiction after a notice of appeal has been filed. As a result, we agree with the parties that the only ruling properly before us is the original restitution order.

 

[3] The legislature recently amended the CVRA. The most recent version of the statute provides that the “court shall order a defendant, as part of the sentence imposed,” to “pay restitution to all victims: (i) in accordance with the terms of any plea agreement in the case; or (ii) for the entire amount of pecuniary damages that are proximately caused to each victim by the criminal conduct of the defendant.” Utah Code § 77-38b-205(1)(a) (2023).

[4] The version of the statute that governed at the time of Murray’s sentencing did not expressly state that restitution could be awarded for damages “proximately caused” by the offense, see Utah Code § 77-38a-302(1) (2019), but our supreme court had interpreted that statute as containing such an allowance, see State v. Ogden, 2018 UT 8, ¶¶ 31–48, 416 P.3d 1132. The statute has since been amended to expressly incorporate the proximate cause standard. See Utah Code § 77-38b-205(1)(a)(ii) (2023).

[5] Something somewhat similar can be true outside the proximate cause context too. In State v. O’Bannon, 2012 UT App 71, ¶ 38, 274 P.3d 992, for example, we recognized “a basis under Utah law for holding a defendant culpable for causing death even when other factors contributed to the victim’s death.”

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Knight v. Knight – 2023 UT App 86 – trusts and alimony

Knight v. Knight – 2023 UT App 86

THE UTAH COURT OF APPEALS

JARED M. KNIGHT,

Appellee,

v.

REBECCA B. KNIGHT,

Appellant.

Opinion

No. 20210080-CA

Filed August 10, 2023

Third District Court, Salt Lake Department

The Honorable Robert P. Faust

No. 184902185

Julie J. Nelson, Taylor Webb, and Stephen C. Clark,

Attorneys for Appellant

Bart J. Johnsen and Alan S. Mouritsen,

Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which

JUDGES RYAN D. TENNEY and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1        After a trial on cross-petitions, the district court entered

findings of fact and conclusions of law and a final decree divorcing Rebecca and Jared Knight. Rebecca[1] appeals several aspects of the divorce decree, including the court’s determination that she had no interest in a trust Jared’s father established before the marriage and several of the court’s calculations related to alimony. We affirm the district court’s ruling with respect to Jared’s trust, and we affirm in part and reverse in part with respect to the alimony calculations.

BACKGROUND

¶2        In October 1994, Jared’s father, L. Randy Knight, created the RKF Jared M. Knight Trust (the Trust), an irrevocable trust. Randy named Jared as the sole beneficiary of the Trust and transferred a significant interest in RKF, LLC—an Arizona limited liability company formed in 1994 by Randy—to the Trust. The trust agreement for the Trust (Trust Agreement) specified that the Trust would be governed by Arizona law. The Trust Agreement also contained a “spendthrift provision” declaring that Jared lacked the “right to assign, transfer, encumber, or hypothecate his . . . interest in the principal or income of the [T]rust in any manner.” Additionally, the Trust Agreement granted Jared a power of withdrawal over the Trust principal such that Jared could withdraw up to one-fourth of the principal at age 30 (June 2002), up to one-third of the principal at age 35 (June 2007), and all the principal at age 40 (June 2012). To exercise this power, Jared would need to make “a request in writing.”

¶3        In October 1995, Jared and Rebecca were married. During their marriage, the parties enjoyed a lavish lifestyle funded, in part, by the wealth of Jared’s family.

¶4        In March 2008, Rebecca and Jared executed a “Property Agreement” (the Property Agreement), which stated, “All property which is now owned by JARED or by REBECCA, individually, . . . is hereby declared to be, and hereby is, the community property of JARED and REBECCA.” The Property Agreement specified that “to the extent necessary, JARED and REBECCA each hereby gives, grants, conveys and assigns to the other an interest in his or her property . . . so as to transmute[2] such property into the community property of JARED and REBECCA.” The Property Agreement further declared, “All property hereafter acquired by JARED and REBECCA, or either of them, . . . shall be deemed to be, and hereby declared to be, the community property of JARED and REBECCA.” However, the Property Agreement carved out an exception: “Notwithstanding the foregoing, any property received by JARED and REBECCA by gift or inheritance after the date of this [Property] Agreement shall be the sole and separate property of the person receiving it, unless that person declares otherwise in writing.” The Property Agreement is, like the Trust, governed by Arizona law.

¶5        In 2016, the Trust was decanted[3] into a new trust. The new trust named Jared as sole initial trustee and therefore permitted Jared to distribute to himself, “upon his written request, up to the balance of the principal of his trust at any time.”

¶6        In April 2018, Jared filed for divorce. Rebecca ultimately filed an amended counterclaim alleging that the principal of the Trust was marital property and therefore subject to equitable distribution under the terms of the Property Agreement.

¶7        Jared filed a motion for partial summary judgment on this point, arguing that the Property Agreement “did not transmute assets held by the [Trust]” into marital property. Jared asserted that the Property Agreement did not apply to the Trust because, at the time he entered into the Property Agreement, he did not own the Trust principal under Arizona law. He pointed to the statute in effect in 2008—the year the parties entered into the Property Agreement—which stated that “if the trust instrument provides that a beneficiary’s interest in principal is not subject to voluntary or involuntary transfer, the beneficiary’s interest in principal shall not be transferred.” Ariz. Rev. Stat. Ann. § 14­7702(a) (2008). The statute further specified that a court may not order the satisfaction of a money judgment against a beneficiary until “[a]fter an amount of principal becomes immediately due and payable to the beneficiary.” Id. § 14-7702(b). It explained that “[i]f an amount of principal is due and payable only at a future date, or only on the occurrence of a future event, whether the occurrence of that event is within the control of the beneficiary, the amount of the principal is not immediately due and payable to the beneficiary.” Id. Jared asserted that the Trust’s “disbursement mechanism squarely fit[] within the framework of Arizona Revised Statute Section 14-7702(B) as it was written in 2008” because the Trust’s requirement that Jared submit a written request for disbursement of the Trust principal rendered the principal “not immediately due and payable.” See id. And Jared argued that, because he never submitted a written disbursement request or withdrew any principal of the Trust, “[a]s a matter of Arizona law as it existed at the time that the Property Agreement was executed in 2008, no amount of the Trust principal is ‘now owned’ or ‘hereafter acquired’” by Jared, so the Property Agreement did not apply to the Trust.

¶8        Rebecca opposed Jared’s motion and filed her own motion for partial summary judgment. Rebecca argued that Jared’s beneficial interest in the Trust was a property interest that Jared owned at the time of the Property Agreement. She also asserted that Jared’s power of withdrawal gave him an ownership interest in the Trust principal that he was eligible to withdraw as of the date of the Property Agreement. She said, “Consistent with the common understanding of ‘property’ as comprising a set of rights (a ‘bundle of sticks’ in the law-school formulation), if among those rights a person has the right to control the disposition of an asset, that asset is his property, and he has ownership of the property.” Rebecca further avowed that “[t]he Arizona statute on which Jared relies . . . has nothing to do with the question before this [c]ourt” because it applies to “the rights of ‘creditors’ to access property held in trust for a beneficiary when the trust features a ‘spendthrift’ clause” and Rebecca was not a creditor. Accordingly, Rebecca claimed that the Trust’s spendthrift clause “did not limit Jared’s ability to transmute his property interest in the Trust or its underlying assets into community property, and he plainly did so by signing the Property Agreement.” Rebecca argued that the Restatement (Third) of Trusts instead applied and made it “clear that trust assets subject to an exercisable power of withdrawal are ‘property.’” (Citing Restatement (Third) of Trusts § 56 cmt. b. (Am. L. Inst. 2003) (“Trust property subject to a presently exercisable general power of appointment (a power by which the property may be appointed to the donee, including one in the form of a power of withdrawal), because of the power’s equivalence to ownership, is treated as property of the donee.” (emphasis added))).

¶9        The court denied Rebecca’s motion for partial summary judgment and granted Jared’s. The court reasoned that “the legal position taken in [t]he Restatement (Third) of Trusts § 56 was not the law in Arizona until 2009, when it [was] partially codified as part of the Arizona Trust Code,” and it rejected Rebecca’s argument that “the spendthrift clause specifically disengages for purposes of the exercise of a power of withdrawal [and] expressly allows a trustee to transfer withdrawn property to a beneficiary.” The court determined, instead, that Arizona Revised Statutes section 14-7702 applied because—regardless of whether Rebecca was a “creditor”—“that statute . . . define[d] when an amount is due and payable and separately define[d] the rights of creditors.”

Accordingly, the court concluded that “[n]o amount of the Trust principal is due or payable within the meaning of that statute, and it is therefore protected against . . . the disbursement sought by [Rebecca].” The court thus ruled that because Jared’s interest in the Trust principal was “not subject to voluntary or involuntary transfer,” see Ariz. Rev. Stat. Ann. § 14-7702(a) (2008), it could not be transferred through the Property Agreement.

¶10 The parties then proceeded to trial on the other issues involved in their divorce, including distribution of the marital estate and alimony. The district court entered its order, later entering its findings of fact and conclusions of law and issuing the divorce decree. As relevant to this appeal, in its alimony calculations, the court made several reductions to Rebecca’s claimed expenses.

¶11      First, the court made several modifications to the expenses Rebecca submitted related to home maintenance. The court eliminated the snow removal expense of $175 per month, stating, “The parties never paid for snow removal during the marriage[,] and this expense was not part of the marital [lifestyle].” It eliminated the monthly “[p]ool/[s]pa maintenance” expense of $373.33, reasoning that “[t]he parties did not have pool maintenance expense[s] during the marriage as the pool was maintained by the parties” and “[t]his new expense was only incurred after separation and because [Rebecca] is not cleaning the pool despite acknowledging she is capable of doing so.” And it eliminated the monthly landscaping expense of $414.66 because “[t]his was not an expense that was incurred during the marriage as the yard work was done by the parties themselves.” It continued, “[Rebecca] further acknowledged that she is capable of yard work. Also, [Jared] has not requested that he [have] third parties do his yard maintenance.”

¶12      Next, the district court modified several of Rebecca’s expenses related to health and personal care. It reduced Rebecca’s health care insurance expense from $757 per month to $411 per month, explaining,

[Rebecca] is not incurring this expense but is covered under the parties’ current policy. In addition, no written evidence was provided as to the costs for health care coverage for [Rebecca]. [Rebecca] acknowledged the $757 was for a policy with no deductibles[,] which is not the same level of policy the parties currently have in place, which has [an] $8,000 a year deductible. Further, the [c]ourt has received evidence in other cases that health care coverage for a single person can be obtained in the $400 to $500 a month range. Therefore, the [c]ourt adjusts [Rebecca’s] coverage to be consistent with [the] current known expense of health care of the parties and which [Jared] established at $411 a month.

The court also reduced Rebecca’s expense for personal grooming from $949.83 per month to $500 a month. It stated,

[Rebecca’s] evidence of getting a haircut twice a year and having her nails and eye lashes done monthly to every six (6) weeks did not establish this claimed and requested expense of $11,397.96 a year for personal expenses. [Jared] did not ask for any personal grooming as part of his expenses relating to the marital standard of living[,] and he [is] not getting the $500 [Rebecca] is being awarded.

¶13 Finally, the court made several adjustments to Rebecca’s claimed expenses related to savings. The court eliminated Rebecca’s “[s]avings [p]lan contribution” of $2,500 per month. The court explained,

[Rebecca] admitted that this amount was only an estimate on her part in that she thought the parties may have saved $30,000 a year. [Jared’s] testimony was the parties did not contribute to any savings plan for the parties in any amount on a monthly or regular basis. Rather, the parties would save money as they had it in differing amounts and when there were sufficient funds to purchase what they wanted, the parties would spen[d] the money on cars and other purchases. No savings program was done during the marriage. In addition, [Jared] has not requested a savings plan as part of his expenses, and he is entitled to the same marital standard as [Rebecca].

The court eliminated “[r]etirement deposits” of $500 per month, stating,

The evidence adduced at trial established the parties never saved $500 a month for retirement. Further, [Jared] did not ask for retirement as part of his expenses relating to the marital standard of living[,] giving further credibility to this fact. The evidence was any retirement amounts for the parties was only set aside and deposited in three (3) of the twenty-seven (27) years of marriage.

The court eliminated Rebecca’s “additional capital/investment funds” of $7,279 monthly because “[t]he testimony and evidence established there never was any such capital or investment funds like this during the marriage. Further, no testimony was provided as to how this figure was arrived at to be claimed in the first place.” The court declared that “[t]his is simply a request, which is unfounded and which the [c]ourt finds is an attempt to inflate [Rebecca’s] expenses.”

¶14      Rebecca now appeals.

ISSUES AND STANDARDS OF REVIEW

¶15 Rebecca presents three issues on appeal. First, she asserts that “the district court erred when it determined, on summary judgment, that Rebecca had no interest in [the] Trust.” “When an appellate court reviews a district court’s grant of summary judgment, the facts and all reasonable inferences drawn therefrom are viewed in the light most favorable to the nonmoving party, while the district court’s legal conclusions and ultimate grant or denial of summary judgment are reviewed for correctness.” Massey v. Griffiths, 2007 UT 10, ¶ 8, 152 P.3d 312 (cleaned up).

¶16 Second, Rebecca argues that even “if the district court’s interpretation and application of Arizona law to the Trust and the Property Agreement were correct, it nonetheless abused its discretion when it refused to divide the Trust on equitable grounds.” “District courts have considerable discretion concerning property distribution in a divorce[,] and we will uphold the decision of the district court unless a clear and prejudicial abuse of discretion is demonstrated.” Gerwe v. Gerwe, 2018 UT App 75, ¶ 8, 424 P.3d 1113 (cleaned up).

¶17      Third, Rebecca contends that “the district court erred in its calculation of alimony.” “A district court’s award of alimony is reviewed for abuse of discretion.” Id. ¶ 9. “Although trial courts have broad latitude in determining whether to award alimony and in setting the amount, and we will not lightly disturb a trial court’s alimony ruling, we will reverse if the court has not exercised its discretion within the bounds and under the standards we have set,” including if the court commits legal error. Bjarnson v. Bjarnson, 2020 UT App 141, ¶ 5, 476 P.3d 145 (cleaned up).

ANALYSIS

I. Rebecca’s Interest in the Trust

¶18      Rebecca argues that the district court erred in ruling that she was not entitled to an equitable share of the Trust. Rebecca first asserts that the court erred in applying the 2008 Arizona Trust Code (the 2008 Code) because the 2009 Arizona Trust Code (the 2009 Code) applied retroactively and indicated that Jared’s power of withdrawal gave him an ownership interest subject to transmutation under the Property Agreement. She also argues, alternatively, that even if the 2008 Code applies, Jared’s interest in the Trust was marital property. Jared counters that the 2008 Code applies, that his “interest in the Trust principal was bound by a valid spendthrift provision” at the time of the Property Agreement, and that it was therefore not transferrable through the Property Agreement.

¶19 We agree with Jared and uphold the district court’s decision on this issue. First, we conclude that the 2009 Code does not retroactively modify the nature of Jared’s interest in the Trust at the time of the Property Agreement.[4] Even if application of the 2009 Code would have the effect Rebecca claims, we cannot apply that version of the code.

¶20      Arizona law indicates that “beginning on January 1, 2009[,] . . . [the 2009 Code] applies to all trusts created before, on or after January 1, 2009.” Act of Dec. 31, 2008, ch. 247 § 18(A)(1), 2008 Ariz. Sess. Laws 1179, 1179 (2nd Reg. Sess.). The parties entered the Property Agreement in March 2008. Because this date predates January 1, 2009, the 2009 Code had not taken effect at the time the parties signed the Property Agreement and therefore had no application to the Trust. Indeed, the Arizona Legislature did not leave this point ambiguous but rather included a specific provision stating that “[a]n act done before January 1, 2009[,] is not affected by this act.” Id. Arizona caselaw has interpreted this exception to mean that the preexisting law governed until January 1, 2009. See Favour v. Favour, No. 1 CA-CV 13-0196, 2014 WL 546361, ¶ 30 (Ariz. Ct. App. Feb. 11, 2014) (stating that a previous statute “governs actions taken by a trustee prior to implementation of the Arizona Trust Code . . . on January 1, 2009,” and that the earlier statute “recognized the trustee’s investment and management authority,” so “as a matter of law, [the trustee] had the authority to invest, trade, diversify, and manage trust assets prior to January 1, 2009” (cleaned up)); In re Esther Caplan Trust, 265 P.3d 364, 366 (Ariz. Ct. App. 2011) (“The past principal distributions are not governed by [the 2009 Code]. That statute became effective after the challenged distributions were made. The predecessor statute . . . merely required a trustee to keep the beneficiaries of the trust reasonably informed of the trust and its administration. The record establishes that [the appellee] complied with these relatively minimal requirements.” (cleaned up)).

¶21      Accordingly, at the time the parties signed the Property Agreement, the 2008 Code was in effect. If the parties had signed the Property Agreement on, say, January 2, 2009, the 2009 Code could retroactively apply to the Trust—though it was created in 1994—to govern its terms. But because the Property Agreement was signed before the 2009 Code went into effect, the 2009 Code’s retroactivity provision also had no effect. Therefore, Jared’s interest in the Trust for the sake of the Property Agreement was whatever existed under the 2008 Code, and any restrictions of the Trust as of March 2008 had full effect and were not modified by the 2009 Code. Put another way, Jared could not give an interest in property in 2008 that he did not have the right to transfer.

¶22 Under the 2008 Code, the Trust’s spendthrift provision prevented Jared from transmuting his interest in the Trust into marital property.[5] The 2008 Code specified that “if [a] trust instrument provides that a beneficiary’s interest in principal is not subject to voluntary or involuntary transfer, the beneficiary’s interest in principal shall not be transferred.” Ariz. Rev. Stat. Ann. § 14-7702(a) (2008). The Trust was subject to a spendthrift provision, declaring that Jared lacked the “right to assign, transfer, encumber, or hypothecate his . . . interest in the principal or income of the [T]rust in any manner.” Consequently, Jared’s interest in the Trust was “not subject to voluntary or involuntary transfer,” so his interest was not eligible for transfer. See id.see also In re Indenture of Trust Dated Jan. 13, 1964, 326 P.3d 307, 312 (Ariz. Ct. App. 2014) (“A valid spendthrift provision makes it impossible for a beneficiary to make a legally binding transfer.” (emphasis added) (cleaned up)).

¶23      In an effort to avoid the restrictive effect of the Trust’s spendthrift provision, Rebecca argues that “[t]ransmuting property is distinct from transferring property” and therefore “Jared did not transfer any interest” when he allegedly transmuted his interest in the Trust through the Property Agreement. Citing State ex rel. Industrial Commission of Arizona v. Wright, 43 P.3d 203 (Ariz. Ct. App. 2002), Jared responds that Arizona caselaw rejects this argument:

[In Wright], the court explained that the term “transfer” “includes any transaction in which a property interest was relinquished.” Because transmuting a property interest from separate property to community property surrenders the transferor’s entitlement to half of his or her separate property, the court reasoned, such a transmutation qualifies as a “transfer” of that property.

(Citations omitted.) Rebecca responds that the holding of Wright applies “only in the specific context of the Uniform Fraudulent Transfers Act.”

¶24 In Wright, the Arizona Court of Appeals considered a premarital agreement that was fraudulently modified after a husband fell subject to a workers’ compensation claim. Id. at 204. The modification stated that separate earnings would be community property, thus attempting to evade a judgment against the husband’s earnings. Id. The court held that the transmutation of the husband’s earnings constituted a transfer under the Uniform Fraudulent Transfers Act:

Before the modification, [the husband] held a sole interest in the entirety of his future earnings. The effect of the modification was to transfer that entire interest to the community. [The wife] would have a right to dispose of those earnings now dedicated to the community that she did not have when they were [the husband’s] separate property. Additionally, upon dissolution of marriage, [the husband] would have surrendered all entitlement to half of those earnings. Hence, [the husband] has transferred an asset within the meaning of [the Uniform Fraudulent Transfers Act].

Id. at 205. While the Wright court did conclude that the parties’ actions satisfied the broad statutory definition of a transfer under the Uniform Fraudulent Transfers Act, see id., and while Rebecca is correct that the Uniform Fraudulent Transfers Act is not at issue here, the court’s analysis is still useful. If we accept Rebecca’s argument that the Property Agreement transmuted Jared’s interest in the Trust, then—like in Wright—before the Property Agreement, Jared’s interest in the Trust was solely his and the Property Agreement served to “transfer that entire interest to the community.” See id. And upon divorce, Jared “would have surrendered all entitlement to half of” his interest in the Trust. See id. Accordingly, while we are not applying the definition of “transfer” from the Uniform Fraudulent Transfers Act, we conclude that a transmutation here would have been a transfer. In terms of the bundle of sticks formulation that Rebecca referenced in her motion for partial summary judgment, Jared would be giving Rebecca access to and an interest in whatever sticks he was holding at the time he signed the Property Agreement—sticks that she did not previously hold.[6]

¶25      Our conclusion that Jared’s purported transmutation of the Trust into marital property would have constituted a transfer is supported by the language of the Property Agreement itself. The Property Agreement indicated that “to the extent necessary, JARED and REBECCA each hereby gives, grants, conveys and assigns to the other an interest in his or her property . . . so as to transmute such property into the community property of JARED and REBECCA.” (Emphasis added.) This language belies Rebecca’s argument that the transmutation only changed the nature of—but did not affect a transfer of—Jared’s interest. And this language also runs up against the language in the Trust’s spendthrift provision forbidding Jared from “assign[ing], transfer[ing], encumber[ing], or hypothecat[ing] his . . . interest in the principal or income of the [T]rust in any manner.” Accordingly, we agree with the district court that the Property Agreement had no effect on the Trust and that, therefore, Rebecca does not have a legally cognizable interest in the Trust.

II. Equitable Grounds for Dividing the Trust

¶26 Rebecca contends, alternatively, that “[r]egardless of whether the Property Agreement granted Rebecca a legally cognizable interest in the Trust itself, the district court was required to consider the Trust as part of the marital property for the sake of equity.” She asserts that “[d]istrict courts must equitably divide the marital estate” and quotes Dahl v. Dahl, 2015 UT 79, 459 P.3d 276, for the propositions that “Utah law presumes that property acquired during a marriage is marital property subject to equitable distribution” and “[t]o the extent that the Trust corpus contains marital property, Utah has a strong interest in ensuring that such property is equitably divided in the parties’ divorce action.” Id. ¶ 26. Rebecca points us to Endrody v. Endrody, 914 P.2d 1166 (Utah Ct. App. 1996), in which a husband’s parents had established a trust after the parties were married and had named the wife as one of the beneficiaries. Id. at 1167–68. This court affirmed a district court’s ruling that the trust assets were not available for distribution as marital assets but that the husband’s shares in the trust were marital property, an equitable share of which should be placed in a constructive trust for the wife’s benefit. Id. at 1170. Rebecca concludes, “In short, Jared’s interest in the Trust was marital property. And even if the Trust assets were not available for distribution, the court was required to consider the Trust as part of the marital property for equitable purposes.”

¶27      Rebecca’s argument misses the mark. We have concluded, as did the district court, that Jared’s interest in the Trust was not marital property or part of the marital estate subject to distribution. This is a distinct conclusion from one stating that trust funds are marital property but the trust principal is not available for distribution. Therefore, caselaw addressing equitable distribution of trust funds that are marital property is inapposite. And Rebecca provides no support for the position that she should be awarded an equitable portion of the value of the Trust’s principal despite a holding that she is not entitled to any portion of Jared’s interest in the Trust.[7] Accordingly, we uphold the district court’s decision that Rebecca is not entitled to any portion of or equivalent sum for Jared’s interest in the Trust.

III. Alimony

¶28      Rebecca next contends that the court erred in its alimony calculations when it made several deductions to Rebecca’s claimed expenses. Rebecca insists that she “does not raise a factual challenge” but instead “challenges the district court’s method of reduction and justification for doing so.” She asserts that the district court “misconstrued Utah law” when it adjusted her expenses.

¶29 Under Utah law, courts must consider in alimony determinations the factors listed in Utah Code section 30-3-5, including “(i) the financial condition and needs of the recipient spouse; (ii) the recipient’s earning capacity or ability to produce income, including the impact of diminished workplace experience resulting from primarily caring for a child of the payor spouse; [and] (iii) the ability of the payor spouse to provide support.” Utah Code § 30-3-5(10)(a); see also Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985); English v. English, 565 P.2d 409, 411–12 (Utah 1977). “An alimony award should also advance, as much as possible, the primary purposes of alimony.” Rule v. Rule, 2017 UT App 137, ¶ 14, 402 P.3d 153 (cleaned up). Alimony is intended “(1) to get the parties as close as possible to the same standard of living that existed during the marriage; (2) to equalize the standards of living of each party; and (3) to prevent the recipient spouse from becoming a public charge.” Jensen v. Jensen, 2008 UT App 392, ¶ 9, 197 P.3d 117 (cleaned up).

¶30      We have previously explained,

Alimony is not limited to providing for only basic needs but should be fashioned in consideration of the recipient spouse’s station in life in light of the parties’ customary or proper status or circumstances, with the goal being an alimony award calculated to approximate the parties’ standard of living during the marriage as closely as possible.

Rule, 2017 UT App 137, ¶ 14 (cleaned up); see also Davis v. Davis, 749 P.2d 647, 649 (Utah 1988) (“The ultimate test of the propriety of an alimony award is whether, given all of these factors, the party receiving alimony will be able to support him- or herself as nearly as possible at the standard of living enjoyed during marriage.” (cleaned up)); Savage v. Savage, 658 P.2d 1201, 1205 (Utah 1983) (“One of the chief functions of an alimony award is to permit the parties to maintain as much as possible the same standards after the dissolution of the marriage as those enjoyed during the marriage.”). And “in terms of alimony, the marital standard of living analysis is about whether the parties’ proposed points of calculation are consistent with the parties’ manner of living and financial decisions (i.e., the historical allocation of their resources).” Mintz v. Mintz, 2023 UT App 17, ¶ 24, 525 P.3d 534, cert. denied, 523 P.3d 730 (Utah 2023).

A.        Home Maintenance

¶31      Rebecca alleges that the district court improperly reduced her claimed expenses related to home maintenance, including expenses for snow removal, pool and spa maintenance, and landscaping. She argues that Jared took care of these tasks during the marriage and she should now be compensated for the cost of hiring other individuals to accomplish these tasks. In her words, “Rebecca’s marital standard of living was that someone else did the pool maintenance, snow removal, and landscaping. Since that person has moved out, she is left without the standard of living to which she was accustomed.”

¶32 Rebecca’s argument on this point is fatally flawed. A court’s inquiry in evaluating historical expenses to determine alimony involves the marital standard of living—not a separate standard of living for each person within the marriage. See Davis, 749 P.2d at 649 (describing “the standard of living enjoyed during marriage” (cleaned up)); Rule, 2017 UT App 137, ¶ 14 (considering “the parties’ standard of living during the marriage” (cleaned up)); Jensen, 2008 UT App 392, ¶ 9 (discussing the “standard of living that existed during the marriage” as one but the “the standards of living of each party” after divorce as two (cleaned up)). The marital standard of living is that which the parties shared, and courts consider the parties as a single unit when evaluating that standard. We can only imagine the chaos that would ensue if divorcing partners could expense every task their former spouses previously performed.[8] Instead, we reemphasize that “in terms of alimony, the marital standard of living analysis is about whether the parties’ proposed points of calculation are consistent with the parties’ manner of living and financial decisions (i.e., the historical allocation of their resources).” Mintz, 2023 UT App 17, ¶ 24. Rebecca admits that the couple did not historically allocate funds to these expenses while the parties were married, so they cannot be considered part of the marital standard of living. And the court found as much, stating, “[t]he parties never paid for snow removal during the marriage[,] and this expense was not part of the marital [lifestyle]”; “[t]he parties did not have pool maintenance expense[s] during the marriage as the pool was maintained by the parties”; and landscaping “was not an expense that was incurred during the marriage as the yard work was done by the parties themselves.” Therefore, the court was correct in reducing Rebecca’s claims for these categories when calculating her expenses for the sake of alimony.[9]

¶33 However, Rebecca did provide evidence that the parties had historically paid some amount for bark replacement and lawn aeration. In a financial declaration, she listed a monthly expense of $126.66 for “[b]ark for the year,” and she indicated that “[t]his [was] based on an actual historical expense of $3,040.00 every 2 years.” She also listed a monthly expense of $5 for aerating and stated that “[t]his [was] based on an actual historical expense of $30 paid twice per year.” Additionally, she testified that the parties had historically replaced bark and that doing so was “quite costly.”[10] Jared, in a memorandum submitted to the court, admitted that bark was an expense that the parties had previously paid and did not contest the aerating expense. Therefore, the costs associated with bark replacement and lawn aeration were part of the marital standard of living such that they were not properly excluded from consideration in the court’s alimony calculations. Accordingly, because the facts are otherwise undisputed on this issue, we reverse on this point and instruct the court to enter expenses for Rebecca of $5 per month for lawn aeration and $126.66 per month for bark replacement.

B.        Health and Personal Care

1.         Health Insurance

¶34      Rebecca asserts that the district court abused its discretion in reducing her claimed expense for health insurance. At trial, she informed the court that she was still on Jared’s family’s health insurance plan but explained her claimed cost of $757 monthly: “This was a quote that I sought out. . . . It does not have any deductible. . . . [H]istorically our deductible [was] put on an HSA card that was covered by the Knight Group.” Both parties agreed that the historical deductible, which had been paid by the Knight Group, was around $8,000.

¶35 The court reduced Rebecca’s health insurance expense to $411 per month, the number Jared gave as the historical amount the parties paid for health care services through an HSA card. The court explained, “[N]o written evidence was provided as to the costs for health care coverage for [Rebecca]. [Rebecca] acknowledged the $757 was for a policy with no deductibles[,] which is not the same level of policy the parties currently have in place, which has [an] $8,000 a year deductible.” The court indicated that its adjustment was “consistent with current known expense[s] of health care of the parties and which [Jared] established at $411 a month.”

¶36 This conclusion was in keeping with the court’s determination that monetary support from the Knight family qualified as gifts and could not be considered in determining the marital standard of living or the parties’ expenses. It noted, “[I]n this case . . . a large portion of these things the parties were enjoying was the result of the generosity and the benefits of others. When there’s . . . no guarantee or no requirement to have those additional funds come in . . . to have this lifestyle, you know, they’re not going to be able to have it.” The court again said, “You can’t count gifts . . . that were given at the discretion of other individuals to say you’re entitled to continue to receive those gifts and have those funds coming in to you to maintain a standard of living that you may have [had] when you received those gifts . . . .”

¶37 The court’s stance on this issue is correct: the gifts from Jared’s family, despite being a regular feature of the marriage, may not be properly considered in calculating Rebecca’s needs or Jared’s ability to pay alimony. See Utah Code § 30-3-5(10)(a). The alimony factors refer only to the finances of the spouses, not those of outside parties. Id.see also Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985). Additionally, we have enunciated previously that past gifts are not to be considered in the alimony calculus: “[T]he court could not base its prospective order on past gifts that have no assurance of being continued because [a donor] has no legal obligation to continue providing the monetary support that she has in the past.” Issertell v. Issertell, 2020 UT App 62, ¶ 26, 463 P.3d 698.

¶38      Accordingly, the court did not abuse its discretion when it determined that Rebecca did not provide qualifying evidence of her future health insurance expenses because she submitted only a quote for a plan without a deductible. The parties both testified that they had a deductible during the marriage, and Rebecca is not entitled to a health insurance plan better than the one the parties had during the marriage. The fact that the parties’ deductible was historically paid by the Knight Group does not impact our analysis because those payments were “past gifts that have no assurance of being continued because [the Knight Group] has no legal obligation to continue providing the monetary support that [it] has in the past.” See id. And without evidence from Rebecca on which it could rely, the court did not abuse its discretion in accepting the amount Jared put forth as the parties’ historical health insurance cost.[11] See Sauer v. Sauer, 2017 UT App 114, ¶ 10, 400 P.3d 1204 (“Once the court determined that there was no evidence that was both credible and relevant regarding [the recipient spouse’s] reasonable housing needs, it was appropriate for the court to impute a reasonable amount based on other evidence provided by the parties. . . . We therefore see no impropriety in the trial court’s decision to impute housing needs to [the recipient spouse] in the same amount as [the payor spouse] had claimed was reasonable . . . .”). We affirm on this point.

2.         Personal Grooming

¶39      Rebecca also asserts that the court abused its discretion in reducing Rebecca’s claimed expense for “personal grooming.” The court stated that it was “reduc[ing] personal grooming by $449.83, from $949.83 to $500 a month,” because Rebecca’s “evidence of getting a haircut twice a year and having her nails and eye lashes done monthly to every six (6) weeks did not establish this claimed and requested expense of $11,397.96 a year for personal expenses.” The court also stated that Jared “did not ask for any personal grooming as part of his expenses relating to the marital standard of living[,] and he was not getting the $500 [Rebecca was] being awarded.”

¶40 Rebecca takes issue with the court’s findings and reasoning, asserting,

[T]his was not the evidence. She testified that she gets her eyelashes and nails done every two weeks, not “monthly to every six (6) weeks.” She testified that in addition to getting her hair cut, she also gets a perm. She testified that she gets a full body wax. She also testified that she has costs for “toenails.” She also testified that she has “maintenance” costs. She stated that to reach this number she “went through [her] credit card statements and added up for a year’s worth of” these expenses. She testified that “obviously this is historically . . . what I spent.”

Opposing counsel did not dispute Rebecca’s expenses, but simply opined that he thought “the maximum would be . . . $500 a month. $6000 a year for personal grooming is quite a nice budget.” But what opposing counsel thinks qualifies as “quite a nice budget” is not the test in Utah. Instead, the test is the marital standard of living, and Rebecca’s testimony—unchallenged by contrary evidence— was that she spent $949.83 per month.

Second, the district court reduced Rebecca’s personal grooming expenses because Jared “did not ask for any personal grooming as part of his expenses relating to the marital standard of living and he was not getting the $500 [Rebecca] is being awarded.” That is irrelevant. If Jared spends nothing on personal grooming, or if he has no monthly expenses because the Knight family pays for them all, that does not mean that Rebecca’s estimated expenses are inaccurate.

¶41      We agree with Rebecca on all fronts. The court would have acted within its discretion if it had found Rebecca’s evidence unreliable or had determined that Rebecca’s claimed expenses were unreasonable in light of the couple’s marital standard of living. See Woolums v. Woolums, 2013 UT App 232, ¶ 10, 312 P.3d 939 (“The district court’s evaluation of and reliance on [one spouse’s] testimony, along with its own determinations of the reasonableness of the claimed expenses, fell squarely within its broad discretion to determine an appropriate alimony award.”). But that is not what it did. It disregarded Rebecca’s evidence of historical spending and substituted a figure provided by Jared’s counsel with no evidentiary basis. Jared’s counsel’s thoughts on what makes “quite a nice budget” are irrelevant. The court’s inquiry should have been rooted in Rebecca and Jared’s marital standard of living, as indicated by their historical spending. See Mintz v. Mintz, 2023 UT App 17, ¶ 24, 525 P.3d 534, cert. denied, 523 P.3d 730 (Utah 2023).

¶42      A court’s inquiry into the marital standard of living must evaluate the specific circumstances of that couple, and expenses that are unreasonable in light of one couple’s marital standard of living may be reasonable in light of another couple’s marital standard of living. “Indeed, we have explained that alimony is not limited to providing for only basic needs but should be fashioned in consideration of the recipient spouse’s station in life in light of the parties’ customary or proper status or circumstances.” Rule v. Rule, 2017 UT App 137, ¶ 14, 402 P.3d 153 (cleaned up). And “the goal” of the inquiry is “an alimony award calculated to approximate the parties’ standard of living during the marriage as closely as possible.” Id.see also Davis v. Davis, 749 P.2d 647, 649 (Utah 1988) (“The ultimate test of the propriety of an alimony award is whether, given all of these factors, the party receiving alimony will be able to support him- or herself as nearly as possible at the standard of living enjoyed during marriage.” (cleaned up)); Savage v. Savage, 658 P.2d 1201, 1205 (Utah 1983) (“One of the chief functions of an alimony award is to permit the parties to maintain as much as possible the same standards after the dissolution of the marriage as those enjoyed during the marriage.”). Rebecca testified that the marital standard of living included significant spending on her personal grooming. The court acted improperly when it discarded this evidence and substituted another amount without properly concluding that Rebecca’s evidence was inadequate or her expenses were unreasonable in light of the marital standard of living.

¶43      It was also improper for the court to base its determination, in part, on Jared’s lack of submission for this budget line item. There is no need for courts to limit one party’s expenses to those the other party also claims. See Utah Code § 30-3-5(10)(a) (including as a factor in determining alimony “the financial condition and needs of the recipient spouse”). In fact, doing so increases the risk of gamesmanship between the parties. There is already a risk that divorcing spouses may inflate their claimed expenses in an effort to sway the alimony calculation in their favor: payor spouses might attempt to minimize their ability to provide support by claiming high expenses, while recipient spouses might inflate their expenses to claim that their needs are great. See id. But limiting a recipient spouse’s potential expenses to only those categories claimed by the payor spouse dangerously alters this already-thorny calculation. In situations where a payor spouse’s ability to pay is unlikely to be an issue, the payor spouse would face a significant incentive to omit many expenses and thereby drastically reduce the receiving spouse’s needs. But the danger is not just in these situations. In any case, a payor spouse would be incentivized to identify categories for which the recipient spouse would likely have higher expenses and omit those. In other words, payor spouses could significantly undercut alimony awards by strategically omitting expenses. Accordingly, we caution courts not to apply such faulty reasoning when calculating alimony. Instead, courts should base their findings on expenses that are reasonable in light of the couple’s unique marital standard of living. See Mintz, 2023 UT App 17, ¶ 24.

¶44      On this front, we clarify that a couple’s marital standard of living may include disparate spending by the parties on various categories during the marriage. Throughout the marriage, one spouse may spend more—even significantly more—than the other on personal grooming, entertainment, travel, or any number of other expense categories. A partner may embrace the age-old adage’s modernized mantra of “happy spouse, happy house,” may derive independent pleasure from a spouse’s purchases, or may observe a spouse’s spending habits—whether for monthly follicle support treatments or Jazz tickets only one spouse actually uses—through gritted teeth. But for the sake of calculating alimony, we assume that the parties agreed on their household expenditures such that whatever was historically spent by the parties during the marriage constitutes the couple’s marital standard of living, even if the spending was lopsided—or, indeed, one-sided—within a given expense category. See Davis, 749 P.2d at 649; Rule, 2017 UT App 137, ¶ 14. Consequently, whether Jared truly spent nothing on personal grooming historically or he simply elected to omit his expenses in that category, the court erred in limiting its acceptance of Rebecca’s personal grooming expenses based on Jared’s lack of submission.

¶45      The court abused its discretion when it applied the wrong legal standard to Rebecca’s claimed expenses for personal grooming. Because the court did not find Rebecca’s evidence unreliable or determine that Rebecca’s claimed expenses were unreasonable in light of the couple’s marital standard of living, we reverse its decision on this point and instruct it to modify its findings to include the $949.83 per month consistent with the parties’ marital standard of living.

C.        Savings and Other Funds

1.         Savings Plan

¶46      Rebecca asserts that the court wrongfully entirely rejected her expense for a “[s]avings [p]lan” of $2,500 per month. First, she points to the court’s statement that “[Jared] has not requested a savings plan as part of his expenses, and he is entitled to the same marital standard as [Rebecca].” As we have discussed, such a consideration has no place in the alimony analysis under Utah law. Additionally, the court summarized the evidence related to a savings plan:

[Rebecca] admitted that this amount was only an estimate on her part in that she thought the parties may have saved $30,000 a year. [Jared’s] testimony was the parties did not contribute to any savings plan for the parties in any amount on a monthly or regular basis. Rather, the parties would save money as they had it in differing amounts and when there were sufficient funds to purchase what they wanted, the parties would spen[d] the money on cars and other purchases.

From this, the court concluded that “[n]o savings program was done during the marriage.” But in so concluding, the court misapplied Utah law on this subject.

¶47      In Mintz v. Mintz, 2023 UT App 17, 525 P.3d 534, cert. denied, 523 P.3d 730 (Utah 2023), we considered a similar question of whether “the district court erred in excluding from the alimony award an amount reflective of historical investment” where a couple had a habit of investing money “essentially as savings.” Id. ¶¶ 2, 16. There, the parties’ testimonies established that “[b]efore 2014, they made deposits into investment accounts ‘when money was left over after normal marital spending,’ and after 2014, they made direct deposits into investment accounts as part of [the husband’s] employment.” Id. ¶ 2. We reiterated that, in situations like these, “[t]he critical question is whether funds for post-divorce savings, investment, and retirement accounts are necessary because contributing to such accounts was standard practice during the marriage and helped to form the couple’s marital standard of living.” Id. ¶ 17 (quoting Bakanowski v. Bakanowski, 2003 UT App 357, ¶ 16, 80 P.3d 153). We noted that “when the Bakanowski court provided the test for appropriate consideration of savings, investment, and retirement accounts in alimony calculations, it cited” another case “in which the court reasoned that because the parties had made regular savings deposits, including savings in the alimony award could help maintain the recipient spouse’s marital standard of living.” Id. ¶ 18 (cleaned up). Then we clarified that “an event must certainly be recurring but need not be uniformly systematic to be considered ‘regular.’ Indeed, something can be done ‘regularly’ if done whenever the opportunity arises, though the actual time sequence may be sporadic.” Id. ¶ 19 (cleaned up). So, we explained,

Even if savings deposits and investments do not occur on an exact timetable, such marital expenditures can be considered a standard practice in those infrequent and unusual circumstances where a party can produce sufficiently persuasive evidence that savings deposits and investments were a recurring marital action whenever the opportunity arose, though the actual time sequence may be sporadic.

Id. ¶ 20 (cleaned up). And we concluded that the parties’ testimonies that they made substantial deposits into investment accounts “at least annually” “established that the parties followed a regular pattern, i.e., a standard practice, of investing a portion of their annual income.” Id. ¶ 21 (cleaned up).

¶48 We then considered the question of whether the parties’ standard practice of investing contributed to their marital standard of living, because “to justify an alimony award that includes an amount for investment, the parties’ acts of investing must also contribute to the ‘marital standard of living.’” Id. ¶ 22 (quoting Bukunowski, 2003 UT App 357, ¶ 16). We concluded that the parties’ standard practice of investing did contribute to their marital standard of living, so we remanded “the case to the district court to recalculate alimony based on the amount that the couple’s historical investment contributed to the marital standard of living.” Id. ¶ 28. The same is true for savings: a court must determine whether a couple’s standard practice of saving contributed to their marital standard of living to incorporate savings into an alimony award. See id.

¶49 Here, such a conclusion is less apparent from the district court’s findings than was true in Mintz. The court’s description of Rebecca’s testimony of annual savings and of Jared’s testimony that the parties would save to fund large purchases certainly suggests that savings may have been a standard practice during the marriage that contributed to the marital standard of living. See id. ¶¶ 20–22; Bukunowski, 2003 UT App 357, ¶ 16; Kemp v. Kemp, 2001 UT App 157U, paras. 3–4. But the court’s findings regarding the regularity of the couple’s savings habits are insufficient for us to hold that this standard is clearly met. Still, the court’s conclusion that “[n]o savings program was done during the marriage” does not clearly follow from its other findings, given our caselaw on this topic. The court’s focus strictly on monthly savings habits is myopic and at odds with precedent, and the court provides no explanation for its interpretation of Jared’s testimony that the parties did not save on a “regular basis.” Therefore, we conclude that the court exceeded its discretion on this matter insofar as it applied the incorrect legal standard. See Bjarnson v. Bjarnson, 2020 UT App 141, ¶ 5, 476 P.3d 145 (“We will reverse [an alimony award] if the court has not exercised its discretion within the bounds and under the standards we have set . . . .” (cleaned up)). We remand this matter for the court to make additional findings as to the regularity of the parties’ savings deposits. On remand, “the court should, as a legal matter, ensure it employs the correct legal definitions of standard practice and marital standard of living, apply the facts of [this] case to those definitions, and then determine whether the facts as found meet the criteria for a savings-based alimony award.” Mintz, 2023 UT App 17, ¶ 17.

2.         Retirement

¶50      Rebecca also asserts that the court erred in entirely rejecting her submitted expense for “[r]etirement deposits” of $500 per month. The court explained that “[t]he evidence adduced at trial established the parties never saved $500 a month for retirement. . . . The evidence was any retirement amounts for the parties was only set aside and deposited in three (3) of the twenty-seven (27) years of marriage.” The court again improperly discussed the point that “[Jared] did not ask for retirement as part of his expenses relating to the marital standard of living,” but rather than relying on this point to deny Rebecca’s claim for a retirement savings provision in the alimony award, the court stated that this point gave “further credibility to th[e] fact” that the parties did not regularly save for retirement. More importantly, and unlike for the savings category, the court’s conclusion that there was no standard practice of saving for retirement flows from its findings on the irregularity of the parties saving for retirement while married.

¶51 Furthermore, Rebecca does not argue on appeal that the court applied the wrong legal standard here. She explains that Jared did not submit a retirement expense because he “is worth literally millions of dollars and Rebecca, when she was married, also anticipated having millions of dollars available for retirement.” She argues that “[t]o even come close to approximating the marital standard of living, Rebecca must start to save for retirement.” But this is not in line with our caselaw. Again, we look to the parties’ “historical allocation of their resources” to determine their marital standard of living, id. ¶ 24, and Rebecca does not argue that the parties historically allocated their resources by saving regularly for retirement. Therefore, the court did not abuse its discretion in determining that saving for retirement was not a feature of the marital standard of living and, accordingly, removing that claimed expense when calculating alimony. We affirm on this point.

3.         Additional Capital/Investment Funds

¶52 Finally, Rebecca contends that the court was wrong to reject her expense for “additional capital/investment funds” of $7,279 monthly. The court did so because “[t]he testimony and evidence established there never was any such capital or investment funds like this during the marriage. Further, no testimony was provided as to how this figure was arrived at to be claimed in the first place.” The court declared that “[t]his is simply a request, which is unfounded and which the [c]ourt finds is an attempt to inflate [Rebecca’s] expenses.” Rebecca argues on appeal that this “is incorrect” and that her “[f]inancial [d]eclaration provide[d] a detailed explanation of how the figure was computed: ‘This is an amount based on funds the parties historically had available from [Jared’s] family wealth for discretionary investments . . . .’” This argument does not prevail. As we have explained, past gifts are excluded from the alimony calculus. See Issertell v. Issertell, 2020 UT App 62, ¶ 26, 463 P.3d 698. The funds that were historically available for investment were gifts, and as such, they are not properly considered as a standard practice contributing to the marital standard of living. See id.Mintz, 2023 UT App 17, ¶¶ 20–22. Therefore, the court was acting within its discretion as to this item, and we affirm its decision in this respect.

CONCLUSION

¶53      The district court did not err in determining that Rebecca had no interest in the Trust, and it did not abuse its discretion in deciding against dividing the Trust on equitable grounds. We affirm in this respect.

¶54 As to alimony, the court exceeded its discretion when it applied the wrong legal standard when calculating several of Rebecca’s expenses. Accordingly, we reverse the court’s decision with respect to Rebecca’s personal grooming expenses and the expenses associated with lawn aeration and bark replacement. We also remand the matter for further factual findings as to the regularity of the parties’ savings deposits and a determination of whether, applying the law correctly, the parties’ savings habits constituted a standard practice contributing to the marital standard of living. We affirm the remainder of the court’s alimony determinations.

 

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I Bought a House, Then Got Married. Me and My Partner Then Divorced. Can She Take the House? This Is in NY.

I am not licensed to practice law in the state of New York, but I will answer your question according to the law of the jurisdiction where I do practice law (Utah) because that may give you an idea of how the issue is treated in Utah. You will need to consult with a knowledgeable New York family law attorney to know the correct answer to your question as it applies under New York law.

The decision in the Utah case of Lindsey v. Lindsey (392 P.3d 968, 833 Utah Adv. Rep. 16, 2017 UT App 38) is a perfect explanation of the circumstances under which a spouse’s separate property can be awarded to the other spouse in a divorce case, so I will cite excerpts from that decision below (I did not include the footnotes from the decision):

ANALYSIS

¶31 When distributing “marital property in a divorce proceeding, the overriding consideration is that the ultimate division be equitable-that property be fairly divided between the parties.” Granger v. Granger, 2016 UT App 117, ¶ 15, 374 P.3d 1043 (brackets, citation, and internal quotation marks omitted). To that end, a trial court must first “identify the property in dispute and determine whether it is marital or separate.” Dahl v. Dahl, 2015 UT 79, ¶ 121 (brackets, citation, and internal quotation marks omitted). Marital property ordinarily includes “all property acquired during marriage,” “whenever obtained and from whatever source derived.” Dunn v. Dunn, 802 P.2d 1314, 1317-18 (Utah Ct. App. 1990) (citation and internal quotation marks omitted). Separate property ordinarily includes premarital property, gifts, and inheritances, including any appreciation that may accrue during the marriage. See Dahl, 2015 UT 79, ¶ 143; Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988).

¶32 The presumption is that marital property will be divided equally while separate property will not be divided at all. See Dahl, 2015 UT 79, ¶ 121; Dunn, 802 P.2d at 1323. Married persons have a right to separately own and enjoy property, and that right does not dissipate upon divorce. See Mortensen, 760 P.2d at 308. Thus, equity generally requires that “each party retain the separate property he or she brought into the marriage, including any appreciation” thereof. Dunn, 802 P.2d at 1320, 1323; accord Dahl, 2015 UT 79, ¶ 143; Mortensen, 760 P.2d at 308.

¶33 But separate property “is not totally beyond a court’s reach.” Elman v. Elman, 2002 UT App 83, ¶ 19, 45 P.3d 176 (brackets, citation, and internal quotation marks omitted). Before carving property out of the marital estate, a trial court must consider whether circumstances warrant an equitable override of the separate-property retention rule. See Henshaw v. Henshaw, 2012 UT App 56, ¶ 15, 271 P.3d 837. Three circumstances have been identified under Utah law as supporting an award of separate property at the time of divorce. These exceptions are when separate property has been commingled [the Lindsey v. Lindsey case did not treat the commingling exception, so I will provide some information on that in a footnote to this answer[1]]; when the other spouse has augmented, maintained, or protected the separate property [the contribution exception]; and in extraordinary situations when equity so demands. See Mortensen, 760 P.2d at 308; Dunn, 802 P.2d at 1320. The latter two exceptions are at issue here.

*****

¶35 Under the contribution exception, a spouse’s separate property may be subject to equitable distribution when “the other spouse has by his or her efforts or expense contributed to the enhancement, maintenance, or protection of that property, thereby acquiring an equitable interest in it.” Mortensen, 760 P.2d at 308. This exception may be satisfied when one spouse brings assets into the marriage and the other spouse’s prudent investment of those assets substantially increases their value, see Dubois v. Dubois, 504 P.2d 1380, 1381 (Utah 1973), or when marital funds are expended or marital debt is incurred for the benefit of one spouse’s separate property, see Schaumberg v. Schaumberg, 875 P.2d 598, 602-03 (Utah Ct. App. 1994). In addition, this court has contemplated that the exception might apply when one spouse works for a business owned by the other spouse but is not “paid a wage or salary,” see Rappleye v. Rappleye, 855 P.2d 260, 262-63 (Utah Ct. App. 1993), or when a spouse elects to forgo salary or related compensation that would have benefited the marriage so that those funds may be reinvested in his or her separate business, see Keyes v. Keyes, 2015 UT App 114, ¶ 30, 351 P.3d 90. Under such circumstances, one spouse’s effort or investment may render the other spouse’s underlying asset, its appreciated value, or some portion thereof subject to equitable distribution. See, e.g., Schaumberg, 875 P.2d at 602-03.

¶36 While spouses often contribute to one another’s financial success in a variety of ways, Utah law draws a line between contributions that qualify as “enhancement, maintenance or protection” of a spouse’s separate property and those that do not. See Jensen v. Jensen, 2009 UT App 1, ¶¶ 11, 16, 203 P.3d 1020 (citation and internal quotation marks omitted). Under Utah law, perhaps the most common type of spousal assistance-taking on some measure of household or family responsibilities to allow the other spouse to spend time enhancing the value of his or her separate property-has been rejected as a standalone basis for awarding separate property under the contribution theory. See id. ¶ 16.

¶37 As this court concluded in Jensen, one spouse’s efforts to “maintain[] the household,” provide childcare, and run a part-time business that “contributed to [the] family finances” were insufficient to justify awarding even “part” of the appreciated value of the other spouse’s interest in the corporation of which he was president. Id. ¶¶ 4, 10-11, 15-16 (internal quotation marks omitted). Although the wife’s efforts may have enabled her husband to devote his attention to his employment, she had not sufficiently contributed to the increase in value of the corporation’s equity: “Wife did not assist in running the business nor contribute in any way to its increase in equity. Moreover, it [was] unclear whether the increase in equity was due to anything other than inflation.” Id. ¶ 16. Likewise, in Kunzler v. Kunzler, the contribution exception was not triggered by one spouse’s assumption of household responsibilities, which allowed the other spouse “to focus his time and energy on preserving and increasing the value” of his separate property. 2008 UT App 263, ¶¶ 19 & n.5, 32, 37, 190 P.3d 497.

¶38 The division of labor among married parties may take any number of forms, and the give-and-take often inherent in marital relationships is generally not a sufficient basis for judicially rewriting title to property. The presumption that parties retain their separate property at divorce would be rendered largely irrelevant if rebutted by any spousal effort that freed the other spouse to work on his or her separate property. Thus, for purposes of this exception, direct involvement with or financial expenditures toward a spouse’s separate property appear to be key.

*****

  1. The Extraordinary Circumstances Exception

¶46 Under Utah law, a spouse’s separate property may be awarded to the other spouse “in extraordinary situations where equity so demands.” Elman v. Elman, 2002 UT App 83, ¶ 19, 45 P.3d 176 (citation and internal quotation marks omitted). The bar for establishing an extraordinary situation is high, traditionally requiring that “invasion of a spouse’s separate property” is “the only way to achieve equity.” Kunzler v. Kunzler, 2008 UT App 263, ¶ 35, 190 P.3d 497. A quintessential extraordinary situation arises when a spouse owns separate property but lacks income to provide alimony; in that circumstance, “an equitable distribution of the [separate property] would be well within the trial court’s discretion.” See id. ¶ 37; see also Burt v. Burt, 799 P.2d 1166, 1169 (Utah Ct. App. 1990) (“The court may award an interest in the inherited property to the non-heir spouse in lieu of alimony.”). An extraordinary situation has also arisen under “very unique” circumstances in which, absent the exception, a husband would have shared in profits his wife created as to their marital property, but she would not have shared in profits he created-and which she enabled him to create-with respect to his separate property. Elman, 2002 UT App 83, ¶ 24 & n.5.

¶47 Depending on the facts of a specific case, a court might take into account the rate of return earned on separate property during the marriage when determining whether an extraordinary situation exists or in calculating the amount of any such award. See, e.g., id. ¶¶ 20, 26, 29-30 (affirming an award of “a small share of the appreciation on [the husband’s] partnership interests,” which was “only above a reasonable rate of appreciation”). But an award of separate property may also be independent of any rate of return earned on the property during the marriage. See Henshaw v. Henshaw, 2012 UT App 56, ¶ 20 n.7, 271 P.3d 837 (rejecting the argument that, because the spouse’s separate property declined in value during the marriage, the other spouse could not receive an equitable interest under the “extraordinary situations” exception (citation and internal quotation marks omitted)). If a court were to award separate property due to a spouse’s inability to pay alimony, for example, that award could well be made irrespective of the rate of return earned on the property during the marriage.

[1] On the commingling exception:

See Dahl v. Dahl, 459 P.3d 276 (Utah 2015), 2015 UT 79

¶143 “Generally, premarital property, gifts, and inheritances [are considered] separate property, and the spouse bringing such … property into the marriage may retain it” in the event of a divorce. Keiter v. Keiter, 2010 UT App. 169, ¶ 22, 235 P.3d 782 (internal alterations omitted) (internal quotation marks omitted). But premarital property may lose its separate character where the parties have inextricably commingled it with the marital estate, or where one spouse has contributed all or part of the property to the marital estate with the intent that it become joint property. Dunn, 802 P.2d at 1320. Courts look to a party’s actions as a manifestation of a spouse’s intent to contribute separate property to the marital estate. Kimball v. Kimball, 2009 UT App. 233, ¶ 28, 217 P.3d 733.

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(15) Eric Johnson’s answer to I bought a house, then got married. Me and my partner then divorced. Can she take the house? This is in NY. – Quora

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Tithing Can Be a Legitimate Personal Expense in the Context of Determining the Alimony Award

Whether my recollection is true or not, I remember being taught in law school that tithing and other regular charitable giving cannot be treated as a personal expense deduction in bankruptcy. It appears that is no longer true (if ever it was). I was taught as a divorce lawyer by people who should have known better that tithing or regular charitable giving could not be considered a personal expense when analyzing need and ability to pay in the context of the alimony award. I don’t know if that was ever true, but I know it’s not true now. In the Utah Court of Appeals decision in the case of Knowles v. Knowles, 2022 UT App 47, 509 P.3d 265, the trial court refused to include tithing expenditures as part of the alimony calculation because it was “not a necessary living expense.” The Utah Court of Appeals reversed that decision, explaining that it “ignored the requirement that [trial courts] assess the expense based on how the parties chose to spend and allocate their money while married.” the Utah Court of Appeals decision in the case of Mintz v. Mintz – 2023 UT App 17, at ¶24 , the Utah Court of Appeals opined that “the marital standard of living analysis is not merely a question about what the parties spent their money on or whether they spent it at all. Rather, in terms of alimony, the marital standard of living analysis is about whether the parties’ proposed points of calculation are consistent with the parties’ manner of living and financial decisions (i.e., the historical allocation of their resources). Something may contribute to the marital standard of living even though it may not result in a direct benefit or detriment to the marital estate’s net worth.”

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Nelson v. Nelson – 2023 UT App 38 – Claim Preclusion and Child Support

2023 UT App 38

THE UTAH COURT OF APPEALS

STASHIA NELSON,

Appellee,

v.

ISAAC SCOTT NELSON,

Appellant.

Opinion

No. 20210345-CA

Filed April 13, 2023

First District Court, Logan Department

The Honorable Brian G. Cannell

No. 154100713

Sara Pfrommer, Ronald D. Wilkinson, and Nathan S. Shill, Attorneys for Appellant

Jacob A. Watterson and James C. Jenkins, Attorneys for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which

JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY concurred.

LUTHY, Judge:

¶1        This case raises issues regarding the claim preclusion

branch of the doctrine of res judicata in the context of divorce proceedings. Two years after Stashia and Isaac Nelson divorced, their circumstances had changed enough that Isaac[1] asked the district court to modify their divorce decree to give him shared physical custody of their children and to lower his monthly child support obligation. Isaac was behind in his support payments, and in response to his petition, Stashia asserted that Isaac’s “claims [were] barred, in whole or in part, because of [his] unclean hands in not being current in his child support obligation.”

¶2        The parties engaged in mediation and were able to agree on a new custody and parent-time arrangement and on a reduced monthly child support obligation for Isaac going forward. They presented their agreement to the court, and it entered a modified divorce decree that incorporated the terms of the agreement.

¶3        Stashia then initiated a separate proceeding to collect the child support that Isaac had failed to pay under the original decree. Isaac argued that all child-related financial matters, including his child support arrears, had been resolved in the proceeding to modify the divorce decree and that Stashia was therefore barred under the claim preclusion branch of the doctrine of res judicata from collecting the unpaid support. The court disagreed and ordered Isaac to pay past-due support. In response, Isaac filed a certificate of readiness for trial on an issue that he had not raised previously, namely, whether the reduction in his monthly support obligation should be backdated to when he filed his petition to modify the divorce decree. The district court ruled that there were no issues to certify for trial and entered judgment against Isaac for unpaid support in the amount of $2,835.40 plus interest. Isaac appeals.

¶4        We see no error in the conclusion that claim preclusion does not bar Stashia’s claim for unpaid child support. We also see no error in the district court’s ruling that there were no issues to certify for trial. We therefore affirm.

BACKGROUND

The Parties’ Marriage and Divorce

¶5        Isaac and Stashia married in 2007 and together had two children. Stashia later initiated divorce proceedings, during which the parties reached an agreement that was incorporated into a divorce decree in March 2016.

¶6        The divorce decree provided for the parties’ joint legal custody of the children, while giving Stashia sole physical custody and Isaac parent-time. The decree also ordered Isaac to pay $768 per month in child support, based on Stashia having sole physical custody of the children and on her lack of employment at the time.

Isaac’s Petition to Modify the Divorce Decree

¶7        In June 2018, Isaac petitioned to modify the divorce decree, based on “substantial and material changes in the circumstances of the parties.” In support of modifying the decree’s custody order, Isaac alleged that he had a more “stable residence” and “flexible work schedule” than when the parties divorced; that he was also more able to “provide additional familial support” because he had recently remarried; and that Stashia, on the other hand, had violated several of the custody and parent-time provisions in the divorce decree. Based on these allegations, Isaac requested “increased parent time” and “joint physical custody.”

¶8        In support of modifying the decree’s child support order, Isaac alleged that Stashia had become employed full time and that her increased income, along with the parties’ joint physical custody of the children, if the court awarded it, merited a reduction in his child support obligation.

¶9        In her answer to Isaac’s petition, Stashia alleged, among other things, that Isaac was “not current in his child support obligation.” She then asserted, as one of several affirmative defenses, that Isaac’s “claims [were] barred, in whole or in part, because of [his] unclean hands in not being current in his child support obligation.”

¶10 During discovery, the parties exchanged financial declarations outlining their incomes, assets, and expenses, but neither party produced documents or information regarding Isaac’s past child support payments or alleged arrears.

¶11      In October 2018, the parties participated in mediation and stipulated to a temporary modification of the divorce decree. The stipulation, the terms of which were incorporated into an order, contained temporary parent-time provisions and an agreement to participate in a custody evaluation. It did not mention or modify child support, and it concluded by saying: “All issues not specifically addressed herein that have been raised or could have been raised by the parties are, hereby, reserved.”

¶12      After the agreed-upon custody evaluation was completed, the parties again participated in mediation, in May 2019. Later the same day, the district court commissioner held a settlement conference at which the parties orally presented stipulated terms to be incorporated into an amended divorce decree.

¶13      As to custody, the parties’ attorneys told the commissioner that the parties had agreed to “a joint legal, joint physical custody arrangement,” and the attorneys then explained the details of that arrangement. As to child support, they said that the parties had agreed that “[c]hild support would be 600 per month effective June 1st, 2019.” The attorneys then said that the parties had agreed that “all prior orders that are not specifically modified here . . . would remain in full force and effect.”

¶14 Toward the end of the settlement conference, the commissioner asked Isaac and Stashia if they were “willing to accept those terms as a final resolution of the issues that [were] currently pending in [the] matter.” Each responded, “Yes.”

¶15 In October 2019, the court issued an amended divorce decree incorporating the terms the parties had orally agreed to during the settlement conference. The amended decree sets forth the parties’ custody arrangement; contains provisions regarding parent-time; restates the parties’ parenting plan; provides that Isaac’s “child support obligation shall be modified to $600.00 per month effective June 1, 2019”; contains provisions regarding claiming the minor children for tax purposes; and states the parties’ responsibilities regarding medical and childcare expenses. It then provides: “This order shall be a consolidated order on custody, parent-time, and child related financial matters.”

Stashia’s Motion for an Order to Show Cause

¶16 In February 2020, Stashia filed a motion for an order to show cause,[2] alleging that Isaac owed child support arrears that had accrued between September 2016 and February 2020.

¶17 Isaac opposed Stashia’s request for unpaid child support. He noted that in response to his petition to modify the original divorce decree, Stashia “had raised the issue that [Isaac] had child support arrearage.” He pointed to the parties’ statements during the May 2019 settlement conference that they were willing to accept the terms outlined at that conference “as a final resolution of the issues that [were] currently pending in [the] matter.” (Emphasis omitted.) And he pointed to the language of the amended decree that says that the amended decree is “a consolidated order on custody, parent-time, and child related financial matters.” The district court commissioner “reviewed the pleadings on file and . . . considered the evidence and arguments presented” and disagreed with Isaac, finding that “[Stashia] did not waive [Isaac’s] child support arrears at the [May 2019] mediation between the parties or by stipulating to the Amended Decree of Divorce.”

¶18      Isaac objected to the commissioner’s recommendation. He argued that, based on “the principles of the ‘claim preclusion’ prong of the doctrine of res judicata,” the modification proceedings and amended divorce decree had “a preclusive effect” on a claim for child support arrears that accrued before entry of the amended decree. The district court overruled Isaac’s objection and entered judgment against Isaac for child support arrears “in an amount to be determined . . . based on the accountings submitted by the Parties.” After the parties submitted their accountings, the court found that Isaac’s child support arrears totaled $2,835.40.[3]

Isaac’s Certificate of Readiness for Trial

¶19      Isaac then filed, in March 2021, a certificate of readiness for trial, in which he asserted: “This case is ready for trial on the reserved issue of [whether] the June 1, 2019 child support adjustment should be backdated to the date of the filing of the Petition to Modify (June 2018).” Isaac had not previously asked the court to backdate the modified child support order to June 2018.

¶20      The district court ruled that “[t]here [were] no issues to certify for trial” and entered judgment against Isaac in the amount of $2,835.40 plus interest. Isaac now appeals.

ISSUES AND STANDARDS OF REVIEW

¶21      Isaac asks us to reverse the district court’s judgment against him for unpaid child support. He contends that Stashia’s claim for unpaid child support is barred by the claim preclusion branch of res judicata.[4] Ultimately, “[w]hether a claim is barred by res judicata is a question of law that we review for correctness.” Gillmor v. Family Link, LLC, 2012 UT 38, ¶ 9, 284 P.3d 622.

¶22      Part of our claim preclusion analysis in this case, however, requires a determination of the intended scope of ambiguous language in the stipulated amended divorce decree. Where the language of a written stipulation is ambiguous, “the trial court ordinarily considers extrinsic evidence in an effort to resolve the ambiguit[y] and will make findings of fact to resolve any disputed evidence.” Christensen v. Christensen, 2018 UT App 53, ¶ 6, 420 P.3d 106 (footnote omitted). When a court looks outside the four corners of a written stipulation to determine its intended scope, that determination presents a question of fact, “which we review for clear error.” Fuller v. Bohne, 2017 UT App 28, ¶ 9, 392 P.3d 898, cert. denied, 398 P.3d 51 (Utah 2017).

¶23      Isaac also asks us to reverse the district court’s ruling, in response to his filing of a certificate of readiness for trial, that “[t]here [were] no issues to certify for trial.” The legal effect of a certificate of readiness for trial is a question of law, and “[w]e review questions of law for correctness, giving no deference to the ruling of the court below,” see Madsen v. Washington Mutual Bank FSB, 2008 UT 69, ¶ 19, 199 P.3d 898.

ANALYSIS

I. Stashia’s Claim for Unpaid Child Support
Is Not Barred by Res Judicata.

¶24 Isaac contends that the district court erred in allowing Stashia to bring a claim for unpaid child support. As we have noted, the substance of his argument is that Stashia’s claim for unpaid support is barred by the claim preclusion branch of res judicata. See supra note 3. This court has previously observed that, indeed, “[t]he principles of res judicata apply fully in the context of divorce proceedings.” Krambule v. Krambule, 1999 UT App 357, ¶ 13, 994 P.2d 210 (citing Jacobsen v. Jacobsen, 703 P.2d 303, 305 (Utah 1985)), cert. denied, 4 P.3d 1289 (Utah 2000). But this observation merits explanation.

¶25 Both res judicata and the law of the case doctrine can operate to give an earlier decision on a particular claim or issue preclusive effect when the same claim or issue is raised again. See Utah State Bar v. Rasmussen (In re Discipline of Rasmussen), 2013 UT 14, ¶¶ 17–18, 299 P.3d 1050. A key difference between the two doctrines, however, is that generally “[r]es judicata applies as between multiple cases while the law of the case doctrine applies to successive proceedings within one case.” State v. Waterfield, 2014 UT App 67, ¶ 39 n.12, 322 P.3d 1194, cert. denied, 333 P.3d 365 (Utah 2014).

¶26 This distinction could suggest that in a single divorce case—over which a district court has continuing jurisdiction to enter orders modifying the original decree, see Utah Code § 30-3-5(5)—only the law of the case doctrine would ever apply. To the contrary, however, we have held that res judicata applies as between “[original] divorce actions and subsequent modification proceedings.” Smith v. Smith, 793 P.2d 407, 410 (Utah Ct. App. 1990). Accordingly, in Krambule v. Krambule, 1999 UT App 357, 994 P.2d 210, cert. denied, 4 P.3d 1289 (Utah 2000), we concluded that a petition to modify a divorce decree to require an ex-husband to pay support for a child conceived through artificial insemination without the ex-husband’s knowledge was “barred under the principles of res judicata” since that claim “could and should have been asserted in the original divorce action.” Id. ¶ 16. And in Throckmorton v. Throckmorton, 767 P.2d 121 (Utah Ct. App. 1988), we upheld on res judicata grounds the denial of a petition to modify a divorce decree to give an ex-wife an interest in her ex-husband’s retirement benefits, which had not been included in the original decree. See id. at 123.

¶27 In other words, we treat an original divorce proceeding and each subsequent proceeding to modify the divorce decree as separate “cases” for res judicata purposes. At the same time, we treat a divorce proceeding leading to a decree or an amended decree and any subsequent proceeding to enforce that decree or amended decree as successive proceedings within the same case. Thus, in this second context, we apply the law of the case doctrine. See Robinson v. Robinson, 2016 UT App 32, ¶¶ 26–29, 368 P.3d 147 (holding, in a proceeding to enforce a stipulated divorce decree, that law of the case barred a husband from relitigating a factual issue decided previously), cert. denied, 379 P.3d 1185 (Utah 2016).[5]

¶28      This appeal is somewhat unusual in that the “first case” for

purposes of res judicata is the modification proceeding and the “second case” is the order to show cause proceeding to enforce the child support order from the original decree. But because the order to show cause proceeding is based on the original decree, it is a separate “case” from the modification proceeding that resulted in the amended decree. We therefore apply the principles of res judicata as we analyze the potential preclusive effect of the amended decree in the order to show cause proceeding.[6]

¶29      “The doctrine of res judicata embraces two distinct branches: claim preclusion and issue preclusion.” Macris & Assocs., Inc. v. Neways, Inc., 2000 UT 93, ¶ 19, 16 P.3d 1214. “[C]laim preclusion corresponds to causes of action[;] issue preclusion corresponds to the facts and issues underlying causes of action.” Oman v. Davis School Dist., 2008 UT 70, ¶ 31, 194 P.3d 956.

¶30      “Claim preclusion . . . is premised on the principle that a controversy should be adjudicated only once.” Pioneer Home Owners Ass’n v. TaxHawk Inc., 2019 UT App 213, ¶ 41, 457 P.3d 393 (cleaned up), cert. denied, 466 P.3d 1073 (Utah 2020). It “bars a party from prosecuting in a subsequent action a claim that has been fully litigated previously.” Hansen v. Bank of N.Y. Mellon, 2013 UT App 132, ¶ 5, 303 P.3d 1025 (cleaned up). “Whether a claim is precluded from relitigation depends on a three-part test.” Mack v. Utah State Dep’t of Com., 2009 UT 47, ¶ 29, 221 P.3d 194.

First, both cases must involve the same parties or their privies. Second, the claim that is alleged to be barred must have been presented in the first suit or be one that could and should have been raised in the first action. Third, the first suit must have resulted in a final judgment on the merits.

Id. (cleaned up).

¶31 Here, it is undisputed that Stashia and Isaac were the parties to both the proceeding on Isaac’s petition to modify the divorce decree—the “first case”—and the proceeding on Stashia’s subsequent claim for unpaid child support under the original decree—the “second case.” It is also undisputed that Isaac’s petition to modify the divorce decree resulted in a final judgment on the merits, in the form of the amended divorce decree. Thus, we focus our analysis on the second requirement of the claim preclusion test: whether Stashia presented or was required to present her claim for unpaid child support during the proceeding on Isaac’s petition to modify the decree.

A. Stashia did not present a claim for unpaid child support in the modification proceedings.

¶32 The second requirement of the claim preclusion test is satisfied if the claim at issue was presented in a prior action. See Mack, 2009 UT 47, ¶ 29. Isaac argues that Stashia’s answer to his petition to modify the divorce decree presented a claim for unpaid child support. Specifically, he points to Stashia’s allegation that Isaac was “not current in his child support obligation” and to her assertion, as an affirmative defense, that Isaac’s “unclean hands in not being current in his child support obligation” should bar modification of his support obligation.[7]

¶33      However, while Stashia alleged that Isaac was in arrears in

his child support payments, neither that allegation nor the affirmative defense based on that allegation presented a “claim.” “An original claim, counterclaim, cross-claim or third-party claim must contain a short and plain: (1) statement of the claim showing that the party is entitled to relief; and (2) demand for judgment for specified relief.” Utah R. Civ. P. 8(a). Stashia’s answer to Isaac’s petition to modify the divorce decree did not allege how much Isaac owed in unpaid child support or make a demand for relief. We cannot, therefore, say that Stashia’s affirmative defense presented a claim for res judicata purposes. See Airfreight Express Ltd. v. Evergreen Air Center, Inc., 158 P.3d 232, 237 (Ariz. Ct. App. 2007) (holding that “affirmative defenses are not claims” for purposes of “[t]he doctrine of claim preclusion”); cf. Norman A. Koglin Assocs. v. Valenz Oro, Inc., 680 N.E.2d 283, 288 (Ill. 1997) (“A counterclaim differs from an . . . affirmative defense. A counterclaim is used when seeking affirmative relief, while an . . . affirmative defense seeks to defeat a plaintiff’s claim.”).

¶34      This is consistent with our analysis in Berkshires, LLC v. Sykes, 2005 UT App 536, 127 P.3d 1243. In that case, the plaintiffs were poised to purchase and develop multiple parcels of land when the defendants recorded a document purporting to grant an easement that would significantly hinder the anticipated development. Id. ¶ 4. The plaintiffs sued “for slander of title and interference with economic relations, claiming that [the defendants] had intentionally fabricated the [e]asement [d]ocument.” Id. ¶ 6. Late in the litigation, the defendants moved for partial summary judgment, asserting that as a matter of law under the undisputed evidence “Hope Lane, a road running [across the parcels at issue], was a public road.” Id. ¶ 9. The trial court denied the motion on the ground that the defendants had not presented a claim for Hope Lane to be declared a public road because their “original answer merely stated that ‘[a]s a separate and affirmative defense, [the] [d]efendants . . . allege that Hope Lane is a public road,’ without making any further affirmative claim for relief.” Id. (first alteration and omission in original).

¶35 On appeal, the defendants argued that the trial court improperly refused to treat their Hope Lane affirmative defense as a counterclaim. See id. ¶¶ 16–17. We said that among the factors a court could consider when deciding whether to treat an affirmative defense as a counterclaim was “whether the defense as argued or articulated in the pleadings sufficiently states a claim for relief and a demand for judgment as required by rule 8(a) of the Utah Rules of Civil Procedure.” Id. ¶ 18. In concluding that the trial court had not abused its discretion by refusing to treat the Hope Lane affirmative defense as a counterclaim, we explained:

At the heart of the matter here is whether Plaintiffs should have recognized that Defendants’ statement “Hope Lane is a public road” was in reality a counterclaim, though labeled an affirmative defense. Here, the statement on its face is not readily identifiable as a counterclaim; it requests no relief and does not demand judgment. . . . Defendants did not properly plead a counterclaim . . . .

Id. ¶ 19. In sum, although it was in a different context, we have previously concluded that an affirmative defense that requests no relief and does not demand judgment does not present a claim. Our reaching the same conclusion here in the res judicata context “is not much of a jurisprudential leap.” Atkinson v. Stateline Hotel Casino & Resort, 2001 UT App 63, ¶ 19 n.6, 21 P.3d 667.

B. The district court’s finding that the amended divorce decree did not preclude Stashia’s claim for unpaid child support was not clearly erroneous.

¶36      Even if a party does not present a claim in her pleadings or otherwise during litigation, she might still agree to settle that unpled claim with the intent to foreclose its future litigation. If such an agreement becomes the basis of a stipulated decree, the second requirement of claim preclusion is met, and claim preclusion may apply to the settled but unpled claim. See Keith v. Aldridge, 900 F.2d 736, 741 (4th Cir. 1990) (holding, in the context of a “consent judgment,” that “[i]f the parties intended to foreclose through agreement litigation of a claim, assertion of that claim in a later suit, whether or not formally presented in the earlier action, is precluded”); 18A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4443 (3d ed. April 2022 update) (“[Following a consent judgment,] [i]f it is clear that the parties agreed to settle claims that were not reflected in the original pleadings, preclusion may extend to claims that were not even formally presented.”).[8]

¶37      Isaac relies on this principle. He contends that the amended

divorce decree, which was the product of a settlement agreement and stipulation, “expressly and unambiguously resolved” any claim for child support arrears that predated the amended decree. In support, he points to the provision of the amended decree that states: “This order shall be a consolidated order on custody, parent-time, and child related financial matters.” (Emphasis added.) Isaac interprets the phrase “child related financial matters” to mean that the amended decree was an order resolving all child related financial matters, including his child support arrears. But this is not the only plausible reading of this provision.

¶38 The amended decree addresses several child-related financial matters explicitly: the modified child support award, income tax deductions related to the children, health insurance and medical expenses for the children, and childcare expenses. It never mentions child support arrears. Thus, the phrase “child related financial matters” can plausibly be read as encompassing only the child-related financial matters explicitly addressed in the amended decree. Because this provision of the amended decree supports two plausible readings, it is ambiguous. See Moon v. Moon, 1999 UT App 12, ¶ 19, 973 P.2d 431 (“Language in a written document is ambiguous if the words may be understood to support two or more plausible meanings.” (cleaned up)), cert. denied, 982 P.2d 89 (Utah 1999).

¶39 “Ordinarily, we interpret a divorce decree as we would any other written instrument, construing it in accordance with its plain meaning and according no deference to the district court’s interpretation.” Christensen v. Christensen, 2018 UT App 53, ¶ 6,

420 P.3d 106. “But where, as here, the agreement is ambiguous, the trial court ordinarily considers extrinsic evidence in an effort to resolve the ambiguit[y] and will make findings of fact to resolve any disputed evidence . . . .” Id. (footnote omitted).

¶40      The district court here considered extrinsic evidence to determine whether Stashia’s claim for unpaid child support was encompassed within the amended decree, and it made a factual finding that the claim for unpaid child support was not encompassed within the decree. Among the evidence considered were the oral representations the parties made during their May 2019 settlement conference and a declaration provided by Isaac, both of which Isaac directed the court to when he opposed Stashia’s motion for an order to show cause. The district court considered this evidence and found that Stashia did not waive her claim for unpaid child support.

¶41      When, as here, a court looks outside the four corners of a stipulated judgment to determine its intended scope, that determination is a determination of fact, which we review for clear error. See Noel v. James, 2022 UT App 33, ¶ 11, 507 P.3d 832 (“The scope of a stipulation presents a question of fact, which we review for clear error.” (cleaned up)); Fuller v. Bohne, 2017 UT App 28, ¶ 9, 392 P.3d 898 (same), cert. denied, 398 P.3d 51 (Utah 2017). And “[f]indings of fact are clearly erroneous only if no reasonable factfinder could review the evidence presented and arrive at the disputed finding.” Blackhawk Townhouses Owners Ass’n Inc. v. J.S., 2018 UT App 56, ¶ 23, 420 P.3d 128.

¶42      We see no clear error in the district court’s finding that the parties’ amended decree was not intended to be preclusive of Stashia’s claim for child support arrears. Isaac’s child support arrears were not mentioned at all during the May 2019 settlement conference. A reasonable factfinder might therefore believe it a stretch to assume that when Stashia and Isaac told the commissioner they were “willing to accept [the] terms [that had been outlined in the settlement conference] as a final resolution of the issues that [were] currently pending in [the] matter,” they would have thought that those issues included Isaac’s alleged child support arrears.

¶43 Moreover, after the parties said that the modified child support obligation would become effective June 1, 2019, they told the commissioner that “all prior orders that are not specifically modified [as outlined in the settlement conference] . . . would remain in full force and effect.” A reasonable view of this evidence is that when the parties accepted the terms of the stipulation “as a final resolution of the issues that [were] currently pending in this matter,” these were the terms that they intended to accept: that the child support order prior to June 1, 2019, as well as any outstanding obligations under it, “would remain in full force and effect.”

C. Stashia was not required to present her claim for unpaid child support in the modification proceeding.

¶44      Even if a claim was not presented or settled in an initial action, the second requirement of the claim preclusion test can be met by showing that the subsequently raised claim “could and should have been raised in the first action.” Mack v. Utah State Dep’t of Com., 2009 UT 47, ¶ 29, 221 P.3d 194 (cleaned up). A subsequent claim could and should have been brought in an earlier action “if [both claims] arise from the same operative facts, or in other words from the same transaction.” Id. ¶ 30. To determine if two claims arise from the same transaction, a court may consider “whether the facts [of each] are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations.” Gillmor v. Family Link, LLC, 2012 UT 38, ¶ 14, 284 P.3d 622 (cleaned up). But “no single factor is determinative.” Id. (cleaned up). “Therefore, every consideration need not be addressed or considered in every case.” Id.

¶45      Here, Isaac’s claims for modification of the divorce decree were not related in origin to Stashia’s later claim for unpaid child support. Isaac’s claims to modify the divorce decree originated from alleged changes to his work and home life since the entry of the original decree (including his recent remarriage), alleged violations by Stashia of the divorce decree’s custody and parent-time provisions, and Stashia’s recent full-time employment. In contrast, Stashia’s claim for unpaid child support originated from Isaac’s alleged failure to abide by the divorce decree’s child support order. These differing origins suggest that the parties’ respective claims do not arise from the same transaction. See In re Marriage of Potts, 542 N.E.2d 179, 181–82 (Ill. App. Ct. 1989) (observing that “[t]here [was] no significant evidentiary overlap” between a father’s claim for unpaid child support and the mother’s claim for modification of the support obligation and, thus, holding that res judicata did not bar the father’s separate action for unpaid support); Zickefoose v. Muntean, 399 N.W.2d 178, 180–81 (Minn. Ct. App. 1987) (concluding that a stipulation to amend a divorce decree to reduce the father’s child support obligation was “a totally different and distinct action” from the mother’s later “motion to compel payment of child support arrearages” and, thus, that res judicata did not bar the mother’s later action for arrearages).

¶46 Additionally, neither Isaac nor Stashia conducted discovery related to Isaac’s alleged child support arrears during the modification proceeding, which suggests that it was not their expectation that Isaac’s claims for modification of the original decree and Stashia’s claim for unpaid child support under the original decree would be treated as a single trial unit.

¶47      Moreover, Utah Code section 78B-12-210(9)(a) provides for the filing of a petition to modify a child support order based on a substantial change of circumstances, while our rules require a motion—previously a motion “for an order to show cause,” see Utah R. Civ. P. 7(q) (2020), and now “a motion to enforce order,” see Utah R. Civ. P. 7B—to recover unpaid child support. By providing different procedures for modifying a child support order and enforcing a child support order, our code and rules also implicitly recognize that these two types of actions generally do not arise from the same transaction. Cf. In re P.D.D., 256 S.W.3d 834, 842, 844 (Tex. App. 2008) (reasoning in part that because the Texas Family Code “does not require their joinder,” actions for “delinquent child support” and actions for “modification of . . . future child support obligations” are “separate and definable questions” and the one is not barred by the other under a “transactional approach” to res judicata).

¶48      The differing origins of Isaac’s and Stashia’s respective claims, the apparent expectations of the parties, and the procedural scheme set forth in our code and rules demonstrate that Isaac’s claim for modification of the original child support order and Stashia’s claim for enforcement of the original order did not arise from the same transaction. Thus, Stashia was not required to present her claim for unpaid child support during the proceeding on Isaac’s petition to modify the divorce decree.

¶49      Because Stashia neither presented nor settled her claim for unpaid child support during the proceeding on Isaac’s petition to modify the divorce decree, and because she was not required to present her claim for unpaid child support during that proceeding, the doctrine of claim preclusion does not apply to bar Stashia’s claim.[9]

II. The District Court Did Not Err by Concluding that There
Were No Issues to Certify for Trial.

¶50      Isaac also argues that “[t]he district court erred when it

refused to allow [him] to counter Stashia’s Order to Show Cause with his request to retroactively apply the child support modification.” His request to retroactively apply the child support modification took the form of a certificate of readiness for trial filed nearly a year and a half after the modification proceeding to which it related had concluded. Because the modification proceeding had concluded, and because Isaac filed no rule 59 or 60(b) motion to alter or relieve him from the resulting judgment—i.e., the amended divorce decree, with its June 1, 2019 effective date for the modified support order—Isaac’s certificate of readiness for trial landed in a legal vacuum and had no legal effect.[10] With no pending proceeding to which retroactive application of the modified support order applied, the district court was correct to conclude that “[t]here [were] no issues to certify for trial.”

CONCLUSION

¶51      Stashia did not present an affirmative claim for child support arrears during the modification proceeding. The district court did not clearly err in finding that Stashia’s claim for those arrears was not encompassed within the modified divorce decree. And Stashia’s claim for those arrears did not arise out of the same transaction as the claims Isaac made in his petition to modify the decree. Accordingly, Stashia’s claim for unpaid child support is not barred by res judicata. Additionally, the district court’s ruling in response to Isaac’s certificate of readiness for trial—that there were no issues to certify for trial—was not in error.

¶52 Affirmed.

 

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

 

[1] As is our practice, because the parties share the same last name, we use their first names, with no disrespect intended by the apparent informality.

[2] The “motion to enforce order” procedure outlined in rule 7B of the Utah Rules of Civil Procedure has now “replace[d] and supersede[d] the prior order to show cause procedure” in the context of “domestic relations actions, including divorce.” Utah R. Civ. P. 7B(a), (i), (j). A similar “motion to enforce order” procedure outlined in rule 7A now applies in the context of other civil proceedings. See id. R. 7A. In recommending rule 7B, the Utah Supreme Court’s Advisory Committee on the Rules of Civil Procedure left untouched rule 101(k), which addresses motion practice before district court commissioners and still recites requirements for “[a]n application to the court for an order to show cause.” Id. R. 101(k). The committee may wish to revise rule 101(k) to conform rule 101(k)’s provisions to those of rule 7B.

 

[3] Our resolution of this appeal makes determining the portion of this amount that accrued before entry of the amended divorce decree unnecessary.

[4] Isaac does not always frame his argument in terms of “claim preclusion” or “res judicata.” In one section of his principal brief, he asserts that the claim for unpaid child support was “resolved” by the amended divorce decree. In another, he argues that “the issues to which the parties have stipulated [have] become ‘settled’ and ‘not reserved for future consideration.’” And at one point he does explicitly invoke “the ‘claim preclusion’ prong of the doctrine of res judicata.” Regardless of their phrasing, each of these arguments is, in substance, an argument for application of the doctrine of res judicata. See infra ¶¶ 26-28; Mel Trimble Real Estate v. Monte Vista Ranch, Inc., 758 P.2d 451, 453 (Utah Ct. App.) (explaining that res judicata “bars the relitigation . . . of a claim for relief previously resolved” (emphasis added)), cert. denied, 769 P.2d 819 (Utah 1988); Res judicata, Black’s Law Dictionary (abridged 6th ed. 1991) (defining res judicata as “a thing or matter settled by judgment” (emphasis added)).

Because Isaac never uses the terms “issue preclusion” or “collateral estoppel” and never cites a case applying that branch of res judicata, and because he did not do so in the district court, we address only the claim preclusion branch of res judicata. See generally 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (“Issues that are not raised at trial are usually deemed waived.”); State v. Sloan, 2003 UT App 170, ¶ 13, 72 P.3d 138 (declining to address an inadequately briefed issue).

[5] Application of res judicata in the divorce context might be seen as “distinguish[able]” from its application in other contexts in another way as well. See Smith v. Smith, 793 P.2d 407, 410 (Utah Ct. App. 1990). That is because in the divorce context the preclusive effect of res judicata can be avoided based on “the equitable doctrine that allows courts to reopen [prior] determinations if the moving party can demonstrate a substantial change of circumstances.” Id. In fact, some prior determinations in divorce cases may be reopened on a showing of a material change of circumstances that is less than substantial. See, e.g.Miller v. Miller, 2020 UT App 171, ¶ 18, 480 P.3d 341 (observing that “when modifying parent-time (as opposed to custody), the petitioner is required to make only some showing of a change in circumstances, which does not rise to the same level as the substantial and material showing required when a district court alters custody” (cleaned up)). Though this might be seen as a distinguishing feature of res judicata in the divorce setting, it is consistent with our statement that “[t]he principles of res judicata apply fully in the context of divorce proceedings,” Krambule v. Krambule, 1999 UT App 357, ¶ 13, 994 P.2d 210, cert. denied, 4 P.3d 1289 (Utah 2000), because a decision based on a changed set of material facts is not a decision on the same question as the one presented previously.

[6] We are not alone in this approach. See, e.g.In re Marriage of Potts, 542 N.E.2d 179, 180–82 (Ill. App. Ct. 1989) (applying res judicata principles to hold that, under the facts of the case, an amended divorce decree that modified a child support obligation did not bar a claim for child support arrears that accrued under the prior decree); Zickefoose v. Muntean, 399 N.W.2d 178, 180–81 (Minn. Ct. App. 1987) (same).

[7] “The doctrine of unclean hands expresses the principle that a party who comes into equity for relief must show that his conduct has been fair, equitable, and honest as to the particular controversy in issue.” Goggin v. Goggin, 2013 UT 16, ¶ 60, 299 P.3d 1079 (cleaned up).

[8] “In Utah, . . . the rules of claim preclusion are ‘virtually identical’ to the federal rules . . . .” Haik v. Salt Lake City Corp., 2017 UT 14, ¶ 9, 393 P.3d 285 (citation omitted).

[9] The district court expressed its ruling against Isaac’s claim preclusion argument by finding that Stashia “did not waive” her claim for unpaid child support. Our ruling is that Stashia neither waived nor forfeited her right to assert that claim. “Though principles of waiver and forfeiture are often used interchangeably, the two concepts are technically distinct.” Reller v. Argenziano, 2015 UT App 241, ¶ 30, 360 P.3d 768 (cleaned up). “Forfeiture is the failure to make the timely assertion of a right, whereas waiver is the intentional relinquishment or abandonment of a known right.” Id. (cleaned up). Stashia did not waive her known right to bring a claim for unpaid support since, as we have concluded, she did not intentionally relinquish it through settlement or otherwise. Nor did she forfeit that right by the issue of failing to timely assert it since, as we have concluded, she was not required to present her claim during the modification proceeding. See id. ¶ 31 (holding that failure to timely amend a complaint to assert a claim for retroactive child support amounted to a forfeiture). We leave for another day the question of whether or how a claim for unpaid child support may be settled without running afoul of the statutory limitation on the waiver of child support claims. See generally Utah Code § 78B-12-109(1) (“Waiver and estoppel [of child support] shall apply only to the custodial parent when there is no order already established by a tribunal if the custodial parent freely and voluntarily waives support specifically and in writing.”); Cahoon v. Evans, 2011 UT App 148, ¶ 3, 257 P.3d 454 (holding that Utah Code section 78B-12-109 “rules out waiver and estoppel in all instances where there is a child support order already in place”).

[10] Isaac makes no attempt to address this procedural reality. Instead, he uses the certificate of readiness for trial as a vehicle to argue that he stipulated to a June 1, 2019 effective date for the modified child support order only “[i]n exchange” for Stashia giving up the right to pursue her claim for child support arrears. But the district court found that the parties did not intend such an exchange, and we have affirmed that finding. See supra ¶¶ 36–43.

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Mower v. Mower – 2023 UT App 10 – Death of Spouse Before Court Rules

2023 UT App 10

THE UTAH COURT OF APPEALS

LIDIA V. MOWER,

Appellant,

v.

THOMAS W. MOWER, Appellee.

Opinion

No. 20210101-CA

Filed January 20, 2023

Fourth District Court, American Fork Department

The Honorable Roger W. Griffin No. 124100133

Cassie J. Medura and Jarrod H. Jennings, Attorneys for Appellant

Douglas B. Thayer and Mark R. Nelson, Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which

JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY concurred.

ORME, Judge:

¶1 Thomas E. Mower and Lidia V. Mower stipulated to a bifurcated divorce in which the district court dissolved their marriage but reserved for trial all other issues, which were the subject of contentious litigation. Thomas died after the trial concluded but shortly before the court issued its ruling that would have resolved all but one issue. As a result of Thomas’s death, the court held that it no longer had jurisdiction over the divorce action and closed the case, indicating that Lidia could pursue any surviving claims in probate court against Thomas’s estate.[1]

¶2 On appeal, Lidia argues that the court erroneously concluded that the unresolved claims in the divorce action abated on Thomas’s death. Thomas’s son, Thomas W. Mower (Thomas Jr.), in his capacity as special administrator of the Estate of Thomas E. Mower, by special appearance represents his late father’s interests on appeal. See generally Utah R. App. P. 38(a), (c). We hold that under the facts of this case, Thomas’s death did not deprive the court of jurisdiction to resolve most of the unresolved claims. Accordingly, we reverse and remand.

BACKGROUND

¶3 Thomas and Lidia married in 2001. Lidia initiated divorce proceedings in 2012. The ensuing litigation was very contentious and involved complex issues including grounds for divorce, a request for a retroactive increase in alimony,[2] custody of and parent-time with their child born during the marriage, child support, the potential equitable division of a large estate that was arguably “worth upwards of $150,000,000,”[3] and attorney fees.

¶4 In May 2013, on the parties’ stipulation, the district court entered a bifurcated decree of divorce, dissolving the parties’ marriage but reserving all other issues for trial. The court ruled that it would “value the estate as of the date this divorce decree enters rather than at the day of trial” and that “[a]ll other issues of dispute will remain open for further resolution by the Court.” Following entry of the bifurcated divorce decree, both parties remarried.

¶5 Four and a half years later, the bench trial in this case, which “included voluminous exhibits and witness testimony,” was held over the course of sixteen days between November 2017 and December 2018. Although the matter came under advisement awaiting a final ruling in January 2020, the district court “held status conferences to work through issues as they arose,” with the most recent one being held in July 2020.

¶6 Thomas passed away on August 2, 2020. The following day, the district court issued a ruling stating it would close the divorce action in twenty days unless it received a valid objection and a supporting memorandum. Lidia objected, filing a Motion for Entry of Final Property Division and a Rule 25 Motion to Substitute Party. Regarding the latter motion, Lidia requested that “the personal representative or other appropriate party” be substituted in the divorce action “to allow the Court to issue a final ruling regarding property settlement and all outstanding financial issues in this case.” See generally Utah R. Civ. P. 25(a)(1) (“If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties.”). Thomas’s counsel opposed Lidia’s objection and motions.[4]

¶7 In February 2021, following argument on the issues, the court overruled Lidia’s objection and denied her motions. The court first stated that shortly before Thomas’s death, it had completed “its findings of fact and was prepared to issue a ruling reserving only a single outstanding issue that [it] intended to invite the parties to address via supplemental briefing.” Despite this, following a lengthy discussion of Porenta v. Porenta, 2017 UT 78, 416 P.3d 487, the court held that its prior orders regarding child support, parent-time, and custody abated upon Thomas’s death and that Lidia, as the surviving party in a bifurcated divorce, was required “to pursue unresolved equitable claims to marital property before a probate court.” A few months later, the court issued a Final Order, stating, “Due to the untimely death of [Thomas], this court no longer has jurisdiction over this matter and this matter is closed.” ¶8 Lidia appeals.

ISSUE AND STANDARD OF REVIEW

¶9 Lidia argues that the court erred in closing the divorce action on the ground that Thomas’s death caused it to lose jurisdiction.[5] “We review a court’s determination of jurisdiction for correctness, granting no deference to the lower court.” In re S.W., 2017 UT 37, ¶ 7, 424 P.3d 7.

ANALYSIS

¶10 In concluding that Thomas’s death caused it to lose jurisdiction over the divorce action, the district court relied heavily on our Supreme Court’s opinion in Porenta v. Porenta, 2017 UT 78, 416 P.3d 487. In that case, during the pendency of a divorce action, the husband executed a quitclaim deed transferring his interest in the marital home to his mother in an effort to prevent the home from being distributed as part of the marital estate. Id. ¶¶ 2–3. The husband thereafter died, causing the district court to dismiss the divorce case for lack of jurisdiction. Id. ¶ 5. The wife then sued the mother, seeking to set aside the quitclaim deed under the Utah Fraudulent Transfer Act (the UFTA). Id. ¶ 6. The district court in that case ultimately ruled that the husband’s transfer of his interest in the home to his mother was fraudulent under the UFTA. Id. ¶ 8.

¶11 The mother appealed, arguing that the wife’s claim was barred because the UFTA requires an ongoing debtor-creditor relationship at the time a claim under the act is filed, which relationship the husband’s death had extinguished. Id. ¶ 9. Specifically, the mother argued that the wife’s claim against the husband “for the whole of the marital estate, including the right to preserve the joint tenancy” in the marital home, id. ¶ 14 (quotation simplified), became unenforceable when the husband died because one “cannot bring a claim against a dead person” and because “court orders that award a spouse with property abate upon the death of a spouse,” id. ¶ 16. See generally id. ¶ 12 (“The existence of a claim, or right to payment, is at the heart of the debtor-creditor relationship.”); id. ¶ 19 (“A claim for equitable distribution arises when one party in a marriage threatens divorce.”).

¶12 Quoting its prior decision in In re Harper’s Estate, 265 P.2d 1005 (Utah 1954), our Supreme Court reaffirmed that

when the death of one of the parties occurs after the entry of a divorce decree and before the decree is final the decree becomes ineffective to dissolve the marriage, death having terminated that personal relationship. However, the occurrence of death does not abate the action itself and to the extent that property rights are determined by the decree it remains effective and becomes final.

Porenta, 2017 UT 78, ¶ 20 (quotation simplified). See id. ¶ 28 (reaffirming the precedent set forth in In re Harper’s Estate). In other words, the Court held that “[t]he death of a spouse during a divorce proceeding abates the action concerning the dissolution of marriage, but it does not abate the action itself when certain property rights have been determined by the court.”[6] See id. ¶ 26 (quotation simplified). Conversely, “all interlocutory orders that are effective only during litigation,” such as orders restraining the parties from selling property or dissipating the marital estate, “abate upon the dismissal of a divorce case.” Id. ¶ 27. The court noted that this was in line with “the general rule followed in virtually all jurisdictions . . . that, after one of the spouses dies during a divorce proceeding, and during the time an appeal is pending or during the time when an appeal may be taken, a divorce or dissolution action abates with respect to marital status of the parties but does not abate with respect to property interests affected by the decree.” Id. ¶ 20 (quotation simplified).

¶13 Finally, the Court held that “[c]laims that survive the death of a party are typically chargeable against that party’s estate” and cited rule 25(a)(1) of the Utah Rules of Civil Procedure as a means through which to pursue such claims. Id. ¶ 30. See Utah R. Civ. P. 25(a)(1) (“If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties.”). Because the Court presumed that the wife’s “claim for the whole of the marital estate, including the right to preserve the joint tenancy” in the marital home was not extinguished and was still valid,[7] it held that “a debtor-creditor relationship existed between Husband’s estate and Wife at the time Wife filed her UFTA claim.” Id. ¶ 36 (quotation simplified).

¶14 In sum, as relevant to the issue presented in the current appeal, Porenta provides three major takeaways. First, if a spouse dies prior to entry of a final divorce decree, the marriage no longer requires dissolution because death already “terminated that personal relationship.” Id. ¶ 20 (quotation simplified). See 27A C.J.S. Divorce § 194 (2022) (“A cause of action for divorce is purely personal, ends on the death of either spouse, and does not survive for the benefit of a third party.”); 24 Am. Jur. 2d Divorce and Separation § 118 (2022) (“[A] divorce suit abates when one party dies while the suit is pending and before a decree on the merits, because the death terminates the marriage, thus rendering the divorce suit moot as it relates to the parties’ marital status.”). Second, court orders entered prior to the final divorce decree determining the property rights of the parties do not abate on the spouse’s death. See Porenta, 2017 UT 78, ¶ 20. However, any “interlocutory orders that are effective only during litigation abate upon the dismissal of a divorce case.” Id. ¶ 27. See id. ¶ 27 n.13 (“This is not unique to the area of divorce law. Interlocutory orders that expressly expire at the end of litigation do just that, regardless of the type of case or how the litigation finally ends.”). And third, certain unresolved claims or rights arising from a divorce action may still be pursued following the spouse’s death. See id. ¶ 36. See also 24 Am. Jur. 2d Divorce and Separation § 118

(“[G]iven the circumstances presented, a portion of the dissolution action may survive an abatement of the rest of the action.”).

¶15 Regarding the third point, because the issue had not been adequately briefed, the Porenta Court specifically declined to address “[w]hether a claim for equitable distribution or some other property claim survives the death of a spouse during a divorce proceeding,” Porenta, 2017 UT 78, ¶ 17, which the Court characterized as “an issue of first impression in Utah,” id. ¶ 28. Put differently, although the Court held that a district court’s orders determining the parties’ property rights do not abate upon a spouse’s death, it declined to determine whether the same was true for unresolved claims for equitable distribution or other property claims. In any event, the case before us is on a different footing, which likewise does not necessitate that we address that specific issue.

¶16 Unlike in Porenta, Thomas died after the district court entered a bifurcated divorce decree dissolving the parties’ marriage but leaving all unresolved issues for a trial that ultimately would not be held for several more years. See generally Utah R. Civ. P. 42(b) (“The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross claim, counterclaim, or third party claim, or of any separate issue or of any number of claims, cross claims, counterclaims, third party claims, or issues.”). Accordingly, because Thomas and Lidia’s marriage had already been dissolved at the time of Thomas’s death, we need not address the effect the death of a spouse has on the underlying claim for equitable distribution of the marital estate in the situation where the parties are still legally married at the time of the death.

¶17 Rather, the issue before us is more straightforward. As previously discussed, the reason a divorce action generally abates upon the death of a party is because the death already “terminated that personal relationship,” Porenta, 2017 UT 78, ¶ 20 (quotation simplified), thereby “rendering the divorce suit moot as it relates to the parties’ marital status,”[8] 24 Am. Jur. 2d Divorce and Separation § 118. But here, the parties stipulated to a bifurcated divorce, and their marriage had been dissolved several years prior to Thomas’s death. Indeed, both Thomas and Lidia had remarried. For that reason, unlike in Porenta, Thomas’s death had no legal effect on the parties’ already dissolved marriage and therefore the ground on which the divorce action discussed in Porenta abated—i.e., mootness—is not present here.

¶18 Utah courts regularly use bifurcation under rule 42(b) of the Utah Rules of Civil Procedure “to allow divorcing spouses to more expeditiously obtain a divorce before embarking upon the sometimes more complex and time-consuming tasks of determining property division and deciding matters of support.” Parker v. Parker, 2000 UT App 30, ¶ 8, 996 P.2d 565. It is uncontested that a district court’s jurisdiction “to enter equitable orders relating to the property belonging to the marital estate” is unaffected by the bifurcation. Porenta, 2017 UT 78, ¶ 19 (quotation simplified). See Utah Code Ann. § 30-3-5(2) (LexisNexis Supp. 2022). Indeed, the Utah Constitution directs, “The district court shall have original jurisdiction in all matters except as limited by this constitution or by statute[.]” Utah Const. art. VIII, § 5. See Utah Code Ann. § 78A-5-102(1) (LexisNexis Supp. 2022) (“Except as otherwise provided by the Utah Constitution or by statute, the district court has original jurisdiction in all matters civil and criminal.”). Furthermore, divorce courts are generally “well

¶19 Here, because the parties’ marriage was already dissolved prior to Thomas’s death, mootness—a jurisdictional bar, see State v. Legg, 2016 UT App 168, ¶ 25, 380 P.3d 360—does not apply to most of the claims at issue.[9] Because no other constitutional or statutory bar to the district court’s jurisdiction exists in the case before us, the district court erred in determining that it lacked jurisdiction over all of the claims that remained at issue and in dismissing the divorce action on that ground. See Estate of Burford v. Burford, 935 P.2d 943, 955 (Colo. 1997) (stating that when one party to a divorce proceeding died following dissolution of the parties’ marriage in a bifurcated divorce, “the dissolution action did not abate, and the district court properly maintained jurisdiction over the marital estate to conduct hearings to resolve financial matters raised in the dissolution proceedings”); Fernandez v. Fernandez, 648 So. 2d 712, 714 (Fla. 1995) (agreeing “that the trial court maintained jurisdiction to enter the final judgment determining the parties’ property rights subsequent to the wife’s death” where the court had dissolved the marriage prior to her death); Barnett v. Barnett, 768 So. 2d 441, 442 (Fla. 2000) (per curiam) (“[T]he death of a party after entry of a written, signed judgment of dissolution but prior to the rendition of a decision on a timely motion for rehearing concerning matters collateral to the adjudication of dissolution did not affect the dissolution decree or divest the court of jurisdiction to decide the remaining issues between the parties.”); 27A C.J.S. Divorce § 194 (“Once a decree in divorce is granted and, thereafter, one of the parties dies, the court can continue with the equitable distribution of marital property.”).

¶20 In cases such as this, in which “a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties.” Utah R. Civ. P. 25(a)(1). See Porenta, 2017 UT 78, ¶ 30 (stating that “[c]laims that survive the death of a party are typically chargeable against that party’s estate” and citing rule 25(a)(1) of the Utah Rules of Civil Procedure as a means through which this may be achieved). But whether to substitute a party remains within the district court’s discretion. See Bradburn v. Alarm Prot. Tech., LLC, 2019 UT 33, ¶ 8, 449 P.3d 20 (“A district court’s substitution ruling is a discretionary one[.]”). Additionally, as Thomas Jr. points out, the district court “has inherent discretionary authority to abstain from exercising jurisdiction where another court has concurrent jurisdiction.” See Kish v. Wright, 562 P.2d 625, 628 (Utah 1977) (“[A]s part of the inherent power that our district courts have, as courts of general jurisdiction, they undoubtedly could refuse to exercise jurisdiction if convinced that it would place an unreasonable burden upon some or all of the parties, or upon the court, to try the case here.”); id. (“[T]he trial court does have concurrent jurisdiction and the power of discretion as to whether or not it will invoke that jurisdiction in a particular case.”). These are all considerations that we leave to the district court’s discretion on remand.[10]

CONCLUSION

¶21 The district court was not required to dismiss the divorce action for lack of jurisdiction following Thomas’s death. We therefore reverse and remand to the district court with instructions to reconsider Lidia’s Motion for Entry of Final Property Distribution and Rule 25 Motion to Substitute Party.

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

[1] Because the individuals share the same last name, we follow our usual practice of referring to them by their first names, with no disrespect intended by the apparent informality.

[2] Lidia sought a retroactive increase of alimony for 51 months, which represented the span between entry of a temporary order awarding her alimony and her remarriage.

[3] This included the determination of what portion of the large estate constituted marital property and what portion constituted Thomas’s separate property.

[4] Thomas’s counsel continued to represent Thomas’s interests immediately after his death pursuant to Stoddard v. Smith, 2001 UT 47, 27 P.3d 546. See id. ¶ 11 (“An attorney has an ethical obligation to take the necessary steps to protect a deceased client’s interests immediately following the client’s death[.]”).

[5] Thomas Jr. asserts that the district court did not actually rule that it lost jurisdiction over the divorce action. Instead, he suggests that the court simply exercised its “inherent equitable discretion in deciding to leave [Lidia] to pursue those claims in probate court.” But although the court’s initial ruling did not invoke the specific term “jurisdiction,” it nonetheless concluded, with our emphasis, that “Utah precedent requires a surviving party in a bifurcated divorce to pursue unresolved equitable claims to marital property before a probate court.” And in its Final Order, the court clarified, “Due to the untimely death of [Thomas], this court no longer has jurisdiction over this matter and this matter is closed.” Accordingly, the court did, in fact, conclude that it lacked jurisdiction and closed the divorce action on that ground.

Lidia also argues that the district court abused its discretion when it denied her motion to substitute Thomas’s personal representative in the divorce proceeding under rule 25 of the Utah Rules of Civil Procedure. But because the basis of the court’s denial of that motion was its lack of jurisdiction, which ruling we ultimately reverse, we remand to the district court with instructions to reconsider the rule 25 motion on the merits. See generally State v. De La Rosa, 2019 UT App 110, ¶ 4, 445 P.3d 955 (“Trial courts do not have discretion to misapply the law.”) (quotation simplified).

[6] Our Supreme Court also abandoned, as “clearly dictum,” a statement in one of its prior decisions that purported to overrule In re Harper’s EstateSee Porenta v. Porenta, 2017 UT 78, ¶ 22, 416 P.3d 487. Namely, the Court abandoned the statement that “the death of one or both parties to a divorce action during the pendency of the action causes the action itself to abate and the married couple’s status, including their property rights, reverts to what it had been before the action was filed.” Id. (quotation simplified). In other words, the Court rejected “the proposition that the parties’ property interests in the marital estate are frozen in time during the pendency of divorce litigation” and that “[i]f a party dies before the divorce becomes final, . . . property rights in the marital estate . . . are transported back in time to what they held before the divorce case was filed,” id. ¶ 23, which includes the reversal of any transfers of property that might have occurred during the pendency of the divorce action, id. ¶ 23 n.8.

[7] The court employed this presumption because the mother had not carried her burden of persuasion regarding whether property claims raised in a divorce proceeding survive the death of a spouse. See Porenta, 2017 UT 78, ¶¶ 32, 36; infra ¶ 15.

[8] The mootness doctrine “is a constitutional principle limiting our exercise of judicial power under article VIII of the Utah Constitution” and “not a simple matter of judicial convenience.” Transportation All. Bank v. International Confections Co., 2017 UT 55, ¶ 14, 423 P.3d 1171 (quotation simplified). “A case is deemed moot when the requested judicial relief cannot affect the rights of the litigants,” State v. Lane, 2009 UT 35, ¶ 18, 212 P.3d 529 (quotation simplified), thereby rendering a decision “purely advisory,” Transportation All. Bank, 2017 UT 55, ¶ 15 (quotation simplified). established as courts of equity that retain jurisdiction over the parties and subject matter for the purposes equity may demand.” Potts v. Potts, 2018 UT App 169, ¶ 13, 436 P.3d 263 (quotation simplified).

[9] Not all claims raised in the current divorce action concerned property rights. For example, it is undisputed that the claims related to custody, child support, and parent-time abated upon Thomas’s death. On remand, the district court should dismiss any remaining non-property claims that were rendered moot by Thomas’s death.

[10] We note that, sequentially, it may be more prudent for the district court to equitably distribute Lidia and Thomas’s marital estate—which potentially represents only a portion of Thomas’s vast estate that is the subject of the probate proceeding—rather than punting these issues to the probate court, especially where the district court had already prepared a ruling resolving all but one of the issues raised in the years-long divorce action that it superintended.

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In Re K.K. – 2023 UT App 14 – Abuse and Neglect Adjudication

In re K.K. – 2023 UT App 14

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF K.K., S.K., AND S.K.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

B.K.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220051-CA

Filed February 9, 2023

Second District Juvenile Court, Farmington Department

The Honorable Sharon S. Sipes

No. 1176751

Scott L. Wiggins, Attorney for Appellant

Sean D. Reyes, John M. Peterson, and Candace

Roach, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,

in which JUDGE GREGORY K. ORME concurred. JUDGE RYAN M.

HARRIS concurred, with opinion.

CHRISTIANSEN FORSTER, Judge:

¶1        This is a companion case to and arises out of the same facts involved in In re K.K., 2023 UT App 13, which also issues today. In short,[1] B.K. (Mother) and D.K. (Father) are the parents of triplets K.K., S.K., and S.K. (collectively, the Children). When the Children were six years old, the State filed a petition for custody and guardianship on the grounds that the Children were neglected and abused by Mother and Father. The underlying facts giving rise to the petition were multiple acts of domestic violence, culminating in a physical and boisterous verbal altercation between the couple that occurred on June 22, 2021, and that took place in front of the Children and other witnesses.

¶2        Following an adjudication trial on the petition, during which the juvenile court heard testimony from Mother, Father, two neighbors who had witnessed the June 22 altercation, and two police officers who had responded to the neighbors’ 911 calls regarding the June 22 altercation, the court issued an order adjudicating the Children neglected and abused as to Mother.

¶3        In the adjudication order, the court found, among other things, that Mother and Father had engaged in numerous acts of domestic violence, some of which had occurred in the presence of the Children, including on June 22; that when Mother and Father fight they sometimes send the Children downstairs to wait with a roommate, which had occurred two or three times that year; that the Children are aware they are sent downstairs because Mother and Father fight; that “[a]ccording to the [C]hildren, [Father] and [Mother] fight and yell and hurt each other’s bodies”; and that “[t]he [C]hildren have experienced domestic violence with enough frequency that they appear calm during incidents between their parents . . . even though the parents ‘fight a lot and hurt’ each other.”

¶4        As to Mother, the court found she was not yelling back at Father during the June 22 altercation but that she did yell at him on another occasion during which officers were dispatched to the house on a “domestic” call. In addition, the court found that Mother “is not concerned” that the Children witness her and Father fight and that her “demeanor and testimony”—including her inability to recall much of what happened on June 22—“is in tune with her desire to protect [Father] rather than address the domestic violence that exists in her home.” Based on these findings, the court concluded that Mother “has failed to protect the [C]hildren from exposure to domestic violence in the home” and that “[Father] and [Mother’s] domestic violence in their home has harmed the[] [C]hildren.”

ISSUES AND STANDARDS OF REVIEW

¶5        Mother now appeals the juvenile court’s neglect and abuse adjudications, asserting the court erred in determining that she neglected and abused the Children. We review the juvenile court’s factual findings deferentially, reversing the court’s findings only if they are clearly erroneous. In re E.R., 2021 UT 36, ¶ 15, 496 P.3d 58. A finding is clearly erroneous when the court either “failed to consider all of the facts or reached a decision against the clear weight of the evidence.” Id. ¶ 32 (quotation simplified). And we review the juvenile court’s underlying legal determinations nondeferentially for correctness. See In re A.B., 2022 UT 39, ¶¶ 27–28.

ANALYSIS

¶6        Mother argues the juvenile court erred in determining that the State had proved by clear and convincing evidence that she neglected and abused the Children “by exposing them to domestic violence.” Clear and convincing evidence is an “intermediate standard of proof” that “implies something more than the usual requirement of a preponderance . . . of the evidence; and something less than proof beyond a reasonable doubt.” Essential Botanical Farms, LC v. Kay, 2011 UT 71, ¶¶ 21, 24, 270 P.3d 430 (quotation simplified). “For a matter to be clear and convincing to a particular mind it must at least have reached the point where there remains no serious or substantial doubt as to the correctness of the conclusion.” In re S.Y.T., 2011 UT App 407, ¶ 42, 267 P.3d 930 (quotation simplified).

¶7        Because neglect and abuse are distinct, with different statutory definitions, we address Mother’s challenge to the juvenile court’s adjudications separately. With regard to Mother’s neglect adjudication, we conclude the court did not err in determining that she neglected the Children. As to the court’s abuse adjudication, we conclude that Mother, like Father, cannot show prejudice resulting from the abuse adjudication where the underlying facts giving rise to both adjudications are the same. Accordingly, we decline to address the merits of Mother’s challenge to the abuse adjudication.

I. Neglect

¶8        To prove that Mother neglected the Children, the State needed to present clear and convincing evidence that Mother’s “action[s] or inaction[s]” caused the Children to experience a “lack of proper parental care . . . by reason of the fault or habits of” Mother or that Mother “fail[ed] or refus[ed] . . . to provide proper . . . care necessary for [the Children’s] health, safety, morals, or well-being.” See Utah Code § 80-1-102(58)(a)(ii)–(iii). Mother argues the juvenile court’s conclusion that she neglected the Children by “‘allowing’ them to be exposed to her abuse at Father’s hands” does not satisfy the statutory definition of neglect. She further contends that the court “engaged in unwarranted assumptions that are contrary to the well-settled notions underlying the Battered Woman Syndrome” by concluding that Mother’s “behavior constituted ‘nonaccidental’ conduct or that her behavior was due to her ‘faults or habits.’” We disagree.

¶9        The evidence presented at trial included testimony from six witnesses who detailed Father and Mother’s history of engaging in domestic disputes with each other and specifically described the altercation that occurred on June 22. The testimony indicated that two of the children were present during the June 22 altercation and were observed “clinging” to Mother outside in the front yard while Father argued with her, punched her, and threw objects at her. One of the officers who responded to the June 22 altercation testified that the two children who had witnessed the altercation “seemed calm” and were not “distraught or flustered at all.”[2] The officers acknowledged they had been called to Mother and Father’s house prior to the June 22 altercation on a “domestic” call after neighbors reported Mother and Father were screaming at each other.

¶10 Mother also testified that on many occasions she tried to prevent the Children from observing her and Father fight. To accomplish this, “as soon as any argument started” she would send the Children downstairs with her roommate, where they would wait until the fight was over. Despite making this effort, Mother testified that she believed the Children were aware they were sent downstairs to avoid hearing any fighting. Moreover, the evidence also showed that Mother repeatedly allowed Father to return home after the court issued a criminal no contact/protective order and that she minimized the severity of the domestic violence. Mother was also largely unwilling to testify at trial about the June 22 altercation, claiming that she had “trouble remembering” much of what happened. Based on this evidence, the juvenile court found, “[Mother] is not concerned that the [C]hildren are subjected to the argument[s] between [Mother] and [Father]. [Mother’s] demeanor and testimony is in tune with her desire to protect [Father] rather than address the domestic violence that exists in her home.”

¶11      As described above, in its adjudication order, the juvenile court made several findings in support of its determination of neglect as to Mother. Those findings address Mother’s ongoing relationship with Father and the violent dynamic of their relationship, Mother’s knowledge that the Children were aware of her fights with Father despite her attempts to shield them from the violence, and Mother’s apparent lack of concern or desire to extricate herself from future interactions with Father. Under Utah law, a parent “ha[s] a statutory duty not to knowingly place [their] child in harm’s way.” In re C.B., 1999 UT App 293, ¶ 9, 989 P.2d 76. By voluntarily returning to the abusive relationship with Father, Mother ignored this duty by “potentially subjecting the [Children] to witness, or be the victim of, further abuse.” See id. Moreover, as discussed in In re C.C.W., 2019 UT App 34, 440 P.3d 749, a parent’s act of domestic violence can have adverse impacts on a child, even if there is no evidence of violence toward the child and even if the child does not directly witness the violence. Relying on “both common sense and expert opinion,” this court recognized that children who are exposed to domestic violence may suffer “direct physical and psychological injuries,” regardless of whether they are physically harmed. Id. ¶¶ 20–21 (quotation simplified). Among other things, children who observe domestic violence “may be taught that violence is an acceptable way to handle issues with loved ones,” which “breeds a culture of violence in future generations. . . . Abused children are at great risk of becoming abusive parents.” Id. ¶ 20 (quotation simplified). Although it is unfortunate that Mother is a victim of domestic violence, her decision to knowingly return to Father and to protect him rather than to protect the Children despite her knowledge that the Children are aware of the abuse in the home satisfies the statutory definition of neglect.

¶12      We recognize that most, if not all, of the domestic violence at issue in this case was committed by Father against Mother and that Mother was therefore often the victim rather than the perpetrator. But under Utah’s statutory definition of neglect, under certain circumstances, even victims of domestic violence can “neglect” their children if they fail to take sufficient steps to protect them from the domestic violence present in the home or if they choose to prioritize their relationship with the perpetrator of the violence over the need to protect their children. After all, neglect can stem from either “action or inaction” on the part of a parent, see Utah Code § 80-1-102(58)(a), as long as the “inaction” in question causes either “lack of proper parental care of a child by reason of the fault or habits of the parent” or “failure or refusal of a parent . . . to provide . . . care necessary for the child’s health, safety, morals, or well-being,” see id. § 80-1-102(58)(a)(ii)–(iii). Here, the juvenile court found that Mother was “not concerned” about protecting the Children from domestic violence and that Mother had a “desire to protect [Father] rather than address the domestic violence that exists in her home.” These findings were supported by substantial evidence presented at trial. And these facts, as found by the court, constitute “neglect” as our legislature has defined that term. In short, Mother’s “inaction” in failing to protect the Children from exposure to domestic violence and prioritizing her toxic relationship with Father resulted in a failure to provide the “care necessary for [the Children’s] health, safety, morals, or well-being” and caused the Children to experience a “lack of proper parental care.” See id.

¶13      Mother resists this conclusion by contending the juvenile court improperly relied on In re C.C.W. for “the proposition that children are harmed by domestic violence in the home.” She asserts the court’s reliance on In re C.C.W. was unwarranted because that case concerned a proceeding to terminate parental rights whereas this case concerns abuse and neglect adjudications. While Mother is correct that the two proceedings are different, those differences do not bear on whether the court could properly rely on the research and studies cited in In re C.C.W. supporting the general proposition that domestic violence is harmful to children. See 2019 UT App 34, ¶ 20. Termination proceedings and abuse and neglect adjudications are both governed by the Utah Juvenile Code, see Utah Code § 80-4-301 (termination of parental rights); id. § 80-3-201 (abuse or neglect proceedings), and the statutory definitions of “neglect,” “abuse,” “harm,” and “threatened harm” are the same in both proceedings, see id. § 80­1-102(1), (37), (58)(a), (92) (providing definitions applicable to provisions of Title 80, Utah Juvenile Code). Accordingly, it does not follow that the court may properly consider the effect of domestic violence in finding neglect in one proceeding but not the other.

¶14      In addition, Mother asserts that the juvenile court “rel[ied] on the unfounded presumption that Mother’s decision to maintain a relationship with Father constituted a conscious failure to protect the Children from exposure to domestic violence.” In so doing, Mother posits that the juvenile court ignored the directive offered in In re C.C.W. cautioning courts “to avoid unnecessarily drawing negative inferences from a battered spouse’s decision to maintain a relationship with the batterer, or from a battered spouse’s decision to decline to immediately seek help.” See 2019 UT App 34, ¶ 19 n.4. But that is not what happened here.

¶15      In this case, the juvenile court analyzed the evidence before it in adjudicating Mother for neglect. Thus, the court’s conclusion was not based on an unfounded presumption. As previously discussed, the evidence the court considered included testimony that Father had engaged in multiple acts of domestic violence in the presence of the Children. And based on Father’s multi-year track record of assaulting Mother, even after services were provided to him, the court could reasonably conclude that Father is likely to continue perpetrating acts of domestic violence against Mother in the future and that the Children will continue to be exposed to the violence if Mother fails to take action. In short, the court’s determination that Mother failed to provide the proper care for the Children’s health, safety, morals, or well-being by failing to protect them and prioritizing her relationship with Father was based on the evidence presented at trial and not on an unwarranted presumption.

¶16      Finally, Mother misconstrues the directive offered in In re C.C.W. cautioning courts to “avoid unnecessarily drawing negative inferences from a battered spouse’s decision to maintain a relationship with the batterer.” See id. Mother contends that by adjudicating her for neglect, the juvenile court made an “automatic determination that both the batterer and victim are responsible as a unit,” which in turn results in the victim being blamed for the domestic violence. While we are sympathetic to Mother and acknowledge that extricating oneself from an abusive relationship can often prove difficult, see In re L.M., 2019 UT App 174, ¶ 9, 453 P.3d 651 (per curiam); In re C.C., 2017 UT App 134, ¶¶ 46–48, 402 P.3d 17 (Christiansen, J., concurring), we cannot say that a parent’s status as a domestic violence victim excuses the parent’s duty to protect the children or provides the parent with license to elevate the relationship with the abuser over the safety of the children. Indeed, the directive offered in In re C.C.W. merely cautions courts to “avoid unnecessarily drawing negative inferences” about a victim’s decision to stay in an abusive relationship. 2019 UT App 34, ¶ 19 n.4. It does not prevent the court from considering domestic violence issues in their entirety, nor does it provide absolution for a parent who continues to expose a child to domestic violence. To find otherwise would be contrary to precedent. See, e.g.In re L.M., 2019 UT App 174, ¶ 8 (“A parent who maintains a relationship with an abusive partner jeopardizes a child’s safety.”); In re T.M., 2006 UT App 435, ¶ 20, 147 P.3d 529 (collecting cases and observing that “Utah case law indicates that courts have minimal empathy for parents whose strong emotional ties to their spouses or significant others jeopardize their children’s safety”).

¶17      Accordingly, we affirm the court’s neglect adjudication.

II. Abuse

¶18      The juvenile court determined that Mother both neglected and abused the Children by failing to protect them from exposure to domestic violence and that Father and Mother’s “domestic violence in their home has harmed the[] [C]hildren.” Mother argues the court’s abuse adjudication was in error because the State failed to produce clear and convincing evidence of abuse as it is statutorily defined. See Utah Code § 80-1-102(1)(a)(i)(A)–(B), (37)(a)–(b) (defining abuse as including “nonaccidental harm of a child” and “threatened harm of a child” and defining harm as “physical or developmental injury or damage” and “emotional damage that results in a serious impairment in the child’s growth, development, behavior, or psychological functioning”). Mother raises a fair point that other than applying the general principles set forth in In re C.C.W. to infer harm, the State did not present specific evidence that the Children had sustained harm, and the court made no specific findings—other than that the Children appeared calm during incidents of domestic violence between their parents—that the Children were developmentally harmed or suffered the sort of emotional damage that constituted serious impairment to their growth, development, behavior, or psychological functioning.[3]

¶19      But even if we were to agree with Mother that the juvenile court erred in adjudicating the Children as abused as to Mother, Mother cannot show she was prejudiced by any such error. See In re N.M., 2018 UT App 141, ¶ 27, 427 P.3d 1239 (“An error is prejudicial only if a review of the record persuades the appellate court that without the error there was a reasonable likelihood of a more favorable result for the appellant.” (quotation simplified)); In re. J.B., 2002 UT App 268, ¶¶ 8–12, 53 P.3d 968 (affirming the termination of a father’s parental rights despite the juvenile court’s reliance on improper findings because such reliance did not result in “prejudicial error”). Mother claims that being labeled an abuser “negatively affect[s] her ability—going forward—to perform the primary caretaking responsibilities to [the] Children.” But Mother does not demonstrate how the court’s abuse adjudication will affect her more severely or more negatively as this case proceeds than the neglect adjudication will. See In re G.B., 2022 UT App 98, ¶ 34, 516 P.3d 781 (declining to reach the merits of a challenge to an abuse adjudication where the parent did not challenge a neglect adjudication based on the same facts because the parent did not demonstrate that the abuse adjudication carried “some collateral consequences . . . that [did] not follow from a neglect determination”). Indeed, post-adjudication dispositions turn on the factual circumstances that bring a family into court rather than on the category of adjudication and are implemented based on concern for the child’s health and safety and remedying the underlying issues resulting in the adjudication. See Utah Code § 80-3-405. Here, as found by the juvenile court, whether her inaction is labeled as abuse or neglect, Mother failed to protect the Children from exposure to domestic violence and prioritized her relationship with Father over the well-being of the Children. The services that will be offered to Mother and the Children to remedy these circumstances are not likely to differ based on whether the adjudication is for neglect or abuse. We agree with the guardian ad litem’s assertion that “any or all three categories of adjudication (abuse, neglect, dependency) trigger the same dispositional provisions.” Accordingly, because Mother has not demonstrated how the court’s abuse adjudication will affect her any differently than the neglect adjudication, she cannot show prejudice.[4] See In re K.K., 2023 UT App 13, ¶ 28 (concluding, based on the same facts as the current case, that Father could not show prejudice stemming from the court’s abuse adjudication because the abuse adjudication was based on the same underlying facts supporting the neglect adjudication).

CONCLUSION

¶20 We are cognizant that Mother is a victim of domestic violence, not a perpetrator. Nevertheless, the primary purpose of the State’s petition alleging neglect was to protect the Children, not to punish Mother. Based on the foregoing, we conclude the evidence presented by the State was sufficient to support the juvenile court’s neglect adjudication as to Mother. And even if the juvenile court erred in its abuse adjudication, Mother has not persuaded us that she was prejudiced by any such error because she has not shown how she will be negatively affected by the abuse adjudication over and above the effect of her neglect adjudication. Accordingly, we affirm.

_____________

HARRIS, Judge (concurring):

¶21      I concur fully in the majority opinion. I write separately to offer a word of caution to juvenile courts when it comes to finding that a parent who is a victim of domestic violence has “abused” or “neglected” his or her children by allowing them to be exposed to domestic violence in the home. In my view, Utah’s statutory definitions of the terms “abuse” and “neglect” are broad enough to make it possible, in certain situations, for courts to determine that a domestic violence victim has committed abuse or neglect. But courts should exercise caution in doing so, and should make these rather striking findings only in appropriate cases.

¶22 With regard to neglect, we hold today that the juvenile court’s determination was appropriate in this case, because Mother’s “inaction” in failing to protect the Children from the domestic violence occurring in the home constituted a lack of proper parental care, as well as a failure to provide care necessary for the Children’s health, safety, or well-being. See supra ¶¶ 8–16; see also Utah Code Ann. § 80-1-102(58)(a)(ii)–(iii) (LexisNexis Supp. 2022). In my view, the key to affirming this determination, in this case, was the court’s finding that Mother had prioritized her relationship with her abuser over the safety and well-being of the Children. Evidence presented at trial indicated that Mother repeatedly allowed Father to return to the home despite the existence of protective orders making it unlawful for him to be there, and that she was less than fully cooperative with DCFS and law enforcement officials who were investigating the situation. This sort of evidence, to my way of thinking, is critical to any determination that a domestic violence victim has neglected his or her children. Absent evidence like this, domestic violence victims will likely not have committed actions or inactions significant enough to constitute “neglect” of their children.

¶23      And given the differing statutory definitions, it is even more difficult for domestic violence victims to be considered to have “abused” their children than it is for them to be considered to have “neglected” their children. The statutory definition of “abuse” is (justifiably) narrower than the statutory definition of “neglect.” In order to find that abuse has occurred, a court in most cases (that is, in cases not involving sexual exploitation, sexual abuse, human trafficking, or the child’s death) must find either (a) “nonaccidental harm of a child” or (b) “threatened harm of a child.” See id. § 80-1-102(1)(a)(i)(A), (B); see also In re K.T., 2017 UT 44, ¶ 9, 424 P.3d 91 (“To find abuse under Utah law, a court must find harm.”).

¶24 A finding that a child has sustained nonaccidental harm involves a backward-looking determination, one that must be supported by evidence that the child has already been harmed. And the kind of harm at issue—according to strict statutory definition—must be either “physical or developmental injury or damage” or the sort of “emotional damage that results in a serious impairment in the child’s growth, development, behavior, or psychological functioning.” See id. § 80-1-102(37)(a), (b). I can envision a court, in many cases, being able to make a finding of physical harm without the necessity of expert testimony, but in my view a finding of already-sustained “developmental injury or damage” or emotional damage severe enough to cause “a serious impairment in the child’s growth, development, behavior, or psychological functioning” will often require expert testimony. I think this will nearly always be the case where the question presented is whether a child has already sustained non-physical “harm” as a result of a victim parent failing to protect the child from violence in the home.

¶25      A finding that a child has sustained “threatened harm” is— by contrast—more of a forward-looking inquiry, under the applicable statutory definition. As our legislature has defined it in this context, “threatened harm means actions, inactions, or credible verbal threats, indicating that the child is at an unreasonable risk of harm or neglect.” See Utah Code Ann. § 80-1­102(92) (emphasis added). A child can sustain “threatened harm” even if the child has not yet sustained actual “harm.” Pursuant to statutory definition, a child sustains “threatened harm” when, through the “actions” or “inactions” of a parent, the child is placed at “unreasonable risk” of future “developmental injury or damage” or “emotional damage” severe enough to seriously impair the “child’s growth, development, behavior, or psychological functioning.” See id. § 80-1-102(37)(a)–(b), 102(92). In cases involving parents who are victims of domestic violence, a juvenile court could perhaps more easily make a finding of “threatened harm” than already-sustained past harm. Indeed, we have already recognized that “domestic violence can have adverse impacts on a child, even if that child is not the direct object of such violence, and even if the child does not directly witness the violence.” See In re C.C.W., 2019 UT App 34, ¶ 20, 440 P.3d 749. A parent victim’s failure to adequately protect a child from violence in the home could—if the violence was frequent and severe enough, and likely to continue in the future—lead to a supported finding that the parent, through inaction, has placed the child at an unreasonable risk of future developmental damage. It may even be possible, in appropriate cases, for such a finding to be made without expert testimony.

¶26      But in order to reach “abuse” through “threatened harm” in cases involving victims of domestic violence, a court must make specific and supported findings regarding each of the elements of the statutory definition. First, a court must specify that it is finding “abuse” by way of “threatened harm” (as opposed to through a finding of already-sustained “nonaccidental harm”). Second, the court must make a detailed finding of threatened harm on the facts of the case at hand, including specific identification of the “action or inaction” taken by the parent that leads to the “unreasonable risk” of future harm, as well as a satisfactory explanation of why the risk of future harm is “unreasonable.” Third, the court must specify the type of future harm it believes the child is at risk of sustaining, whether it be developmental injury or severe emotional damage, and should explain—with reference to specific evidence in the record—why the court believes the child is likely to sustain that particular type of harm.

¶27 In short, Utah’s statutory definitions of “neglect” and “abuse” are broad enough to allow courts, in appropriate cases, to find that a parent who is the victim of domestic violence has committed neglect or abuse by failing to protect his or her child from domestic violence in the home. But courts should exercise caution in so doing, and should reserve such findings for those cases in which the domestic violence is severe and sustained and in which the victim parent has taken specific actions or inactions aimed at prioritizing his or her relationship with the abuser over care and protection of the children.

¶28      In this case, I concur in the majority’s view that the court made appropriate findings of neglect with regard to Mother. I also concur in the majority’s decision not to reach the merits of the propriety of the court’s findings regarding abuse as to Mother, but I register serious reservations about the adequacy and sufficiency of those findings, and urge courts to exercise caution in making neglect and abuse determinations in situations like this one.

 

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[1] A more fulsome description of the relevant facts and procedural history can be found in In re K.K., 2023 UT App 13, the case in which we adjudicated Father’s appeal. In this case, we adjudicate Mother’s appeal.

[2] The juvenile court did not take this evidence to mean that the Children had not been adversely affected by their parents’ inappropriate behavior. Rather, the inference drawn by the court was that the parental conflict had been so pervasive that the Children had become somewhat numb to it.

[3] We do not intend to suggest the State could never demonstrate that a parent who is the victim of domestic violence has “abused” his or her children, as that term is statutorily defined. We agree with the general sentiments expressed in the concurring opinion that such a path is possible but is more difficult than demonstrating “neglect” and would require specific evidence and findings. See infra ¶¶ 22–27.

[4] In fact, a review of the underlying docket in Mother’s case reveals that Mother and the Children have done so well in their treatment and services that the juvenile court released the Children from DCFS’s protective supervision and terminated the court’s jurisdiction last fall.

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In re K.K. – 2023 UT App 13

In re K.K. – 2023 UT App 13

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF K.K., S.K., AND S.K.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

D.K.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220050-CA

Filed February 9, 2023

Second District Juvenile Court, Farmington Department

The Honorable Sharon S. Sipes

No. 1176751

Freyja Johnson, Emily Adams, and Hannah K.

Leavitt-Howell, Attorneys for Appellant

Sean D. Reyes, John M. Peterson, and Candace

Roach, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES GREGORY K. ORME and RYAN M. HARRIS

concurred.

CHRISTIANSEN FORSTER, Judge:

¶1        D.K. (Father) and B.K. (Mother) are the parents of triplets K.K., S.K., and S.K. (collectively, the Children). When the Children were six years old, the State filed a child welfare petition for custody and guardianship on the grounds that the Children were neglected and abused by Father and Mother. Following an adjudication hearing on the petition, the juvenile court issued an order adjudicating the Children as neglected and abused.

¶2        Father now appeals the juvenile court’s abuse adjudication, arguing that the State failed to prove by clear and convincing evidence that he abused the Children. We affirm.

BACKGROUND

¶3        In 2019, when the Children were four years old, the State filed a petition seeking protective supervision services based on allegations that Father and Mother had engaged in repeated acts of domestic violence in front of the Children. Thereafter, Father and Mother agreed to engage in services voluntarily, and the State eventually dismissed its petition.

¶4        Two years later, however, Father and Mother again engaged in a series of domestic violence incidents that involved law enforcement. In May 2021, Father called the police and told them that Mother had “beat him up.” When officers arrived on scene and talked to Father, he told them he and Mother were “fighting about money” and that Mother “swung to hit him but never touched him.” On June 10, officers were again dispatched to the family home on a “domestic” call because Father and Mother were “screaming at each other with the [C]hildren in the home.” When officers arrived, they could hear the screaming. Father was uncooperative with the officers, but he eventually left the home. However, Father returned to the home later that same night.

¶5        On June 22, Father and Mother were involved in an altercation that led the State to seek custody and guardianship of the Children. During this altercation, Father and Mother were arguing inside the home. Mother was sitting on the couch, and Father sat on top of her demanding that she give him the keys to the car. Father then “head butted” Mother and told her to get out of the home, which she did. Once Mother was outside, Father followed her and began punching her “with a closed fist on the side of her stomach.” Father proceeded to grab a large rock and chase Mother around the car, “acting like he was going to throw the rock at her.” The Children were outside of the home for the duration of the altercation and witnessed Father chasing Mother and hitting her. Several neighbors also witnessed the altercation and called the police. When officers arrived, Father was arrested and taken to jail.

¶6        After Father’s arrest, Mother completed a lethality assessment, an evaluation given to assess the level of danger an abused person faces, which resulted in a score of high risk. Mother did not seek a protective order for herself or for the Children during the eight days Father was in jail. However, due to the severity of the prior altercation, the district court entered a criminal no contact/protective order on July 1. The order prohibited Father from residing with Mother and the Children.

¶7        On July 8, a caseworker from the Department of Child and Family Services (DCFS) went to the home for an unannounced visit. During the visit, the caseworker found Father outside; Father reported that Mother was inside sleeping. Father allowed the caseworker to interview the Children. During the interview, the Children reported that Father and Mother “fight and yell” and “hurt each other’s bodies.” Father was subsequently arrested for violation of the criminal no contact/protective order. Thereafter, the caseworker attempted to talk to Mother, who had been inside sleeping, but Mother refused to speak with the caseworker.

¶8        Based on the foregoing, the State filed a petition for custody and guardianship of the Children on the grounds that they were neglected and abused based on Father and Mother engaging in domestic violence in the home. Following a shelter hearing, the juvenile court determined the Children should remain in Mother’s custody for the time being but ordered Mother and the Children to have “absolutely no contact” with Father and that Mother “immediately notify law enforcement” if Father appeared at the home.

¶9        Following a series of pretrial hearings, the matter proceeded to an adjudication trial in December 2021. At trial, the State presented the testimony of six witnesses: Mother, Father, two neighbors who had witnessed the June 22 altercation, and two police officers who had responded to the neighbors’ 911 calls regarding the June 22 altercation.

¶10 According to the neighbors, Father and Mother were arguing about car keys. As Father approached Mother, “she put her arms out to stop him . . . and he slapped her hands aside.” Father then began punching Mother “haymaker style” to her side and stomach. The punching continued “for a minute or two,” and Father connected “five to ten” times. After the punching stopped, Father chased Mother around the front yard, “throwing rocks” and “bikes and other toys” in the direction of Mother, although the neighbors did not see any of the objects hit Mother.

¶11      The neighbors testified that during the altercation, two of the Children were in the front yard “standing behind [Mother]” and “clinging” to her. Mother was positioned between Father and the two children, acting as a “buffer” between them. One neighbor opined that he did not “believe any [of Father’s] aggression was towards the children,” and that “at no[] point did [he] think [the two children] were in any sort of danger.” However, the two children were outside the entire time, “seeing everything.”

¶12      In addition, one neighbor testified that she had witnessed Father and Mother “screaming” at each other multiple times in the presence of the Children prior to the June 22 altercation. Moreover, the neighbor had witnessed Father yelling at the Children twice and had observed that the Children “are terrified and trying to do whatever [Father] says to not be in trouble.”

¶13      The responding officers testified next. One officer testified that after arriving at the scene on June 22, he interviewed Mother, who told him that she had been arguing with Father over car keys. During the argument, Father “sat down on her” to keep her from leaving, headbutted her in the forehead, and “punched her in the back of the leg.” After Mother jumped out the window to the front yard, Father followed her and the two continued arguing. Father chased Mother around a vehicle parked in the front yard; once he caught her, he began “punching her in the side underneath her arms with a closed fist.” Mother was able to break away, but Father chased her with a rock in his hands. Mother told the officer the Children were outside with her during the altercation.

¶14      The officer also interviewed Father about the altercation. Father said he was “upset” because Mother hid the car keys from him but that “nothing got physical.” Father told the officer he and Mother had argued and run around the vehicle in the front yard. Father indicated that he had picked up a rock and held it over his head, but he did not throw it, nor did he intend to.

¶15      Lastly, the officer testified regarding his observations of the Children. When the officer arrived at the scene, the Children were inside the house. The officer interviewed Mother while she was standing at the front door. During the interview, the officer saw “at least two” of the Children standing by the front door behind Mother and “one of the kids popped his head outside” and asked for stickers. Officer opined that the Children’s demeanor “seemed calm.” The Children seemed “a little upset that some toys were . . . strewn about the front yard,” but otherwise they did not seem “distraught or flustered” by the altercation.

¶16      Mother testified that the June 22 incident started when she refused to give Father the keys to the car. Mother explained that she could not remember all the details about the altercation because she has “trouble remembering things.” However, she did remember that the altercation began when Father headbutted her in the house. After the headbutt, Father and Mother went outside to the front yard. Although Mother did not remember whether Father hit her in the yard, she recalled that he “didn’t follow [her] around the yard,” that he picked up a basket and “threw it up in the air” but not “at” her, and that he “picked up a rock” but did not chase her while holding it. Mother maintained that the Children had not observed the altercation because they were downstairs inside the house with a roommate where they stayed until the officers arrived.

¶17      Mother also testified that the Children “were never present for full on arguments or yelling.” She explained that “as soon as any argument started,” her roommate would take the Children downstairs so they would not be able to hear the fighting. Although Mother did not believe the Children had been impacted by the fighting, she did believe the Children were aware that they were sent downstairs to avoid hearing any fighting.

¶18 Father testified last. When asked about the June 22 altercation he invoked his Fifth Amendment right not to testify because criminal charges were pending against him regarding that incident. But Father explained that “before” he and Mother would engage in any verbal arguments, the Children would go downstairs.

¶19      After considering all the evidence, the juvenile court issued an adjudication order. In the order the court found, among other things, that Father and Mother had engaged in numerous acts of domestic violence, some of which had occurred in the presence of the Children, including the one on June 22; that when Father and Mother fight they sometimes send the Children downstairs to wait with a roommate, which had occurred two or three times that year; that the Children are aware that they are sent downstairs because Father and Mother fight; that “[a]ccording to the [C]hildren, [Father] and [Mother] fight and yell and hurt each other’s bodies”; and that “[t]he [C]hildren have experienced domestic violence with enough frequency that they appear calm during incidents between their parents . . . even though the parents ‘fight a lot and hurt’ each other.”

¶20 As to Father, the court drew a number of adverse inferences based on his decision to invoke his constitutional right to silence when asked specific questions about the June 22 altercation. And as to Mother, the court found that she “is not concerned” about the Children witnessing her and Father fighting and that her “demeanor and testimony”—including her inability to recall much of what happened on June 22—“is in tune with her desire to protect [Father] rather than address the domestic violence that exists in her home.” Based on these findings, the court concluded that Father “failed to provide proper care necessary for the health, safety, morals and well-being of the children in that he has engaged in domestic violence with [Mother], and [both Father and Mother] failed to protect the [C]hildren from exposure to domestic violence in the home.” The court also concluded that “[Father] and [Mother’s] domestic violence in their home has harmed [the Children]” and, accordingly, adjudicated the Children as neglected and abused as to Father.

ISSUE AND STANDARD OF REVIEW

¶21 Father now appeals only the juvenile court’s abuse adjudication, arguing that the court’s ruling was in error because the State failed to prove by clear and convincing evidence that he had harmed or threatened harm to the Children. “We apply differing standards of review to findings of fact, conclusions of law, and determinations of mixed questions of law and fact.” In re E.R., 2021 UT 36, ¶ 14, 496 P.3d 58. We review the juvenile court’s factual findings deferentially, reversing the court’s findings only if they are clearly erroneous. Id. ¶ 15. A finding is clearly erroneous when the court either “failed to consider all of the facts or reached a decision against the clear weight of the evidence.” Id. ¶ 32 (quotation simplified). However, the question of whether the juvenile court properly applied the governing law to the facts of the case presents “a law-like mixed question subject to nondeferential review.” In re A.B., 2022 UT 39, ¶ 27.

ANALYSIS

¶22      At an adjudication trial, the juvenile court must determine whether “the allegations contained in the abuse, neglect, or dependency petition are true” by “clear and convincing evidence.” Utah Code § 80-3-402(1). Clear and convincing evidence is an “intermediate standard of proof” that “implies something more than the usual requirement of a preponderance . . . of the evidence; and something less than proof beyond a reasonable doubt.” Essential Botanical Farms, LC v. Kay, 2011 UT 71, ¶¶ 21, 24, 270 P.3d 430 (quotation simplified). Put differently, this standard requires “the existence of facts that make a conclusion very highly probable.” Id. ¶ 24 (quotation simplified).

¶23      As relevant here, “abuse” is defined as the “nonaccidental harm of a child” or the “threatened harm of a child.” Utah Code § 80-1-102(1)(a)(i)(A), (B). Thus, “[t]o find abuse under Utah law, a court must find harm.” In re K.T., 2017 UT 44, ¶ 9, 424 P.3d 91. “Harm” includes “physical or developmental injury or damage” and “emotional damage that results in a serious impairment in the child’s growth, development, behavior, or psychological functioning.” Utah Code § 80-1-102(37)(a), (b). And “[t]hreatened harm” is defined as “actions, inactions, or credible verbal threats, indicating that the child is at an unreasonable risk of harm or neglect.” Id. § 80-1-102(92).

¶24      As applied to this case, to satisfy the clear and convincing standard, the State “needed to present evidence that would allow the [juvenile] court to conclude that it was very highly probable that the [C]hildren had been harmed.” See In re K.T., 2017 UT 44, ¶ 9 n.3 (quotation simplified). In reaching this conclusion the court may properly “infer harm” based on the evidence presented. Id. ¶ 14. However, the court may not “speculate” about the existence of harm absent clear and convincing evidence demonstrating the actions actually resulted in harm. Id. ¶¶ 14–17.

¶25 After considering the evidence presented during the adjudication trial, the juvenile court concluded the Children were abused because “[Father] and [Mother’s] domestic violence in their home has harmed [the Children].” Father argues the court’s conclusion was in error because the State failed to produce clear and convincing evidence that he physically harmed the Children or that the Children were developmentally harmed or emotionally damaged by observing Father assault Mother and Father and Mother argue. But even if we were to agree with Father that the State failed to present sufficient evidence that Father harmed the Children and were to agree that the juvenile court erred in adjudicating Father as abusing the Children, Father has not demonstrated that he was prejudiced by the alleged error. See In re N.M., 2018 UT App 141, ¶ 27, 427 P.3d 1239 (“An error is prejudicial only if a review of the record persuades the appellate court that without the error there was a reasonable likelihood of a more favorable result for the appellant.” (quotation simplified)); In re. J.B., 2002 UT App 268, ¶¶ 8–12, 53 P.3d 968 (affirming the termination of a father’s parental rights despite the juvenile court’s reliance on improper findings because such reliance did not result in “prejudicial error”). As noted above, the court adjudicated the Children as both neglected and abused, and Father appeals only the court’s abuse adjudication. Although Father is correct that “[a]buse and neglect are statutorily defined and given ‘distinct statuses’” and that “[u]nder the statutory definitions . . . abuse requires a higher level of improper conduct from a parent than neglect,” that distinction has no bearing in this case—and Father has not shown that it is likely to have any bearing in the future—because the court’s adjudications of neglect and abuse were based on the same underlying incidents of domestic violence.

¶26 When a juvenile court adjudicates a child as either neglected or abused, that determination brings the child within the jurisdiction of the court and allows the court to enter dispositional orders. See Utah Code § 80-3-402. The dispositions available to the court do not hinge on whether the child was adjudicated as neglected or abused. Instead, dispositions are tied to the factual findings about what is going on in the case and are implemented based on concern for the child’s health and safety and remedying the underlying issues resulting in the adjudication. See id. § 80-3-405.

¶27 Here, the juvenile court’s disposition is governed by the need to address Father’s commission of domestic violence in the presence of the Children and the risk such behavior will continue. Services to address this behavior will not differ whether the underlying adjudication is labeled as neglect or abuse because the court’s neglect determination was based on the same underlying facts as the abuse determination: here, Father’s failure to protect and to provide proper care for the Children as a result of his engaging in acts of domestic violence.[1]

¶28      Father cites this court’s decision in In re C.M.R., 2020 UT App 114, 473 P.3d 184, for the proposition that Father was harmed by the court’s abuse adjudication, asserting that the findings of abuse in the adjudication order “will form the basis for whether [Father] is able to comply with the requirements of [any service plan] going forward and whether [Father] can be reunited with the Children.” See id. ¶ 28. But unlike the mother in In re C.M.R., who was potentially prejudiced by entering admissions to allegations regarding a specific additional incident of abuse at the adjudication hearing, Father’s abuse adjudication was based on the exact same underlying set of facts as his neglect adjudication. In this case, Father has not challenged the juvenile court’s neglect adjudication, nor has he challenged the court’s underlying factual findings—which support both the neglect and the abuse adjudications—that he assaulted Mother in the presence of the Children and repeatedly engaged in heated verbal arguments with her. Those underlying actions, which form the foundation for both adjudications, are the reason why he “can only have supervised visitation with [the] Children” and why “[h]e is not allowed in the home,” and not because the court adjudicated the Children as abused in addition to neglected. Because Father has not challenged the neglect adjudication or demonstrated how the ramifications flowing from this unchallenged adjudication would be less severe than those resulting from an abuse adjudication, he has not demonstrated that he has sustained any prejudice as a result of the court’s abuse adjudication.[2] See In re G.B., 2022 UT App 98, ¶ 34, 516 P.3d 781 (declining to reach the merits of a challenge to an abuse adjudication where the parent did not challenge a neglect adjudication based on the same facts because the parent did not demonstrate that the abuse adjudication carried “some collateral consequences . . . that [did] not follow from a neglect determination”).

 

CONCLUSION

¶29 On appeal, Father does not challenge the juvenile court’s findings that he committed domestic violence in the presence of the Children or that those actions resulted in him neglecting the Children by failing to provide them proper care and to protect them from exposure to domestic violence. Under these circumstances, even if the juvenile court erred in its separate abuse adjudication—a conclusion we stop short of reaching—Father has not demonstrated he was prejudiced by any such error because he has not challenged the court’s neglect adjudication or the facts underlying it, which are the same facts underlying the court’s abuse adjudication, and any court-ordered disposition will be based upon Father’s own acts and not the adjudication of abuse.

¶30 Affirmed.

______________

[1] In his reply brief Father argues he was harmed by the juvenile court’s abuse adjudication because “an abuse adjudication goes into a central abuse registry system managed by DCFS” and “the information in that registry is used for licensing purposes and prevents individuals who have been adjudicated of abuse from holding licenses in certain professions.” But this argument misses the mark. While Father correctly notes that the abuse registry system—called the Management Information System (the MIS)— can be accessed by the State for all future cases involving Father, see Utah Code § 80-2-1001, he conflates the MIS with a “sub-part” of the MIS called the Licensing Information System (the LIS), see id. § 80-2-1002(1)(a)(i). Information on the MIS includes facts relevant to each child welfare case, whereas the LIS is maintained for “licensing purposes.” See id. § 80-2-1002(1)(a)(i). Although an individual on the LIS may be prohibited from, among other things, holding licenses in certain professions, see id. § 80-2-708(2)(a)(v), inclusion on the LIS is not automatic in every child welfare case. Rather, the LIS identifies only individuals found to have committed a “severe type of child abuse or neglect.” See id. § 80-2-708(1). Because the court did not adjudicate Father as severely abusing the Children, inclusion on the LIS does not automatically follow, and Father has not asserted that he has been—or is likely to be—included therein. Accordingly, Father has not demonstrated that, in this case, he has sustained any prejudice as a result of the juvenile court’s abuse determination.

[2] Indeed, in the juvenile court’s dispositional order, entered approximately two months after the adjudication order, Father’s primary responsibility is to “complete a domestic violence/mental health assessment . . . and follow any and all of the recommendations made.”

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Myers v. Myers 2023 UT App 20 – Alimony Modification

Myers v. Myers 2023 UT App 20

2023 UT App 20

THE UTAH COURT OF APPEALS

AMY R. MYERS, Appellee, v. JACOB W. MYERS, Appellant.

Opinion

No. 20220002-CA

Filed March 2, 2023

Sixth District Court, Richfield Department

The Honorable Brody L. Keisel

No. 184600056

Benjamin L. Wilson, Attorney for Appellant

Douglas L. Neeley, Attorney for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which

JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY

concurred.

HARRIS, Judge:

¶1        After more than two decades of marriage, Jacob and Amy Myers divorced in 2018, and mutually agreed to the terms of their divorce. In particular, they agreed that Jacob[1] would pay Amy $916 per month in child support and $2,300 per month in alimony. Less than two years later, Jacob filed a petition to modify the divorce decree, asserting that both his and Amy’s income had changed since the divorce. The district court, after holding a trial, denied Jacob’s petition to modify, and Jacob appeals that denial, asserting that the court erred in determining that Amy’s ability to earn had not changed and in failing to make findings regarding Amy’s reasonable expenses. We find merit in Jacob’s positions, and therefore reverse and remand.

BACKGROUND

¶2        Jacob and Amy Myers married in 1995, but divorced in 2018 after some twenty-three years of marriage. When they divorced, one of their children (born in 2001) was still a minor, but all their children are now adults. Throughout most of their marriage, Jacob worked in oil production as a rig manager. His position paid relatively well—at the time of the divorce, he was earning $8,233 per month—but required him to work a nontraditional schedule (two weeks on, two weeks off), and in addition the job was sometimes dangerous and often involved the operation of heavy machinery.

¶3        While Jacob worked in the oil fields, the couple decided that Amy would—at least until the children were grown—forgo steady employment outside the home in order to care for the children. Amy did, however, run a small “foot zoning” business from which she earned approximately $250 per month.

¶4        In April 2018, Amy filed for divorce, citing irreconcilable differences. Jacob did not contest Amy’s petition; instead, the parties—neither of which were, at the time, represented by counsel—filed a joint stipulation, using forms provided by the court’s self-help center, agreeing to resolve all matters related to the divorce petition. As amended, the stipulation provided that Jacob would pay Amy $916 per month in child support—at least for another year or two until the parties’ youngest child reached the age of majority—and $2,300 per month in alimony. Jacob’s obligation to pay alimony was to last twenty-three years—until April 2041—unless Amy remarried or cohabited before that.

¶5        In the stipulation, the parties agreed that Jacob’s income was $8,233 per month, and that Amy’s income was $250 per month, and those figures were apparently used to calculate Jacob’s child support obligation according to applicable guidelines. But the stipulation contained no indication of how Jacob’s alimony obligation was calculated; in particular, the stipulation was silent as to what Amy’s reasonable monthly expenses might be.

¶6        Using court-approved forms, the parties incorporated the terms of their stipulation into proposed findings of fact and conclusions of law, as well as a proposed divorce decree, and the district court signed the documents, thus finalizing the parties’ divorce, in May 2018. The final documents, like the parties’ amended stipulation, provided that Jacob would pay $916 per month in child support and $2,300 per month in alimony, but contained no findings about Amy’s reasonable monthly expenses.

¶7        About eighteen months later, in November 2019, Jacob— now represented by an attorney—filed a petition to modify the alimony award contained in the decree. In the petition, Jacob alleged that “the income of both parties has significantly changed since their divorce was finalized.” With regard to his own income, Jacob alleged that he was “no longer working in the oil fields” because he was “no longer able to work the same work schedule and the same type of work because of how it was negatively affecting him.” He asserted that he was “going back to school” in an effort to begin a different career, and that he was “currently not working.” With regard to Amy’s income, Jacob alleged that Amy had become employed and earned $1,200 per month, and that her “self-employment income” had increased to $1,500 per month, such that Amy’s total monthly income was $2,700. Jacob alleged that the changes in the parties’ respective incomes constituted a “substantial change in circumstances that warrants a modification” of the alimony award.

¶8        Just a few weeks later, in January 2020, Amy—also now represented by an attorney—filed a motion for an order to show cause, asserting (among other things) that Jacob had failed to fully comply with his child support and alimony obligations. The court issued an order commanding Jacob to appear and show cause why he should not be held in contempt of court, and later held an evidentiary hearing to consider the matter. At that hearing, the court found that Jacob had “voluntarily quit his employment” in the oil fields and that, “if he hadn’t, he would have been able to pay what was ordered.” The court thus found Jacob in contempt and ordered him to pay Amy more than $22,000 in back child support and nearly $6,000 in unpaid alimony.

¶9        In the meantime, Jacob’s petition to modify remained pending, and the parties exchanged updated financial declarations in anticipation of an eventual trial. Amy’s first updated financial declaration, signed in December 2019, listed total annual income of nearly $11,000 (or about $889 per month) from three different sources: a new job, her foot zoning business, and teaching yoga classes. In this same declaration, Amy set forth monthly expenses of $4,084, with some of the expenses being at least partially attributable to her youngest child, who was still living in the home with Amy at that point. Then in August 2021, on the day of trial, Amy submitted a second updated financial declaration. According to this new declaration, Amy had recently obtained a different job, this one full-time, that paid her $45,000 per year ($3,750 per month). In addition, Amy stated that she earned $241 per month from her foot zoning business and $22 per week teaching yoga. She also asserted that her monthly expenses had increased to $4,795 (although the line-items listed in the declaration add to only $4,613), even though no children were living with her any longer. Among the changes from the 2019 declaration were a $500 increase in healthcare expenses, a $175 increase in real estate maintenance, a $100 increase in entertainment expenses, and an $88 increase in utilities.

¶10      In August 2021, the district court held a one-day bench trial to consider Jacob’s petition to modify. The only two witnesses to testify were Jacob and Amy. During his testimony, Jacob explained that he voluntarily left his position in the oil fields because he was no longer able to focus on his job duties to the degree he wanted, and he was worried that—due to the dangerous nature of the work—he would injure himself or someone else. However, he acknowledged, on cross-examination, that he was still physically able to perform the duties of the job; that his employer had not asked him to leave; that he had not received mental health counseling to address his concerns about the stress of his work; that he could have taken a leave of absence to address those issues and “gone back to” his job after that; and that if he had done so, he would still “be able to . . . pay the $2,300 a month in alimony.” He testified that, as of the time of trial, he was working at a home improvement warehouse earning $14 per hour, or $2,426 each month.

¶11      During her testimony, Amy testified that she had recently obtained full-time employment with the local chamber of commerce, in which she earned a salary of $3,750 per month. In response to direct questioning about this job, Amy conceded that she has “the ability to earn at least $3,750 a month,” and that she would be able to “do that moving forward.” In addition, she acknowledged that she earned additional income from her foot zoning business and her work as a yoga instructor. Amy testified that she earned some $100 per month from teaching yoga. With regard to her foot zoning business, she testified that she averaged ten treatments per month and charges $50 per treatment, and therefore earns $500 per month in revenue. But she testified that she must pay certain expenses associated with the business that eat up most of the revenue, resulting in her making only some $90 per year (or $7.50 per month) in profit. On cross-examination, she acknowledged that her total gross income from all sources, before expenses, was approximately $4,350 per month.

¶12 Amy testified that she was still living in the same house that the couple had been living in during the marriage, but that now—at the time of trial—she was living there alone because her children were grown and gone. With regard to expenses, she testified that her total monthly expenses were $4,084 in 2019 but had increased to $4,795 at the time of trial, despite the fact that, by the time of trial, she was living alone. She explained that new health insurance and home maintenance costs were largely responsible for the increase. But then, in response to a direct question about how her expenses at the time of the 2018 divorce compared to her expenses at the time of the 2021 modification trial, she testified that her expenses had “stayed the same.”

¶13      After trial, the parties (through counsel) submitted written closing arguments. Amy argued that, for purposes of the alimony computation, the court should impute to Jacob the same income he had made in the oil fields, find there to be no material and substantial change in circumstances, and on that basis dismiss the petition to modify. For his part, Jacob argued that the court should modify (or even terminate) his alimony obligation because Amy was now employed full-time and had the ability to provide for her own needs. In particular, Jacob argued that Amy’s reasonable expenses were in actuality less than the amounts reflected on her recent financial declaration and in her testimony, and that her increased income was sufficient to meet those needs.

¶14      A few weeks later, the district court issued a written ruling denying Jacob’s petition to modify. In its ruling, the court found that Jacob had voluntarily quit his job in the oil fields, and that his monthly income had decreased from $8,233 to $2,427. The court also found that Amy “currently works” for the local chamber of commerce “earning $45,000 annually,” and that Amy “also has side businesses doing foot treatments and teaching yoga.” But the court made no specific finding regarding Amy’s total income.

¶15      Building on these findings, the court concluded that Jacob’s change in income constituted “a substantial material change in circumstances that was not expressly stated in the decree.” The court did not separately analyze whether the change in Amy’s income also constituted such a change in circumstances.

¶16      Having concluded that there existed a substantial material change in circumstances, the court proceeded to “consider whether modification [of the alimony award] is appropriate.” The court began its analysis by examining Jacob’s income situation, and concluded that, because Jacob had left his job voluntarily and had not sustained any loss in earning capacity, Jacob “remains able to earn income at the level he was earning at the oil fields.” Accordingly, the court imputed to Jacob an income of $8,233 per month for purposes of the alimony calculation.

¶17 With regard to Amy’s expenses, the court found that her “financial needs . . . [have] not changed since” 2018, when “the stipulated decree was entered,” but made no specific finding as to the exact amount of those expenses.

¶18 And with respect to Amy’s earning capacity, the court offered its view that the “determinative factor[]” was not Amy’s income but, instead, her “ability to provide” for herself. On that score, the court found that “[n]o evidence was presented that [Amy] has obtained extra education or has otherwise increased her ability to earn since the time of the divorce,” and therefore concluded that—despite her increased income—her earning capacity had not changed. In so ruling, the court observed that it was Jacob’s “unilateral decision” to leave his job that compelled Amy to “obtain employment to provide for herself,” and stated that reducing Jacob’s alimony obligation where the precipitating event “was [Jacob’s] decision to leave his employment would set a precedent allowing parties who have stipulated to pay alimony to renege on that stipulation by taking a much lower paying job and forcing receiving parties to find additional employment by stopping alimony payments.”[2]

ISSUE AND STANDARDS OF REVIEW

¶19 Jacob now appeals the court’s denial of his petition to modify. In this context, “we review the district court’s underlying findings of fact, if any, for clear error,” Peeples v. Peeples, 2019 UT App 207, ¶ 11, 456 P.3d 1159, and we review its determination regarding the presence or absence of a substantial change of circumstances, as well as its ultimate determination regarding the petition to modify, for an abuse of discretion, see id.see also Armendariz v. Armendariz, 2018 UT App 175, ¶ 6, 436 P.3d 294. The district court’s choice of, and application of, the appropriate legal standard, however, “presents an issue of law that we review for correctness.” Peeples, 2019 UT App 207, ¶ 11.

ANALYSIS

¶20 We begin our analysis with a general discussion of petitions to modify alimony awards and the process courts are to follow when adjudicating such petitions. We then address Jacob’s claim that the court failed to follow the correct process in this case.

I

¶21      After a district court has made an award of alimony, the court “retains continuing jurisdiction to” modify that award “when it finds that there has been a substantial material change in circumstances.” See Nicholson v. Nicholson, 2017 UT App 155, ¶ 7, 405 P.3d 749 (quotation simplified); see also Utah Code § 30-3-5(8)(i)(i) (2019).[3] If the court determines that no substantial material change in circumstances has occurred, then the court’s analysis ends, and the petition to modify the alimony award is properly denied. See Moon v. Moon, 1999 UT App 12, ¶ 27, 973 P.2d 431 (“As a threshold issue, before modifying an alimony award, the court must find a substantial material change in circumstances . . .” (quotation simplified)); see also Peeples v. Peeples, 2019 UT App 207, ¶ 32, 456 P.3d 1159 (affirming a district court’s denial of a petition to modify on the ground that there existed no substantial material change in circumstances).

¶22      If, however, the court finds that a substantial material change in circumstances has occurred, the court must conduct a complete analysis regarding whether the alimony award remains appropriate. See Nicholson, 2017 UT App 155, ¶ 7 (stating that, once a finding of changed circumstances “has been made, the court must then consider” the alimony factors (emphasis added) (quotation simplified)); accord Moon, 1999 UT App 12, ¶ 29. This analysis should include examination of the statutory alimony factors, see Utah Code § 30-3-5(8)(a) (2019), including the factors commonly referred to as “the Jones factors,” see Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985); see also Nicholson, 2017 UT App 155, ¶ 7 (stating that, after finding that circumstances have changed, “the court must then consider at least the following factors in determining a new alimony award: (i) the financial condition and needs of the recipient spouse; (ii) the recipient’s earning capacity or ability to produce income; (iii) the ability of the payor spouse to provide support; and (iv) the length of the marriage” (quotation simplified)). “These factors apply not only to an initial award of alimony, but also to a redetermination of alimony during a modification proceeding.” Williamson v. Williamson, 1999 UT App 219, ¶ 8, 983 P.2d 1103.

¶23      “Consideration of these factors is critical to achieving the purposes of alimony,” Paulsen v. Paulsen, 2018 UT App 22, ¶ 14, 414 P.3d 1023, which are “(1) to get the parties as close as possible to the same standard of living that existed during the marriage; (2) to equalize the standards of living of each party; and (3) to prevent the recipient spouse from becoming a public charge,” Miner v. Miner, 2021 UT App 77, ¶ 14, 496 P.3d 242 (quotation simplified). “The core function of alimony is therefore economic— it should not operate as a penalty against the payor nor a reward to the recipient.” Roberts v. Roberts, 2014 UT App 211, ¶ 14, 335 P.3d 378.

¶24      “Regardless of the payor spouse’s ability to pay more, the recipient spouse’s demonstrated need must constitute the maximum permissible alimony award.” Id. (quotation simplified); see also Barrani v. Barrani, 2014 UT App 204, ¶ 30, 334 P.3d 994 (“An alimony award in excess of the recipient’s need is a basis for remand”). Because a recipient spouse’s demonstrated need constitutes an effective “ceiling” on an alimony award, see Fox v. Fox, 2022 UT App 88, ¶ 19, 515 P.3d 481, courts often begin their analysis by assessing whether recipient spouses are able to meet their reasonable needs through their own income. See Vanderzon v. Vanderzon, 2017 UT App 150, ¶ 42, 402 P.3d 219 (stating that, in determining alimony, courts will generally “first assess the needs of the parties, in light of their marital standard of living” (quotation simplified)). If the recipient spouse is able to meet his or her own needs, then the analysis ends, and no award should be made, but if “the recipient spouse is not able to meet [his or] her own needs, then [the court] should assess whether the payor spouse’s income, after meeting his [or her] needs, is sufficient to make up some or all of the shortfall between the recipient spouse’s needs and income.” See id. (quotation simplified).

¶25      When considering the relevant alimony factors, courts are “required to make adequate factual findings on all material issues, unless the facts in the record are clear, uncontroverted, and capable of supporting only a finding in favor of the judgment.” Bukunowski v. Bukunowski, 2003 UT App 357, ¶ 9, 80 P.3d 153 (quotation simplified). When a district court fails to enter specific findings regarding “the needs and condition of the recipient spouse, making effective review of the alimony award impossible, that omission is an abuse of discretion.” Id. ¶ 10.

II

¶26 With these principles in mind, we turn our attention to Jacob’s assertion that the court failed to follow the correct process in adjudicating his petition to modify. In particular, Jacob asserts that the court—once it determined that there had been a substantial material change in circumstances—was required to conduct a complete analysis of all the alimony factors, and that it failed to properly do so.[4] We find merit in Jacob’s argument.

¶27      The district court started its analysis in the proper place, and assessed whether Jacob had demonstrated that there had been a substantial material change in circumstances that would justify reopening the alimony inquiry. Looking just at the change in Jacob’s own income, the court made a finding that there had been a “substantial change in circumstances.” And neither party takes issue with this finding on appeal; both appear to acknowledge the correctness of the court’s initial determination that circumstances affecting these parties had changed enough to justify a second look at the alimony situation.[5]

¶28 From there, though, the court’s analysis strayed from the proper path. After determining that the change in Jacob’s income constituted a substantial material change in circumstances, the court did not conduct a full analysis of the relevant alimony factors. With regard to Amy’s needs, the court’s analysis, in full, was simply this: “[Amyl testified that her monthly expenses have not increased from the time the parties were divorced in May 2018 until the time of trial in August of 2021.” The court made no finding that Amy’s testimony on that point was credible, see Rehn v. Rehn, 1999 UT App 41, ¶ 7, 974 P.2d 306 (“A trial court may not merely restate the recipient spouse’s testimony regarding her monthly expenses.” (quotation simplified)), and did not make any effort to assess what Amy’s reasonable monthly needs actually were; the court’s comparison to the 2018 divorce decree is especially unhelpful, in context, because that decree contained no specific determination regarding Amy’s expenses.

¶29 With regard to the parties’ earning capacity, the court acknowledged that Amy had obtained a full-time job that paid her $3,750 each month, and that Amy “earns additional income from a foot zoning business and teaching yoga.” But the court made no finding as to what Amy’s total income actually was, stating that “[n]o evidence was presented that [Amy] has obtained extra education or has otherwise increased her ability to earn since the time of the divorce, only that her actual income has increased.”

¶30 And with regard to Jacob, the court found that he had voluntarily left his job in the oil fields, and that he “remains able to earn income at the level he was earning” before. On that basis, the court imputed to Jacob income of $8,233 per month, despite the fact that Jacob was no longer earning that amount. Jacob takes no issue with this imputation determination on appeal.

¶31      The court then completed its analysis by stating as follows: “[Amy’s] financial needs and both parties’ ability to earn has not changed since the time the stipulated decree was entered. Therefore, [Jacob’s] Petition to Modify the alimony ordered in the decree is DENIED.”

¶32 In our view, the court was, at least to some extent, conflating the “changed circumstances” part of the analysis with the “Jones factors” part of the analysis. Its first mistake was failing to make a specific finding regarding Amy’s reasonable monthly needs. As noted, no such finding had been made in connection with the 2018 decree, and Amy had submitted two conflicting financial declarations since then. In order to complete the multi-factor alimony analysis mandated by the court’s unchallenged conclusion that circumstances had materially changed, the court needed to make an actual finding regarding Amy’s expenses.[6]

¶33 The next error the court made was in determining that Amy’s earning capacity had not changed, even though her income had. And here, it is important to differentiate between situations in which a spouse’s income goes down from situations in which a spouse’s income goes up. Certainly, where a spouse’s income goes down, it does not necessarily follow—indeed, it often does not follow—that the spouse’s earning capacity has also gone down; in such situations, courts retain the discretion to determine that, even though a spouse’s income has gone down, his or her earning capacity has not been diminished, and to impute to the spouse— for instance, on the basis of a finding of voluntary underemployment—an income in line with the unchanged earning capacity. See, e.g.Olson v. Olson, 704 P.2d 564, 566 (Utah 1985) (stating that where parties “experience[] a temporary decrease in income, [their] historical earnings must be taken into account in determining the amount of alimony to be paid”); Pankhurst v. Pankhurst, 2022 UT App 36, ¶¶ 14–15, 508 P.3d 612 (noting that “a finding of voluntary underemployment is not a prerequisite to imputing income,” and affirming a trial court’s determination to assess the payor spouse’s income at a higher level than his current income because the current lower income was “temporary” (quotation simplified)); Gerwe v. Gerwe, 2018 UT App 75, ¶ 31, 424 P.3d 1113 (crediting a trial court’s skepticism about a payor spouse’s sudden drop in income where the spouse “came into trial making a huge amount of money . . . and then all of a sudden is making no money because, you know, now it’s time to pay somebody” (quotation simplified)). Indeed, the district court made precisely such a finding with regard to Jacob, and no party takes issue with that finding here on appeal.

¶34 But the fact that a spouse’s income has gone up is very strong evidence that the spouse’s earning capacity has also risen. A party who is actually earning $45,000 per year will nearly always properly be deemed to have the capacity to earn at least that amount. There are, of course, exceptions: in some isolated instances, an increase in income is temporary and does not reflect an overall or long-term increase in earning capacity. See English v. English, 565 P.2d 409, 412 (Utah 1977) (stating that, when parties “experience[] unusual prosperity during one year,” that unusual income figure is not necessarily indicative of earning capacity); see alsoe.g.Woskob v. Woskob, 2004 PA Super 37, ¶ 28, 843 A.2d 1247 (holding that a spouse’s earning capacity, moving forward, was not reflected by three “retroactive salary bonuses” that were not likely to occur in the future, and stating that, since the spouse’s “elevated salary during [the] period [in which he received those bonuses] is totally disproportionate to his actual earning capacity, his support obligation should reflect his earning capacity rather than his actual earnings”). But before concluding that a spouse’s earning capacity is less than the spouse’s actual income, a court should have evidence that the spouse’s higher income is truly ephemeral and not indicative of long-term earning capacity.

¶35      No such evidence is present here. Amy has obtained a full-time salaried position that pays her a steady income of $45,000 per year. There is no indication that this job is only temporarily available to her. The evidence was undisputed that Amy’s earning capacity, moving forward, has increased, as exemplified by her new job; indeed, she testified that she has “the ability to earn at least $3,750 a month” at that job, and that she would be able to “do that moving forward.” The district court’s observation that Amy had not “obtained extra education” in an effort to grow her earning capacity is true as far as it goes. But even in the absence of any extra education or training, a spouse’s earning capacity can rise, and a spouse’s ability to obtain and maintain a salaried job is an extremely strong piece of evidence so indicating.

¶36      We certainly take the court’s point that the reason Amy felt compelled to find additional employment was because Jacob made the decision to quit his job and pay her less in alimony. In the court’s view, Jacob’s decision “forc[ed]” Amy “to find additional employment.” We take no issue with the court’s observation that the law should not incentivize payor spouses to become voluntarily underemployed. But we do not think the law contains any such incentive; indeed, the customary (and presumably adequate) remedy for such behavior is for the court— where appropriate, and as the court did here—to find the payor spouse underemployed and impute to that spouse an income commensurate with the previous salary.[7]

¶37 Thus, we conclude that the district court erred in its analysis of Amy’s earning capacity. It erroneously determined that Amy’s earning capacity had not changed. And based on this determination, it stopped short of making a specific finding as to what Amy’s new earning capacity was, taking into account her new full-time job and, if appropriate, her part-time side endeavors. See Degao Xu v. Hongguang Zhao, 2018 UT App 189, ¶ 31, 437 P.3d 411 (“When determining an alimony award, it is appropriate and necessary for a trial court to consider all sources of income that were used by the parties during their marriage to meet their self-defined needs, including income from a second job.” (quotation simplified)). The court should remedy these errors on remand, and should complete the calculation regarding Amy’s expenses and earning capacity, thus answering the question Jacob raises, namely, whether Amy has the ability to take care of her own needs through her own income.

¶38      Finally, the court’s analysis regarding Jacob’s ability to provide support was also incomplete, and will require additional analysis in the event the court concludes that Amy is not completely able to pay for all of her reasonable monthly needs. See Vanderzon v. Vanderzon, 2017 UT App 150, ¶ 42, 402 P.3d 219 (“[I]f 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.” (quotation simplified)). As already noted, the court imputed to Jacob a monthly income of $8,233, based on a finding of voluntary underemployment, and that determination is not challenged on appeal. But in order to compute Jacob’s ability to provide support to Amy to cover any determined shortfall, the court will need to compute Jacob’s reasonable monthly expenses, see Rehn, 1999 UT App 41, ¶ 10 (“To be sufficient, the findings should also address the obligor’s needs and expenditures, such as housing, payment of debts, and other living expenses.” (quotation simplified)), which the court did not endeavor to do in its order.

¶39      As to whether a shortfall exists, the parties take divergent positions on appeal. Jacob asserts that no shortfall exists, and that Amy is able to pay all of her own reasonable monthly expenses. Amy, for her part, contends that even with her newly increased income she still has “a shortfall of over $1,800.” But Jacob’s alimony obligation ($2,300) apparently exceeds even Amy’s current calculation of her shortfall; under Amy’s computation of expenses, then, Jacob would still be entitled to at least some modification of his alimony obligation. On remand, the district court should run this complete calculation, making specific findings on each of the relevant factors, and should determine the extent to which Jacob’s alimony obligation should be modified.

CONCLUSION

¶40      The district court did not apply the proper legal analysis to Jacob’s petition to modify, and erred when it concluded that Amy’s earning capacity had not changed. We reverse the court’s denial of Jacob’s petition to modify, and remand this case for further proceedings consistent with this opinion.

 

 

[1] Because the parties have the same last name, we refer to them by their first names for clarity, with no disrespect intended by the apparent informality.

[2] Amy does not argue that we should affirm the denial of Jacob’s petition to modify on the basis that the original award was derived from a stipulation, and therefore the district court’s comments about holding Jacob to his stipulation are not directly before this court. But we note, for clarity, that even stipulated alimony awards are subject to modification. See, e.g.Diener v. Diener, 2004 UT App 314, ¶ 5, 98 P.3d 1178 (noting that, while a court “is certainly empowered to consider the circumstances surrounding an existing stipulation when considering a petition to modify . . . , the law was intended to give the courts power to disregard the stipulations or agreements of the parties . . . and enter judgment for such alimony . . . as appears reasonable, and to thereafter modify such judgments when change of circumstances justifies it, regardless of attempts of the parties to control the matter by contract” (quotation simplified)); accord Sill v. Sill, 2007 UT App 173, ¶¶ 12–18, 164 P.3d 415.

[3] At the time Jacob filed his petition to modify, the relevant statute authorized modification of alimony awards when the movant could demonstrate that there had been “a substantial material change in circumstances not foreseeable at the time of the divorce.” Utah Code § 30-3-5(8)(i)(i) (2019) (emphasis added). In 2021, prior to the trial on Jacob’s petition to modify, our legislature amended that statutory provision; under current law, modification is authorized upon a showing that there has been “a substantial material change in circumstances not expressly stated in the divorce decree or in the findings that the court entered at the time of the divorce decree.” Id. § 30-3-5(11)(a) (2022) (emphasis added). In this appeal, the parties have not briefed the question of which version of the statute applies to Jacob’s petition to modify, nor has either side suggested that the outcome of this case turns on these differences in statutory text. Operating on the assumption that Jacob is entitled to application of the version of the statute in effect when he filed his petition, see State v. Clark, 2011 UT 23, ¶ 13, 251 P.3d 829 (stating that “we apply the law as it exists at the time of the event regulated by the law in question,” and that when that event is a motion, “we apply the law as it exists at the time the motion is filed”), we apply the 2019 version of the statute in this appeal, but follow the parties’ lead in presuming this application to have no effect on the outcome of the case.

 

[4] Amy characterizes Jacob’s appellate claims as assertions that the district court’s findings were inadequate, and argues based on this characterization that Jacob—by not asking the court to make more detailed findings—failed to preserve his claims for appellate review. See In re K.F., 2009 UT 4, ¶ 60, 201 P.3d 985 (stating that a party “waives any argument regarding whether the district court’s findings of fact were sufficiently detailed when the [party] fails to challenge the detail, or adequacy, of the findings with the district court” (quotation simplified)). While we acknowledge— as discussed herein—that the court did not make findings on several of the alimony factors, that was due to the court’s error (discussed herein) regarding Amy’s earning capacity, and its concomitant failure to complete the proper legal analysis. Thus, we disagree with Amy’s characterization of Jacob’s claims on appeal, and note that Jacob certainly preserved for our review the general question of whether the district court applied the correct legal analysis to his petition to modify, as well as the more specific question of whether Amy can meet her needs through her own income. Thus, we reject Amy’s assertion that Jacob’s contentions on appeal were not properly preserved for our review.

[5] We note that the court made this determination by looking solely at the change in Jacob’s income. Arguably, the change in Amy’s income would constitute a second basis for a determination that circumstances had changed significantly enough to revisit the appropriateness of the alimony award. Ultimately, however, it does not matter, for purposes of this appeal, which change the district court relied on to determine that a substantial material change had taken place.

[6] Amy argues that the “facts concerning [her] financial needs and conditions are clear from the record,” and on that basis urges us to excuse the court’s failure to make a specific finding. We disagree with the premise of Amy’s argument. At trial, Amy testified that her expenses had stayed the same since May 2018, but there was no 2018 figure to which Amy’s testimony could be compared. Moreover, after 2018, Amy submitted two conflicting financial declarations and, at trial, Jacob’s attorney established that Amy was then living alone rather than with one or more of the parties’ children. We therefore agree with Jacob that the evidence in the record regarding Amy’s expenses was sufficiently conflicting as to be significantly less than “clear.”

[7] Moreover, we do not think it inappropriate, in the abstract, for payee spouses to make an effort to enter the workforce, and thereby pursue a higher standard of living and a greater degree of independence from the payor spouse. We recognize that many spouses who have long been out of the workforce may find it difficult to reenter it, with or without additional education or training; generally speaking, our law does not require payee spouses in that situation to attempt to reenter the workforce in ways incongruous with their employment history. But a spouse who, whether by chance or perseverance, manages to gain a foothold in the workforce after a long absence may very well benefit from the experience; as we see it, our law should encourage self-sustainability and independence. Accordingly, we do not necessarily view—as the district court seemed to—the outcome of Amy’s employment journey to be an unfortunate one.

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Oldroyd v. Oldroyd – 2022 UT App 145 – Premarital Property

2022 UT App 145

THE UTAH COURT OF APPEALS

ROBBEN ANN OLDROYD,

Appellant,

v.

FARRELL LYNN OLDROYD, Appellee.

Opinion

No. 20210073-CA

Filed December 22, 2022

Second District Court, Morgan Department

The Honorable Noel S. Hyde No. 134500028

Brent D. Wride, Attorney for Appellant

Brian E. Arnold and Lauren Schultz, Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Prior to their marriage, Robben Ann Oldroyd (Ann) and Farrell Lynn Oldroyd (Farrell) built a home on property owned by Ann. Ann paid for the materials and contractors used in the construction of the home, and Farrell contributed his skills and labor to build the specialty log home. When the parties divorced many years later, a dispute arose regarding their relative interests in the home. This is the third time questions relating to their dispute have come before this court. In the current appeal, we are asked to consider whether the district court erred in awarding Farrell a share of Ann’s premarital equity in the home based on its application of the contribution and extraordinary situation exceptions to the separate-property presumption. We conclude that the contribution exception does not apply to premarital contributions and that the extraordinary situation exception does not apply because Farrell had other means of protecting his alleged interest in the home. Accordingly, we reverse the district court’s ruling and remand with instructions for the court to award the disputed equity to Ann.

BACKGROUND

¶2      This is the third time this matter has come before this court. See Oldroyd v. Oldroyd (Oldroyd I), 2017 UT App 45, 397 P.3d 645; Oldroyd v. Oldroyd (Oldroyd II), 2019 UT App 155, 474 P.3d 467. Each appeal has concerned the parties’ home. Ann purchased the land on which the home was built before the parties were married. Oldroyd I, 2017 UT App 45, ¶ 2. While Ann and Farrell were dating, Ann arranged to have the home built. Id. Ann paid for the costs of materials and construction, but Farrell contributed “supervision, labor, work, expertise, and conceptual direction” for the construction. Id. ¶¶ 2, 4 (quotation simplified). Subsequently, the parties married and lived together in the home, but the land and home remained in Ann’s name alone. Id. ¶ 2.

¶3 While both parties agree that Ann should receive a credit for what she spent on the land on which the home was built, the parties disagree about how the remaining equity in the home should be distributed. Farrell argues that all remaining equity should be shared equally between the parties. Ann, on the other hand, maintains that she should receive a credit for both the amount she spent on the land and the amount she spent on construction costs before the parties divide the remaining equity.[1]

¶4 In its original findings of fact and conclusions of law in the parties’ divorce, the district court found that Farrell’s nonmonetary contributions were “roughly equal” to Ann’s financial contributions and that he had therefore acquired “a separate premarital interest in the improvements on the property.” Id. ¶ 4

(quotation simplified). However, we overturned that determination on appeal because the court “did not explain what legal theory gave rise to that equitable interest.” Id. ¶ 8.

¶5 On remand, the district court again determined that Farrell had a premarital interest in the home but this time premised its ruling on a theory of unjust enrichment. Oldroyd II, 2019 UT App 155, ¶ 4. However, we once again reversed the court’s ruling, this time on the basis that Farrell had never asserted an unjust enrichment claim. Id. ¶¶ 7–9.

¶6 In Oldroyd II, we further explained that Farrell’s pleadings did not raise a claim that he had acquired a premarital interest in the home. Rather, Farrell asserted that because he had “exerted hours and money into the home, including trade work,” he “should be awarded a sum certain from [Ann’s] equity in the home for all the work he has completed on the home, and for value of his trade work that he has performed for investment on the marital home.” Id. ¶ 7 (quotation simplified). In other words, Farrell raised not an equitable claim “for a premarital interest in property,” but “a claim for an equitable award of a portion of [Ann’s] premarital asset.” Id. However, because the district court had not considered equitable bases on which Farrell might be entitled to a share of Ann’s premarital interest, we left open the possibility that the court might determine that such an award was appropriate. Id. ¶ 11 & n.3.

¶7 On remand, the district court, for the third time, awarded Farrell a share of equity in the home. This time, the court recognized that the property was Ann’s premarital asset but concluded that Farrell was entitled to a portion of Ann’s premarital equity based on the contribution exception and the extraordinary situation exception. Ann again appeals.

ISSUE AND STANDARD OF REVIEW

¶8 Ann asserts that the district court erred in awarding Farrell a share of her equity in the home because Farrell’s contributions occurred prior to the marriage and the extraordinary situation exception is not applicable. “We generally defer to a trial court’s categorization and equitable distribution of separate property,” Lindsey v. Lindsey, 2017 UT App 38, ¶ 26, 392 P.3d 968 (quotation simplified), so long as the court’s judgment “fall[s] within the spectrum of appropriate resolutions,” id. ¶ 29.

ANALYSIS

¶9 Historically, we have recognized three equitable exceptions that may justify an award of one spouse’s premarital property to the other spouse: (1) the commingling exception, (2) the contribution exception, and (3) the extraordinary situation exception. See Lindsey v. Lindsey, 2017 UT App 38, ¶ 33, 392 P.3d 968. Only the contribution exception and the extraordinary situation exception are at issue in this case.

¶10 As a threshold matter, we note that it is somewhat unclear from the district court’s discussion whether it was relying on the contribution exception, the extraordinary situation exception, or both exceptions in awarding the disputed funds. The parties’ arguments on appeal primarily concern the applicability of the extraordinary situation exception, and they appear to be operating under the assumption that the court’s decision rested on that exception. However, given that the court’s application of the extraordinary situation exception was based on its determination that Farrell’s premarital contributions made it equitable to award him a share of Ann’s premarital property, we think it appropriate to address both exceptions in our analysis.

I. Contribution Exception

¶11 “Under the contribution exception, a spouse’s separate property may be subject to equitable distribution [upon divorce] when the other spouse has by his or her efforts or expense contributed to the enhancement, maintenance, or protection of that property, thereby acquiring an equitable interest in it.” Lindsey v. Lindsey, 2017 UT App 38, ¶ 35, 392 P.3d 968 (quotation simplified). Common examples include a spouse working for the other spouse’s premarital business without taking a salary, see, e.g., Rappleye v. Rappleye, 855 P.2d 260, 263 (Utah Ct. App. 1993), or a couple using marital funds to make improvements to or pay a mortgage on a premarital property, see, e.g.Schaumberg v. Schaumberg, 875 P.2d 598, 601 (Utah Ct. App. 1994). However, as we noted in Oldroyd II, “[p]revious cases addressing equitable division of premarital assets have involved contributions made to those assets during the course of the marriage,” and “Utah courts have not had the opportunity to assess the extent to which one spouse’s premarital contributions to another spouse’s premarital assets may be considered in the context of a divorce court’s equitable division of property.”[2] 2019 UT App 155, ¶ 11 n.3, 474 P.3d 467.

¶12 Having now been presented with the opportunity to consider the applicability of the contribution exception to premarital contributions, we are convinced that it does not apply in this context. Unlike a married person, an unmarried person has no reasonable expectation of any benefit from or entitlement to separate property owned or acquired by their significant other. Here, Farrell chose to assist Ann in building her home without seeking compensation.[3] At that time, even though he may have expected to eventually marry Ann and live in the home with her, he had no guarantee that would happen. “As a general rule, . . . premarital property is viewed as separate property, and equity usually requires that each party retain the separate property he or she brought into the marriage.” Walters v. Walters, 812 P.2d 64, 67 (Utah Ct. App. 1991) (quotation simplified), superseded by statute on other grounds as stated in Whyte v. Blair, 885 P.2d 791 (Utah 1994). Only “where unique circumstances exist” may a trial court “reallocate premarital property as part of a property division incident to divorce.” Id. “Generally, trial courts are . . . required to award premarital property, and appreciation on that property, to the spouse who brought the property into the marriage.” Elman v. Elman, 2002 UT App 83, ¶ 18, 45 P.3d 176.

¶13 Farrell had several options for protecting his interests, which he chose not to take advantage of. First, he could have entered into a contract with Ann requiring her to pay him for his services. Second, he could have negotiated a prenuptial agreement acknowledging his premarital contributions and granting him an interest in the home in case of divorce. Third— though likely an undesirable option given his relationship to Ann—Farrell could have filed a lawsuit bringing a quasi-contract claim, such as unjust enrichment, to obtain compensation for his services. However, the contribution exception is simply not one of the options available where the contributions occurred prior to the parties’ marriage.

II. Extraordinary Situation Exception

¶14 Just as Farrell’s premarital contributions to Ann’s premarital asset cannot support an award to him of Ann’s separate property under the contribution exception, they also cannot support an award under the extraordinary situation exception.

¶15 “The bar for establishing an extraordinary situation is high, traditionally requiring that invasion of a spouse’s separate property is the only way to achieve equity.” Lindsey v. Lindsey, 2017 UT App 38, ¶ 46, 392 P.3d 968 (quotation simplified). “A quintessential extraordinary situation arises when a spouse owns separate property but lacks income to provide alimony.” Id. In that circumstance, “an equitable distribution of the [separate property] would be well within the trial court’s discretion.” Kunzler v. Kunzler, 2008 UT App 263, ¶ 37, 190 P.3d 497 (Billings, J., concurring in part and dissenting in part); see also Burt v. Burt, 799 P.2d 1166, 1169 (Utah Ct. App. 1990) (“The court may award an interest in the inherited property to the non-heir spouse in lieu of alimony.”). The doctrine has also been applied in situations where a person did not contribute directly to their spouse’s premarital asset but their contributions to the marital estate allowed their spouse to enhance their own separate assets rather than the marital estate. See Henshaw v. Henshaw, 2012 UT App 56, ¶ 20 & n.7, 271 P.3d 837 (affirming an award of premarital ranch property to a wife, despite the fact that the value of the ranch had depreciated during the marriage, because the wife had borne “the financial burdens of the family in order to allow [the husband] to work almost exclusively on the ranch”); Elman v. Elman, 2002 UT App 83, ¶ 24, 45 P.3d 176 (affirming an award of stock in a premarital business to a wife whose income-earning activities allowed her husband to quit his job and devote time to managing and growing his premarital assets rather than contributing to marital assets). Taking on “domestic burdens” to make possible a spouse’s full-time participation in a premarital business may also be an extraordinary situation where the bulk of the business’s value is developed during the marriage. Savage v. Savage, 658 P.2d 1201, 1204 (Utah 1983).

¶16 But none of those examples reflect the situation we have here. Farrell seeks a portion of Ann’s premarital asset as payment for the work he did on the home prior to the couple’s marriage, not because Ann lacks the resources to pay alimony or enhanced her own separate asset during the marriage in lieu of contributing to the marital estate. And as we discussed above, Farrell had several options to protect his financial interests and to be compensated for his contributions to the home before marrying Ann. The fact that he chose not to employ any of these options does not give rise to the type of inequity that can be addressed only through the extraordinary situation exception. As a general matter, “equitable relief should not be used to assist one in extricating himself from circumstances which he has created.” Utah Coal & Lumber Rest., Inc. v. Outdoor Endeavors Unlimited, 2001 UT 100, ¶ 12, 40 P.3d 581 (quotation simplified). Thus, the district court exceeded its discretion in awarding Farrell a portion of Ann’s premarital asset based on the extraordinary situation exception.

CONCLUSION

¶17 Because we conclude that the contribution exception does not apply to premarital contributions to premarital property, that exception cannot be used to award Farrell a portion of Ann’s premarital interest in the home. Moreover, because Farrell had several options for seeking reimbursement for his premarital efforts, which he declined to exercise, awarding him an interest in the home at this stage of the proceedings is not justified under the extraordinary situation exception. Accordingly, we reverse the court’s award of the disputed portion of the home’s equity and remand with instructions to award the disputed equity to Ann.

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

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2023 UT App 10 – Death of Spouse Before Court Rules

2023 UT App 10

THE UTAH COURT OF APPEALS

LIDIA V. MOWER,

Appellant,

v.

THOMAS W. MOWER, Appellee.

Opinion

No. 20210101-CA

Filed January 20, 2023

Fourth District Court, American Fork Department

The Honorable Roger W. Griffin No. 124100133

Cassie J. Medura and Jarrod H. Jennings, Attorneys for Appellant

Douglas B. Thayer and Mark R. Nelson, Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which

JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY concurred.

ORME, Judge:

¶1 Thomas E. Mower and Lidia V. Mower stipulated to a bifurcated divorce in which the district court dissolved their marriage but reserved for trial all other issues, which were the subject of contentious litigation. Thomas died after the trial concluded but shortly before the court issued its ruling that would have resolved all but one issue. As a result of Thomas’s death, the court held that it no longer had jurisdiction over the divorce action and closed the case, indicating that Lidia could pursue any surviving claims in probate court against Thomas’s estate.[1]

¶2 On appeal, Lidia argues that the court erroneously concluded that the unresolved claims in the divorce action abated on Thomas’s death. Thomas’s son, Thomas W. Mower (Thomas Jr.), in his capacity as special administrator of the Estate of Thomas E. Mower, by special appearance represents his late father’s interests on appeal. See generally Utah R. App. P. 38(a), (c). We hold that under the facts of this case, Thomas’s death did not deprive the court of jurisdiction to resolve most of the unresolved claims. Accordingly, we reverse and remand.

BACKGROUND

¶3 Thomas and Lidia married in 2001. Lidia initiated divorce proceedings in 2012. The ensuing litigation was very contentious and involved complex issues including grounds for divorce, a request for a retroactive increase in alimony,[2] custody of and parent-time with their child born during the marriage, child support, the potential equitable division of a large estate that was arguably “worth upwards of $150,000,000,”[3] and attorney fees.

¶4 In May 2013, on the parties’ stipulation, the district court entered a bifurcated decree of divorce, dissolving the parties’ marriage but reserving all other issues for trial. The court ruled that it would “value the estate as of the date this divorce decree enters rather than at the day of trial” and that “[a]ll other issues of dispute will remain open for further resolution by the Court.” Following entry of the bifurcated divorce decree, both parties remarried.

¶5 Four and a half years later, the bench trial in this case, which “included voluminous exhibits and witness testimony,” was held over the course of sixteen days between November 2017 and December 2018. Although the matter came under advisement awaiting a final ruling in January 2020, the district court “held status conferences to work through issues as they arose,” with the most recent one being held in July 2020.

¶6 Thomas passed away on August 2, 2020. The following day, the district court issued a ruling stating it would close the divorce action in twenty days unless it received a valid objection and a supporting memorandum. Lidia objected, filing a Motion for Entry of Final Property Division and a Rule 25 Motion to Substitute Party. Regarding the latter motion, Lidia requested that “the personal representative or other appropriate party” be substituted in the divorce action “to allow the Court to issue a final ruling regarding property settlement and all outstanding financial issues in this case.” See generally Utah R. Civ. P. 25(a)(1) (“If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties.”). Thomas’s counsel opposed Lidia’s objection and motions.[4]

¶7 In February 2021, following argument on the issues, the court overruled Lidia’s objection and denied her motions. The court first stated that shortly before Thomas’s death, it had completed “its findings of fact and was prepared to issue a ruling reserving only a single outstanding issue that [it] intended to invite the parties to address via supplemental briefing.” Despite this, following a lengthy discussion of Porenta v. Porenta, 2017 UT 78, 416 P.3d 487, the court held that its prior orders regarding child support, parent-time, and custody abated upon Thomas’s death and that Lidia, as the surviving party in a bifurcated divorce, was required “to pursue unresolved equitable claims to marital property before a probate court.” A few months later, the court issued a Final Order, stating, “Due to the untimely death of [Thomas], this court no longer has jurisdiction over this matter and this matter is closed.” ¶8 Lidia appeals.

ISSUE AND STANDARD OF REVIEW

¶9 Lidia argues that the court erred in closing the divorce action on the ground that Thomas’s death caused it to lose jurisdiction.[5] “We review a court’s determination of jurisdiction for correctness, granting no deference to the lower court.” In re S.W., 2017 UT 37, ¶ 7, 424 P.3d 7.

ANALYSIS

¶10 In concluding that Thomas’s death caused it to lose jurisdiction over the divorce action, the district court relied heavily on our Supreme Court’s opinion in Porenta v. Porenta, 2017 UT 78, 416 P.3d 487. In that case, during the pendency of a divorce action, the husband executed a quitclaim deed transferring his interest in the marital home to his mother in an effort to prevent the home from being distributed as part of the marital estate. Id. ¶¶ 2–3. The husband thereafter died, causing the district court to dismiss the divorce case for lack of jurisdiction. Id. ¶ 5. The wife then sued the mother, seeking to set aside the quitclaim deed under the Utah Fraudulent Transfer Act (the UFTA). Id. ¶ 6. The district court in that case ultimately ruled that the husband’s transfer of his interest in the home to his mother was fraudulent under the UFTA. Id. ¶ 8.

¶11 The mother appealed, arguing that the wife’s claim was barred because the UFTA requires an ongoing debtor-creditor relationship at the time a claim under the act is filed, which relationship the husband’s death had extinguished. Id. ¶ 9. Specifically, the mother argued that the wife’s claim against the husband “for the whole of the marital estate, including the right to preserve the joint tenancy” in the marital home, id. ¶ 14 (quotation simplified), became unenforceable when the husband died because one “cannot bring a claim against a dead person” and because “court orders that award a spouse with property abate upon the death of a spouse,” id. ¶ 16. See generally id. ¶ 12 (“The existence of a claim, or right to payment, is at the heart of the debtor-creditor relationship.”); id. ¶ 19 (“A claim for equitable distribution arises when one party in a marriage threatens divorce.”).

¶12 Quoting its prior decision in In re Harper’s Estate, 265 P.2d 1005 (Utah 1954), our Supreme Court reaffirmed that

when the death of one of the parties occurs after the entry of a divorce decree and before the decree is final the decree becomes ineffective to dissolve the marriage, death having terminated that personal relationship. However, the occurrence of death does not abate the action itself and to the extent that property rights are determined by the decree it remains effective and becomes final.

Porenta, 2017 UT 78, ¶ 20 (quotation simplified). See id. ¶ 28 (reaffirming the precedent set forth in In re Harper’s Estate). In other words, the Court held that “[t]he death of a spouse during a divorce proceeding abates the action concerning the dissolution of marriage, but it does not abate the action itself when certain property rights have been determined by the court.”[6] See id. ¶ 26 (quotation simplified). Conversely, “all interlocutory orders that are effective only during litigation,” such as orders restraining the parties from selling property or dissipating the marital estate, “abate upon the dismissal of a divorce case.” Id. ¶ 27. The court noted that this was in line with “the general rule followed in virtually all jurisdictions . . . that, after one of the spouses dies during a divorce proceeding, and during the time an appeal is pending or during the time when an appeal may be taken, a divorce or dissolution action abates with respect to marital status of the parties but does not abate with respect to property interests affected by the decree.” Id. ¶ 20 (quotation simplified).

¶13 Finally, the Court held that “[c]laims that survive the death of a party are typically chargeable against that party’s estate” and cited rule 25(a)(1) of the Utah Rules of Civil Procedure as a means through which to pursue such claims. Id. ¶ 30. See Utah R. Civ. P. 25(a)(1) (“If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties.”). Because the Court presumed that the wife’s “claim for the whole of the marital estate, including the right to preserve the joint tenancy” in the marital home was not extinguished and was still valid,[7] it held that “a debtor-creditor relationship existed between Husband’s estate and Wife at the time Wife filed her UFTA claim.” Id. ¶ 36 (quotation simplified).

¶14 In sum, as relevant to the issue presented in the current appeal, Porenta provides three major takeaways. First, if a spouse dies prior to entry of a final divorce decree, the marriage no longer requires dissolution because death already “terminated that personal relationship.” Id. ¶ 20 (quotation simplified). See 27A C.J.S. Divorce § 194 (2022) (“A cause of action for divorce is purely personal, ends on the death of either spouse, and does not survive for the benefit of a third party.”); 24 Am. Jur. 2d Divorce and Separation § 118 (2022) (“[A] divorce suit abates when one party dies while the suit is pending and before a decree on the merits, because the death terminates the marriage, thus rendering the divorce suit moot as it relates to the parties’ marital status.”). Second, court orders entered prior to the final divorce decree determining the property rights of the parties do not abate on the spouse’s death. See Porenta, 2017 UT 78, ¶ 20. However, any “interlocutory orders that are effective only during litigation abate upon the dismissal of a divorce case.” Id. ¶ 27. See id. ¶ 27 n.13 (“This is not unique to the area of divorce law. Interlocutory orders that expressly expire at the end of litigation do just that, regardless of the type of case or how the litigation finally ends.”). And third, certain unresolved claims or rights arising from a divorce action may still be pursued following the spouse’s death. See id. ¶ 36. See also 24 Am. Jur. 2d Divorce and Separation § 118

(“[G]iven the circumstances presented, a portion of the dissolution action may survive an abatement of the rest of the action.”).

¶15 Regarding the third point, because the issue had not been adequately briefed, the Porenta Court specifically declined to address “[w]hether a claim for equitable distribution or some other property claim survives the death of a spouse during a divorce proceeding,” Porenta, 2017 UT 78, ¶ 17, which the Court characterized as “an issue of first impression in Utah,” id. ¶ 28. Put differently, although the Court held that a district court’s orders determining the parties’ property rights do not abate upon a spouse’s death, it declined to determine whether the same was true for unresolved claims for equitable distribution or other property claims. In any event, the case before us is on a different footing, which likewise does not necessitate that we address that specific issue.

¶16 Unlike in Porenta, Thomas died after the district court entered a bifurcated divorce decree dissolving the parties’ marriage but leaving all unresolved issues for a trial that ultimately would not be held for several more years. See generally Utah R. Civ. P. 42(b) (“The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross claim, counterclaim, or third party claim, or of any separate issue or of any number of claims, cross claims, counterclaims, third party claims, or issues.”). Accordingly, because Thomas and Lidia’s marriage had already been dissolved at the time of Thomas’s death, we need not address the effect the death of a spouse has on the underlying claim for equitable distribution of the marital estate in the situation where the parties are still legally married at the time of the death.

¶17 Rather, the issue before us is more straightforward. As previously discussed, the reason a divorce action generally abates upon the death of a party is because the death already “terminated that personal relationship,” Porenta, 2017 UT 78, ¶ 20 (quotation simplified), thereby “rendering the divorce suit moot as it relates to the parties’ marital status,”[8] 24 Am. Jur. 2d Divorce and Separation § 118. But here, the parties stipulated to a bifurcated divorce, and their marriage had been dissolved several years prior to Thomas’s death. Indeed, both Thomas and Lidia had remarried. For that reason, unlike in Porenta, Thomas’s death had no legal effect on the parties’ already dissolved marriage and therefore the ground on which the divorce action discussed in Porenta abated—i.e., mootness—is not present here.

¶18 Utah courts regularly use bifurcation under rule 42(b) of the Utah Rules of Civil Procedure “to allow divorcing spouses to more expeditiously obtain a divorce before embarking upon the sometimes more complex and time-consuming tasks of determining property division and deciding matters of support.” Parker v. Parker, 2000 UT App 30, ¶ 8, 996 P.2d 565. It is uncontested that a district court’s jurisdiction “to enter equitable orders relating to the property belonging to the marital estate” is unaffected by the bifurcation. Porenta, 2017 UT 78, ¶ 19 (quotation simplified). See Utah Code Ann. § 30-3-5(2) (LexisNexis Supp. 2022). Indeed, the Utah Constitution directs, “The district court shall have original jurisdiction in all matters except as limited by this constitution or by statute[.]” Utah Const. art. VIII, § 5. See Utah Code Ann. § 78A-5-102(1) (LexisNexis Supp. 2022) (“Except as otherwise provided by the Utah Constitution or by statute, the district court has original jurisdiction in all matters civil and criminal.”). Furthermore, divorce courts are generally “well

¶19 Here, because the parties’ marriage was already dissolved prior to Thomas’s death, mootness—a jurisdictional bar, see State v. Legg, 2016 UT App 168, ¶ 25, 380 P.3d 360—does not apply to most of the claims at issue.[9] Because no other constitutional or statutory bar to the district court’s jurisdiction exists in the case before us, the district court erred in determining that it lacked jurisdiction over all of the claims that remained at issue and in dismissing the divorce action on that ground. See Estate of Burford v. Burford, 935 P.2d 943, 955 (Colo. 1997) (stating that when one party to a divorce proceeding died following dissolution of the parties’ marriage in a bifurcated divorce, “the dissolution action did not abate, and the district court properly maintained jurisdiction over the marital estate to conduct hearings to resolve financial matters raised in the dissolution proceedings”); Fernandez v. Fernandez, 648 So. 2d 712, 714 (Fla. 1995) (agreeing “that the trial court maintained jurisdiction to enter the final judgment determining the parties’ property rights subsequent to the wife’s death” where the court had dissolved the marriage prior to her death); Barnett v. Barnett, 768 So. 2d 441, 442 (Fla. 2000) (per curiam) (“[T]he death of a party after entry of a written, signed judgment of dissolution but prior to the rendition of a decision on a timely motion for rehearing concerning matters collateral to the adjudication of dissolution did not affect the dissolution decree or divest the court of jurisdiction to decide the remaining issues between the parties.”); 27A C.J.S. Divorce § 194 (“Once a decree in divorce is granted and, thereafter, one of the parties dies, the court can continue with the equitable distribution of marital property.”).

¶20 In cases such as this, in which “a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties.” Utah R. Civ. P. 25(a)(1). See Porenta, 2017 UT 78, ¶ 30 (stating that “[c]laims that survive the death of a party are typically chargeable against that party’s estate” and citing rule 25(a)(1) of the Utah Rules of Civil Procedure as a means through which this may be achieved). But whether to substitute a party remains within the district court’s discretion. See Bradburn v. Alarm Prot. Tech., LLC, 2019 UT 33, ¶ 8, 449 P.3d 20 (“A district court’s substitution ruling is a discretionary one[.]”). Additionally, as Thomas Jr. points out, the district court “has inherent discretionary authority to abstain from exercising jurisdiction where another court has concurrent jurisdiction.” See Kish v. Wright, 562 P.2d 625, 628 (Utah 1977) (“[A]s part of the inherent power that our district courts have, as courts of general jurisdiction, they undoubtedly could refuse to exercise jurisdiction if convinced that it would place an unreasonable burden upon some or all of the parties, or upon the court, to try the case here.”); id. (“[T]he trial court does have concurrent jurisdiction and the power of discretion as to whether or not it will invoke that jurisdiction in a particular case.”). These are all considerations that we leave to the district court’s discretion on remand.[10]

CONCLUSION

¶21 The district court was not required to dismiss the divorce action for lack of jurisdiction following Thomas’s death. We therefore reverse and remand to the district court with instructions to reconsider Lidia’s Motion for Entry of Final Property Distribution and Rule 25 Motion to Substitute Party.

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

____________________________________________________________________________________

[1] Because the individuals share the same last name, we follow our usual practice of referring to them by their first names, with no disrespect intended by the apparent informality.

[2] Lidia sought a retroactive increase of alimony for 51 months, which represented the span between entry of a temporary order awarding her alimony and her remarriage.

[3] This included the determination of what portion of the large estate constituted marital property and what portion constituted Thomas’s separate property.

[4] Thomas’s counsel continued to represent Thomas’s interests immediately after his death pursuant to Stoddard v. Smith, 2001 UT 47, 27 P.3d 546. See id. ¶ 11 (“An attorney has an ethical obligation to take the necessary steps to protect a deceased client’s interests immediately following the client’s death[.]”).

[5] 5. Thomas Jr. asserts that the district court did not actually rule that it lost jurisdiction over the divorce action. Instead, he suggests that the court simply exercised its “inherent equitable discretion in deciding to leave [Lidia] to pursue those claims in probate court.” But although the court’s initial ruling did not invoke the specific term “jurisdiction,” it nonetheless concluded, with our emphasis, that “Utah precedent requires a surviving party in a bifurcated divorce to pursue unresolved equitable claims to marital property before a probate court.” And in its Final Order, the court clarified, “Due to the untimely death of [Thomas], this court no longer has jurisdiction over this matter and this matter is closed.” Accordingly, the court did, in fact, conclude that it lacked jurisdiction and closed the divorce action on that ground.

Lidia also argues that the district court abused its discretion when it denied her motion to substitute Thomas’s personal representative in the divorce proceeding under rule 25 of the Utah Rules of Civil Procedure. But because the basis of the court’s denial of that motion was its lack of jurisdiction, which ruling we ultimately reverse, we remand to the district court with instructions to reconsider the rule 25 motion on the merits. See generally State v. De La Rosa, 2019 UT App 110, ¶ 4, 445 P.3d 955 (“Trial courts do not have discretion to misapply the law.”) (quotation simplified).

[6] Our Supreme Court also abandoned, as “clearly dictum,” a statement in one of its prior decisions that purported to overrule In re Harper’s EstateSee Porenta v. Porenta, 2017 UT 78, ¶ 22, 416 P.3d 487. Namely, the Court abandoned the statement that “the death of one or both parties to a divorce action during the pendency of the action causes the action itself to abate and the married couple’s status, including their property rights, reverts to what it had been before the action was filed.” Id. (quotation simplified). In other words, the Court rejected “the proposition that the parties’ property interests in the marital estate are frozen in time during the pendency of divorce litigation” and that “[i]f a party dies before the divorce becomes final, . . . property rights in the marital estate . . . are transported back in time to what they held before the divorce case was filed,” id. ¶ 23, which includes the reversal of any transfers of property that might have occurred during the pendency of the divorce action, id. ¶ 23 n.8.

[7] The court employed this presumption because the mother had not carried her burden of persuasion regarding whether property claims raised in a divorce proceeding survive the death of a spouse. See Porenta, 2017 UT 78, ¶¶ 32, 36; infra ¶ 15.

[8] The mootness doctrine “is a constitutional principle limiting our exercise of judicial power under article VIII of the Utah Constitution” and “not a simple matter of judicial convenience.” Transportation All. Bank v. International Confections Co., 2017 UT 55, ¶ 14, 423 P.3d 1171 (quotation simplified). “A case is deemed moot when the requested judicial relief cannot affect the rights of the litigants,” State v. Lane, 2009 UT 35, ¶ 18, 212 P.3d 529 (quotation simplified), thereby rendering a decision “purely advisory,” Transportation All. Bank, 2017 UT 55, ¶ 15 (quotation simplified). established as courts of equity that retain jurisdiction over the parties and subject matter for the purposes equity may demand.” Potts v. Potts, 2018 UT App 169, ¶ 13, 436 P.3d 263 (quotation simplified).

[9] Not all claims raised in the current divorce action concerned property rights. For example, it is undisputed that the claims related to custody, child support, and parent-time abated upon Thomas’s death. On remand, the district court should dismiss any remaining non-property claims that were rendered moot by Thomas’s death.

[10] We note that, sequentially, it may be more prudent for the district court to equitably distribute Lidia and Thomas’s marital estate—which potentially represents only a portion of Thomas’s vast estate that is the subject of the probate proceeding—rather than punting these issues to the probate court, especially where the district court had already prepared a ruling resolving all but one of the issues raised in the years-long divorce action that it superintended.

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Nix v. Nix – 2022 UT App 83- insufficient evidence of adultery

2022 UT App 83

THE UTAH COURT OF APPEALS

JILL NIX,

Appellee,

v.

ROLAND COMPTON NIX JR.,

Appellant.

Opinion

No. 20200691-CA

Filed June 30, 2022

Fourth District Court, Provo Department

The Honorable Darold J. McDade

No. 174402122

Seth D. Needs, Attorney for Appellant

D. Grant Dickinson, Attorney for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN concurred.

TENNEY, Judge:

¶1        Under the Utah Code, there are ten “[g]rounds for divorce,” one of which is “adultery committed by the respondent subsequent to marriage.” Utah Code Ann. § 30-3-1(3)(b) (LexisNexis 2019). Interpreting this provision, our supreme court has held that evidence of adultery “subsequent to the filing of a divorce complaint is inadmissible for the purpose of establishing grounds for divorce,” though it can be “admissible as lending weight to and corroborating testimony as to prior acts” of infidelity. Vrontikis v. Vrontikis, 358 P.2d 632, 632 (Utah 1961).

¶2        When Jill Nix filed for divorce from Roland Nix Jr., she alleged “adultery committed by Roland during the marriage” as one of “the grounds for dissolution of this marriage.” During his subsequent deposition, Roland declined to answer a question from Jill’s attorney about whether he’d had extramarital sexual relations “since the marriage.” The district court later concluded that this non-response constituted an adoptive admission that Roland had committed adultery before Jill filed for divorce. Based on this conclusion, the court awarded Jill a divorce on the ground of adultery.

¶3        Roland now appeals that decision. As explained below, we agree that Roland’s non-response did not provide sufficient evidence to establish that Roland committed adultery before Jill filed her divorce petition. We accordingly reverse.

BACKGROUND[1]

¶4        Jill filed for divorce from Roland in August 2017. In her petition, Jill asserted two “grounds for dissolution of [the] marriage,” one of which was “adultery committed by Roland during the marriage.” Jill also asserted cruelty as an alternative ground for divorce. But that alternative ground was not further litigated below, the district court never ruled on it, and neither party has raised any issue about it on appeal.

¶5        In his answer, Roland “denie[d]” Jill’s “[g]rounds.” But Roland did not want the marriage to continue, so he counter-petitioned for divorce on the ground of irreconcilable differences.

¶6        Roland was later deposed. During his deposition, the following exchange occurred between Jill’s counsel, Roland, and Roland’s counsel:

[Jill’s counsel:] Have you had any sexual relations with someone other than Jill since the marriage?

[Roland:] It is none of your business.

[Jill’s counsel:] Counsel I am entitled to know.

[Roland’s counsel:] I question the relevance. I don’t think that adultery or anything has been alleged in the pleadings.

. . . .

[Roland:] We are separated and that is none of their business.

. . . . [brief break taken by the parties]

[Jill’s counsel:] We left on the question of adultery. Mr. Nix what is your response?

After another objection and then more discussion between counsel, Roland made a somewhat vague reference to a woman with whom he’d apparently had some type of relationship. A short time later, Roland was asked, “And have you engaged in sexual relations with this person?” Roland answered, “Yes.”

¶7        Roland and Jill eventually settled most aspects of their divorce. But when they weren’t able to agree on the ground for divorce, Jill’s counsel requested a trial on that issue. At a scheduling conference, however, the parties and the court agreed on an alternative procedure under which the parties would submit memoranda about the ground for divorce, after which the court would hear oral argument on the matter.

¶8        In her memorandum, Jill pointed to Roland’s non-response to the deposition question of whether he’d “had any sexual relations with someone other than Jill since the marriage.” From this, Jill asked the court to draw “an adverse inference” that Roland had “committed adultery subsequent to the marriage.” In addition, Jill pointed to Roland’s express admission that he’d “engaged in sexual relations with this person.”

¶9        In his responsive memorandum, Roland asked the court to deny Jill’s request for an adultery-based divorce. Roland asserted that under Vrontikis v. Vrontikis, 358 P.2d 632 (Utah 1961), any adultery that he had committed after Jill filed for divorce could not constitute a ground for divorce. And Roland then argued that Jill had offered no evidence that he had “committed adultery prior to her filing for divorce.”

¶10      After briefing and then a hearing, the district court issued a written decision. There, the court agreed that under Vrontikis, “adulterous conduct subsequent to a divorce petition does not constitute fault,” but that “evidence of such conduct can be used to lend weight” to other evidence that the party had “committed adultery prior to the divorce petition.” (Emphases omitted.) The court then concluded that although Roland had expressly admitted to adultery in his deposition, this express admission had only been to “adultery subsequent to the divorce petition, but prior to divorce finalization.”[2]

¶11 Given its understanding of Vrontikis, the court next considered whether there was any evidence of pre-filing adultery. The court concluded that there was. In the court’s view, Roland’s non-response to the deposition question about whether he’d had sexual relations “since the marriage” qualified as an adoptive admission under rule 801(d)(2)(B) of the Utah Rules of Evidence. Notably, the court not only regarded this as proof “that Roland did commit adultery,” but also as proof “that Roland’s adultery caused the divorce,” i.e., proof that the adultery happened pre-filing. Thus, the court concluded that even if “Roland’s express admission [was] not, stand[ing] alone, a grounds for fault, the adoptive admission satisfie[d] Jill’s burden to show that Roland’s adultery caused the divorce.” Based on this, the court later “awarded Jill a decree of divorce on the grounds of adultery.”

¶12 Roland subsequently filed a motion under rule 59 of the Utah Rules of Civil Procedure “for [a] new trial or for an alteration of judgment on the issue of grounds for divorce.” Roland challenged the district court’s ruling on several fronts, including procedural fairness, incorrect application of the adoptive admission standard, and insufficiency of the evidence. After Jill opposed the motion, the court denied it. Roland timely appealed.

ISSUE AND STANDARD OF REVIEW

¶13      Roland challenges the district court’s denial of his rule 59 motion. As he did below, Roland assails this ruling for several reasons. We need address only one of them: Roland’s contention that there was insufficient evidence to support the court’s determination that he committed adultery before Jill filed for divorce.

¶14      A district court ordinarily has “some discretion in deciding whether or not to grant a new trial.” Hansen v. Stewart, 761 P.2d 14, 17 (Utah 1988). But because Roland’s “challenge rests on a claim of insufficiency of the evidence, we will reverse only if, viewing the evidence in the light most favorable to the prevailing party, the evidence is insufficient to support the verdict.” In re Estate of Anderson, 2016 UT App 179, ¶ 7, 381 P.3d 1179 (quotation simplified); accord Hansen, 761 P.2d at 17.

ANALYSIS

¶15      The district court determined that Roland had committed adultery before Jill filed for divorce. It based this determination on Roland’s non-response to a question about this subject in his deposition, which the court regarded as an adoptive admission of pre-filing adultery.

¶16      On appeal, Roland first argues that the district court erred in concluding that his non-response qualified as an adoptive admission. But we need not decide whether this was so. Even assuming for the sake of argument that the non-response did qualify as an adoptive admission, the court was still required to point to some evidence that Roland had committed adultery before Jill filed for divorce. See Vrontikis v. Vrontikis, 358 P.2d 632, 632 (Utah 1961) (holding that evidence of adultery “subsequent to the filing of a divorce complaint is inadmissible for the purpose of establishing grounds for divorce,” though it can be “admissible as lending weight to and corroborating testimony as to prior acts” of infidelity).

¶17      Roland argues that there was no such evidence. Of note, Roland points out that, in the deposition exchange at issue, he “was never specifically asked whether he had had sexual relations with someone other than Jill since the marriage, but prior to the filing of the petition for divorce.” Having reviewed the portion of the deposition that is in the record, we agree. While Jill’s counsel asked Roland whether he had engaged in extramarital sexual relations, Jill’s counsel never asked Roland when he had done so. As a result, with respect to the critical issue of timing, the question and non-answer that supported the court’s adoptive-admission determination were silent.

¶18 Jill nevertheless points to Roland’s express admission of adultery. But on this, the district court only found that Roland had expressly admitted to postfiling adultery, and Jill has not challenged the court’s temporal limitation of its own finding on appeal. In any event, we’ve reviewed the exchange ourselves. We see nothing in it in which Roland said that his extramarital conduct was limited to post-filing behavior, but we also see nothing in it in which he admitted to any pre-filing conduct. Instead, as with the (alleged) adoptive admission, the timing of Roland’s behavior simply never came up.

¶19      This same defect exists with respect to the small amount of other evidence that Jill provided below to inferentially support her claims about Roland’s adultery. For example, Jill provided the court with a check that Roland had given her for alimony. This check was embossed with a picture of Roland and another woman, and in the identification block in the upper corner, it identified the other woman’s last name as “Nix.” Even accepting Jill’s contention that this could inferentially show that there was a sexual relationship between Roland and the other woman, what matters here is that the check was dated September 2019—which was after Jill had filed for divorce.

¶20      This leaves us with Jill’s final argument, which is to rely heavily on the favorable standard of review. Because Roland challenges the district court’s ruling on sufficiency grounds, we’re required to view the evidence in the light most favorable to the district court’s determination. But Roland’s argument presents us with a “no evidence” challenge—i.e., he argues that “even with the evidence in the record, nothing would demonstrate that . . . Roland committed adultery prior to the filing of the Petition for Divorce.” And to defeat such a claim, Jill “need only point to a scintilla of credible evidence from the record that supports the finding of fact in order to overcome [Roland’s] ‘no evidence’ assertion.” Wilson Supply, Inc. v. Fraden Mfg. Corp., 2002 UT 94, ¶ 22, 54 P.3d 1177.

¶21 She hasn’t. Even on such a review, there must be some evidence to support the determination in question. As we have explained in another context, a “reviewing court will stretch the evidentiary fabric as far as it will go,” but “this does not mean that the court can take a speculative leap across a remaining gap in order to sustain a verdict.” State v. Pullman, 2013 UT App 168, ¶ 14, 306 P.3d 827 (quotation simplified). Here, the evidence demonstrates that Roland engaged in sexual activity with another woman before his divorce was finalized. After all, he expressly admitted as much. But Vrontikis requires evidence of adultery at a particular time—namely, before the petitioner filed for divorce. Jill points to no evidence, and we see none, that even inferentially says anything about when Roland engaged in extramarital sexual activity. Without such evidence, the district court’s finding that Roland had engaged in pre-filing extramarital sexual relations cannot stand. We accordingly reverse for insufficient evidence.[3]

CONCLUSION

¶22 There was insufficient evidence to support the district court’s determination that Roland committed adultery before Jill filed for divorce. We accordingly reverse that decision and remand this case for further proceedings consistent with this opinion.[4]


[1] Because the parties share the same last name, we’ll follow our normal practice and refer to them by their first names, with no disrespect intended by the apparent informality. Also, for purposes of consistency and readability, we’ll use the parties’ first names (and corresponding pronouns) when quoting references to them from the record or the briefing, and we’ll do so without using brackets to note any such alterations.

[2] We note that Roland did not actually draw this chronological line in the portion of the deposition in which he made his express admission. But neither party has challenged the court’s determination that the express admission was only to post-filing adulterous conduct.

[3] Our determination leaves a potential wrinkle about what should happen next. At the close of his brief, Roland asks us to not only reverse on insufficiency grounds, but also to “alter the Ruling” ourselves to grant him a divorce on “the grounds of irreconcilable differences.” Roland provides us with no authority that establishes our ability to modify an order in this manner, however, so this request is inadequately briefed. Moreover, Jill petitioned for divorce on an alternative ground, but neither party on appeal has competently briefed the question of whether Jill would be entitled to continue litigating that ground if we reverse the district court’s adultery-based decree. Without such briefing, we decline to decide the question in the first instance.

[4] Jill has asked for her attorney fees on appeal. See Utah R. App. P. 24(a)(9). Because she is not the prevailing party in this appeal, we deny her request.

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How do you prove duress in a divorce?

I will answer your question in the context of Utah law because I practice divorce and family law in the state of Utah.  

First, here is how duress is defined in Utah: 

¶ 23 Under Utah law, duress exists when “a party’s manifestation of assent is induced by an improper threat by the other party that leaves the victim no reasonable alternative.” Andreini v. Hultgren, 860 P.2d 916, 921 (Utah 1993) (quoting Restatement (Second) of Contracts § 175(1) (1979)). Hence, two elements must be shown to exist in order to prove duress. First, there must be some improper threat made by the defendant. Second, that threat must leave the victim/plaintiff with no reasonable alternative but to consent to the contract. Neither element has been satisfied here. 

***** 

[Footnote 5] See Restatement (Second) of Contracts § 176(2) (1981), which states as follows: 

(2) A threat is improper if the resulting exchange is not on fair terms, and 

(a) the threatened act would harm the recipient and would not significantly benefit the party making the threat, 

(b) the effectiveness of the threat in inducing the manifestation of assent is significantly increased by prior unfair dealing by the party making the threat, or 

(c) what is threatened is otherwise a use of power for illegitimate ends. 

(Boud v. SDNCO, Inc., 54 P.3d 1131 (Utah 2002)) 

This exact question, i.e., how do you prove duress, came up in the Utah divorce case of Sweet v. Sweet (138 P.3d 635, 2006 UT App 216): 

MEMORANDUM DECISION 

¶ 1 Respondent Melanie Sweet (Wife) argues that the district court erred when it denied her motion to set aside the stipulated divorce decree between her and her ex-husband, Petitioner James Sweet (Husband), pursuant to rule 60(b) of the Utah Rules of Civil Procedure. See Utah R. Civ. P. 60(b). We affirm. 

¶ 2 First, Wife argues that the district court erred when it ruled that marital contracts are held to the same standard as any other contract. To support this assertion, she cites to the district court’s minute entry stating that to “set aside a stipulated [d]ecree of [d]ivorce, a party must, at a minimum, produce evidence that would constitute a defense to a common contract.” 

123¶ 3 In addressing the stipulated divorce decree between Wife and Husband, we first “acknowledge[ ] the general authority of spouses … to arrange property rights by a contract that is recognized and enforced by a court in the event of a divorce.” Reese v. Reese, 1999 UT 75, ¶ 24, 984 P.2d 987. And although the Utah Supreme Court has held that “contracts between spouses … are not necessarily judged on the same terms as contracts executed by persons operating at ‘arm’s length,’ ” we note that the court never set forth a different test or standard of review for such contracts. Id. Instead, the court has stated the general principle that “spouses … may make binding contracts with each other and arrange their affairs as they see fit, insofar as the negotiations are conducted in good faith … and do not unreasonably constrain the court’s equitable and statutory duties.” Id. at ¶ 25. In effect, the parties “are held to the highest degree of good faith, honesty, and candor,” and “agreements concerning the disposition of property owned by the parties at the time of their marriage are valid, so long as there is no fraud, coercion, or material nondisclosure.” Id. at ¶ 24 (quotations and citation omitted).  

4¶ 4 Wife ignores the entirety of the district court’s ruling and the context in which the challenged statement was made. More completely, the district court stated that 

[u]nlike [d]efault [j]udgments, [j]udgments reached pursuant to the [s]tipulation of the parties are given significant deference. In order to set aside a stipulated [d]ecree of [d]ivorce, a party must, at a minimum, produce evidence that would constitute a defense to a common contract. In order to show that the [s]tipulation was procured by fraud, [Wife] must show that she reasonably relied on a misrepresentation of a presently existing material fact. [Wife] failed to produce evidence which meets this standard. 

56¶ 5 After carefully weighing the evidence, the district court concluded that Wife failed to show the elements  necessary to establish coercion, fraud, misrepresentation, or duress. See Reese, 1999 UT 75 at ¶ 24, 984 P.2d 987; see also St. Pierre v. Edmonds, 645 P.2d 615, 619 (Utah 1982) (holding that “[d]uress and fraud are commonly held sufficient to vacate a property settlement in a divorce decree”). And a “district court … is vested with considerable discretion under [r]ule 60(b) in granting or denying a motion to set aside a judgment.” Katz v. Pierce, 732 P.2d 92, 93 (Utah 1986) (per curiam). Specifically, the district court held that 

[Wife’s] testimony with respect to alleged misrepresentations [is] not credible…. Accepting all of [Wife’s] evidence as true, it nevertheless falls short of suggesting a lack of contractual capacity…. Accepting all of [Wife’s] evidence as true, the evidence falls short of establishing legal duress, or that [Husband] had inappropriately overcome her will. 

We find no error in the district court’s evaluation. 

789¶ 6 Second, Wife argues that the district court erred in finding that she failed to meet her burden of proof regarding her claims of fraud and duress. However, Wife failed to marshal the evidence supporting this finding. “In order to challenge a court’s factual findings, an appellant must first marshal all the evidence in support of the finding and then demonstrate that the evidence is legally insufficient to support the finding even when viewing it in a light most favorable to the court below.” Chen v. Stewart, 2004 UT 82, ¶ 76, 100 P.3d 1177 (emphasis added) (quotations and citation omitted); see also Utah R.App. P. 24(a)(9) (“A party challenging a fact finding must first marshal all record evidence that supports the challenged finding.”). 

¶ 7 Instead, Wife simply reasserts the evidence she presented to the district court and asks this court to reconsider the validity of that evidence. In fact, Wife’s arguments are “nothing but an attempt to have this [c]ourt substitute its judgment for that of the [district] court on a contested factual issue. This we cannot do.” Covey v. Covey, 2003 UT App 380, ¶ 28, 80 P.3d 553 (alterations in original) (quotations and citation omitted). 

¶ 8 Therefore, the district court did not err in denying Wife’s rule 60(b) motion to set aside her divorce decree. 

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

https://www.quora.com/How-do-you-prove-duress-in-a-divorce/answer/Eric-Johnson-311  

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