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Tag: Utah law

2024 UT App 40 – State v. Heward – plea agreement, ineffective assistance

2024 UT App 40 – State v. Heward

THE UTAH COURT OF APPEALS, STATE OF UTAH, Appellee, v. BENJAMIN LEE HEWARD, Appellant.

Opinion No. 20221055-CA Filed March 28, 2024 Fourth District Court, Provo Department

The Honorable Robert A. Lund No. 201400462

Scott F. Garrett and Jessica Griffin Anderson, Attorneys for Appellant

Sean D. Reyes and Andrew F. Peterson, Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS concurred.

MORTENSEN, Judge:

¶1        Benjamin Lee Heward pled guilty to two charges of aggravated sexual abuse of his two minor daughters. As part of his plea agreement, the State and the victims promised to “affirmatively recommend” a prison sentence of two concurrent terms of six years to life. At sentencing, the prosecutor argued against probation and recommended a sentence of six years to life, but the two victims testified they were having second thoughts about the arguably lenient sentence, a change that the prosecutor attempted to explain. Ultimately, the court followed the recommendation of Adult Probation and Parole (AP&P), sentencing Heward to fifteen years to life on each count, with the sentences to run concurrently. Heward now maintains that the prosecutor breached the plea agreement when he made statements about probation and the feelings of the victims, and he asserts that the district court should have acted sua sponte to remedy the situation. Heward also asserts that his attorney rendered ineffective assistance in failing to object to the prosecutor’s comments. We reject Heward’s claims of error and therefore affirm.

BACKGROUND

¶2          Heward was charged with ten counts of aggravated sexual abuse of a child and one count of rape of a child for the admitted abuse he inflicted on his two minor daughters over a number of years. Heward pled guilty to two of the aggravated sexual abuse charges: (1) rubbing his clothed genitals over the clothed genitals of his older daughter in an act of simulated sexual intercourse and (2) rubbing his younger daughter’s genitals skin to skin with his hand.

¶3          As part of the plea, the State agreed to dismiss the rape charge and the other eight aggravated sexual abuse charges. In addition, the plea agreement indicated that the “State and the victims” would “affirmatively recommend” a prison sentence of six years to life and lifetime sex-offender registration. In contrast, AP&P recommended that Heward be sentenced to fifteen years to life on each count.[1]

¶4          At sentencing, the prosecutor stated, “I know that based on . . . Heward’s statement and the recommendation from his sex offender treatment therapist he’s going to be asking for probation.” The prosecutor acknowledged there was a “very, very narrow exception” to the mandatory imprisonment required for aggravated sexual abuse of a child. See Utah Code § 76-5-404.3(7) (stating that imprisonment is mandatory). That exception allows a court to “suspend execution of sentence and consider probation to a residential sexual abuse treatment center only if,” along with numerous other conditions, the perpetrator’s offense “did not cause the child victim severe psychological harm.” Id. § 76-5­406.5(1)(b). To this point, the prosecutor argued,

Heward needs to show it’s in the best interest of the public and specifically the child victims that the Court should sentence him to probation instead. He can’t show that, Judge. He needs to show that these offenses did not cause the child victim severe psychological harm. He cannot show that, Judge. It’s clear based on the victim impact statements from both [of Heward’s daughters] that they are suffering severe psychological harm, continued psychological harm for what their father did to them.

¶5          The prosecutor then emphasized that Heward’s abuse would make it “extremely difficult” for his victims to have a “sense of peace” and that they were “going to be affected” for “the rest of their lives” because Heward “used them as sexual objects.” The prosecutor also pointed out that certain sex offenses involving children in Heward’s juvenile record indicated that he represented a danger to the community. The prosecutor concluded by saying, “He’s going to tell the Court right now that he should be granted probation because he’s not a threat to the community. The Court should disregard that.”

¶6          The prosecutor then gave Heward’s victims time to speak. The older daughter stated that Heward’s abuse had a “devastating impact” on her life, that she was “still suffering from his actions,” and that she was “always having to look over [her] shoulder making sure he’s not around” her. This daughter, after recounting the “painful memories” and her continuing trauma, stated that Heward was “being shown undue mercy . . . with a plea agreement.” She also noted that Heward had violated protective orders “[a]gain and again” and even at the sentencing hearing, he had “force[d]” and “manipulated” her and her sister “into an embrace with him.”

¶7          The younger daughter also spoke. She said that as a result of the abuse, she struggled with depression and anxiety. She shared that she continued to “feel uncomfortable leaving [her] room” because she was afraid that she would “get raped and sexually assaulted again.” She further revealed that whenever someone touches her “unexpectedly,” she is “startled” and “can physically feel it all happening again.”

¶8          After Heward’s victims finished speaking, the prosecutor expressed that he wanted “to talk about what the State’s recommendation [was] going to be.” He explained that “[i]n speaking with the victims through plea negotiations,” their “minimums were 6 to life” and “lifetime sex offender” registration. Then the following exchange took place:

Prosecutor: I spoke with [the victims] this morning, if they still feel the same way, understanding that I’m bound to the recommendation of 6 to life, that I thought it was important for the Court to know where the victims stand today. I asked them how they still felt about the 6 to life. They told me—

Court: May I say, . . . you bound yourself to 6 to life?

Prosecutor: Yes, sir, that is the State’s recommendation.

Court: Okay, . . . you need to be very careful you don’t say anything now that could be you trying to argue against that deal. So be circumspect in your comments.

Prosecutor: Judge, I’m not arguing that it should be anything else. I think the Court should be fully informed about where the victims are. The victims aren’t party to this agreement, but victims do have a right to be heard, and that can be through their own statements or through that of the prosecutor. They felt like they were manipulated by the defendant to feel sorry for him, and the Court did hear those statements today. They felt manipulated, and that’s why they wanted 6 to life. That’s the reason for the plea offer that was given, Judge. The State is still bound and still recommending 6 to life.

¶9          Heward’s attorney (Counsel) then spoke about mitigating factors that the court should consider in sentencing. Counsel agreed with the State that Heward “probably [was] not qualified” for the “statutory exception that allows for probation.” Counsel then concluded, “We would concur with the recommendation of the two concurrent 6 years. That’s what we’ve all agreed to, and that’s what I’d recommend.”

¶10 Other witnesses, including Heward’s mother and his therapist, spoke about various mitigating factors. And Heward himself spoke, stating that he was “not asking for probation.”

¶11        The court was not persuaded by the recitation of mitigating factors:

[I]t evidences a higher level of depravity when the victims are your biological children, and this conduct went on for years. . . . [T]hat’s also an aggravating circumstance. It’s an aggravating circumstance that you violated the protective order.

Frankly, based on the information that’s before me, it seems to me that you’ve minimized the conduct that you’ve been involved in. I’d be more inclined to accept the versions that [your daughters] provide in terms of what happened.

Based on all of that, I’m going to follow the AP&P recommendation. I don’t think that I have the discretion to sentence you to less than 15 years in prison. That’s the sentence of the Court. You’ll be sentenced to [two concurrent terms] of 15 years to life in the Utah State Prison.

¶12        Heward appeals.

ISSUES AND STANDARDS OF REVIEW

¶13        Heward first argues that the “prosecutor breached the plea agreement by failing to affirmatively recommend a prison sentence of six years to life and by implying the State regretted entering into the plea agreement.” Heward acknowledges that this claim was not preserved and asks that it be reviewed under both plain error and ineffective assistance of counsel. See State v. Shaffer, 2010 UT App 240, ¶ 9, 239 P.3d 285 (recognizing that an unpreserved alleged breach may be reviewed for plain error and ineffective assistance of counsel). To demonstrate plain error, Heward “must show that: (i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) absent the error, there is a reasonable likelihood of a more favorable outcome.” State v. Samul, 2018 UT App 177, ¶ 10, 436 P.3d 298 (cleaned up), cert. denied, 432 P.3d 1233 (Utah 2018). And “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.” Id. ¶ 11 (cleaned up).

ANALYSIS
I. Plain Error

¶14 Heward complains that the prosecutor breached the plea agreement in two separate but related ways. First, Heward argues that the prosecutor failed to “affirmatively recommend” the prison sentence of six years to life as indicated in the plea agreement. Second, Heward argues that the prosecutor then “compounded” the breach by bringing up the victims’ apparent change of heart about the plea agreement, implying that the State regretted entering the plea agreement. And Heward asserts that the district court “should have been aware of the errors the prosecutor made.” In such cases, our court has focused on whether a prosecutor’s statements were egregious enough to require a district court to act sua sponte to remedy the situation. See State v. Hummel, 2017 UT 19, ¶ 119, 393 P.3d 314 (“[N]one of [the prosecutor’s] statements was so egregiously false or misleading that the judge had an obligation to intervene by raising an objection sua sponte.”); State v. Hosman, 2021 UT App 103, ¶ 38, 496 P.3d 1162 (questioning whether a prosecutor’s statements were so egregious that it constituted plain error for the court to fail to intervene sua sponte to remedy the harm), cert. denied, 502 P.3d 270 (Utah 2021).

¶15 To succeed on this claim, Heward “must prove that the State actually breached the plea agreement, that the breach should have been obvious to the district court, and that had the district court recognized and remedied the breach, there is a reasonable likelihood that [his] sentence would have been more favorable.” State v. Gray, 2016 UT App 87, ¶ 15, 372 P.3d 715, cert. denied, 379 P.3d 1185 (Utah 2016). And “if any one of these requirements is not met, plain error is not established.” Id. (cleaned up).

¶16        “[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971); accord State v. Lindsey, 2014 UT App 288, ¶ 16, 340 P.3d 176. Accordingly, a “plea agreement is breached when the State fails to act in accord with its promise.” State v. Samulski, 2016 UT App 226, ¶ 13, 387 P.3d 595, cert. denied, 390 P.3d 725 (Utah 2017). However, “when a defendant alleges that the State violated a plea agreement by making inappropriate statements at sentencing, as [Heward] does here, we consider the prosecutor’s statements in the context of the entire hearing.” Gray, 2016 UT App 87, ¶ 16 (cleaned up).

  1. Affirmative Recommendation

¶17        Heward argues that the prosecutor failed to “affirmatively recommend” the prison sentence of six years to life agreed to in the plea. The gist of Heward’s argument is that “[i]n order to affirmatively recommend a sentence of six years to life, the prosecutor was required to make an effort to position the recommendation as one that is ‘in the interests of justice.’” (Quoting Utah Code § 76-5-404.3(4)(b).) Heward asserts that, instead, the prosecutor “utterly failed to make an argument or present the judge with any information that a sentence of six years to life was in the interests of justice.” Heward complains that the prosecutor “focused solely” on the limited discretion of the judge, certain aggravating factors (namely, the psychological harm suffered by the victims, Heward’s juvenile record, and Heward’s alleged violation of a protective order), and the victims’ alleged withdrawal of support for the plea agreement. “By emphasizing only aggravating factors in his argument,” Heward asserts, “the prosecutor failed to affirmatively recommend a sentence of six years to life,” resulting in “a clear breach.” We are not persuaded that any breach, let alone a clear one, occurred when the prosecutor highlighted these factors.

¶18        First, the prosecutor’s statements about aggravating factors were made not in reference to the plea agreement but in the context of arguing that Heward should not be offered probation under the limited statutory exception to mandatory imprisonment. By pointing to the severe psychological harm inflicted on the victims and Heward’s juvenile record, the prosecutor was explicitly arguing that Heward was not eligible for probation under the statute. And Heward’s violation of the protective order was also mentioned in the context of denying probation—specifically that Heward should start serving his sentence immediately. As the State points out, the prosecutor’s remarks about the protective order violations “weren’t about what Heward’s sentence should be, but when he should begin to serve it.” Arguing against probation and for immediate incarceration— even if it necessarily required the prosecutor to reference some aggravating factors relevant to other aspects of Heward’s sentencing—was consistent with the State’s recommendation of six years to life. After all, the plea agreement made it perfectly clear that the State would “affirmatively recommend” a prison term, a recommendation that obviously entitled the prosecutor to argue—even forcefully—against probation by highlighting specific reasons Heward did not qualify for probation.

¶19 Second, and more to the point, an “affirmative recommendation” does not require any particular measure of enthusiasm for an agreed-upon sentencing recommendation. While a prosecutor may not “undermine” a promised sentencing recommendation by expressing “personal reservations at the sentencing hearing,” the “prosecutor has no responsibility to make such recommendations enthusiastically.” State v. Shaffer, 2010 UT App 240, ¶ 26, 239 P.3d 285 (cleaned up); see also Gray, 2016 UT App 87, ¶ 18 (“[The prosecutor] described the circumstances of the crimes to underscore [the absence of mitigating factors], and at the conclusion of this discussion, he accurately, if not enthusiastically, described the recommendation the State had agreed to make for concurrent sentences . . . . [This] context supported a reasonable interpretation that comported with . . . the State’s obligations under the plea agreement.”).

¶20 Notably, the plea agreement does not contain any provisions regarding how the State was to fulfill its promise to “affirmatively recommend” the six-years-to-life sentence. It offers no guidance on how enthusiastically or forcefully the prosecutor had to argue in favor of the agreement. Nor does it indicate, as Heward argues on appeal that it should, any kind of obligation on the part of the prosecutor to highlight mitigating factors. And while it is true that the prosecutor did not approach the recommendation with gusto, it is even more clear that the prosecutor did affirmatively recommend the agreed-upon sentence two distinct times. The prosecutor explicitly declared that six years to life “is the State’s recommendation.” (Emphasis added.) And when cautioned by the court to “be circumspect” in his comments to avoid saying “anything” that “could be . . . trying to argue against that deal,” the prosecutor clarified that he was “not arguing that it should be anything else” and that the “State is still bound and still recommending 6 to life.” (Emphasis added.)

¶21 Moreover, these recommendations were “affirmative” in that the prosecutor did more than merely submit the matter without any argument against the defense’s recommendation; to the contrary, the State expressed its affirmative assent to the prison term agreed upon in the plea agreement. See State v. Samul, 2018 UT App 177, ¶¶ 13–17, 436 P.3d 298 (distinguishing between situations in which a plea agreement merely “secured the State’s promise not to oppose” the defense’s recommendation and situations in which a plea agreement requires the State to “affirmatively argue for” a particular sentence), cert. denied, 432 P.3d 1233 (Utah 2018). In this case, the prosecutor made an effort to positively express the State’s assent to the term of six years to life by declaring that the term “is the State’s recommendation.” (Emphasis added.) That the assent was expressed without great enthusiasm does not diminish that it was in the affirmative.

¶22 Thus, the prosecutor’s statements, especially when taken as a whole, represent a consistently unambiguous affirmation at sentencing that the State stood behind its recommendation of six years to life. We perceive no breach of the plea agreement in the manner in which the prosecutor recommended a six-years-to-life prison sentence.

  1. Implication of Regret

¶23 Heward next argues that in informing the court that the two victims apparently no longer supported the sentence of six years to life, the State breached the plea agreement by implying that it regretted entering it.

¶24 A prosecutor who “promises to recommend a certain sentence and does so” does not breach the bargain “by also bringing all relevant facts to the attention of the court, so long as the statements are neutral and do not imply that the information makes the State regret entering into the plea agreement.” Shaffer, 2010 UT App 240, ¶ 26 (cleaned up). The feelings of victims do not inherently reflect the position of the State, and victims are not authorized to communicate the State’s recommendations. Therefore, by sharing the victims’ feelings, the prosecutor was making a neutral statement, one that did not reflect the State’s position or recommendation. See id. ¶ 32 (“By repeating the victim’s statement, the prosecutor did not undermine the State’s recommendation or imply that the State regretted that recommendation.”). Thus, bringing to the court’s attention that the support of Heward’s victims for the plea agreement had perhaps waned does not imply that the State regretted entering the plea.

¶25        It is also important to note that the prosecutor made these comments immediately after Heward’s victims made statements that could admittedly cut against the sentence of six years to life. The older daughter seemed to explicitly oppose the plea agreement, saying that Heward was “being shown undue mercy . . . with a plea agreement.” And the younger daughter, while not overtly criticizing the plea agreement, described in detail how Heward’s abuse caused her to feel “numb,” depressed, anxious, “suicidal,” “unclean and dirty,” and untrusting. She further stated that she continued to have “very vivid nightmares and flashbacks” in which she could “physically feel his hands” on her. She also said, “I will never be able to forget how it felt when . . . Heward did the things he did to me. I’m afraid that wherever I go I will see him and he will hurt me in some type of way.” And she concluded by saying, “I want . . . Heward to learn from his actions, and I want him to know how badly he affected me . . . .” Given the graphic descriptions both victims provided of the ongoing harm they suffered, it certainly would not be a stretch to conclude that the victims thought Heward was being treated too leniently by the terms of the plea agreement.[2]

¶26 It was against this backdrop that the prosecutor spoke. As the State points out, the victims’ apparent “about-face on the plea agreement demanded an explanation” because the “court may have been confused by the disparity between the victims’ statements at sentencing and the plea agreement.” After all, the plea agreement stated that the “State and victims will affirmatively recommend” a sentence of six years to life. But after the victims spoke, the court could have easily concluded that the victims were no longer on board. It is in this milieu that the prosecutor assured the court that in “speaking with the victims through plea negotiations,” their “minimums were 6 to life” and “lifetime sex offender registry” and that was the offer the State gave Heward. Then the prosecutor explained that the victims had “wanted 6 to life” because “they felt manipulated” by Heward. We have made clear that a prosecutor conveying the views of the victim does not “undermine” or breach a plea agreement. Here, if anything, the prosecutor’s statements about how the victims felt represented an attempt to salvage the plea agreement after the victims’ statements could be taken as militating against it. And it was well within the prosecutor’s duty to assist the victims in making their views known. See State v. Casey, 2002 UT 29, ¶ 29, 44 P.3d 756 (“Prosecutors must assist victims in exercising their right to be heard at plea hearings and provide them with clear explanations regarding such proceedings.” (cleaned up)). The prosecutor appeared to be making the best of a delicate situation by juggling the interests of the various parties involved while trying to also honor the promises made in the plea agreement.

¶27        In sum, Heward’s complaint of plain error fails because the prosecutor did not breach the plea agreement at all, let alone commit a breach so obvious as to require the district court to intervene without an objection.

  1. Ineffective Assistance

¶28 Heward argues that Counsel provided ineffective assistance by failing to object to the prosecutor’s alleged breach of the plea agreement.

¶29 To show ineffective assistance of counsel, Heward must prove that Counsel performed deficiently and that he suffered prejudice as a result. See Strickland v. Washington, 466 U.S. 668, 687 (1984). “Because failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim, we are free to address [Heward’s claim] under either prong.” Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d 182. Since we conclude, for two reasons, that Counsel did not perform deficiently, we limit our analysis to the deficiency prong. We give “trial counsel wide latitude in making tactical decisions and will not question such decisions unless there is no reasonable basis supporting them.” State v. Heyen, 2020 UT App 147, ¶ 18, 477 P.3d 23 (cleaned up), cert. denied, 485 P.3d 943 (Utah 2021). So, to prevail on Strickland’s first prong, Heward “must overcome the strong presumption that trial counsel rendered adequate assistance and exercised reasonable professional judgment by persuading the court that there was no conceivable tactical basis for counsel’s actions.” State v. Samul, 2018 UT App 177, ¶ 15, 436 P.3d 298 (cleaned up), cert. denied, 432 P.3d 1233 (Utah 2018).

¶30 First, any objection would have been unlikely to succeed because, as we have explained above, it was far from clear that the prosecutor breached the plea agreement. See State v. Burdick, 2014 UT App 34, ¶ 34, 320 P.3d 55 (“It is well settled that counsel’s performance at trial is not deficient if counsel refrains from making futile objections, motions, or requests.” (cleaned up)), cert. denied, 329 P.3d 36 (Utah 2014). Under these circumstances, a reasonable attorney could have concluded that the prosecutor had made the required “affirmative recommendation” and had therefore not breached the plea agreement at all. See Samul, 2018 UT App 177, ¶ 16 (“Here, we can easily conceive of a reasoned basis for counsel’s decision not to object to the State’s remarks at sentencing: counsel may have believed that the State was accurately describing the terms of the plea agreement.”).

¶31        Second, even if we assume, for purposes of the discussion, that Counsel actually believed, in the moment, that the prosecutor’s sentencing remarks constituted a breach of the plea agreement, Counsel nevertheless had a solid strategic reason not to object to the prosecutor’s statements, namely, an objection could jeopardize the plea agreement and he very much wanted it to remain on the table owing to the favorable terms it offered Heward. Through the plea agreement, Heward would serve time for only two of his eleven charges—ten counts of aggravated sexual abuse of a child and one count of rape of a child. If Counsel had been successful in objecting that the prosecutor breached the plea agreement, one of two results would have likely happened. At its discretion, the district court could have ordered “either specific performance of the plea agreement or withdrawal of the guilty plea.” State v. Smit, 2004 UT App 222, ¶ 17, 95 P.3d 1203. If the court had ordered specific performance, the State would then have to reiterate that it was honoring the promises made in the plea agreement. But it would have been more likely (had a breach occurred) that the court would have allowed Heward to withdraw his plea—something he would be reluctant to do since the probability of getting an equally favorable offer later would be slim in light of the victims’ apparent reservations about the existing plea agreement. Competent counsel could easily conclude that the risk of objecting was simply too great considering the minimal benefit and likely downside. At the very least, competent counsel could have reasoned that there was no benefit in objecting because the existing agreement was the best Heward was going to receive. So, Counsel’s best course of action was to express Heward’s concurrence with the six-years-to-life sentence and hope that the court would agree.

¶32        Accordingly, Heward’s ineffective assistance claim fails because Counsel had sound strategic reasons for not lodging an objection to the prosecutor’s statements at sentencing.

CONCLUSION

¶33        Heward fails to establish that the district court plainly erred where he has not shown that the plea agreement was breached, much less obviously so. He has also failed to show that Counsel provided ineffective assistance in not objecting to the prosecutor’s statements.

¶34 Affirmed.

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


[1] For context, a court imposing a sentence for aggravated sexual abuse of a child may deviate downward from the presumptive upper range of fifteen years to life if the “court finds that a lesser term . . . is in the interests of justice.” See Utah Code § 76-5-404.3(4). The available lesser terms are ten years to life and six years to life. See id.

[2] In his reply brief, Heward explicitly states that he “does not object to the prosecutor facilitating the victims’ statements to the trial court.” Moreover, Heward does not claim in any way that the victims speaking up against the low-range sentence was a breach of the plea agreement, even where the plea agreement stated the victims would “affirmatively recommend” a sentence of six years to life along with the State.

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Is There a Primary Parent in Joint Custody in Utah Which Is Also Known as “Equal” or “50/50” Custody?

Utah, like many states, has struggled with the very concept of equal (“50/50”) custody of children for years. While progress has been made (especially in the past few years), we still struggle with it. Inexplicably, in my opinion.

For example, in Utah, we have § 30-3-35.2, entitled “Equal parent-time schedule.” It provides, in pertinent part: “(b) An order *under this section** shall result in 182 overnights per year for one parent, and 183 overnights per year for the other parent.” (emphasis mine)

Why? A 50/50 schedule would naturally result in the children spending equal time with the parents because a year has an odd number of overnights in it. Thus, in one year the children would spend 183 overnights with Mom and 182 with Dad, then the next year the children would spend 182 overnights with Mom and 183 with Dad. That results in an equal distribution of time with the children between the parents.

So, you can see how this Code section applies to your question of whether there is a primary parent in a joint equal (50/50) custody award situation.

*But here’s a strange note: To be awarded equal physical custody does not require that it be awarded according to the provisions of Utah Code § 30-3-35.2. In the cases in which I am involved where the parents agree to equal custody, I specify in the settlement agreement and in the custody orders that each parent has the children in his/her care and custody an average of 182.5 overnights annually, and include an statement like the one I provided above explaining how that works (i.e., “because a year has an odd number of overnights in it. Thus, in one year the children would spend 183 overnights with Mom and 182 with Dad, then the next year the children would spend 182 overnights with Mom and 183 with Dad. That results in an equal distribution of time with the children between the parents.”)

Accordingly, in Utah the answer to the question of, “Is there a primary parent in an equal physical custody award case?,” is that it’s possible for one parent to have the children in his/her custody one more overnight more than the other parent, but such a situation is not mandatory. Parents who truly want a perfectly equal division of child custody can have it, if they ensure that the language of the custody order so provides.

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

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Today’s blog post reviews House Bill 134 (HB0134 (utah.gov)), entitled “Marriage Modifications”.

It addresses the validation and recognition of a marriage regardless of the race, ethnicity, or national original of the parties to the marriage, and would repeal a current provision in the Utah Code on interracial marriage (i.e.Utah Code § 30-1-2.2)

H.B. 134 would, if passed into law, enact a new code section, § 30-1-2.4, which is proposed as follows:

28          30-1-2.4. Recognition and validation of marriage regardless of race, ethnicity, or
29     national origin of the parties.
30          (1) As used in this section, “governmental entity” means the state, a county, a
31     municipality, a special district, a special service district, a school district, a state institution of
32     higher education, or any other political subdivision or administrative unit of the state.
33          (2) (a) A marriage between two individuals may not be deemed invalid or prohibited
34     on the basis of the race, ethnicity, or national origin of those individuals.
35          (b) A marriage between two individuals that was not valid or legal before July 1, 1965,
36     on the basis of the race, ethnicity, or national origin of those individuals is considered valid and
37     legal in this state.
38          (3) (a) A county clerk may not refuse to issue a marriage license on the basis of the
39     race, ethnicity, or national origin of the individuals applying for the marriage license.
40          (b) If an employee Ĥ→ [or public official, a public official, or a designee, ←Ĥ of a
40a     governmental entity is authorized to
41     solemnize a marriage under Section 30-1-6, the employee Ĥ→ [or public official, public official,
41a     or designee ←Ĥ may not refuse to
42     solemnize a marriage on the basis of the race, ethnicity, or national origin of the parties to the
43     marriage.
44          (4) A governmental entity, or an employee or public official of a governmental entity,
45     may not deny a right or claim arising from a valid and legal marriage between two individuals
46     on the basis of the race, ethnicity, or national origin of those individuals.

So, is H.B. 134 a good idea? In my view, no.

Utah does not ban interracial or inter-ethnic marriages, nor does it ban marriages on the basis of one’s national origin. We have no need of a law that “recognizes as valid” marriages that are already legally valid. I am not aware of anyone being denied a marriage license or marriage on the basis of his/her  race, ethnicity, or national origin in Utah in my lifetime either (Utah’s anti-miscegenation statute was repealed in 1963).

H.B. 134 appears to me to be unnecessary. If you were wondering whether Utah has a law on the books currently that bans or imposes restrictions on interracial marriage, it’s nothing that scandalous. Here is the law that H.B. 134 would repeal:

Utah Code § 30-1-2.2.  Validation of interracial marriages.

All interracial marriages, otherwise valid and legal, contracted prior to July 1, 1965, to which one of the parties of the marriage was subject to disability to marry on account of Subsection 30-1-2(5) or (6), as those subsections existed prior to May 14, 1963, are hereby valid and made lawful in all respects as though such marriages had been duly and legally contracted in the first instance.

Indeed, the H.B. 134’s sponsor, Republican Rep. Anthony E. Loubet who told St. George News, “It was very clear that you couldn’t discriminate against somebody getting married, based off their race, ethnicity or national origin, but what this does is update the code so it reflects what our current practices are and then allows people the peace of mind knowing that if anything ever happens or changes on the federal side, they still have their protection on the state level.”

(‘We need to be colorblind’: Utah’s revised interracial marriage bill passes House – St George News (stgeorgeutah.com))

Even the bill’s sponsor acknowledges there is no gaping hole or shameful stain on Utah law that needs to be addressed with any new law. There is no justification to “fix” what ain’t broke. The last thing we need is superfluous laws on the books.

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

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Alimony in Utah, in Simple but No Less Accurate, Easily Understood Terms

Alimony is a hotly debated subject, whether one is divorced or not. As with most controversial topics, misinformation seems to find its way into the discussion. Alimony is not nearly as complex a subject as you might think. In this article, we state what you need to know about alimony in Utah in simple—but accurate–terms.

What factors must the court consider in awarding alimony? See Utah Code § 30-3-5(10):

(a)        The court shall consider at least the following factors in determining alimony:

(i)         the financial condition and needs of the recipient spouse;

(ii)        the recipient’s earning capacity or ability to produce income, including the impact of diminished workplace experience resulting from primarily caring for a child of the payor spouse;

(iii)       the ability of the payor spouse to provide support;

(iv)       the length of the marriage;

(v)        whether the recipient spouse has custody of a minor child requiring support;

(vi)       whether the recipient spouse worked in a business owned or operated by the payor spouse; and

(vii)      whether the recipient spouse directly contributed to any increase in the payor spouse’s skill by paying for education received by the payor spouse or enabling the payor spouse to attend school during the marriage.

(b)        The court may consider the fault of the parties in determining whether to award alimony and the terms of the alimony.

*****

(d)        As a general rule, the court should look to the standard of living, existing at the time of separation, in determining alimony in accordance with Subsection (10)(a). However, the court shall consider all relevant facts and equitable principles and may, in the court’s discretion, base alimony on the standard of living that existed at the time of trial. In marriages of short duration, when no child has been conceived or born during the marriage, the court may consider the standard of living that existed at the time of the marriage.

(e)        The court may, under appropriate circumstances, attempt to equalize the parties’ respective standards of living.

(f)        When a marriage of long duration dissolves on the threshold of a major change in the income of one of the spouses due to the collective efforts of both, that change shall be considered in dividing the marital property and in determining the amount of alimony. If one spouse’s earning capacity has been greatly enhanced through the efforts of both spouses during the marriage, the court may make a compensating adjustment in dividing the marital property and awarding alimony.

(g)        In determining alimony when a marriage of short duration dissolves, and no child has been conceived or born during the marriage, the court may consider restoring each party to the condition which existed at the time of the marriage.

Can you state the main factors for determining alimony in a nutshell? Yes. See Hansen v. Hansen (325 P.3d 864, 2014 UT App 96, ¶ 6 (Utah Court of Appeals, 2014)):

 “In fashioning an alimony award, the trial court is required to consider the payor spouse’s ability to pay and the recipient spouse’s need and ability to produce income.” Fish v. Fish, 2010 UT App 292, ¶ 12, 242 P.3d 787 (citing Utah Code Ann. § 30–3–5(8)(a)(i)–(iii) (Supp.2010) (current version at id. (LexisNexis 2013))). “Furthermore, the award should advance, as much as possible, the purposes of alimony by assisting the parties in achieving the same standard of living they enjoyed during the marriage, equalizing the parties’ respective standards of living, and preventing either spouse from becoming a public charge.” Id.

How is “fault” defined in the context of the alimony analysis? See Utah Code § 30-3-5(1)(b):

(b)        “Fault” means any of the following wrongful conduct during the marriage that substantially contributed to the breakup of the marriage:

(i)         engaging in sexual relations with an individual other than the party’s spouse;

(ii)        knowingly and intentionally causing or attempting to cause physical harm to the other party or a child;

(iii)       knowingly and intentionally causing the other party or a child to reasonably fear life-threatening harm; or

(iv)       substantially undermining the financial stability of the other party or the child.

If my spouse committed “fault” as defined in Utah Code § 30-3-5(1)(b), does that mean my spouse cannot be awarded alimony? No, not necessarily. While a spouse’s fault rarely results in disqualifying that spouse from receiving any alimony, fault can result in less alimony being paid (in the form of less paid each month and/or paid for a shorter length of time).

If I committed “fault” as defined in Utah Code § 30-3-5(1)(b), does that mean I must pay alimony? No (at least not under current construction of Utah law). Alimony cannot be awarded against you as a purely punitive measure, although your fault could result in paying more alimony (in the form of more paid each month and/or paid for a longer length of time) than you would have paid in the absence of fault.

See Roberts v. Roberts (335 P.3d 378 (Utah Court of Appeals, 2014), 2014 UT App 211):

It is settled law in Utah that “[t]he purpose of alimony is to provide support” to the recipient spouse “and not to inflict punitive damages” on the payor spouse. See English v. English, 565 P.2d 409, 411 (Utah 1977) (citation and internal quotation marks omitted). As early as 1946, the Utah Supreme Court overturned an alimony award that was clearly intended to “compensate [the wife] for her suffering” and “teach [the husband] a lesson.” Foreman v. Foreman, 111 Utah 72, 176 P.2d 144, 153–54 (1946). The court noted that “[n]either task is properly within the issues of a divorce case.” Id. at 153.

Does committing adultery automatically disqualify the adulterer/adulteress from receiving alimony? Does it automatically obligate the adulterer/adulteress to pay alimony? No and no. Adultery, standing alone, cannot have that effect.

What is the maximum period of time for which alimony can be awarded? See Utah Code § 30-3-5(e):

(i)         Except as provided in Subsection (11)(e)(iii), the court may not order alimony for a period of time longer than the length of the marriage.

(ii)        If a party is ordered to pay temporary alimony during the pendency of the divorce action, the period of time that the party pays temporary alimony shall be counted towards the period of time for which the party is ordered to pay alimony.

(iii)       At any time before the termination of alimony, the court may find extenuating circumstances or good cause that justify the payment of alimony for a longer period of time than the length of the marriage.

What does “the length of the marriage” mean? See Utah Code § 30-3-5(1)(c):

“Length of the marriage” means, for purposes of alimony, the number of years from the day on which the parties are legally married to the day on which the petition for divorce is filed with the court.

There are other aspects of alimony that Utah Code § 30-3-5 covers, so you’ll want to read the entire code section. Here is a link to Utah Code § 30-3-5

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2023 UT 11 – In Re C.D.S. And W.E.S – Appeal of Termination Parental Rights

2023 UT 11 – In re C.D.S. and W.E.S

IN THE SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH, in the interest of C.D.S. and W.E.S.,

persons under eighteen years of age.

A.S.,

Petitioner,

v.

STATE OF UTAH,

Respondent.

No. 20220580

Heard February 10, 2023

Filed June 8, 2023

On Certiorari to the Utah Court of Appeals

Eighth District Juvenile, Uintah County

The Honorable Ryan B. Evershed

Nos. 1178352, 1184710

Utah Court of Appeals, Salt Lake

No. 20220100

Attorneys:

K. Andrew Fitzgerald, Moab, for petitioner,

Sean D. Reyes, Att’y Gen., Carol L. C. Verdoia, John M. Peterson,

Asst. Atty’s Gen., Salt Lake City, for respondent

Martha Pierce, Salt Lake City, Guardian ad Litem for C.D.S.

and W.E.S.

ASSOCIATE CHIEF JUSTICE PEARCE authored the opinion of the Court,

in which CHIEF JUSTICE DURRANT, JUSTICE PETERSEN,

JUSTICE POHLMAN, and JUDGE CORNISH joined.

Having recused herself, JUSTICE HAGEN does not participate herein;

DISTRICT COURT JUDGE RITA M. CORNISH sat.

 

ASSOCIATE CHIEF JUSTICE PEARCE, opinion of the Court:

INTRODUCTION

¶1 The juvenile court terminated the parental rights of a mother and father. They each had fifteen days to appeal. Father appealed within that window. Mother filed her notice of appeal on the wrong side of the deadline. The court of appeals dismissed Mother’s appeal as untimely.

¶2 Mother argues that the court of appeals erred for a couple of reasons. We reject Mother’s argument that a minute entry that came after the court signed the final order restarted the clock on her time to appeal. But we agree with her that Utah Rule of Appellate Procedure 52(c)—together with Father’s timely appeal—extended her time to file a notice of appeal. We reverse and remand to the court of appeals.

BACKGROUND

¶3 In September 2019, the Division of Child and Family Services (DCFS) petitioned the juvenile court to remove two-year-old Chester from Mother and Father’s custody. At the time, Mother was pregnant with their second child, Winnie.[1]

¶4 The juvenile court placed Chester in the temporary custody of his aunt and uncle. The court also ordered DCFS to provide Mother and Father with reunification services.

¶5 After Winnie was born, DCFS initially allowed Winnie to stay with Mother and Father. A few months after Winnie’s birth, however, DCFS filed a “Motion for Expedited Placement and Temporary Custody” for Winnie. From the beginning of 2020 to the beginning of 2021, the juvenile court conducted several permanency and review hearings for the children. At the end of 2020, the court authorized Chester to live with Mother and Father in a trial home placement.

¶6 At a hearing a few months later, the juvenile court determined that, while Mother and Father had substantially complied with the reunification plan, reunification was not likely to be appropriate within the next ninety days. The court terminated DCFS’s reunification services and changed the children’s primary permanency goal from reunification to adoption.

¶7 In November 2021, the juvenile court held a trial. At the trial’s conclusion, the court indicated that it would enter an order terminating Mother’s and Father’s parental rights.

¶8 The juvenile court entered the written termination order (Termination Order) on January 7, 2022, which terminated Mother’s and Father’s parental rights. In it, the court detailed the grounds it relied upon to terminate Mother’s and Father’s parental rights. The juvenile court found that DCFS made reasonable efforts to provide reunification services to Mother and Father, and found that it was in the best interest of the children for Mother’s and Father’s parental rights to be terminated and for the children to be adopted.

¶9 The Termination Order stated: “This is a final and appealable order. There will be no further order after this as related to the parent’s [sic] parental rights.” It also informed Mother and Father that they had “15 days from the signing of this order to file a Notice of Appeal with the Juvenile Court.”[2]

¶10 On January 10, 2022, the juvenile court filed a minute entry titled “Minutes.”[3] The Minutes contained a condensed recitation of what had occurred at trial. Among other particulars, it detailed who was present in the courtroom, the names of those who testified, and the exhibits the court entered into evidence. The Minutes also contained several findings of fact and ordered the termination of Mother’s and Father’s parental rights.

¶11 On January 24, 2022, Father filed his notice of appeal.[4] On January 25, Mother’s trial counsel filed a notice of appeal.

¶12 The court of appeals determined that Mother’s appeal was not filed within fifteen days of the Termination Order, as Utah Rule of Appellate Procedure 52(a) requires. The panel dismissed the appeal for lack of jurisdiction. This court granted certiorari review.

¶13 Mother contends that her appeal was timely filed for at least one of two reasons. Mother first points to the Minutes that the court filed several days after it entered the written termination order. Mother argues that the minute entry constitutes a new appealable order and that she had fifteen days from the entry of that order to file her notice of appeal. The State and the guardian ad litem disagree.

¶14 Mother next asserts that the Utah Rules of Appellate Procedure allow her to file a notice of appeal within five days of Father’s timely filed notice. Rule 52(c) states that after a party files a notice of appeal, “any other party” may file its notice of appeal within five days. Mother asserts that she is “any other party” within the rule’s meaning. The State largely agrees with Mother’s argument. The guardian ad litem does not.

STANDARD OF REVIEW

¶15 “Whether jurisdiction is proper is a legal question that we review for correctness . . . .” State ex rel. A.C.M., 2009 UT 30, ¶ 6, 221 P.3d 185. The court of appeals based its decision on an interpretation of the Utah Rules of Appellate Procedure. “The interpretation of a rule of procedure is a question of law that we review for correctness.” Arbogast Family Tr. v. River Crossings, LLC, 2010 UT 40, ¶ 10, 238 P.3d 1035 (cleaned up).

ANALYSIS

I. THE MINUTE ENTRY DID NOT EXTEND MOTHER’S TIME TO APPEAL

¶16 The court of appeals held that it lacked jurisdiction over Mother’s appeal because it was filed outside the fifteen-day timeframe that Utah Rule of Appellate Procedure 52(c) provides. Mother argues that the court of appeals erred when it calculated the fifteen-day period from the entry of the Termination Order and not the subsequently entered Minutes. Mother argues that she is entitled to appeal from the Minutes and that her notice of appeal of that ruling was timely filed.

¶17 The State and the guardian ad litem argue that the court of appeals correctly held that the minute entry was not a separately appealable order. The State claims that the Minutes were “a mere ministerial document from which the judgment must be drawn” and that the minute entry was not an appealable order because it “was a belated entry that did not modify or change the substance of the Termination Order.” The guardian ad litem similarly argues that the Termination Order “triggered the timing for the notice of appeal” and that the minute entry was an inconsequential “after-the-fact ministerial document[].”

¶18 The clock to file a notice of appeal starts when “the court directs that no additional order need be entered.” Giusti v. Sterling Wentworth Corp., 2009 UT 2, ¶ 35, 201 P.3d 966. There can be no doubt that the Termination Order met this test. The Order stated: “There will be no further order after this as related to the parent’s [sic] parental rights,” and informed Mother and Father that they had fifteen days to appeal.[5]

¶19 This statement in the Termination Order alone, of course, does not answer the question this case presents. Mother asks what the effect is of a subsequently entered order on the same topic as a final appealable order. This is a question that we answered long ago. If one order starts to run the time for appeal, the entry of another order does not restart the clock if the later entry does not change the substance of the first.

¶20 For example, in Adamson v. Brockbank, we held that the defendants could file their appeal from an order amending an original judgment, even though the date to file a timely appeal from the original order had already passed. Adamson v. Brockbank, 185 P.2d 264, 268 (Utah 1947). The amended order corrected an inconsistency in the original judgment. Id. This correction clarified the liability of a defendant, an alteration we held was significant enough to change the character of the judgment. Id. We articulated the principle that, “where a belated entry merely constitutes an amendment or modification not changing the substance or character of the judgment, such entry . . . relates back to the time the original judgment was entered.” Id.

¶21 We relied on this holding in State v. Garner, 2005 UT 6, 106 P.3d 729. There, a modification to an original judgment clarified the nature of the defendant’s conditional plea in greater detail. Id. ¶ 12. But this was “a redundant addition, not a material change” and thus did not extend the time for Garner’s appeal. Id.¶¶ 11, 13.

¶22 Here, the Minutes did not amend or modify the substance of the Termination Order. The Minutes recited short findings of fact and repeated the conclusion that the parental rights be terminated. It did not change the parents’ rights or the children’s status. The minute entry did not amend or modify the Termination Order, so the time to appeal ran from the entry of the Termination Order. The court of appeals did not err when it rejected Mother’s argument.

II. RULE 52(C) EXTENDED MOTHER’S TIME TO APPEAL

¶23 Mother also argues that the court of appeals incorrectly concluded that Father’s appeal, filed one day before Mother’s, did not extend Mother’s time to appeal. The court of appeals held that rule 52(c) of the Utah Rules of Appellate Procedure “relates to cross-appeals, i.e., appeals filed by someone who has already been made a party to the appeal.” The court, therefore, held that Mother was “required to file her own timely appeal” because she “was not a party to Father’s appeal.”

¶24 Mother argues that rule 52(c) allows a party five days to file a notice of appeal from the date another party to the case files its notice of appeal.[6] The State agrees with Mother and contends the court of appeals incorrectly determined that “rule 52(c) did not render Mother’s notice of appeal timely.”[7] The State expresses uncertainty on whether Mother has initiated her own appeal or must be limited to the issues presented in Father’s appeal, but it still concludes that the “plain language of appellate rule 52(c) means that Mother has, at least, successfully initiated a cross-appeal.”[8]

¶25 “When we interpret a procedural rule, we do so according to our general rules of statutory construction.” Arbogast Family Tr. v. River Crossings, LLC, 2010 UT 40, ¶ 18, 238 P.3d 1035. In statutory construction, “our primary goal is to evince the true intent and purpose of the Legislature,” the “best evidence” of which “is the plain language of the statute itself.” Zilleruelo v. Commodity Transporters, Inc., 2022 UT 1, ¶ 18, 506 P.3d 509 (cleaned up). Thus, “[w]e interpret court rules, like statutes and administrative rules, according to their plain language.” Arbogast Family Tr., 2010 UT 40, ¶ 18 (cleaned up). Although we do this with the added wrinkle that, when we interpret the Utah Rules of Procedure, the intent we most often attempt to discern through the text is ours, and not the Legislature’s.

¶26 Rule 52(c) is straightforward: “If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 5 days after the first notice of appeal was filed.” UTAH R. APP. P. 52(c). Nothing in the language of the rule itself limits the phrase “any other party” the way the court of appeals did. That is, nothing in the plain text limits the rule’s reach to a party who is already part of the appeal.

¶27 The court of appeals’ reading of rule 52(c) appears to have been influenced by the rule’s title. We put the label “Time for cross-appeal” on that subsection. However, we have noted that “[t]he title of a statute is not part of the text of a statute, and absent ambiguity, it is generally not used to determine a statute’s intent.” Blaisdell v. Dentrix Dental Sys., Inc., 2012 UT 37, ¶ 10, 284 P.3d 616 (cleaned up). We are in what some would consider good company with that proposition. A prominent treatise on the topic counsels that a “title or heading should never be allowed to override the plain words of a text.” ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 222 (2012).[9]

¶28 It nevertheless appears the court of appeals relied on this title and imported the language “party to this appeal” into the rule, such that it would read: “If a timely notice of appeal is filed by a party, any other party [who was made party to the appeal] may file a notice of appeal within 5 days after the first notice of appeal was filed.” UTAH R. APP. P. 52(c).

¶29 As Mother points out, “[t]he rules do not define ‘a party’ as something different than those who were parties to the proceedings before the district or juvenile court.” The court of appeals’ dismissal incorrectly “would define ‘a party’ in the lower courts as different than ‘a party’ before the appellate courts on the same matter.”

¶30 Our reading of the rule is buttressed by how we understand rule 52(c) came to be. It is based on rule 4 of the Utah Rules of Appellate Procedure, which is, in turn, based on rule 4(a)(3) of the Federal Rules of Appellate Procedure.[10] See UTAH RULES OF APPELLATE PROCEDURE: WITH NOTES OF THE SUPREME COURT ADVISORY COMMITTEE 14 (1984) (on file with the Utah State Law Library) (stating that rule 4(d) “adopts substantially the time period and concept of cross-appeal in Rule 4(a)(3)” of the Federal Rules of Appellate Procedure).

¶31 Rule 4(a)(3) of the Federal Rules of Appellate Procedure gives a party fourteen days after another party appeals to file its appeal.[11] Wright and Miller’s treatise on federal procedure explains that rule 4(a)(3) allows any party to take advantage of the additional time to file a notice of appeal. “The 14-day provision is not limited to cross-appeals, and plainly encompasses appeals by other parties such as co-parties or third-party defendants.” 16A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE: JURISDICTION § 3950.7 (5th ed. 2022) (Westlaw).[12]

¶32 This interpretation reflects the views of the advisory committee. When the committee recommended a substantive amendment to this rule, it noted:

The added time which may be made available by the operation of the provision is not restricted to cross appeals in the technical sense, i.e., to appeals by parties made appellees by the nature of the initial appeal. The exception permits any party to the action who is entitled to appeal within the time ordinarily prescribed to appeal within such added time as the sentence affords.

Advisory Committee Note to 1966 Amendments to Federal Rule of Civil Procedure 73(a), 39 F.R.D. 69, 131 (1966) (amending then rule 73(a) of the Federal Rules of Civil Procedure, a rule later incorporated into the appellate rules).

¶33 In other words, if Mother were in federal court, or in a non-child welfare case in a Utah court, her appeal would undoubtedly be timely filed under rules that in all aspects—other than title and time frame—mirror rule 52(c). The only part of rule 52(c) that suggests a different result is the title, and, as we have noted, we don’t use titles that way.

¶34 And here, there is additional reason to believe that we did not intend to use the rule’s title to work a substantive limitation on the rule’s text. In 2003, the Advisory Committee on the Utah Rules of Appellate Procedure heard from an assistant attorney general in the Child Welfare Division who “described child welfare proceedings and the need to expedite appeals from parental rights terminations” to “help stabilize” children’s lives. Approved Minutes, SUPREME COURT’S ADVISORY COMMITTEE ON THE UTAH RULES OF APPELLATE PROCEDURE, ADMINISTRATIVE OFFICE OF THE COURTS (hereinafter Approved Minutes, SUPREME COURT’S ADVISORY COMMITTEE) (Nov. 19, 2003).

¶35 The need for speed was reiterated at a 2017 committee meeting, which discussed amendments to rule 52 and other child welfare appellate rules. The minutes of that meeting laid out that “[t]he purpose of these amendments is to expedite adoption and termination of parental rights appeals from the district courts and put them on the same footing as appeals from child welfare proceedings in the juvenile courts.” Approved Minutes, SUPREME COURT’S ADVISORY COMMITTEE (Sept. 7, 2017).

¶36 The rules committee also discussed the relationship between rule 52 and rule 4 when a member “proposed, and the committee agreed, that Rule 52 should be amended to make it consistent with the recent changes that were approved to Rule 4(b).” Approved Minutes, SUPREME COURT’S ADVISORY COMMITTEE (May 5, 2016). Thus, it appears the drive behind these rules was not to have rule 52(c) exclude certain appeals that rule 4 includes but to maintain the structure of rule 4 while expediting child welfare proceedings.[13]

¶37 The guardian ad litem offers a different interpretation of the rule than Mother, the State, and the court of appeals. She avers that Mother was a party to her own termination proceedings but was never, even at the district court level, a party to Father’s termination proceedings. The guardian ad litem thus contends that Mother was not “any party” in the context of the rule because she was not a party to the proceedings Father appealed.

¶38 The guardian ad litem supports this argument with something we said in State ex rel. A.C.M. There, we noted that we “treat the termination of each parent’s rights separately for purposes of finality and appealability.” State ex rel. A.C.M., 2009 UT 30, ¶ 12, 221 P.3d 185. The guardian ad litem in A.C.M. claimed that the order terminating the father’s parental rights was not a final order because the mother’s rights had not yet been terminated. Id. We reasoned that the order terminating the father’s rights was “final and appealable because it constitute[d] a change in the child’s status” with respect to the father. Id. That also prompted the observation on which the guardian ad litem relies.

¶39 We stand by the observation that we can treat the termination of each parent’s rights separately for the purposes of finality and appealability. But that is not to say that parents cannot be parties to the same case. And A.C.M. says nothing about the applicability of rule 52(c) when the system adjudicates both parents’ rights in the same action and addresses them in the same order.

¶40 The guardian ad litem claims that there was one termination proceeding for Father and a separate one for Mother—and that the juvenile court consolidated these cases without making either parent party to the other’s case. The record before us does not bear that out. A separate case was initiated relating to each child. Mother and Father were parties in both cases. The juvenile court consolidated Chester’s case and Winnie’s case, though each case maintained its own case number. The court did not—indeed, it could not— consolidate the parents’ cases, because those cases did not exist. The court conducted a single trial in which both Mother and Father presented evidence and arguments. That trial resulted in a single order that lists both Mother and Father as parties.

¶41 On these facts, we have no trouble concluding that Mother was “another party” within the meaning of Utah Rule of Appellate Procedure 52(c) and is entitled to the additional five days to file a notice of appeal.[14]

III. WE DECLINE TO ADDRESS MOTHER’S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL

¶42 Mother spends a considerable portion of her brief arguing that her appeal should be considered timely because her counsel was ineffective for filing past the fifteen-day deadline. Mother also argues she was prejudiced by her denial of the right to appeal.

¶43 Mother asked us to grant certiorari review on this issue. We did not. We note for future reference that an order that does not grant certiorari on an issue is a pretty good signal that we do not intend to address the question.[15]

CONCLUSION

¶44 The court of appeals correctly ruled that the time for Mother to file her appeal ran from the entry of the Termination Order and not the subsequent Minutes. The court of appeals erred when it concluded that Utah Rule of Appellate Procedure 52(c) only applied to parties filing a cross-appeal. Mother timely filed her notice of appeal. We reverse and remand to the court of appeals to consider Mother’s appeal.

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

 

[1] Chester and Winnie are pseudonyms.

[2] The Utah Rules of Appellate Procedure provide the fifteen-day timeline in child welfare proceedings. Rule 52(a) states that in this setting, a notice of appeal “must be filed within 15 days of the entry of the order appealed from.” UTAH R. APP. P. 52(a).

[3] As we march through our analysis, we will refer to this document as both the minute entry and the Minutes.

[4] The fifteenth day was Saturday, January 22, 2022. By operation of rule 22(a) of the Utah Rules of Appellate Procedure, which does not require parties to file on Saturdays and Sundays, the time for filing the petition was extended to the following Monday, January 24. See UTAH R. APP. P. 22(a).

[5] Mother questions whether our precedent on the finality of orders applies to child welfare proceedings. It generally does, though our rules and precedent make some distinction between child welfare and non-child welfare cases. For example, rule 58A of the Utah Rules of Civil Procedure requires that “[e]very judgment and amended judgment must be set out in a separate document.” There is no such requirement in child welfare proceedings. See UTAH R. APP. P. 52(a); State ex rel. A.C.M., 2009 UT 30, ¶ 10, 221 P.3d 185. But no rule or precedent alters the conclusion that a belated entry or modification that does not change the substance of a final order does not create a new final and appealable order.

[6] Rule 52(c) of the Utah Rules of Appellate Procedure, titled “Time for cross-appeal,” reads:

If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 5 days after the first notice of appeal was filed, or within the time otherwise prescribed by paragraphs (a) and (b) of this rule, whichever period last expires.

[7] The State—both in its briefs and during oral argument— acknowledges that rule 52(c)’s plain language supports Mother’s argument. We commend the State for its candor.

[8] The guardian ad litem disagrees for reasons we will discuss and dismiss in a page or two.

[9] That is not to say that titles are irrelevant. When “we need help understanding an ambiguous provision, titles are persuasive and can aid in ascertaining the statute’s correct interpretation and application.” Graham v. Albertson’s LLC, 2020 UT 15, ¶ 24, 462 P.3d 367 (cleaned up). We just don’t use titles to create ambiguity. This is because titles are generally shorthand descriptions of what is to follow and can miss some of the complexities of the text to come.

[10] Utah Rule of Appellate Procedure 4 states, in relevant part: “If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed.” UTAH R. APP. P. 4(d). Unlike rule 52(c), it gives “any other party” fourteen days (instead of five) to file an appeal. In addition, rule 4(d) is titled “Additional or cross-appeal” rather than “Time for cross-appeal.” Compare UTAH R. APP. P. 4(d), with UTAH R. APP. P. 52(c).

[11] The federal rule bears the title “Multiple Appeals.” FED. R. APP. P. 4(a)(3).

[12] Other treatises echo this understanding. See, e.g., JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE: CIVIL § 304.11 (2023) (LexisNexis) (“This provision is not restricted, however, to parties named as appellees in the initial appeal.”); 18 BENDER’S FEDERAL PRACTICE FORMS, COMMENT ON APPELLATE RULE 4 (2022) (LexisNexis) (“This provision is not restricted to parties named as appellees in the initial appeal. Any party to the action is entitled to the benefit of the additional 14-day period.”). This is also the way several federal cases have interpreted the rule. See, e.g.N. A,ii. Sav. Ass’n v. Metroplex Dev. P’ship, 931 F.2d 1073, 1077–78 (5th Cir. 1991); Melton v. Frank, 891 F.2d 1054, 1056 n.1 (2d Cir. 1989); Jackson Jordan, Inc. v. Plasser A,ii. Corp., 725 F.2d 1373, 1374–76 (Fed. Cir. 1984).

[13] We encourage the Advisory Committee on the Utah Rules of Appellate Procedure to look at clarifying the title so it better reflects the rule’s language and intent.

[14] 14 There is logic underlying rule 52(c). There may be occasions when a party’s calculus on whether to file an appeal may be impacted by another party’s decision to appeal. Using the facts of this case, for example—and we stress that this is a hypothetical and not a reflection of what we think actually occurred—it is entirely possible that a person in Mother’s position might decide not to appeal the termination of her parental rights if she thinks it will only delay adoption of the children. Mother’s thinking could dramatically change if her co-parent appeals and the possible outcomes include not only adoption, but restoration of Father’s parental rights and not hers. In that case, it makes sense that our rules would give Mother a few additional days to assess the changed landscape and decide whether to appeal.

[15] The guardian ad litem advocates that we task our rules committee with considering a new rule that would “reinstate the time for appeal in child welfare cases where a parent’s right to effective counsel is implicated.” We have previously recognized that a trial court may extend the time for appeal in a proceeding on termination of parental rights if a parent was denied effective assistance of counsel. State ex rel. M.M., 2003 UT 54, ¶¶ 6, 9, 82 P.3d 1104. But this is not the same as a rule that says the court shall reinstate the time for appeal when a parent can show that they have been denied effective representation. We encourage the Advisory Committee on the Utah Rules of Appellate Procedure to explore such a rule, and we thank the guardian ad litem for the excellent suggestion.

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2023 UT App 61 – State v. West – violation of civil stalking injunction

2023 UT App 61 – State v. West

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

DEBORAH JEAN WEST,

Appellant.

Opinion

No. 20210335-CA

Filed June 2, 2023

Fifth District Court, St. George Department

The Honorable Jeffrey C. Wilcox

The Honorable John J. Walton

No. 191500815

Nicolas D. Turner, Attorney for Appellant

Eric Clarke and James R. Weeks,

Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY

concurred.

CHRISTIANSEN FORSTER, Judge:

¶1        Deborah Jean West appeals from a jury’s determination that she violated a civil stalking injunction, challenging her conviction and the sentencing court’s sentence on several grounds. West asserts that the trial court erred in denying her pretrial motions to exclude certain evidence and to continue the trial. West also argues that her pro se post-trial motions to dismiss were denied in error. Finally, West argues that her constitutional right to be represented by counsel was violated when the court sentenced her without first determining whether her decision to represent herself was made knowingly and intelligently.

¶2        We uphold the trial court’s denial of the motion to exclude evidence and the motion to continue and therefore affirm West’s conviction. However, because the sentencing court did not ensure that West’s waiver of counsel was done knowingly, we vacate West’s sentence and remand for further proceedings. Because of our resolution of those issues, we do not reach the merits of West’s argument regarding her post-trial motions.

BACKGROUND

The Pretrial Motions and Trial

¶3        In May 2019, West was charged with violating a stalking injunction. The stalking injunction included the restriction that West was not to come within twenty feet of C.L. (Petitioner). The charge against West derived from an encounter between Petitioner and West that occurred in their housing community’s clubhouse library. At trial, the State bore the burden to prove that West intentionally or knowingly violated the stalking injunction. See Utah Code § 76-5-106.5(2)(b).

¶4        After being notified by the State that it intended to introduce evidence that West had allegedly violated the injunction on two other occasions after charges were filed, West filed a motion in limine the day before trial to preclude the admission of that evidence. The court addressed this motion on the first day of trial. West argued that the evidence should be excluded because it was improper character evidence, lacked any relevance, and posed a danger of unfair prejudice. The State argued that the evidence of West’s other alleged violations of the injunction should be admitted and presented to the jury to show West’s intent, knowledge, or lack of mistake, which the State argued was relevant to proving the intent element of the charged crime. See Utah R. Evid. 404(b) (stating that evidence of a crime, wrong, or other act is not admissible to prove propensity, but may be admissible to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident”).

¶5        When the trial court indicated its intention to admit the evidence, West’s counsel requested a continuance of the trial, arguing that as the State’s disclosure of the evidence was made only fifteen days before trial, he was precluded from appropriately preparing for the evidence, such as giving potential witnesses the proper notice to appear to testify. West’s counsel further contended that based on the sparse information regarding the State’s evidence, he would not have known whom to subpoena. The trial court ultimately denied the motion to continue, stating, “We have a jury here, a jury panel. I want the case tried,” indicating that it might “revisit the issue again” as the evidence was admitted.

¶6        During trial, the evidence presented showed that Petitioner was present at the clubhouse library, West entered the library, a brief verbal interaction occurred between the two, Petitioner called the police, and West left the library.

¶7        Petitioner testified that when she saw West was about to enter the library, she said, “Please don’t come in now. There is a 20-feet rule. You need to stay away from me 20-feet. . . . Or I’m going to have to call the police.” Despite this warning, West continued to enter the library and responded by saying something to the effect that she did not care and to “go ahead.” She then proceeded to remove her shoes, step onto a couch cushion, and hang a poster advertising a community event. Petitioner then left the clubhouse library in search of another person to witness that West had entered the clubhouse library where Petitioner had been. During Petitioner’s testimony, the State also showed video surveillance of the door to the clubhouse library, showing West walking in and Petitioner walking out shortly afterward. And a police officer testified that following the incident, based upon Petitioner’s report, he measured the approximate distance that would have been between Petitioner and West and concluded that West was easily within the twenty-foot radius prohibited by the stalking injunction.

¶8        The State also presented evidence of the two other interactions between West and Petitioner—both occurring after the library incident for which West was charged and before the trial—where West was alleged to have been closer to Petitioner than the injunction’s twenty-foot restriction. In the first incident, both West and Petitioner attended a community potluck, and West sat at a table within twenty feet of Petitioner. In the second incident, while attending services at their church, Petitioner was in the church foyer and West approached, put her things down near where Petitioner was standing, and then stood within the same area for an extended time.

¶9        West testified at trial and she and her counsel had the following exchange after viewing surveillance video from the clubhouse library:

Counsel: [S]o you saw in the video [Petitioner] walks off away from the library, correct? And then the video shows you walking out some seconds later in the same direction. Is that correct?

West: That is correct.

Counsel: Now did you know where she had gone?

West: No.

Counsel: Okay. So where were you going when you walked out of there?

West: I was going to the kitchen . . . . And then I went from there into the exercise room.

Counsel: So you hung up two more posters after the library. And then did you leave?

West: Yes . . . .

¶10 Following deliberation, the jury found West guilty of violating the stalking injunction.

The Post-trial Motions and Sentencing

¶11      After trial and prior to sentencing, West filed several pro se post-trial motions, claiming in each that she was no longer represented by counsel. West also aired numerous grievances, of which few are relevant here. Pertinent to this appeal, West took issue with the trial court’s admission of the evidence of the other instances of alleged contact between her and Petitioner, and she repeatedly requested that her case be dismissed.

¶12      During a sentencing review hearing in December 2019, the sentencing court[1] asked West if she would “like a new lawyer,” to which West responded in the negative. Without engaging in any colloquy[2] and without questioning West about her understanding of the significance and the risk of proceeding without counsel, the court accepted West’s indication to proceed pro se, ordered West’s trial counsel to withdraw, and allowed West to represent herself.

¶13      At her sentencing hearing approximately sixteen months later—the delay in proceedings due in small part to expected scheduling conflicts and in larger part to the COVID-19 pandemic—the court engaged in no further discussion with West about her decision to waive counsel and represent herself, other than to note that West “put [herself] at a disadvantage . . . having fired [her] lawyer,” which was “pretty clear in the record, and [West] confirmed that . . . at [the sentencing review].” During this hearing, the sentencing court focused on West’s post-trial motions. The sentencing court indicated on the record that West had “framed most of the written materials . . . as motions to dismiss,” and noted that the motions had not “been submitted for decision, which would normally be required under the [Utah] Rules of Criminal Procedure.” However, the court expressed its intention to provide immediate responses to the motions, having told West that the court “would rule on [the] motions” during the sentencing hearing. The court then proceeded to deny the portion of West’s motions to dismiss dealing with the evidence of the other alleged injunction violations admitted at trial.

¶14 Next, the sentencing court addressed the other issues raised in West’s motions, simply concluding that “frankly, . . . the motions that [West had] made [were] legally frivolous.” The court ultimately denied all of West’s motions in totality and then proceeded with sentencing. The court sentenced West to serve 364 days in jail, but it suspended the jail time, and imposed a fine. The court ordered West to serve eighteen months of probation with the conditions that she complete community service, complete an anger management course, and continue to comply with the stalking injunction. West appeals.

ISSUES AND STANDARDS OF REVIEW

¶15      The first issue we address is West’s challenge to the denial of her pretrial motions. She argues that the trial court erred in denying the motion in limine, contending that she was denied the right to a fair trial when the court allowed evidence of additional interactions between West and Petitioner to be admitted. We review for an abuse of discretion a trial court’s decision to admit evidence under rules 404(b), 402, and 403 of the Utah Rules of Evidence. See State v. Tarrats, 2005 UT 50, ¶ 16, 122 P.3d 581 (“Trial courts have wide discretion in determining relevance, probative value, and prejudice. Therefore, we will not reverse the trial court’s ruling on evidentiary issues unless it is manifest that the trial court so abused its discretion that there is a likelihood that injustice resulted.” (quotation simplified)). In the event that the trial court admits evidence in error, “we will not disturb the outcome of a trial if the admission of the evidence did not reasonably affect the likelihood of a different verdict.” State v. Miranda, 2017 UT App 203, ¶ 24, 407 P.3d 1033 (quotation simplified), cert. denied, 417 P.3d 581 (Utah 2018). And West “bears the burden of showing that [she] was harmed by the trial court’s error.” See id. ¶ 44.

¶16      West further asserts that the trial court erred in denying her request to continue the trial after the court determined the other-acts evidence was admissible. We review the court’s denial of a motion for continuance for an abuse of discretion. State v. Cabututan, 861 P.2d 408, 413 (Utah 1993) (“The standard of review for the denial of a motion for continuance is abuse of discretion: It is well-established that the granting of a continuance is discretionary with the trial judge. Absent a clear abuse of that discretion, the decision will not be reversed by this court.” (quotation simplified)). A trial court “abuses its discretion when it denies a continuance and the resulting prejudice affects the substantial rights of the defendant, such that a review of the record persuades the court that without the error there was a reasonable likelihood of a more favorable result for the defendant.” Mackin v. State, 2016 UT 47, ¶ 33, 387 P.3d 986 (quotation simplified).

¶17      Next, we address West’s argument that her constitutional right to be represented by counsel at sentencing was violated because the sentencing court did not adequately explore through an on-the-record colloquy whether her waiver of counsel was knowingly and intelligently made with an understanding of the risks of representing herself. In the absence of a colloquy, we review the record de novo to determine whether the defendant knowingly and intelligently waived her right to counsel. See State v. Pedockie, 2006 UT 28, ¶ 45, 137 P.3d 716 (“De novo review is appropriate because the validity of a waiver does not turn upon whether the trial judge actually conducted the colloquy, but upon whether the defendant understood the consequences of waiver.” (quotation simplified)). “Whether [West’s] waiver was knowing and intelligent involves a mixed question of law and fact which we review for correctness, but with a reasonable measure of discretion given to the [trial] court’s application of the facts to the law.” State v. Bozarth, 2021 UT App 117, ¶ 21, 501 P.3d 116 (quotation simplified).[3]

ANALYSIS

  1. Pretrial Motions

¶18      West first challenges the trial court’s denials of her motion to exclude evidence and motion to continue the trial. We do not reach the merits of West’s argument that the trial court erroneously admitted the other-acts evidence or abused its discretion in denying her continuance motion because even if the trial court erred, West has failed to meet her burden to show that she was prejudiced by either alleged error such that our confidence in the jury’s verdict is undermined. See State v. High, 2012 UT App 180, ¶ 41, 282 P.3d 1046 (“We will not disturb the jury’s verdict unless the likelihood of a different outcome is sufficiently high to undermine confidence in the verdict.” (quotation simplified)). In other words, West has not persuaded us that a “reasonable likelihood exists that the [alleged] error affected the outcome of the proceedings.” State v. Bilek, 2018 UT App 208, ¶ 35, 437 P.3d 544 (quotation simplified), cert. denied, 440 P.3d 693 (Utah 2019). “A reasonable likelihood requires a probability sufficient to undermine confidence in the outcome.” State v. Gallegos, 2020 UT App 162, ¶ 62, 479 P.3d 631 (quotation simplified), cert. denied, 496 P.3d 717 (Utah 2021).

  1. Motion to Exclude Rule 404(b) Evidence

¶19      West contends on appeal that evidence of other uncharged alleged violations of the stalking injunction admitted at trial was “precisely what [rule] 404(b) was intended to bar.”[4] West further argues that had the jury not heard the evidence of these other alleged violations, “there was a reasonable likelihood that West would not have been found guilty of the charge.” Rule 404(b) of the Utah Rules of Evidence provides that other-acts evidence, while prohibited to “prove a person’s character in order to show that on a particular occasion the person acted in conformity with the character,” may be admissible for other purposes, such as “proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Utah R. Evid. 404(b). Such evidence must also pass the muster of rules 402 and 403, which require that evidence be relevant and have probative value that is not substantially outweighed by a danger of unfair prejudice. See id. R. 402, 403.

¶20      However, we need not address the underlying question of whether the trial court erred in admitting the other-acts evidence because, “even if the admission of rule 404(b) evidence by the [trial] court was in error, reversal on appeal is not appropriate unless the defendant demonstrates that the error materially affected the fairness or outcome of the trial.” Bilek, 2018 UT App 208, ¶ 35 (quotation simplified). Thus, the burden rests on West to make such a showing, and she fails to carry her burden here. In arguing that she was prejudiced, West simply asserts that, “[a]bsent the 404(b) evidence, there was a reasonable likelihood that West would not have been found guilty of the charge herein.” But she does not then provide much discussion as to how the outcome of the trial would have differed absent the admitted other-acts evidence, other than to essentially conclude that because it was, therefore it is so. That is, West has failed to demonstrate how excluding evidence that she was close to Petitioner at church and at a potluck, after the events in the clubhouse library, would have changed the jury’s determination that West knowingly and intentionally came within twenty feet of Petitioner while in the clubhouse library in violation of the injunction.

¶21      To be sure, the evidence of the other acts was most likely helpful to the State in proving its case. Absent the evidence, the State would have had to rely solely on Petitioner’s credibility in the eyes of the jury and her testimony of what occurred between West and her to support its case that West had knowingly and intentionally violated the stalking injunction. See Utah Code § 76-5-106.5(2)(b). But even without the other-acts evidence, evidence and testimony presented to the jury during trial sufficiently supports our confidence in the jury’s verdict. See State v. Ferguson, 2011 UT App 77, ¶ 20, 250 P.3d 89 (acknowledging that while erroneously admitted evidence had “the potential of being highly prejudicial, the other evidence presented at trial was sufficiently strong as to convince us that there was no reasonable likelihood of a different result” (quotation simplified)), cert. denied, 262 P.3d 1187 (Utah 2011); High, 2012 UT App 180, ¶¶ 50– 51, 54 (noting that while the case was not like Ferguson, “where the evidence of guilt was overwhelming” in the absence of evidence allegedly admitted in error, the court’s “confidence in the jury’s verdict” was not undermined as “the jury would still have heard unchallenged and properly admitted” evidence supporting the defendant’s guilt).

¶22      For example, here the jury heard generally unchallenged testimony from Petitioner about the nature of her encounter with West: that she told West to stop and not enter until she was finished or she would have to call the police, and that West ignored her entreaty and threat and carried on with her business in the clubhouse library. The jury then heard West testify as to her actions following the encounter with Petitioner. Even by her own account, West did not immediately leave after the incident, but instead made her way through the clubhouse facilities without much concern about whether Petitioner was still in the area or not. The jury was also aware, by nature of the charge against West, that a stalking injunction was in place, and it could have reasonably inferred that West had a history of unwanted interactions with Petitioner that would warrant the imposition of the stalking injunction, and that the reported clubhouse library incident was not just a solitary incident. And West has not argued how all of this, standing alone and absent the added gloss of the rule 404(b) evidence, would have induced the jury to find in her favor instead.

¶23 Accordingly, we are not persuaded that exclusion of the other two alleged incidents would so tilt the jury’s view of West’s credibility as to change its verdict. In other words, West has failed to persuade us that even without the admission of the other alleged violations of the stalking injunction, the result of the trial would have been favorable for her.

  1. Motion to Continue

¶24 West also contends the court’s denial of her motion to continue to address the other violations evidence “deprived [her] of her right to a fair trial.” A defendant bears the burden of showing that the trial court’s denial of the motion to continue was “an unreasonable action that prejudiced the party.” State v. Cornejo, 2006 UT App 215, ¶ 14, 138 P.3d 97 (quotation simplified). “Such prejudice exists when our review of the record persuades us that had the trial court not denied the continuance request there would have been a reasonable likelihood of a more favorable result for the moving party.” Id. (quotation simplified). West again fails to persuade us that the denial of the continuance was prejudicial.

¶25      West has not outlined on appeal how her defense strategy would have changed had she been given more time to prepare. And though she indicates in her brief and told the sentencing court judge that she had witnesses to one of the incidents, she has neither provided even the slightest information on who those witnesses may be nor provided an explanation as to whether they would have been available to testify within an appropriate time frame. Moreover, West does not flesh out on appeal why the State’s information was so lacking that she could not subpoena witnesses prior to trial. See id. ¶ 15 (“When a party to a criminal action moves for a continuance in order to procure the testimony of an absent witness, the party must demonstrate that: (1) the testimony sought is material and admissible, (2) the witness could actually be produced, (3) the witness could be produced within a reasonable time, and (4) due diligence had been exercised before the request for a continuance.” (quotation simplified) (quoting State v. Creviston, 646 P.2d 750, 752 (Utah 1982))). West contends only that once the trial court allowed the other-acts evidence to be introduced, “had the continuance been afforded as it should have been, counsel would have had time to gather evidence, find witnesses, and raise a defense against that other evidence.” This simply is not a sufficient showing on appeal to persuade us that the denial of her motion to continue affected the outcome of the trial. Therefore, her claim fails here as well.

  1. Knowing and Intelligent Waiver

¶26 The next question before us is whether West knowingly and intelligently waived her right to be represented by counsel at sentencing. West argues that because there was no colloquy on the record that would inform this court that her waiver was knowingly and intelligently made, her waiver was invalid. The State disagrees and argues that even in the absence of a colloquy conducted by the sentencing court, the record shows that West knowingly and intelligently waived her right to counsel because she “was given a front row seat to the intricacies of navigating a criminal case” as she did not excuse her counsel until after the trial.

¶27 “Under both the United States and Utah Constitutions, a criminal defendant has the right to assistance of counsel,” State v. Hall, 2013 UT App 4, ¶ 25, 294 P.3d 632, cert. denied, 308 P.3d 536 (Utah 2013), which includes the right to effective counsel for sentencing proceedings, see State v. Casarez, 656 P.2d 1005, 1007 (Utah 1982) (“Sentencing is a critical stage of a criminal proceeding at which a defendant is entitled to the effective assistance of counsel.”). “Concomitant with that right is the criminal defendant’s guaranteed right to elect to present [one’s] own defense.” State v. Hassan, 2004 UT 99, ¶ 21, 108 P.3d 695; see also State v. Pedockie, 2006 UT 28, ¶ 26, 137 P.3d 716 (“Defendants also have the right to waive their right to counsel.”). Because the right to counsel and the right to waive counsel are mutually exclusive, “a trial court must be vigilant to assure that the choice [to waive counsel] is freely and expressly made ‘with eyes open.’” State v. Bakalov, 1999 UT 45, ¶ 15, 979 P.2d 799 (quoting Faretta v. California, 422 U.S. 806, 835 (1975)). “Before permitting a defendant to [self-represent], . . . a trial court should ensure that the waiver [of counsel] is voluntary, knowing, and intelligent.” Pedockie, 2006 UT 28, ¶ 26.

¶28      A defendant may employ any of three different methods to validly waive a right to counsel: “true waiver, implied waiver, and forfeiture.” State v. Smith, 2018 UT App 28, ¶ 17, 414 P.3d 1092.

¶29      At issue here is true waiver: “A true waiver is one in which the defendant affirmatively represents that [she] wishes to proceed without counsel.” Id. ¶ 18. To be a valid true waiver, a defendant must “clearly and unequivocally” communicate to the court the wish “to proceed pro se.” Id. (quotation simplified); see also State v. Bozarth, 2021 UT App 117, ¶ 34, 501 P.3d 116 (“True waiver occurs when a defendant directly communicates a desire to proceed pro se.”). “Where a defendant expressly declines an offer of counsel by the trial judge” but later challenges the validity of that waiver, “[she] has the burden of showing by a preponderance of the evidence that [she] did not knowingly and intelligently waive this right.” Bozarth, 2021 UT App 117, ¶ 39 (quotation simplified).[5]

¶30 There is no question in this case that West clearly and unequivocally communicated to the court her desire to represent herself at sentencing. In her written motions, and then at the sentencing hearing when the court asked if she wanted a new lawyer, West plainly expressed her wish to proceed on her own without the assistance of counsel. But waiver alone is not enough to verify that West understood the significant right being waived and how her waiver might be applied in the real-world setting of sentencing. So, we must next address whether West’s waiver was knowingly and intelligently made. See id. ¶ 34 (“To be a valid true waiver, the defendant must (1) clearly and unequivocally request self-representation and (2) act knowingly and intelligently, being aware of the dangers inherent in self-representation.” (quotation simplified) (emphasis added)).

¶31 For a waiver to be knowingly and intelligently made, a defendant must understand “the relative advantages and disadvantages of self-representation in a particular situation.” State v. Frampton, 737 P.2d 183, 188 (Utah 1987) (quotation simplified). In other words, a court must be satisfied that a defendant has “actual awareness of the risks of proceeding pro se under the particular facts and circumstances at hand.” Smith, 2018 UT App 28, ¶ 19 (quotation simplified). The best way to ascertain if a defendant has the requisite knowledge of the legal mire she wishes to wade into is for a court to engage in “penetrating questioning,” Frampton, 737 P.2d at 187, on the record, see Smith, 2018 UT App 28, ¶ 19. Such questioning is the “encouraged” practice for courts, utilizing Frampton’s “sixteen-point guide” as a framework to ensure a defendant is making the decision to proceed pro se knowingly and intelligently. See id.see also Pedockie, 2006 UT 28, ¶ 42 (“The sixteen-point colloquy found in State v. Frampton establishes a sound framework for efficient and complete questioning.”); cf. State v. Patton, 2023 UT App 33, ¶ 14 n.5 (“We encourage trial courts to keep a prepared Frampton waiver-of-counsel colloquy script at the ready on the bench, for use when the occasion arises.”).

¶32      Absent a colloquy, it is still possible for a reviewing court to find that a defendant’s waiver was validly made after examining “any evidence in the record which shows a defendant’s actual awareness of the risks of proceeding pro se” at the time the defendant communicated the wish to self-represent. Frampton, 737 P.2d at 188. Therefore, we must conduct a “de novo review of the record to analyze the particular facts and circumstances surrounding the case” to establish “whether the defendant understood the consequences of waiver.” See Bozarth, 2021 UT App 117, ¶ 41 (quotation simplified). However, more than once and quite recently, Utah’s appellate courts have noted that such a conclusion is rare. See id. (“It is possible—although perhaps rare—for a defendant to knowingly and intelligently waive the right to counsel without a Frampton colloquy.” (citation omitted)); Pedockie, 2006 UT 28, ¶ 45 (“We therefore anticipate that reviewing courts will rarely find a valid waiver of the right to counsel absent a colloquy.”).[6]

¶33 Given the rarity, we look to Frampton and Bozarth for instruction, both of which demonstrate when the record may support a conclusion that a defendant did knowingly and intelligently waive the right to counsel in the absence of an adequate colloquy. See Frampton, 737 P.2d at 188–89; Bozarth, 2021 UT App 117, ¶¶ 42–48.

¶34      In Frampton, the defendant was represented by counsel at a trial that resulted in a hung jury. 737 P.2d at 186. The defendant then opted to represent himself at a second trial that resulted in a mistrial. Id. A third trial was scheduled, and prior to the third trial, the defendant filed eighteen of his own motions, two of which “asserted his right to assistance of counsel,” but he “insisted on being represented by a non-member of the Bar,” which option is not constitutionally protected. Id. at 189. On the day of the third trial, the defendant indicated that he wished to represent himself, and the court acknowledged the defendant’s right to self-representation and indicated that “[the defendant] would be accorded every courtesy along that line.” Id. at 186 (quotation simplified). The court then appointed standby counsel, over the defendant’s objections, but the defendant “refused to receive any help from the appointed counsel.” Id. at 186, 189. On appeal, the Utah Supreme Court concluded that the defendant had “knowingly and intelligently waived the right to representation by counsel” for several reasons. Id. at 188–89. First, the record clearly indicated that the “value of counsel should have been apparent to defendant” because while represented, his trial ended in a hung jury. Id. at 189. Furthermore, the court noted that the record showed several instances that, taken together, supported a conclusion that the defendant was sufficiently versed in legal procedures and proceedings: (1) he had filed eighteen of his own motions, (2) he had explained to jurors “the statute under which he was charged,” (3) he had been informed of the charge he faced and the possible penalty for a guilty verdict, and (4) he had been “accorded . . . every courtesy” by the court when it “explain[ed] applicable procedure and [gave] defendant extremely wide latitude in conducting his defense.” Id.

¶35      Likewise, in Bozarth, this court reached a similar conclusion regarding the question of whether a waiver was knowingly and intelligently made for a similar reason: the record showed as much. 2021 UT App 117, ¶ 44. In Bozarth, the defendant initially requested counsel but reserved his right to self-representation in the event that he wanted to “retake the helm” at a later time. Id. (quotation simplified). Additionally, prior to the defendant undertaking his own representation, the trial court had instructed and the defendant was aware of the importance of having counsel, and the defendant specifically requested that standby counsel be provided to “assist” only. Id. The defendant had even demonstrated knowledge about court procedures: he invoked the exclusionary rule at an evidentiary hearing and negotiated a plea deal that included his reservation of the right to appeal all prior objections, including “ineffective assistance of counsel.” Id. ¶¶ 14, 18. Lastly, the defendant had been informed of the charges against him and the potential penalties of a conviction on his charges. Id. ¶ 44. The Bozarth court then concluded that, with all these things taken together, the defendant had failed to meet his burden of proving that he “did not knowingly and intelligently waive his right to counsel.” Id.

¶36 But West’s case went differently. Here, unlike the defendants in both Frampton and Bozarth, there is no indication in the record that West had been informed by her counsel or by the sentencing court of the risks she faced by proceeding alone, nor was it clear that she understood the associated value of having the assistance of counsel during her sentencing or that she understood the law or the procedural requirements of a sentencing hearing. When West elected to proceed pro se, the sentencing court simply mentioned on the record that by doing so, she may have put herself at a disadvantage, with no other discussion or explanation as to why West’s decision would have done so. Again, this is in direct contrast to the facts of both Frampton and Bozarth, where those judges not only advised the defendants of the risks of proceeding pro se, but also encouraged or insisted on appointing standby counsel in the event assistance was needed.

¶37      Furthermore, while it is true that West filed several pro se motions prior to sentencing, which action on its face could indicate an awareness of court procedures like in Frampton, the content of West’s filings should have suggested to the sentencing court that she did not understand that attorneys and litigants are expected to conduct themselves with decorum and professionalism every time they enter the courtroom or file a pleading. The sentencing court even commented on the disparaging content of West’s motions: “If you were a lawyer, you would, in all likelihood, if you said those kinds of things to a judge, and wrote the kinds of things that you did, there’s a significant possibility that you would have sanctions issued against you.” But even with these indications that West perhaps did not grasp the implications of proceeding without counsel, the sentencing court’s investigation of West’s knowledge of the risks of self-representation stopped there.[7]

¶38 The State defends West’s waiver as knowing and intelligent because West “was given a front row seat” to observe her trial counsel at trial and argues that this knowledge was sufficient to establish that West knew the “intricacies of navigating a criminal case.” We disagree with this reasoning. Merely observing court proceedings does not provide an untrained pro se defendant with the awareness or knowledge of the risks of appearing for sentencing without representation. Few lay people, even after observing a trial from start to finish, would then be able to understand “the various matters germane to a sentencing proceeding,” such as the ability to argue mitigating circumstances and evidence to influence sentencing. See State v. Smith, 2018 UT App 28, ¶ 26, 414 P.3d 1092. For instance, a sentencing may involve discussion of the actions that a defendant may take following a guilty verdict, the financial ability that a defendant has to pay a fine or pay for a remedial course, appropriate lengths of jail time or suspended jail time, and previous criminal history. Without prior exposure to a sentencing for a charge of violating a stalking injunction, it is not persuasive to argue that West would understand the differences between a trial and a sentencing proceeding and the risks she assumed by continuing without the assistance of counsel to aid her in arguing, for instance, against the imposition of an anger management class or for a reduced fine or suspended jail time. We therefore strongly disagree that West’s “observations” of her attorney in action in court proceedings resulted in something that resembled the legal acuity or understanding of court proceedings that the defendants in Frampton and Bozarth exhibited.

¶39      Accordingly, we conclude that West has met her burden to show that her waiver of counsel prior to sentencing, though express, was not knowingly and intelligently made. The sentencing court should have conducted further inquiry into West’s awareness, or lack thereof, of the risks of self-representation before allowing her to be sentenced without the assistance of counsel. Therefore, we vacate West’s sentence and remand for resentencing.[8]

CONCLUSION

¶40 We are not convinced by West’s argument that the trial court abused its discretion in denying the pretrial motions, because West has not met her burden to show that if the other-acts evidence had been excluded or her motion to continue had been granted the outcome of her trial would have been different. We therefore affirm West’s conviction. However, we are persuaded that West did not knowingly and intelligently waive her right to be represented by counsel at her sentencing. We therefore vacate West’s sentence and remand for the limited purpose of resentencing.

 

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

 

[1] The judge who presided over West’s trial and ruled on the pretrial motions was not the same judge who presided over West’s sentencing hearings and denied West’s pro se post-trial motions.

[2] The entire exchange between the sentencing court and West consisted of the following:

Sentencing Court: [Trial counsel] was appointed to represent you previously?

West: He was.

Sentencing Court: Would you like a new lawyer?

West: No. I will represent myself. I can do better representing myself.

Sentencing Court: Okay. So [trial counsel] is allowed to withdraw from the cases. And Ms. West will represent herself.

[3] West also argues on appeal that the sentencing court erred in interpreting West’s pro se post-trial motions as motions to dismiss instead of considering them as motions for a new trial and denying those motions. However, given our determination that West did not knowingly and intelligently waive her constitutional right to counsel at sentencing, which requires vacating the sentence and remanding for further proceedings, we need not reach West’s final argument here. Remand for re-sentencing will allow West to refile her motions for consideration, with the assistance of counsel if she so chooses.

[4] West highlights in her brief the fact that these events occurred after the incident for which she is charged but does not further expound on any potential significance of this. Even so, we reiterate that timing of other acts in relation to the incident for which a defendant is charged is not a precluding factor to the admission of evidence of those acts: “Rule 404(b) itself . . . makes no reference to ‘prior’ crimes, wrongs, or acts, but refers only to ‘other’ crimes, wrongs, or acts.” State v. Barney, 2018 UT App 159, ¶ 16 n.2, 436 P.3d 231. “Many courts have recognized that other crimes, wrongs, or acts can be relevant, even if those acts occurred after the charged conduct.” Id. (collecting cases).

[5] This court has recently noted the dissonance between the language in State v. Frampton, 737 P.2d 183, 187 (Utah 1987)—that a defendant who expressly declines a trial court’s offer of counsel then bears the burden to show “by a preponderance of the evidence that [she] did not so waive this right”—and the language in State v. Pedockie, 2006 UT 28, ¶ 45, 137 P.3d 716—that because of the “strong presumption against waiver and the fundamental nature of the right to counsel, any doubts must be resolved in favor of the defendant.” See State v. Patton, 2023 UT App 33, ¶ 22 n.6. We again take the liberty to suggest that the “better, and far clearer, rule would be that where a trial court fails to employ a Frampton colloquy, the presumption is that waiver did not occur and the burden would be placed on the State to prove otherwise. We hope that our supreme court would look favorably on such an articulation.” Id.

[6] Echoing previous decisions addressing this issue, “we continue to strongly recommend a colloquy on the record as the preferred method of determining whether a defendant is aware of [the] risks.” Pedockie, 2006 UT 28, ¶ 42. While we are cognizant that the “colloquy is not mandatory,” State v. Bozarth, 2021 UT App 117, ¶ 41, 501 P.3d 116, it is nevertheless “the most efficient means by which appeals may be limited,” Frampton, 737 P.2d at 187. We encourage courts to engage in a full colloquy to ensure that criminal defendants are conscious of the challenges that come with self-representation.

[7] Of further note, the April 2021 sentencing hearing occurred sixteen months after the sentencing review hearing at which West verbally asserted her desire to self-represent at sentencing. Sixteen months is a long time—with a pandemic in the middle, no less—and it would have been helpful to revisit West’s intention of being sentenced without an attorney.

[8] During oral argument, there was discussion about whether what occurred at West’s sentencing would be subject to “harmless error” review. However, the State acknowledged that it did not brief this argument. Therefore, “we do not address [the argument] on its merits.” See State v. Smith, 2018 UT App 28, ¶ 27 n.2, 414 P.3d 1092.

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Mintz v. Mintz – 2023 UT App 17

Mintz v. Mintz – 2023 UT App 17

THE UTAH COURT OF APPEALS

RAYNA ELIZABETH MINTZ,

Appellant and Cross-appellee,

v.

GLEN RYAN MINTZ,

Appellee and Cross-appellant.

Opinion

No. 20200507-CA

Filed February 9, 2023

Third District Court, Silver Summit Department

The Honorable Kent R. Holmberg

No. 174500034

Julie J. Nelson and Alexandra Mareschal, Attorneys for Appellant and Cross-appellee

Thomas J. Burns and Aaron R. Harris, Attorneys for Appellee and Cross-appellant

JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGE GREGORY K. ORME and JUSTICE DIANA HAGEN concurred.[1]

MORTENSEN, Judge:

¶1        After a lengthy marriage, Rayna and Glen Mintz[2] divorced and have since been involved in ongoing litigation regarding the distribution of marital property. Rayna and Glen now raise various issues for review, including questions about alimony, property distribution, and dissipation awards. In response to these appeals, we affirm in part, reverse in part, and remand to the district for further proceedings.

BACKGROUND[3]

¶2        Through more than twenty years of marriage, Rayna and Glen enjoyed a relatively luxurious lifestyle. During the marriage, in addition to meeting their regular expenses, Rayna and Glen invested money essentially as savings. Before 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 Glen’s employment. Historically, they spent money freely, traveled frequently, and treated themselves to a variety of entertainment—often with other people. For Rayna’s part, she often invited friends to join her on different jaunts across the globe or visits to the theater. For Glen’s part, as is relevant to this appeal, he invested both time and substantial money into an extramarital affair.

¶3        Rayna and Glen financed this lifestyle through substantial income generated by Glen’s employment as an investment advisor managing the assets and investments of various clients. As a salaried employee for his employer (Employer), Glen “did not sell . . . a client list to [Employer]”; instead, he expanded the clients he serviced by creating relationships with other employees and assisting other employees in managing their clients’ assets. As part of Glen’s compensation, Employer offered cash awards distributed as forgivable loans. For each loan, Employer provided the cash to Glen up front and then forgave Glen’s payback obligation each year, leaving Glen with a decreased payback obligation but an increased tax obligation. The cash awards were deposited directly into Glen and Rayna’s investment accounts.

¶4        When Rayna discovered Glen’s infidelity, the couple sought a divorce. Ultimately, the district court made several determinations relevant to this appeal. First, although Rayna would be awarded alimony, a monthly amount for investment would be excluded from the calculation because she presented insufficient evidence to show that the parties’ investments were “standard practice during the marriage” or that they “helped form the couple’s standard of living.”

¶5        Second, although an amount for entertainment was included as a historical expense in alimony calculations, the court “divided by four” the amount Rayna had proposed because the entertainment amount was calculated based on a time “when two minor children also lived in the home.”

¶6        Third, although the list of clients Glen serviced could be considered an asset, Glen did not own a “book of business,” and accordingly, whatever value his client list contained could not be divided between the parties.

¶7        Fourth, although Glen had admitted to dissipating $75,000 on his extramarital affair and although the court determined that Rayna should be entitled to “half” that amount, in an appendix to the district court’s findings of fact and conclusions of law, designating the specific property distributions, the court provided no amount in the space for money awarded to Rayna because of Glen’s dissipation.

¶8        And fifth, although Rayna would receive what Glen argued was an investable property distribution, the court declined to include investment income in its alimony calculation because (1) the likelihood of a specific return was uncertain, (2) Rayna’s investment income should be left unencumbered as was Glen’s, and (3) the parties had traditionally reinvested investment income instead of living off it.

¶9        Following entry of the divorce decree, Rayna filed a motion to enforce, asserting that various investment accounts at issue in the divorce “were not divided immediately after trial and that they subsequently appreciated in value.” Accordingly, Rayna sought an order requiring Glen to transfer holdings “equivalent to her proportionate share of appreciation since trial.” However, before the hearing on that motion, Rayna filed a notice of appeal. At the hearing, the court determined that the enforcement order Rayna requested would require the court to not just enforce the order but to “read language into [the decree] and interpret [the decree] in a way that modifie[d] or amend[ed]” it. Because a notice of appeal had been filed in the case, the court determined it had been “divested of jurisdiction” to amend the decree and therefore could not provide the relief Rayna requested.

¶10      On these issues, Rayna and Glen both appeal.

ISSUES AND STANDARDS OF REVIEW

¶11      First, Rayna contends that the court abused its discretion through its award of alimony. Specifically, Rayna contends that (1) the court “misapplied Utah law” when it declined to award alimony consistent with historical investment and (2) the court entered unsupported findings of fact in reducing her entertainment expenses. “We review a district court’s alimony determination for an abuse of discretion and will not disturb its ruling on alimony as long as the court exercises its discretion within the bounds and under the standards we have set and has supported its decision with adequate findings and conclusions.” Gardner v. Gardner, 2019 UT 61, ¶ 16, 452 P.3d 1134 (cleaned up). However, misapplication of the law is a de facto abuse of discretion, and an alimony award based on a misapprehension of the law will not be upheld. See Bjarnson v. Bjarnson, 2020 UT App 141, ¶ 5, 476 P.3d 145. Moreover, an alimony award based on clearly erroneous findings of fact will be overturned, see Leppert v. Leppert, 2009 UT App 10, ¶ 8, 200 P.3d 223, as will be an incorrect determination that evidence is insufficient to support an award, see Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733. “[U]nder our clearly erroneous standard, we will disturb a court’s factual findings only where the court’s conclusions do not logically follow from, or are not supported by, the evidence.” Gardner, 2019 UT 61, ¶ 32.

¶12      Second, Rayna contends that the district court erred when it determined that the list of clients Glen managed as an investment advisor (the book of business) was not a divisible marital asset. “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.” Talley v. Talley, 739 P.2d 83, 84 (Utah Ct. App. 1987).

¶13 Third, Rayna contends that the district court failed to award or reimburse her half of the amount that Glen dissipated. “Where the trial court’s conclusions of law do not properly follow from the findings of fact, those conclusions can be overturned on appeal.” Cowley v. Porter, 2005 UT App 518, ¶ 46, 127 P.3d 1224.

¶14 Fourth, Rayna contends that the court erred in determining, based on the divorce decree’s language, that it lacked jurisdiction to grant Rayna appreciation on investment account awards. We review for correctness the district court’s interpretation of a divorce decree, Mitchell v. Mitchell, 2011 UT App 41, ¶ 5, 248 P.3d 65, and the district court’s “determination on jurisdictional issues,” National Advert. Co. v. Murray City Corp., 2006 UT App 75, ¶ 11, 131 P.3d 872 (cleaned up).

¶15      Fifth, on cross-appeal, Glen contends that the district court abused its discretion when it did not “determine an amount of income that Rayna [would] be able to earn from her awarded investment account assets and . . . apply that income to her ability to pay for her marital standard of living.” As indicated above, we review the district court’s alimony determination for abuse of discretion. See Gardner, 2019 UT 61, ¶ 16.

ANALYSIS
I. Alimony

A.        Investment

¶16 Rayna contends that the district court erred in excluding from the alimony award an amount reflective of historical investment. Specifically, Rayna argues that the court misunderstood the phrases “standard practice” and “marital standard of living” as these phrases have been employed in Utah caselaw concerning the appropriateness of alimony awards that include amounts for investment or savings. Rayna argues that the parties made deposits into investment accounts as a standard practice that contributed to their marital standard of living, and she asserts that she should have received a higher alimony award to be able to continue this practice and maintain her standard of living. On appeal, we conclude that the district court erred in its application of the law on this point.

¶17      In Bakanowski v. Bakanowski, 2003 UT App 357, 80 P.3d 153, we indicated that “while the recipient spouse’s need to fund post-divorce savings, investment, or retirement accounts may not ordinarily be factored into an alimony determination, we cannot say that the ability to fund such post-divorce accounts may never be taken into account as part of” that analysis. Id. ¶ 16. Rather, “[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. (emphasis added); see also Knowles v. Knowles, 2022 UT App 47, ¶ 57 n.8, 509 P.3d 265; Miner v. Miner, 2021 UT App 77, ¶ 58 n.8, 496 P.3d 242. Thus, 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 a given case to those definitions, and then determine whether the facts as found meet the criteria for a savings-based alimony award.

¶18      First, the district court erred in concluding that Rayna and Glen’s undisputed course of conduct did not demonstrate a standard practice. See Bakanowski, 2003 UT App 357, ¶ 16; Kemp v. Kemp, 2001 UT App 157U, paras. 3–4, 2001 WL 522413. When the Bakanowski court provided the test for appropriate consideration of savings, investment, and retirement accounts in alimony calculations, it cited Kemp v. Kemp, 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.” See 2001 UT App 157Uparas. 3–4 (emphasis added).

¶19 An event must certainly be recurring but need not be uniformly systematic to be considered “regular.” See id. at para. 3. Indeed, “something can be done ‘regularly’ if done whenever the opportunity arises, though the actual time sequence may be sporadic.” Youth Tennis Found. v. Tax Comm’n, 554 P.2d 220, 223 (Utah 1976); see also Allen Distrib., Inc. v. Industrial Comm’n, 604 P.2d 938, 940 (Utah 1979) (reciting the then-enacted workers’ compensation laws that provided that “regularly” could include employment “continuous throughout the year or for only a portion of the year” (cleaned up)); Holt v. Industrial Comm’n, 87 P.2d 686, 689 (Utah 1939) (defining “regularly employed” to include “all employees who are employed and engaged in the usual or regular business of the employer, regardless of whether they were regularly or only casually or occasionally employed” (cleaned up)). Thus, even though an activity may “occur[] at intermittent times,” it can still be a regular activity. See Youth Tennis, 554 P.2d at 223 (cleaned up); see also B.L. Key, Inc. v. Utah State Tax Comm’n, 934 P.2d 1164, 1166 (Utah Ct. App. 1997). And although “regular” could also be understood to require methodic uniformity, see Valentine v. Farmers Ins. Exch., 2006 UT App 301, ¶ 11, 141 P.3d 618 (noting that “‘regular use’ connotes use that is consistent with a recurring pattern or uniform course of conduct or dealing” and that it “embodies use that is marked by a pattern of usage or some frequency of usage”); Youth Tennis, 554 P.2d at 223 (noting that “one of the meanings of the term ‘regular’ is: ‘Steady or uniform in course, practice or occurrence’” (quoting Black’s Law Dictionary 1450 (Rev. 4th Ed. 1968))), there exists no requirement that savings or investment deposits be made with uniform frequency.

¶20      Accordingly, even if savings deposits and investments do not occur on an exact timetable, such marital expenditures can be considered a standard practice, see Bakanowski, 2003 UT App 357, ¶ 16, 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 ar[ose], though the actual time sequence may be sporadic.” See Youth Tennis, 554 P.2d at 223; see also Bakanowski, 2003 UT App 357, ¶ 16.

¶21 The district court found that Rayna did not present “sufficient evidence” to show that contributing to savings and investment accounts was the standard practice during the marriage. But on appeal, neither party appears to dispute that the district court was presented with evidence that before 2014 the parties invested substantial amounts of income at least yearly and that after 2014 a substantial portion of Glen’s income was deposited directly into investment accounts at least yearly. Accordingly, for nearly a decade immediately preceding the divorce, the parties set aside substantial money for investments at least annually. This undisputed evidence established that the parties followed a regular pattern, i.e., a “standard practice,” see Bakanowski, 2003 UT App 357, ¶ 16, of investing a portion of their annual income. In other words, given these undisputed facts, we conclude the district court applied too narrow a definition of standard practice in rejecting this evidence as insufficient.

¶22 Second, 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. “Standard of living is defined as a minimum of necessities, comforts, or luxuries that is essential to maintaining a person in customary or proper status or circumstances.” Howell v. Howell, 806 P.2d 1209, 1211 (Utah Ct. App. 1991) (cleaned up) (emphasis added). In other words, in the alimony context, the marital standard of living is all that the parties enjoyed during the marriage—including luxuries and customary allocations—by virtue of their financial position. See id.see also Rule v. Rule, 2017 UT App 137, ¶ 15, 402 P.3d 153.

¶23 In 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.” Id. ¶ 57 (cleaned up). On appeal, we 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.” Id. (emphasis added). “By failing to assess whether the parties’ expenditures were consistent with the marital standard of living, the court abused its discretion.” Id.

¶24 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.

¶25      Like the trial court in Knowles, the district court here did not fully consider how the parties chose to “allocate” their income. See id. The parties’ choice to devote a substantial portion of income to investment and savings—much like the parties in Knowles chose to devote a substantial portion of their income to tithing, see id.—contributed to the parties’ marital standard of living. The court should consider this evidence in determining the amount of investment and savings expenditures to include in its alimony calculations. See id.see also, e.g.Lombardi v. Lombardi, 145 A.3d 709, 716 (N.J. Super. Ct. App. Div. 2016) (“An appropriate rate of savings can, and in the appropriate case should, be considered as a living expense when considering an award of maintenance.” (cleaned up)); Bryant v. Bryant, 534 S.E.2d 230, 232 (N.C. Ct. App. 2000) (“The trial court may also consider established patterns of contributing to savings as part of the parties’ standard of living.” (cleaned up)); In re Marriage of Stenzel, 908 N.W.2d 524, 536 (Iowa Ct. App. 2018) (“[R]etirement savings in a reasonable sum may be a part of the needs analysis in fixing spousal support.”).

¶26 Below, the district court declared that “Rayna ha[d] not convinced the court that [the couple’s] savings [practices] somehow helped form the couple’s standard of living.” The court continued, “There was no evidence that the deposits into the investment accounts were used to fund future purchases or otherwise contributed to the marital standard of living.” In making this ruling, the district court apparently relied on Kemp, where the court found that “during their marriage, the parties had made regular savings deposits to fund future major purchases, rather than making those purchases on credit.” 2001 UT App 157U, para. 3. Including saved money in the “marital standard of living,” however, does not require a party to spend it, as the parties did in Kemp. Our precedent does not exclude prudent saving from the definition of the marital standard of living. Indeed, it would be a perverse state of the law if we, as a rule, always included in an alimony calculation all sums parties spent, even imprudently, but excluded sums wisely saved.

¶27      The parties presented evidence (and on appeal the parties continue to agree) that the investments were meant to facilitate future financial growth; that during the economic recession in 2008, the parties dipped into their investments to maintain their standard of living; and that they later used investments to pay tax obligations incurred because of Glen’s compensation structure. The very fact that such a substantial amount of Glen’s income went straight to investment that then served to pay off a tax obligation represents the type of allocation that constituted part of the marital standard of living. An understanding of the marital standard of living that is restricted to direct and immediate expenses is simply too limited. Instead, the use of marital funds to cover the parties’ investments and savings—provided it was standard practice during the marriage—is a proper consideration in determining the marital standard of living. See Bakanowski, 2003 UT App 357, ¶ 16.

¶28 In sum, the district court erred in concluding that insufficient evidence supported Rayna’s request to include amounts for investment in alimony calculations. The undisputed evidence established that it was both a standard practice to invest marital assets annually and that this pattern of investment contributed to the marital standard of living. We remand 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. See Bjarnson v. Bjarnson, 2020 UT App 141, ¶ 5, 476 P.3d 145 (“We will reverse if the court has not exercised its discretion within the bounds and under the standards we have set.” (cleaned up)).

B.         Entertainment

¶29 Rayna also contends that the district court “entered a factual finding that was unsupported by the evidence regarding [her] entertainment expenses.” This is so, she argues, because testimony at trial established that the amount she originally requested for entertainment as part of her living expenses was “carved out . . . for her alone” and because the evidence, including the exhibit used to calculate her living expenses, did not otherwise suggest that the amount should have been reduced as it was by the district court. We agree that the district court’s reduction of Rayna’s entertainment expenses was based on clearly erroneous findings of fact because “the court’s conclusions do not logically follow from” and are not supported by “the evidence.” See Gardner v. Gardner, 2019 UT 61, ¶ 32, 452 P.3d 1134.

¶30      In determining the amount for entertainment expenses to include in its alimony calculation, the district court stated that the amount “presents expenses calculated for . . . years . . . when two minor children also lived in the home. Therefore, this amount should have been divided by four.” The district court reduced the amount it considered in its alimony calculation related to entertainment accordingly. However, this does not follow from the evidence presented at trial.

¶31      As an initial matter, when asked about the entertainment line item, Rayna testified that she loved “to go to concerts,” that she went “to New York City to the ballet [and] to the theater,” and that she generally hosted a friend on those trips. And testimony from Rayna’s expert on the matter explained that the amount was for “entertainment that she would normally spend on a monthly basis” and, specifically, that the amount was “what she actually spent if . . . carved out [for] her alone.” (Emphasis added.)

¶32      Glen attempts to provide support for the district court’s apparently contrary finding by suggesting that several line items on Rayna’s living-expense exhibit included a note that the amount was for “Rayna Only,” and that based on this notation, the district court “acted within its appropriate discretion” when it determined the amount requested for entertainment should be reduced because that line item did not include that note. However, in our review of the exhibit referred to by Glen, of the thirty-nine line items listed, only three specify that the amount was for “Rayna Only.” Yet some of the unmarked items reflect amounts the parties agree were spent on Rayna alone. Therefore, the absence of the “Rayna Only” notation does not necessarily reflect that those items were not for “Rayna Only.” And further, a line item for “Money Spent on Kids” specifically notes that it includes “Entertainment” expenses for those children. If Rayna’s entertainment expenses included money spent on the children, there would be no need to include a separate line item for entertainment under “Money Spent on Kids.” Moreover, we note that the district court’s determination that the amount should be “divided by four” because “two minor children also lived in the home” does not quite add up. Rayna and two children add up to three, and whether the court also included Glen or the friends Rayna often hosted is unclear from the court’s findings of fact. Either way, the justification does not appear to support the reduction.

¶33      Accordingly, the district court’s reduction of the alimony amount requested for entertainment contradicts not only the direct testimony at trial but also the very exhibit on which the court expressly based its findings. Because the court’s conclusions do not logically follow from and are not supported by the evidence, we determine that this portion of the award is based on clearly erroneous findings of fact, and we therefore remand to the district court for clarification and correction of the matter. See Leppert v. Leppert, 2009 UT App 10, ¶ 8, 200 P.3d 223; Gardner, 2019 UT 61, ¶ 32.

II. Book of Business

¶34      Rayna next opposes the district court’s determination that the book of business “was not a divisible marital asset.” However, to prevail on such a contention, Rayna would need to show that the court clearly abused its discretion, see Talley v. Talley, 739 P.2d 83, 84 (Utah Ct. App. 1987), something she has not done here.

¶35      In dealing with Rayna’s argument that Glen owned a book of business that should be a divisible marital asset, the district court first explained that the alleged book of business, comprising “a client list and the assets under management from these clients,” constituted an “asset” as a legal matter —a determination neither party appears to challenge on appeal. But the court did not stop there, determining next that this “asset” was owned not by Glen but by Employer.

¶36 The court explained its reasoning in over five pages of detailed findings of fact and conclusions of law. Throughout those pages, the district court explained, among other things, that although Glen had extensive experience in his field and a portion of his compensation required him to meet lofty expectations concerning the funds he managed, “[w]hen Glen began work for [Employer], he did not sell a book of business or a client list to [Employer]”; “[n]owhere within [the relevant employment documents] did [Employer] indicate that it was purchasing any client list from Glen or that Glen was selling anything at all to [Employer]”; and “Rayna ha[d] not presented any evidence that Glen sold any client list, client information, or other asset to [Employer] as a condition of his hiring.” Further, Glen “worked as an employee of [Employer]”; “ha[d] been paid a salary . . . as a W-2 employee”; and “expand[ed] the client list” by, in part, “creat[ing] relationships with other . . . employees who advise individuals that they service to place assets under Glen’s management.” The court then noted that often “Glen manages assets owned by numerous individuals and entities with whom he has no personal relationship.”

¶37 The court then described various agreements concerning Glen’s compensation and employment and highlighted portions of those agreements. One read,

All information concerning [c]lients of [Employer], former clients of [Employer], and prospective clients of [Employer] must be treated as confidential and must not be disclosed to anyone outside of [Employer.] . . . [I]n the event Employee’s employment is terminated for any reason whatsoever[,] Employee may not take any records or information referring or relating to [c]lients of [Employer], former clients of [Employer] and prospective clients of [Employer], whether originals or copies, in hard copy or computerized form.

Another read,

Employee may not directly or indirectly use, maintain, take or disclose any Confidential Information, except . . . in the course of carrying out Employee’s duties for [Employer] during Employee’s employment[.] . . . “Confidential Information” . . . includes . . . client relationships and prospective client relationships, client lists and contact information, client information (including but not limited to clients’ past and present financial conditions, investment practices, preferences, activities, objectives, and plans and other client data Employee obtained while in [Employer’s] employ)[.] . . . Employee further expressly agrees that, in the event his or her employment terminates, Employee’s use of Confidential Information, including but not limited to any information referring or relating to clients of [Employer], former clients of [Employer] and prospective clients of [Employer], must immediately cease and that Employee must immediately return, destroy or delete, any Confidential Information whether in hard copy or computerized form, including in any electronic device owned by Employee.

The court then reasoned, “[i]f the clients were clients, relationships, or contracts that Glen owned, he would not be subject to any restrictions with respect to the manner in which he stored, maintained, or utilized any of the client information, either during or after his employment with [Employer]. Similarly, if the client information was owned by Glen, he would not be subject to any restrictions.” Significantly, the court noted that “individuals and entities that own the assets under management have no contractual obligation to continue to use Glen to manage their assets; they are free to select a different . . . adviser [of Employer] at any time.” These individuals had “not contracted with Glen” but instead had “contracted with” Employer. And finally, the court reasoned that “[t]he terms Glen was offered by [Employer] were not negotiated. He did not negotiate higher pay or different terms but simply accepted employment on the terms offered by [Employer]. If Glen owned the book of business[,] he would have been in a position of greater leverage and been able to negotiate with [Employer].” In short, the district court determined that because Glen’s interactions with the book of business did not demonstrate ownership, “Glen [did] not own the book of business.”

¶38 Rayna attacks this determination primarily based on the alleged existence of alternative evidence. First, she asserts that evidence that Glen had some control over the book of business and its fruits and that the book of business included the information of some clients he had obtained before joining Employer demonstrated that Glen owned the book of business. But regardless of whether such evidence was before the district court, it would not contradict the findings the court did make— findings on which it relied to determine that, on the whole, Glen did not own the book of business. And although Rayna contends that “the evidence showed that [Employer] hopes to buy Glen’s book of business when he retires or transitions out of the industry and would facilitate the transfer of all of his clients to another advisor within [Employer],” this argument fails to acknowledge that the district court specifically considered this evidence in its findings of fact and ultimately found that the evidence did not deserve “any weight” because of a “lack of any testimony or other evidence by anyone who actually knew anything about” such a buy-out program. Indeed, “if there is evidence supporting a finding, absent a legal problem—a fatal flaw—with that evidence, the finding will stand, even though there is ample record evidence that would have supported contrary findings.” See Hinds v. Hinds-Holm, 2022 UT App 13, ¶ 28 n.4, 505 P.3d 1136 (cleaned up). And here Rayna has not demonstrated that such a flaw exists.

¶39      Because none of Rayna’s arguments on appeal show that the court clearly abused its discretion in its thorough and record-supported explanation of why Glen did not own the book of business, her contention on appeal is unavailing and we affirm the district court’s determination.

III. Dissipation

¶40 Rayna also contends that the district court erred when it included in the final distribution only half of the amount it determined Glen dissipated and failed to award Rayna any of it. Indeed, the district court found that “the amount of dissipation attributable to [Glen’s affair] is $75,000” and that “[t]hese funds were marital funds, for which Glen was entitled to half and Rayna to half.” But in the next line, the court, in seeming contradiction, stated, “Through dissipation, Glen spent half of $37,500 which Rayna was entitled to and therefore should be added to Glen’s [distribution] column.”

¶41 On appeal, the parties agree that Rayna is owed $37,500 due to Glen’s dissipation of $75,000. But the parties do not agree about the meaning of the court’s order or its associated appendix distributing the marital property. Having viewed both the court’s order, as recited above, and the appendix that purports to effectuate that order, we remand this issue to the district court for clarification.

¶42 Because the parties agree that the full amount of dissipation is $75,000 and that Rayna is thus entitled to $37,500, the only matter for us on appeal is to ensure that the order of the district court reflects that agreement. And it does not appear to do so. The court’s appendix lists three columns: one for the value of a given property item, one for Rayna’s portion of the property, and one for Glen’s portion of the property. In Rayna’s and Glen’s respective columns, a number was entered without parentheses to indicate a positive sum owed to the party, and a number was entered inside parentheses to indicate a sum to be subtracted from the ultimate distribution. For the line-item entry for dissipation, instead of $75,000, the value was listed as only $37,500. More important for our present purposes, Rayna’s column for that line item is empty whereas Glen’s contains $37,500 without parentheses, indicating a positive sum. As we read this entry, it appears that the incorrect dissipation amount was entered into the value, and instead of Rayna being awarded half of that $75,000, the amount of $37,500 was given to Glen. This was error.

¶43      On remand, the district court should correct this error and the associated appendix to indicate without ambiguity that the full amount of dissipation is $75,000 and that Rayna will be awarded $37,500 as her share of that total.[4]

IV. Property Distribution Appreciation

¶44 Rayna lastly contends that the district court “abused its discretion when it refused to award [her] a proportional share of the appreciation that accrued on the marital investment accounts” as she requested in her motion to enforce. She asserts that the court mischaracterized her motion to enforce as a motion to amend and that it accordingly erred in determining that it lacked jurisdiction to provide the relief she requested. On appeal, Rayna appears to maintain that her motion below was nothing more than a motion to enforce the decree; that the court had jurisdiction to enforce its decree; and that in determining that the order she requested would require an amendment (as opposed to mere enforcement), the court inherently “determined the decree did not already offer Rayna a proportional amount of the appreciation.” We agree with the district court that the relief Rayna sought would have required an amendment to the decree and that the court did not have jurisdiction to amend that decree once the notice of appeal had been filed.

¶45      We note that a “trial court is [generally] divested of jurisdiction upon the filing of an appeal.” Ortiz v. Crowther, 2017 UT App 133, ¶ 2, 402 P.3d 34 (per curiam). But a court may still enforce its decree even if an appeal has already been sought.[5] See Cheves v. Williams, 1999 UT 86, ¶ 48, 993 P.2d 191. Accordingly, because “Rayna filed a motion to enforce the decree,” she asserts that the court should have reached the merits of the issue she presented to it. But “[t]he substance of a motion, not its caption, is controlling.” DeBry v. Fidelity Nat’l Title Ins. Co., 828 P.2d 520, 523 (Utah Ct. App. 1992). And here, although Rayna titled her motion as one “to enforce,” the requested relief does not match that title. Cf. CBS Enters. LLC v. Sorenson, 2018 UT App 2, ¶¶ 11–12, 414 P.3d 925.

¶46      The decree instructed Glen “to ‘transfer’ equities valued at the exact amounts set forth.” (Emphasis added.) But in her motion, Rayna requested not only those exact amounts but also “post-trial appreciation over and above the exact figures set forth.” On appeal, Rayna concedes that “the decree said nothing about who should receive the appreciation that accrued” post-trial. Accordingly, we agree with the district court that to award the relief that Rayna sought would require the district court to “read language into” the decree “in a way that modifie[d] or amend[ed]” it. See Mitchell v. Mitchell, 2011 UT App 41, ¶ 5, 248 P.3d 65 (“We interpret a divorce decree according to established rules of contract interpretation.” (cleaned up)); see also Brady v. Park, 2019 UT 16, ¶ 53, 445 P.3d 395 (“If the language within the four corners of the contract is unambiguous, the parties’ intentions are determined from the plain meaning of the contractual language . . . .” (cleaned up)).

¶47      Because Rayna filed her notice of appeal before the district court ruled on her request for post-trial appreciation of the investment distribution, the district court had been divested of jurisdiction to alter the divorce decree in the way Rayna requested. See Ortiz, 2017 UT App 133, ¶ 2. Accordingly, we affirm the district court’s determination.

V. Investment Income

¶48      On cross-appeal, Glen contends that the district court abused its discretion when it did not include in its alimony calculation an amount reflecting Rayna’s ability to earn income from awarded investment accounts and apply that amount toward Rayna’s unmet needs.[6] Initially, Glen asserts that the district court “fail[ed] to consider Rayna’s ability to earn” income from these sources, but in the remainder of his argument, he proceeds to explain why the court’s actual consideration of her ability to earn income from investment accounts is based on unsupported findings or is otherwise unjustified.

¶49 For its part, the district court acknowledged Glen’s argument that Rayna would receive an investable property distribution that could provide “at least” a six percent return. While Utah “caselaw directs district courts to consider all sources of income when determining alimony, it does not dictate that all sources of income be counted as income received”—instead district courts have “broad discretion to treat sources of income as the court sees fit under the circumstances.” Eberhard v. Eberhard, 2019 UT App 114, ¶ 21, 449 P.3d 202. The court then provided three justifications for its determination that “it would be inequitable to include interest, dividend or other unearned income potentially generated from investment assets received in the marital property award.”

¶50      First, the court explained that the “ability to obtain a 6% return is not sufficiently certain for the court to rely on.” It noted the inconsistency of historical returns, Rayna’s discretion to use her distribution for purposes other than investment, and the difficulty of projecting future investment income. Second, the court explained that “[i]t would be inequitable for Glen to be able to keep his share of the investments and retain their income stream to reinvest as he continues to generate professional income, while Rayna would retain only the investments after being compelled to expend her investment income to pay her living expenses.” The court felt that such an order would “wrongly deprive[] Rayna of the full benefit and value of” her distribution and that she should be able to “grow” any investments she would make without the obligation to use that money for providing for her own standard of living. Third, the district court explained that “[i]t was the parties’ regular practice not to spend or live off investment income, but rather to entirely reinvest that income.” Accordingly, the court refrained from applying any amount of potential investment income toward Rayna’s projected earning capacity.

¶51      In determining whether a spouse should receive alimony, the general rule is that a court should first take care of property distribution. See Batty v. Batty, 2006 UT App 506, ¶ 5, 153 P.3d 827 (“[An alimony] evaluation properly takes into account the result of the property division, particularly any income-generating property [the receiving spouse] is awarded, but alimony is not meant to offset an uneven property award. Rather, as a matter of routine, an equitable property division must be accomplished prior to undertaking the alimony determination.”). Then, depending on how the property distribution works out— especially considering income-generating property—the court considers whether alimony will be necessary for a spouse to meet demonstrated needs. See Burt v. Burt, 799 P.2d 1166, 1170 (Utah Ct. App. 1990) (“Alimony is appropriate to enable the receiving spouse to maintain as nearly as possible the standard of living enjoyed during the marriage and to prevent the spouse from becoming a public charge.” (cleaned up)); see also Batty, 2006 UT App 506, ¶ 4 (“In determining alimony, the trial court must consider three important factors: (1) the financial condition and needs of the spouse claiming support, (2) the ability of that spouse to provide sufficient income for him or herself, and (3) the ability of the responding spouse to provide the support. Although a trial court is given considerable discretion in determining an alimony award, failure to consider these factors constitutes an abuse of discretion.” (cleaned up)). And as we held in Eberhard v. Eberhard, 2019 UT App 114, 449 P.3d 202, while the district court must consider all potential sources of income, it is not required to count those sources of income. Id. ¶ 21. This is nothing more than an expression of the rule that a district court has “broad discretion to treat sources of income as the court sees fit under the circumstances.” Id.

¶52      Here, contrary to Glen’s assertion, the district court did, in fact, consider Rayna’s ability to earn income from her distributed investment assets in reaching its determination that she would still require additional alimony to support herself to the level of the marital standard of living. See Dobson v. Dobson, 2012 UT App 373, ¶ 21, 294 P.3d 591 (stating that for the purposes of determining alimony, “the needs of the spouses are assessed in light of the standard of living they had during marriage” (cleaned up)). Given that the district court considered Rayna’s ability to earn income in reaching its determination that she was entitled to alimony, the question before us is whether the circumstances allowed the district court to refrain from counting any future investment income Rayna may receive in its calculation. None of Glen’s arguments attacking the court’s determination persuade us that the court exceeded its discretion here.

¶53 First, Glen argues that the court’s determination that the “ability to obtain a 6% return is not sufficiently certain for the court to rely on” contradicts its other findings. Specifically, he cites a finding that states “Glen’s income has consistently increased” and “[o]ther than general economic uncertainty, there was no evidence at trial that this trend would not continue.” He then claims that this statement contradicts the court’s determination that Rayna would not obtain a return on her investments.

¶54 However, the two findings are not comparable at their roots. Regarding Rayna’s potential income, the court was specifically discussing income resulting from a return on investments; but regarding Glen’s income, the court was noting an increase in his income as a whole, including that income derived from gainful employment and not exclusively income derived from any returns on Glen’s ongoing investments. A projection that Glen’s income as a whole, salary and all, will continue to increase is not incompatible with a determination that a return on investment income is insufficiently certain to rely on.

¶55 As part of this argument, Glen also characterizes an unrelated finding from the court’s ruling as a determination that Rayna’s relevant accounts were “not easily liquidated” and asserts that the court’s statement that Rayna may choose to liquidate a portion of these investments contradicts that finding. But this description of the court’s finding is simply inaccurate— the court noted that the “accounts [were] not liquid,” and it made no statement about whether there would be difficulty in liquidating them. And even if the accounts were difficult to liquidate, it would, again, not be incongruous with the court’s other findings, specifically that Rayna could choose to liquidate, any difficulty notwithstanding.

¶56 Further, Glen asserts that the court unjustifiably determined that both parties should “grow” their investments but that growth on Rayna’s accounts was uncertain. Again, these findings are not incongruous—the district court could reasonably find that a return was uncertain, that requiring Rayna to use any return to provide for her needs would prevent her from increasing the amount invested, and that Rayna deserved the opportunity to have her investment returns be reinvested for potential future growth.

¶57      Second, Glen asserts that the court gave Rayna freedom to reinvest her investment returns while it restricted Glen to using his investment returns to pay for both the taxes owed on his forgiven loans and Rayna’s alimony award. As to the alimony award, we note that Glen has not directed us to anywhere in the record where the district court explained that he must pay for Rayna’s alimony using investment income, and as such, Glen is free to provide for Rayna’s alimony using whatever resources he desires, whether it be his salary, proceeds from a mortgage or other loan, or, indeed, his investment income.

¶58      Third, Glen asserts that the court’s finding that “Lilt was the parties’ regular practice not to spend or live off investment income, but rather to entirely reinvest that income” contradicts its acknowledgment that Glen incurred a tax obligation from the forgiven loans. However, we note that although Glen maintains on appeal that he used the forgivable-loan investment returns to pay tax obligations, Glen has not pointed to the court ever making a finding to that effect, and thus the findings are not inconsistent. Further, although such evidence was before the court, the court also stated that “Glen did not include his own investment income in his Financial Declaration as income available to pay alimony or to otherwise meet his own need.” That fact, the court stated, “demonstrate[d] that neither party considered investment income as income to be spent or expended, but rather as a vehicle to increase savings and net worth.” While a pattern of using investment returns to pay tax obligations may not be completely compatible with a pattern of using returns to “increase savings and net worth,” we do not view this apparent inconsistency as enough to persuade us that the court abused its discretion.

¶59      In sum, Glen has not demonstrated that the court abused its discretion in refusing to count Rayna’s potential investment returns as income toward her ability to meet her living expenses. Accordingly, we affirm the district court on this point.

CONCLUSION

¶60      First, we remand to the district court to apply the correct standard to the evidence regarding investments and savings and to adjust the alimony award based on calculations that account for Rayna’s historical spending on future investments; we also remand to the district court to adjust the alimony award based on calculations that account for Rayna’s historical spending on entertainment. Second, we affirm the district court’s determination that Glen did not own the book of business. Third, we remand to the district court to ensure that Rayna is awarded the $37,500 owed to her due to Glen’s dissipation. Fourth, we affirm the district court’s determination that the relief Rayna requested in her motion to enforce would have required it to amend the decree and that it lacked jurisdiction to do so. And fifth, we affirm the district court’s decision not to include potential investment income in calculating Rayna’s actual income. On remand, we instruct the district court to engage in further proceedings as necessary to effectuate the holdings provided in this opinion.

 

[1] Justice Diana Hagen began her work on this case as a judge of the Utah Court of Appeals. She became a member of the Utah Supreme Court thereafter and completed her work on the case sitting by special assignment as authorized by law. See generally Utah R. Jud. Admin. 3‑108(4).

[2] Due to the parties’ shared surname, we employ their given names.

[3] The parties are appealing an order 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. However, we present conflicting evidence to the extent necessary to clarify the issues raised on appeal.” Kidd v. Kidd, 2014 UT App 26, n.1, 321 P.3d 200 (cleaned up).

[4] The district court’s view, which we endorse, is that Glen spent $75,000 in marital funds on his affair—not a proper marital purpose. Half of that amount was essentially his, but the half belonging to Rayna should properly be restored to her by Glen.

[5] Notwithstanding this general rule, the lower court may, in addition to dealing with motions to enforce the decree address clerical errors and other mistakes “arising from oversight or omission” that the appellate court asks it to address even after an appeal has been filed. See Utah R. Civ. P. 60(a); see also Cheves v. Williams, 1999 UT 86, ¶ 45, 993 P.2d 191 (“We have also recognized exceptions to [the general] rule, in the interest of preventing unnecessary delay, where any action by the trial court is not likely to modify a party’s rights with respect to the issues raised on appeal, or where the action by the trial court is authorized by rule or statute.” (cleaned up)).

[6] Although the district court did not impute income to Rayna based on investment earnings, it did impute to her some income based on an undisputed amount of earning capacity.

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Wellman v. Kawasaki – 2023 UT App 11 – Alimony

2023 UT App 11

THE UTAH COURT OF APPEALS

DAVID WELLMAN, Appellee, v. KRISTIN KAWASAKI, Appellant.

Opinion

No. 20210265-CA

Filed February 2, 2023

Fourth District Court, Provo Department
The Honorable Christine S. Johnson
No. 174402919

Mary Deiss Brown, Attorney for Appellant

Eric M. Swinyard and Keith L. Johnson,
Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N.
MORTENSEN concurred.

HARRIS, Judge:

¶1 Kristin Kawasaki appeals various aspects of a comprehensive set of rulings issued following a two-day divorce trial and post-trial proceedings; her chief complaint relates to the trial court’s decision not to award her alimony. For the reasons discussed below, we affirm the court’s orders.

BACKGROUND

¶2        David Wellman and Kristin Kawasaki married in 1999 and have three children together, two of whom were minors at the time of trial. For most of their marriage, Kawasaki did not work outside the home but instead cared for the children full-time. By the time of trial, however, Kawasaki was working full-time as a receptionist, earning $3,667 per month; Wellman, an engineer, was earning $10,833 monthly.

¶3        In November 2017, Wellman filed for divorce. Some months later, the trial court entered temporary orders, based partially on stipulation, that made Kawasaki the primary physical custodian of the minor children, and that required Wellman to pay both $2,182 per month in child support as well as, in lieu of alimony, the mortgage payment on the marital house (in the amount of $2,836 per month). Additionally, the court awarded “the temporary exclusive use and possession of” the parties’ marital house to Kawasaki.

¶4        In the three years between their separation and their eventual divorce trial, the parties’ finances and daily lives remained enmeshed due to Wellman’s changing employment and living situation. Despite the fact that Kawasaki had been awarded exclusive use of the marital house in the temporary orders, Wellman lived in the basement of the house off and on in the years leading up to trial. Wellman paid the mortgage in many of the months, but missed those payments in others, and had stopped making those payments altogether by the time of trial. And despite being ordered to make child support payments, Wellman never made a single such payment to Kawasaki prior to trial, opting instead to pay many of her bills directly or to buy groceries for the household while he was living in the marital house.

¶5        Eventually, the case proceeded to a bench trial, which was held—virtually, through a videoconference platform—over two days in late November and early December 2020. During the trial, the court heard testimony from Wellman and Kawasaki as well as several other witnesses. At the trial’s outset, before testimony began, Wellman’s counsel alerted the court that Kawasaki had failed to timely produce any financial documents (e.g., bank or credit card statements, copies of bills) to support her claim for alimony, despite the fact that the court had ordered both parties to turn over to the other side a year’s worth of bank statements prior to trial. In addition, while Kawasaki had submitted a financial declaration in 2017, at the outset of the litigation, for use during the temporary orders hearing, she had never updated that declaration. Wellman’s counsel asserted that, under applicable law, Kawasaki’s failure to provide documentation to support her alimony claim “operates as an effective bar to [Kawasaki’s] request for alimony.” Kawasaki’s counsel attempted to remedy the situation by offering to have Kawasaki read a printout of her most current (yet undisclosed) bank statement into the record, but the court refused to allow that, explaining that it would not be “appropriate” for Kawasaki to use evidence at trial that had not been timely disclosed. But the court did not view Kawasaki’s failure to produce an updated financial declaration or supporting financial documents as a complete bar to her alimony claim; indeed, the court stated that the parties “can address alimony with documents that are already in the record,” and later allowed both parties to offer testimony regarding certain aspects of Kawasaki’s alimony claim.

¶6        During her trial testimony, Kawasaki provided few concrete financial details; in particular, she made no attempt to tie her testimony to any previously filed financial declaration, and she did not submit any such declaration for the court’s consideration at trial. The only specific dollar amounts Kawasaki testified about were the amounts Wellman was ordered to pay in connection with the temporary orders and the wage she earned when she later obtained employment. She testified that, at the time of trial, her net income each month was $2,800 but that, due to expenses, “most months [she goes] into the negative” and has to rely on her “overdraft.” However, she offered no concrete expense numbers to substantiate this assertion. She offered her belief that an apartment in her area suitable for her and the children would cost “about $2,000,” but did not know what the other expenses associated with such an apartment would be.

¶7        At one point, Kawasaki’s counsel even acknowledged that she was “having trouble establishing [her] client’s needs . . . because of disclosure problems,” but asserted that “there are ways of establishing [Kawasaki’s] needs by establishing [Wellman’s] needs.” To this end, counsel attempted to draw on figures Wellman had put together before trial and to press him on how much is “enough for a single person to live with three children.” But counsel did not question Wellman about the line-item expenses on his financial declarations, and did not submit any of those declarations for the court’s consideration. Wellman did admit, however, in response to a general question about how much it would “cost to live with three kids,” that “$1,000 to $1,500 [monthly] for daily activities and food” was not “unreasonable.”

¶8        After considering all of the evidence presented, and after taking into account the closing arguments from the attorneys, the court took the matter under advisement, and later issued a written ruling. In that ruling, the court awarded Kawasaki sole physical custody of the minor children, allowing Wellman parent-time pursuant to Utah Code section 30-3-35. The court ordered Wellman to pay Kawasaki $1,578 per month in child support, calculated by using the sole custody worksheet and assessing Wellman’s monthly gross income at $10,833 and Kawasaki’s at $3,667. The court also ordered Wellman to pay Kawasaki $76,370 in child support arrears, in light of the fact that Wellman had not made any direct child support payments pursuant to the temporary order. The court awarded title of the marital house to Wellman, but ordered that the equity in the house be divided equally within one year, either through a sale or a refinance. With regard to all other marital debts, including debt from a loan taken out during the marriage on a Thunderbird vehicle the parties had purchased during the marriage, the court ordered that the parties “be equally responsible for” them.

¶9        With regard to alimony, however, the court declined Kawasaki’s request in its entirety. The court noted that the party requesting alimony bears the burden to establish entitlement to it, including the burden of establishing that party’s financial need. The court found that Kawasaki “did not present any bank statements whatsoever, nor did she submit a financial declaration or any documentary evidence regarding her income, expenses, or debts.” And the court found that Kawasaki’s testimony about her financial need “was inconsistent and missing critical information” and was not enough, in the absence of any documentary evidence, to “persuade the Court that alimony should continue.”

¶10      After the ruling, Kawasaki filed a post-trial motion, chiefly to ask the court to order either (a) that the marital house be sold right away rather than within one year, or (b) that Kawasaki be allowed possession of it until the sale or refinance. Among other requests, Kawasaki also asked the court to amend its order so that she would not have to share in paying off the debt relating to the Thunderbird, asserting that Wellman had gifted the car to her and then later destroyed it. But Kawasaki did not ask the court to amend its alimony ruling. Following a hearing on the motion, the court reiterated that Kawasaki was liable for her share of the Thunderbird debt because “the debt was attributable to the parties’ IRS debt,” which was a joint debt, and the court declined Kawasaki’s request to materially amend its order regarding the marital house.

ISSUE AND STANDARD OF REVIEW

¶11 Kawasaki now appeals, and asks us to review the trial court’s decision not to award her any alimony.[1] “We review a court’s alimony determination for an abuse of discretion,” Fox v. Fox, 2022 UT App 88, ¶ 11, 515 P.3d 481 (quotation simplified), and “as long as the court exercises its discretion within the bounds and under the standards our supreme court has set and so long as the trial court has supported its decision with adequate findings and conclusions,” we “will not disturb its ruling on alimony,” Miner v. Miner, 2021 UT App 77, ¶ 11, 496 P.3d 242 (quotation simplified).

ANALYSIS

¶12      “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.” Miner, 2021 UT App 77, ¶ 14 (quotation simplified). “The core function of alimony is therefore economic,” and “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 (quotation simplified).

¶13 In evaluating a party’s alimony claim, “courts must consider the statutory alimony factors,” which include “the financial condition and needs of the recipient spouse, the recipient’s earning capacity, and the ability of the payor spouse to provide support.” Fox, 2022 UT App 88, ¶ 20 (quotation simplified). These three factors are often called the “Jones factors” because they date back to Jones v. Jones, 700 P.2d 1072 (Utah 1985); they have since been codified in Utah Code section 30-3-5(10)(a)(i)–(iii), and they remain the first three factors of a “multi-factor inquiry” that governs a court’s alimony determination. See Miner, 2021 UT App 77, ¶ 16.

¶14 “A party seeking alimony bears the burden of demonstrating to the court that the Jones factors support an award of alimony.” Dahl v. Dahl, 2015 UT 79, ¶ 95, 459 P.3d 276. The most common way for a party to satisfy this burden is for the party to “provide the court with a credible financial declaration and [supporting] financial documentation to demonstrate that the Jones factors support an award of alimony.” Id. ¶ 96. And in most cases, that is what the parties do; indeed, our current rules of civil procedure require parties in domestic cases to turn over to the other side, at the outset of the case, “a fully completed Financial Declaration, using the court-approved form,” along with “attachments,” including recent bank statements and tax returns as well as “copies of statements verifying the amounts listed on the Financial Declaration.” See Utah R. Civ. P. 26.1(c). The court-approved form includes a table where parties are expected to set forth, in line-item fashion, their monthly expenses. See Financial Declaration, Utah State Courts, 6-7, https://legacy.utcourts.gov/ho wto/family/financial_declaration/ docs/1352FA_Financial_Declar ation.pdf [https://perma.cc/K77G-Y99V]. And these disclosures, like other required disclosures, must be timely supplemented in the event things materially change. See Utah R. Civ. P. 26(d)(5). At trial, parties seeking alimony often use the line-item expense categories listed in their financial declarations as a template for the “needs” portion of their alimony request, offering testimony about the items in the declaration and seeking admission into evidence of the applicable documents (bank statements, credit card statements, tax returns, etc.) that support the various expense categories. See, e.g.Miner, 2021 UT App 77, ¶¶ 20–63 (analyzing separate challenges to eleven of the forty-five expense line items in a trial court’s alimony award).

¶15      In this case, however, Kawasaki did not follow this course of action. She did submit a financial declaration in 2017, at the outset of the case, and it was used in connection with the temporary orders hearing. But she did not ever supplement that declaration in advance of the trial held some three years later; she did not testify about that declaration at trial; she failed to produce—even after the court ordered her to do so—any financial documentation supporting her alleged expenses; and she failed to gain admission of either her declaration or any specific financial documentation into evidence at trial.[2]

¶16 Litigants who bring alimony claims but fail to support them with the usual documentation put trial courts in a very difficult spot. On the one hand, trial courts are trained to be sensitive to the potential unfairness of a litigant—in particular one who has spent years, perhaps even decades, out of the workforce while raising children—being left without sufficient support, especially where that litigant’s spouse is able to live comfortably. Indeed, alimony is supposed to allow the recipient spouse to enjoy, as much as possible, the marital standard of living, and is designed “to prevent the recipient spouse from becoming a public charge.” Id. ¶ 14 (quotation simplified). In this context, as is often the case in family law, trial courts have wide discretion to fashion remedies that fit the situation faced by the family at issue. See Vanderzon v. Vanderzon, 2017 UT App 150, ¶ 41, 402 P.3d 219 (“Trial courts have considerable discretion in determining alimony and determinations of alimony will be upheld on appeal unless a clear and prejudicial abuse of discretion is demonstrated.” (quotation simplified)).

¶17      In particular, trial courts are vested with discretion to “impute figures” for a recipient spouse’s needs analysis, even where complete documentation is lacking, as long as there is sufficient evidence to support such imputation. See Dahl, 2015 UT 79, ¶ 116 (stating that courts “may impute figures” (emphasis added)). In cases where an alimony claimant fails to provide sufficient documentation, courts may find adequate support for the imputation of particular expenses in, for instance, the opposing party’s documentation, see id. (stating that “the district court could have . . . imputed a figure to determine [the recipient spouse’s] financial need based . . . on . . . [the opposing party’s] records of the parties’ predivorce expenses”), or in updated financial declarations supported not by timely disclosed financial documents but instead by the sworn testimony of witnesses, see Munoz-Madrid v. Carlos-Moran, 2018 UT App 95, ¶ 10, 427 P.3d 420 (upholding a trial court’s imputation of some of a recipient spouse’s expense items, despite the spouse’s “fail[ure] to provide supporting documentation with her financial declaration,” because the spouse had provided an updated financial declaration and another witness had offered specific testimony at trial about the spouse’s rent and utilities expenses that was “consistent with [the] financial declaration”).

¶18      But on the other hand, trial courts’ discretion in this arena is not unlimited, and courts that go too far in trying to help litigants who haven’t sufficiently supported their alimony claims risk abusing their discretion. Courts that make alimony awards “must support [those] determinations with adequate findings,” see Rule v. Rule, 2017 UT App 137, ¶ 22, 402 P.3d 153, including specific findings regarding a recipient spouse’s reasonable monthly needs. Where trial courts attempt to make alimony awards in the absence of specific findings, supported by evidence in the record, regarding a recipient spouse’s actual needs, those courts have often been reversed. See, e.g.Eberhard v. Eberhard, 2019 UT App 114, ¶¶ 36–40, 449 P.3d 202 (reversing as inadequately supported a trial court’s alimony award that, on its face, exceeded the recipient spouse’s monthly needs but was apparently designed to vaguely bring her more into line with “the marital standard of living,” and stating that “[w]ithout the district court more precisely spelling out the amount that [the recipient spouse] realistically requires . . . to enjoy the marital standard of living, we are unable to discern whether the alimony award, in fact, exceeds her needs”); Bakanowski v. Bakanowski, 2003 UT App 357, ¶¶ 11– 13, 80 P.3d 153 (reversing where “the trial court engaged in an effort to simply equalize income . . . rather than going through the traditional needs analysis,” and concluding that “the trial court abused its discretion by failing to enter specific findings on [the recipient spouse’s] financial needs and condition”).

¶19 In this case, the trial court determined that the evidence Kawasaki presented at trial was insufficient to allow the court to make the findings necessary for an alimony award. In its ruling, the court noted that Kawasaki “did not submit a financial declaration” at trial, nor did she present any “bank statements” or other “documentary evidence regarding her . . . expenses” The court—presumably in an effort to locate admitted evidence upon which it could rest an imputation of some of Kawasaki’s expenses—then noted that Wellman had not submitted a financial declaration at trial either, nor had he provided bank statements or any “detailed testimony regarding either of the [parties’] monthly financial obligations.” Finally, the court discussed Kawasaki’s own testimony at trial, but concluded that her “testimony regarding . . . her monthly expenses . . . was inconsistent and missing critical information,” and therefore “did not persuade the [c]ourt that alimony should continue.”

¶20 Under the circumstances presented here, we discern no abuse of the trial court’s discretion in reaching this conclusion. As already noted, Kawasaki’s attempt to place into evidence undisclosed bank statements was denied, and after that Kawasaki made no real effort to provide the court, at trial, with any concrete evidence of her monthly expenses. She did not attempt to submit her 2017 financial declaration for the court’s consideration at trial, and she did not attempt to provide any testimony about the line-item expenses on that declaration. And although she had in her possession, at trial, a copy of Wellman’s financial declaration, she asked Wellman only a few general questions about it, and did not attempt to ask him any specific questions about the expense line items. The only categories of expenses that she even generally discussed, through questioning of witnesses, were housing—as to which she testified that she thought a suitable apartment would cost “about $2,000” per month—and a vague category her counsel referred to as how much it would “cost to live with three kids”— as to which Wellman offered his view that “$1,000 to $1,500 [per month] for daily activities and food” would not be “unreasonable.” Against the backdrop of this evidence, we consider it far from an abuse of the trial court’s discretion for the court to conclude that Kawasaki had failed to carry her burden of demonstrating a need for alimony.

¶21      Kawasaki resists this conclusion on two grounds. First, she asserts that the trial court misinterpreted applicable law by refusing to even consider her alimony claim after the court ruled that the untimely disclosed bank statements were inadmissible. Kawasaki correctly argues—as we have explained above—that a party’s failure to provide documentation supporting an alimony claim is not necessarily fatal, so long as other evidence in the record can support imputation of the necessary expenses, and so long as a trial court is willing to exercise its discretion to make such imputations. And we acknowledge that certain statements by the trial court, during the pretrial discussion about the bank statements, may have left the impression that the court was refusing to consider Kawasaki’s alimony claim altogether. For instance, at one point Wellman’s attorney stated that his understanding of Dahl was “that a failure to supply bank statements prevents the [c]ourt from actually evaluating” Kawasaki’s alimony claim, and the court responded by stating that counsel’s argument was “consistent with [its] understanding of Dahl.” But later, the court noted that “if there are other documents” that could be used to “substantiate [Kawasaki’s] finances, then you can use those,” and told Kawasaki that she could “address alimony with documents that are already in the record” and that “if there are records of some kind that would support a claim for alimony, then [Kawasaki] can go forward” with that claim. And in its written ruling, the court clearly did not perceive Kawasaki’s alimony claim as entirely barred by her failure to provide documentation; instead, the court evaluated that claim against the backdrop of the evidence that had been presented at trial. Kawasaki is simply incorrect when she asserts that the trial court refused to consider her alimony claim.

¶22      Second, Kawasaki asserts that the trial court could have, and should have, made findings regarding her monthly needs from the evidence available in the record. We disagree that the evidence could have supported imputation of the full list of Kawasaki’s expenses; with regard to most of them, there was simply no evidence admitted whatsoever. For instance, there was no specific discussion at trial of utility expenses, automobile or transportation expenses, entertainment expenses, or clothing expenses. Had the trial court attempted to make findings regarding such unsupported expenses, it likely would have exceeded its discretion.

¶23 But a trial court, on this record, could perhaps have exercised its discretion to impute to Kawasaki a housing expense of $2,000 and a food expense of, say, $1,000. After all, housing and food are universal needs, and those figures were discussed at trial by both Kawasaki and Wellman and appeared to have been more or less undisputed. But while the court perhaps could have exercised its discretion to impute these two discrete expenses, we are not prepared to say that it was an abuse of discretion not to do so; after all, the evidence supporting these figures was vague at best and unsupported by any documentation. And in any event, even if the court had made these two imputations, that would have resulted in a determination that Kawasaki’s demonstrated monthly expenses were $3,000, a conclusion that would not have resulted in an alimony award given that Kawasaki’s net income was $2,800 per month and that Wellman had been ordered to pay Kawasaki $1,578 per month in child support. See Roberts v. Roberts, 2014 UT App 211, ¶ 14, 335 P.3d 378 (stating that, “regardless of the payor spouse’s ability to pay more, the recipient spouse’s demonstrated need must constitute the maximum permissible alimony award” (quotation simplified)). Under these circumstances, even if the court had reached to assist Kawasaki by making these two specific imputations, that effort would not have resulted in any alimony award to Kawasaki.

¶24      In some cases, the evidence is solid enough, even without proper documentation from the alimony claimant, for a court to be able to exercise its discretion to impute at least some of the claimant’s expenses, especially basic universal ones like housing and food. See Munoz-Madrid, 2018 UT App 95, ¶ 10; see also Dahl, 2015 UT 79, ¶ 116 (stating that “courts may impute figures” (emphasis added)). Indeed, in keeping with the purposes of alimony, courts should attempt to do so where the evidence and equity permit. But in other cases—including this one—the evidence is simply not strong enough to support imputation of enough expenses to justify an alimony award. See Dahl, 2015 UT 79, ¶¶ 108–09 (stating that, where the claimant “provided no financial declaration, no supporting financial documentation, and no expert testimony,” her “unsubstantiated testimony did not satisfy her burden of showing her financial need”). We perceive no abuse of discretion in the trial court’s conclusion that, on this record, Kawasaki had not borne her burden of demonstrating entitlement to alimony.

CONCLUSION

¶25      As the party seeking an alimony award, Kawasaki bore the burden of showing her financial need for such an award. The trial court determined that Kawasaki had failed to meet that burden, and that conclusion was not an abuse of the court’s discretion.

¶26 Affirmed.

 

[1] In her brief, Kawasaki also challenges the trial court’s failure “to compensate [her] for Wellman’s post-separation destruction of her separate property, the Thunderbird.” We agree with Wellman, however, that this precise issue was not properly presented to the trial court and is therefore unpreserved. See State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443 (“When a party fails to raise and argue an issue in the trial court, it has failed to preserve the issue, and an appellate court will not typically reach that issue.”). At trial, the Thunderbird was discussed only as a negative asset, due to the loan the parties had taken out on the vehicle to pay marital debts. The only question the parties put before the court, as concerned the Thunderbird, was which of them (or both) should bear the responsibility for paying off the debts associated with the vehicle. Kawasaki did not make an argument that the Thunderbird had any positive equity, let alone an argument that any such value should be awarded to her as her separate property. Consequently, Kawasaki’s current claim to that effect, here on appeal, is not preserved for our review, and we do not discuss it further.

[2] As noted, the trial court excluded some of Kawasaki’s offered evidence on the ground that the documents had not been timely disclosed to Wellman. On appeal, Kawasaki does not challenge the court’s ruling excluding her undisclosed evidence.

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What Are the Divorce Laws in Utah?

This is a good but very broad question. Here, in a nutshell, is a good way to start learning the answer:

If you want to know the divorce laws in Utah, you will want to read the laws and the rules of court (civil procedure and evidence) that govern divorce actions. Read about how divorce law is applied in Utah. Here are the links to all three of these things:

Read—and comprehend*—good websites (not just any websites) that explain and discuss Idaho divorce law and how it applies, and you will want to meet with an experienced, knowledgeable, and skilled attorney who is licensed in the state of Idaho to practice law to gain a better understanding of Idaho divorce law generally and how Idaho divorce law can affect you and your family specifically.

And you will want to meet with an experienced, knowledgeable, and skilled attorney who is licensed in the state of Idaho to practice law to gain a better understanding of Idaho divorce law generally and how Idaho divorce law can affect you and your family specifically. Don’t skip this step. Don’t jump over dollars to pick dimes by fooling yourself with “Just think of the money I saved by not talking to an expert on a subject that will have a profound effect on the rest of my life but of which I know nothing!”

*reading (and listening to podcasts or watching videos) does you no good if you do not in fact learn anything from it. Pay attention. Understand what you’re reading. Just reading alone doesn’t educate you. If you don’t understand the subject after reading/listening/watching, then read/listen/watch more and/or pay closer attention. No “A” is given for effort.

 

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

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Is 50/50 custody likely when the parents live in the same neighborhood?

What is the likelihood of reverting to 50/50 custody when the parents live in the same neighborhood? Mom still cares for the child over 80%

Your question states in part, “What is the likelihood of reverting to 50-50 custody.” Your use of the word “reverting” implies that at one time in the past you and the other parent exercised joint equal (50/50) custody of the child. It appears that at some point one or both of you moved away from each other such that 50/50 custody could not be practicably exercised anymore, at which point sole or primary custody of the child was awarded to the mother. 

It appears that either the mother has moved into your neighborhood or you have moved into the mother’s neighborhood, such that 50/50 custody can now be practicably exercised again.  

Unless you have an unusual case in which the court does not allow the parents to determine what the custody and parent time schedules are, you and the mother could agreed to resume a 50/50 custody and parent time schedule, if you wanted. If you want to do that, it would be wise to write up a new agreement indicating that you and the mother agree to exercise 50/50 custody and parent time and have that agreement made the new order of the court. 

If the mother refuses to agree to resume a 50/50 custody and parent time schedule, the question then becomes whether the court would grant your petition to revert back to a 50/50 schedule and resume that schedule for you and the child. 

I cannot speak for all jurisdictions and the laws that apply in each of them, but I can tell you that in the state of Utah, where I practice divorce and family law, simply moving closer to the other parent, so that joint equal (50/50) custody could be practicably unsuccessfully exercised, is usually not enough of a reason to modify the child custody and parent time order: 

Huish v. Munro, 191 P.3d 1242 (2008 UT App 283): 

To demonstrate a substantial change of circumstances . . . the asserted change must, therefore, have some material relationship to and substantial effect on parenting ability or the functioning of the presently existing custodial relationship. 

Thorpe v. Jensen, 817 P.2d 387, 391 (Utah Ct.App. 1991): 

[The] need for caution was emphasized in Kramer v. Kramer, 738 P.2d 624 (Utah 1987), where the court noted that “a central premise of our recent child custody cases is the view that stable custody arrangements are of critical importance to the child’s proper development.” Id. at 626 (citations omitted). The “change of circumstances” threshold announced in Hogge and Becker is elevated to discourage frequent petitions for modification of custody decrees. The Hogge test was designed to “protect the custodial parent from harassment by repeated litigation and [to] protect the child from ‘ping-pong’ custody awards.” Hogge v. Hogge, 649 P.2d at 53-54. This policy is soundly premised. 

But there is this (from the case of Miller v. Miller, 480 P.3d 341 (2020 UT App 171): 

[I]f a court determines a petition as a whole clearly does not allege a change in circumstances that has any relation to the parenting skills or custodial relationship or the circumstances on which the custodial arrangement was based, it may dismiss the petition for failure to state a claim. See O’Hearon v. Hansen, 2017 UT App 214, ¶ 10, 409 P.3d 85; cf. Becker v. Becker, 694 P.2d 608, 610 (Utah 1984) (stating that, to meet the materiality requirement, the change in circumstances must “have some material relationship to and substantial effect on parenting ability or the functioning of the presently existing custodial relationship” or “appear on their face to be the kind of circumstances on which an earlier custody decision was based”). 

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

https://www.quora.com/What-is-the-likelihood-of-reverting-50-50-custody-when-the-parents-live-in-the-same-neighborhood-Mom-still-cares-for-the-child-over-80/answer/Eric-Johnson-311  

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I want my husband to get 0 in the divorce if he bothers me about my weight

Can I include that my husband will get 0 in the divorce if he bothers me about my weight in the prenup? 

I cannot discuss this question as it applies to all jurisdictions, but I can give you my opinions as to how I believe they apply in the jurisdiction where I practice divorce and family law (Utah). Remember, this is just my opinion, not advice. If you want legal advice as to what to do in a particular situation in a particular jurisdiction, you need to consult with your own attorney.  

First, and with sincere due respect, know that if you are that sensitive about your weight and/your fiancé, a prenuptial agreement isn’t going to solve that/those problems.  

Can you include such a provision in a prenuptial agreement? Yes, nothing can stop you from literally writing up such a provision and including it in a prenuptial agreement that your fiancé signs.  

Will such a provision be legally enforceable? That’s a different question, and the key question. 

And the answer to that question is: maybe. Be aware of this provision of the Utah Code regarding the enforceability of prenuptial agreements: 

Utah Code § 30-8-6. Enforcement. 

(1) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that: 

(a) that party did not execute the agreement voluntarily; or 

(b) the agreement was fraudulent when it was executed and, before execution of the agreement, that party: 

(i) was not provided a reasonable disclosure of the property or financial obligations of the other party insofar as was possible; 

(ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and 

(iii) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. 

(2) If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility. 

(3) An issue of fraud of a premarital agreement shall be decided by the court as a matter of law. 

So if your prenuptial agreement provides that fiancé/future husband does not get alimony if he makes your weight an issue, and if denial of alimony would cause your husband to be eligible for public assistance, the “make an issue of my weight and you get nothin’” provision may not (likely would not) be enforceable.  

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

https://www.quora.com/Can-I-include-that-my-husband-will-get-0-in-the-divorce-if-he-bothers-me-about-my-weight-in-the-prenup/answer/Eric-Johnson-311  

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Does the statute that enables a spouse to not testify against their spouse carry over into divorce if the alleged crime took place during the marriage? 

I don’t know the rules as they apply in different jurisdictions, but I can tell you what the rule is in Utah, where I practice divorce and family law. 

In Utah, the rule is as follows (see Utah Rules of Evidence (URE) 502): 

Rule 502. Husband – Wife. 

(a) Definition. 

(a)(1) “Confidential communication” means a communication: 

(a)(1)(A) made privately by any person to his or her spouse; and 

(a)(1)(B) not intended for disclosure to any other person. 

(b) Privilege in Criminal Proceedings. In a criminal proceeding, a wife may not be compelled to testify against her husband, nor a husband against his wife. 

(c) Statement of the Privilege. An individual has a privilege during the person’s life: 

(c)(1) to refuse to testify or to prevent his or her spouse or former spouse from testifying as to any confidential communication made by the individual to the spouse during their marriage; and 

(c)(2) to prevent another person from disclosing any such confidential communication. 

(d) Who May Claim Privilege. The privilege may be claimed by: 

(d)(1) the person who made the confidential communication; 

(d)(2) the person’s guardian or conservator; 

(d)(3) the non-communicating spouse to whom the confidential communication was made may claim the privilege on behalf of the person who made the confidential communication during the life of the communicating spouse. 

(e) Exceptions to the Privilege. No privilege exists under paragraph (c) in the following circumstances: 

(e)(1) Spouses as Adverse Parties. In a civil proceeding in which the spouses are adverse parties; 

(e)(2) Furtherance of Crime or Tort. As to any communication which was made, in whole or in part, to enable or aid anyone to commit; to plan to commit; or to conceal a crime or a tort. 

(e)(3) Spouse Charged with Crime or Tort. In a proceeding in which one spouse is charged with a crime or a tort against the person or property of: 

(e)(3)(A) the other spouse; 

(e)(3)(B) the child of either spouse; 

(e)(3)(C) a person residing in the household of either spouse; or 

(e)(3)(D) a third person if the crime or tort is committed in the course of committing a crime or tort against any of the persons named above. 

(e)(4) Interest of Minor Child. If the interest of a minor child of either spouse may be adversely affected, the Court may refuse to allow invocation of the privilege. 

You can learn more about the spousal privilege by clicking this link to commentary on URE Rule 502. 

 

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

https://www.quora.com/Does-the-statute-that-enables-a-spouse-to-not-testify-against-their-spouse-carry-over-into-divorce-if-the-alleged-crime-took-place-during-the-marriage/answer/Eric-Johnson-311 

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How long do you pay alimony in Utah?

The law governing the duration of alimony is pretty simple and straightforward: 

See Utah Code § 30-3-5, subsections (1)(c) and (11)(e): 

(1) As used in this section: 

***** 

(c) “Length of the marriage” means, for purposes of alimony, the number of years from the day on which the parties are legally married to the day on which the petition for divorce is filed with the court. 

***** 

11(e) 

(i) Except as provided in Subsection (11)(e)(iii), the court may not order alimony for a period of time longer than the length of the marriage. 

(ii) If a party is ordered to pay temporary alimony during the pendency of the divorce action, the period of time that the party pays temporary alimony shall be counted towards the period of time for which the party is ordered to pay alimony. 

(iii) At any time before the termination of alimony, the court may find extenuating circumstances or good cause that justify the payment of alimony for a longer period of time than the length of the marriage. 

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

https://www.quora.com/How-long-do-you-pay-alimony-in-NC/answer/Eric-Johnson-311  

 

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Is child marriage legal in the United States?

Of a sort, and depending upon the particular state, yes.  

In some places children (minor children, those who are by law deemed incapable of consenting to marry) can marry with their parents’ permission, under certain conditions.  

For example, in Utah (where I practice divorce and family law), the Utah Code provides: 

30-1-9. Marriage by minors — Consent of parent or guardian — Juvenile court authorization. 

30-1-9.1. Parental consent to prohibited marriage of minor — Penalty. 

It used to be that minor girls as young as 14 could marry in many U.S. states (including Utah), with parental permission. That is no longer true in Utah; the minimum age is now 16. 

According to this webpage, Marriage Age by State 2022, the state with the lowest minimum marriage age with parental consent in the U.S.A. is Massachusetts, which allows a child of 12 years of age to marry. New Hampshire comes in second at 13 years of age, and Hawaii and Missouri are tied at 15 years of age. Every other state sets the minimum at 16 years of age. 

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

https://www.quora.com/Why-is-child-marriage-still-legal-in-the-U-S/answer/Eric-Johnson-311  

 

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New Laws Affecting Utah Divorce and Family Law in 2022

Here is a summary of new law affecting divorce and family law that was created by the Utah State Legislature in 2022: 

HB (House Bill) 122 1st Substitute, entitled “Family Terminology Amendments.” This bill amended language regarding marriage and legitimacy. That means terms like “legitimate” or “illegitimate” in the context of children born out of wedlock have been replaced with “legally recognized relationship.” As I’ve always said, why use one word when you can use three? And as I’ve also always said, “I know how to prevent stigmas attached to words: change the word!” Look how well that’s worked in the past! Your tax dollars at work.  

HB 175, entitled Protection of Animals Amendments. This bill modified the definition of “emotional distress” related to the offense of stalking to include significant mental or psychological suffering resulting from harm to a household pet. But wait, there’s more: it also provides that protection of an animal can be requested certain protective order request forms and protective orders, and it permits the court, when issuing certain protective orders, to enjoin the respondent from injuring, threatening to injure, or taking possession of certain animals.  

HB 231 1st Substitute, entitled “Fishing and Hunting Restrictions for Nonpayment of Child Support.” This bill: amended the restrictions for a license, permit, or tag related to fishing or hunting when an individual is delinquent in child support and makes certain accommodations for obtaining a hunting or fishing license if a child support payor is temporarily unable to pay child support due to transition to new employment. 

SB 74 3rd Substitute, entitled “Alimony Modifications”. This bill defined the term, “length of the marriage” to mean the  number of years from the day on which the parties are legally married to the day on which the petition  for divorce is filed with the court; it provides that if a party is ordered to pay temporary alimony during the pendency of the divorce action, the period of time that the party pays temporary alimony shall be counted towards the period of time for which the party is ordered to pay alimony. It also provides that if a party establishes that a current spouse cohabits with another individual during the pendency of the divorce action, the court: may not order the party to pay temporary alimony to the current spouse; and shall terminate any order that the party pay temporary alimony to the current spouse. 

SB 85 4th Sub, entitled “Protective Order and Civil Stalking Injunction Expungement”. This bill defined terms relating to the expungement of protective orders and stalking injunctions; makes statutory provisions for the expungement of protective orders and stalking injunctions retroactive; allows for the expungement of certain protective orders and stalking injunctions; provides the requirements for expunging certain protective orders and stalking injunctions; and addresses the distribution and effect of an order for expungement of certain protective orders and stalking injunctions. It’s about time. If the courts are going to hand out protective orders like stale candy, consistently flout the preponderance of evidence standard in favor of a “ 

SB 164, entitled “Marriage Solemnization Amendments”. This bill amended the list of individuals authorized to solemnize a marriage to include the state attorney general, the state treasurer, the state auditor, and members of the state’s congressional delegation. After all, haven’t we all felt it just plain common sense that the state treasurer, the state auditor, and members of the state’s congressional delegation ought to have the power to perform wedding ceremonies? I mean, how did we get along without this to this point? 

SB 217, entitled “Protective Order Revisions”. This bill clarifies that a protective order or civil stalking injunction may be filed in the county where a party is temporarily domiciled. 

SB 242, 1st Sub, entitled “Child Support Amendments”. This bill modifies the child support tables; provides the effective dates of the child support tables. 

SB 243 1st Sub, entitled “Parent-Time Amendments”. This bill: defines terms; modifies and clarifies parent-time schedules. More particularly, it specifies transfer time for Christmas holiday on December 27th at 7 p.m. Creates summer parent-time notice dates of May 1st and May 15th. 

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

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How difficult is it to get a divorce from a spouse who has disappeared?

How difficult is it to get a divorce from a spouse who disappeared +10 years back? No note, no trace, no explanation. If you urgently need to remarry, what processes would one need to prepare for? 

I can’t speak for all jurisdictions, but in Utah (where I practice divorce law), the answer to your question would be: 

  1. It does not matter whether you can find your spouse to serve him/her in person with a summons and complaint for divorce. Why?
  2. Because the law anticipated situations where a potential defendant in a lawsuit might try to hide and avoid service of process in the hope that “If you can’t serve me with the summons and complaint, then you can’t sue me!” How?
  3. By making provision for serving someone who is hiding or avoiding service: 

 Utah Rules of Civil Procedure, Rule 4(b)(5)(A) and (B): 

(A) If the identity or whereabouts of the person to be served are unknown and cannot be ascertained through reasonable diligence, if service upon all of the individual parties is impracticable under the circumstances, or if there is good cause to believe that the person to be served is avoiding service, the party seeking service may file a motion to allow service by some other means. An affidavit or declaration supporting the motion must set forth the efforts made to identify, locate, and serve the party, or the circumstances that make it impracticable to serve all of the individual parties. 

(B) If the motion is granted, the court will order service of the complaint and summons by means reasonably calculated, under all the circumstances, to apprise the named parties of the action. The court’s order must specify the content of the process to be served and the event upon which service is complete. Unless service is by publication, a copy of the court’s order must be served with the process specified by the court. 

This means that you could obtain leave from the court to serve your spouse by a certified mailing of the summons and complaint to your spouse’s last known address, or by a having a copy of the summons and complaint delivered by FedEx or UPS to your spouse’s last known address, or by emailing a copy of the summons and complaint to your spouse’s last known e-mail address, or by sending an instant message or text message to your spouse notifying him/her that a divorce action has been filed in court against him/her and directing him/her to obtain and review a copy that is in file with the court, or (although this happens a lot less), publishing the summons in a newspaper of general circulation in the county in which publication is required. 

4. After your hiding/disappeared spouse has been served by one of the alternate means provided in Rule 4(d), if your spouse does not file a responsive pleading within the time given to do so, then you can apply for entry of your spouse’s default and request entry of default judgment against your absentee spouse.  

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

https://www.quora.com/How-difficult-is-it-to-get-a-divorce-from-a-spouse-who-disappeared-10-years-back-No-note-no-trace-no-explanation-If-you-urgently-need-to-remarry-what-processes-would-one-need-to-prepare-for/answer/Eric-Johnson-311  

 

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What are the primary parenting issues of concern by the court?

What are the primary concerns of the courts in determining parenting issues? Why?

In Utah (and in no particular order), the court must consider the factors articulated in these sections of the Utah Code when making a legal and physical custody award: 

  1. § 30-3-10. Custody of a child — Custody factors.
  2. § 30-3-10.2. Joint custody order — Factors for court determination — Public assistance.
  3. § 30-3-34. Parent-time — Best interests — Rebuttable presumption.
  4. § 30-3-35.1. Optional schedule for parent-time for children 5 to 18 years of age.
  5. § 30-3-35.2. Equal parent-time schedule. 

If I were to create a list of all factors from the above-referenced Utah Code sections, this answer would be too long, which is why I have provided hyperlinks to the Code sections for your review. 

CONCERN FOR FATHERS. What fathers encounter far too often (not always, but far too often): denials of requests to maintain their already-existing rights of joint equal legal and physical custody that are contrary to the facts, contrary to the best interest of the children, irrational, biased, arbitrary, inequitable, discriminatory, and unconstitutional.  

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

https://www.quora.com/What-are-the-primary-concerns-of-the-courts-in-determining-parenting-issues-Why/answer/Eric-Johnson-311  

 

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What is MyCase and why should I care?

MyCase is an online system developed by the Utah State Courts system that you can sign up for free of charge and use in your family law case and certain other kinds of cases, but because this is a divorce and family law blog/video, we’ll focus on its features in a divorce and family law context. You can use MyCase to:  

  • view your case history (a record of what has happened in your case)  
  • see the date and time of your next scheduled court appearance 
  • view the documents that the opposing party and the court have also filed in your case 
  • pay fees  

Can a pro se party (meaning a party who is not represented by an attorney) file a divorce complaint or petition using MyCase? No, not currently. As of now there is no case filing available through MyCase. 

Can a pro se party file documents with the court through their MyCase account? No, not currently. As of now divorce is not a case type that is active for accepting electronically filed (also known as “e-filed”) documents through MyCase. 

Only those who are parties to a case can use MyCase. MyCase cannot be used to look up information about other cases. Even if you are represented by an attorney in your divorce or separation case, you look up information about your case on MyCase, if you have a MyCase account. To learn more about other features of MyCase and to create your own MyCase account, go to: 

https://www.utcourts.gov/mycase/  

and 

https://pubapps.utcourts.gov/MyCaseWEB/LoginServlet  

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

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Do you think it’s fair for a non-custodial parent to pay more child support?

Do you think it’s acceptable for the non-custodial parent to have to pay more child support because the custodial parent chooses to barely work or not work at all?  

Generally, no, it is not acceptable. In the jurisdiction where I practice divorce and family law (Utah): “Every child is presumed to be in need of the support of the child’s mother and father. Every mother and father shall support their children.” (78B-12-105(1). Duty of parents.) A parent is not legally permitted, by being unemployed or underemployed, to avoid his/her financial support obligations to a child and/or burden the other parent with his/her share of financial responsibility. See Utah Code § 78B-12-203 entitled “Determination of gross income — Imputed income.”  

Subsection (8) provides that one, income may not be imputed to a parent unless the parent stipulates to the amount imputed, the parent defaults, or, in contested cases, a hearing is held in a judicial or administrative proceeding and findings of fact as to the evidentiary basis for the imputation are made. If income is imputed to a parent, the income shall be based upon employment potential and probable earnings considering, 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.  

Subsection (8)(c) further provides, “If a parent has no recent work history or a parent’s occupation is unknown, that parent may be imputed an income at the federal minimum wage for a 40-hour work week. To impute a greater or lesser income, the judge in a judicial proceeding or the presiding officer in an administrative proceeding shall enter specific findings of fact as to the evidentiary basis for the imputation.”  

Subsection (8)(d) further provides, “Income may not be imputed if any of the following conditions exist and the condition is not of a temporary nature:  

(i) the reasonable costs of child care for the parents’ minor children approach or equal the amount of income the custodial parent can earn;  

(ii) a parent is physically or mentally unable to earn minimum wage;  

(iii) a parent is engaged in career or occupational training to establish basic job skills; or  

(iv) unusual emotional or physical needs of a child require the custodial parent’s presence in the home. If you are an underemployed or unemployed parent who believes you can gain the child support system, you are mistaken.  

So, in Utah if you you are an underemployed or unemployed parent who believes you can game the child support system, you are mistaken. If you are the other parent who is confronted with an underemployed or unemployed parent who is trying to game the child support system, know that the law is on your side, so long as you can prove that the other parent is underemployed or unemployed and needs to have a reasonable income imputed to him/her for the purpose of determining each parent’s financial child support obligations. 

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

https://www.quora.com/Do-you-think-its-acceptable-for-the-non-custodial-parent-to-have-to-pay-more-child-support-because-the-custodial-parent-chooses-to-barely-work-or-not-work-at-all-4/answer/Eric-Johnson-311  

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Is it illegal for a lawyer to charge their ex client for a copy of their case file?

Is there anything illegal about a previous lawyer wanting to charge their ex client for a copy of their case file?

I can’t answer for all jurisdictions, but in Utah the answer is: 

  • If you were previously given your case file or previously given a copy of your file—and lost those—so now you want another copy of your file (and assuming your lawyer still has a copy of your file), then it’s fair for your former lawyer to charge you a reasonable fee for the cost of making you another copy of your file. You’re not entitled to a free copy or copies. 
  • If you were not previously given your case file or previously given a copy of your file, then Rule 1.16(d) of the Utah Supreme Court Rules of Professional Practice – Rules of Professional Conduct provides: “The lawyer must provide, upon request, the client’s file to the client. The lawyer may reproduce and retain copies of the client file at the lawyer’s expense.” Thus, if you have not requested a copy of your file, you are entitled to your file (not a copy, the file itself). 
    • How long must your attorney keep your file after representation terminates? I’ve been told no less than three and no more than five years. Rule 1.15(a) provides, “[O]ther property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.” So if representation terminated more than 5 years ago, your old lawyer is not required to keep your file any longer, and so if you want a copy of your file then, you are likely out of luck. 

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

https://www.quora.com/Is-there-anything-illegal-about-a-previous-lawyer-wanting-to-charge-their-ex-client-for-a-copy-of-their-case-file/answer/Eric-Johnson-311  

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