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Tag: Utah Rules of Civil Procedure

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

2024 UT App 54 – Tilleman v. Tilleman

THE UTAH COURT OF APPEALS

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

Opinion No. 20210637-CA Filed April 11, 2024

Fourth District Court, Provo Department

The Honorable M. James Brady No. 164402522

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

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

ORME, Judge:

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

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

BACKGROUND[1]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

¶24      Father appeals.

ISSUES AND STANDARDS OF REVIEW

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

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

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

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

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

ANALYSIS

I. Legal Custody Factors

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

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

A.        Statutory Interpretation

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

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

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

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

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

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

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

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

B.        Consideration of All Relevant Factors

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

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

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

C.        Comparative Findings

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

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

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

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

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

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

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

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

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

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

II. Emotional Abuse

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

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

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

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

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

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

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

III. First Expert’s Testimony

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

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

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

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

IV. Mother’s Imputed Income

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

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

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

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

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

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

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

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

V. Attorney Fees and Costs

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

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

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

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

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

¶75      Subsection (2) provides,

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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2024 UT App 51 – Bailey v. Bailey – evidence, sanctions

2024 UT App 51 – Bailey v. Bailey

THE UTAH COURT OF APPEALS

AMY L. BAILEY, Appellee, v. DANNY RAY BAILEY, Appellant.

Opinion No. 20220534-CA Filed April 11, 2024

Second District Court, Farmington Department

The Honorable Michael D. DiReda No. 094701582

Julie J. Nelson, Attorney for Appellant Brian E. Arnold, Attorney for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which

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

HARRIS, Judge:

¶1        In 2019, nine years after her divorce, Amy L. Bailey (Amy) filed a petition to modify the child support provisions of the divorce decree, asserting that her ex-husband Danny Ray Bailey’s (Danny[1] income had significantly increased. The matter proceeded to trial, where the district court sanctioned Danny for noncompliance with pretrial disclosure obligations. Among other sanctions, the court prohibited Danny from presenting any evidence, and from refuting any evidence Amy presented, regarding his income. At the conclusion of this rather one-sided trial, the court made findings and conclusions regarding Danny’s income that Danny believes are inaccurate.

¶2        Danny now appeals those findings and conclusions, as well as the court’s underlying sanctions order. Danny asserts that the sanctions order was inappropriate and that he is entitled to a new trial at which he may present evidence regarding his income. We agree with Danny, and therefore vacate the court’s modification order and remand the case for a new trial.

BACKGROUND
The Petition to Modify

¶3        Amy and Danny divorced in 2010; at that time, the parties were able to reach a negotiated settlement which was later incorporated into a decree of divorce (the Decree). The parties have three children together, all of whom were minors at the time of their divorce; only one of the children was a minor at the time of trial. Under the terms of the Decree, Amy was awarded primary physical custody of the children, and Danny was awarded certain parent-time. Danny is self-employed, and his income for child support purposes was determined to be $8,837 per month. Amy’s earnings at that time were determined to be $4,071 per month. Using these income figures, Danny’s child support obligation was calculated to be $1,485 per month.

¶4        In 2019, nine years after entry of the Decree, Amy filed a petition to modify, seeking, among other things, a modification of Danny’s child support obligation. Discovery and disclosure deadlines were set, with fact discovery scheduled to close in November 2019 and expert discovery scheduled to close in March 2020. The expert discovery deadline passed, and neither party designated any expert witnesses. But in September 2020, Amy filed a statement of discovery issues, asserting that Danny had not disclosed certain financial documents, including his 2019 tax return, and asking that Danny be ordered to do so. Amy further requested that she be allowed “to designate an expert to opine on the limited issue of [Danny’s] expenses versus business expenses.” Danny objected to this request, arguing that expert discovery deadlines were “far past” and that Amy “should not be allowed to re-open expert discovery and further extend this matter.” After a hearing, the court ordered both parties to disclose their 2018 and 2019 tax returns and associated financial documents to the other, but the court agreed with Danny on the expert disclosure issue, denying Amy’s request and stating that it was “not inclined to extend discovery deadlines.”

¶5        Eventually, after some delays due to matters not relevant here, the court scheduled a one-day trial regarding the child-support-related issues to occur on November 10, 2021. In its pretrial order, the court ordered that, “at least 28 days before” trial, the parties were to “provide . . . pre-trial disclosures,” including “[t]he name . . . of each witness who will be called at trial,” “an updated financial declaration,” and “copies of their federal income tax returns for the two most recent tax years.”

¶6        On November 2, eight days before trial, Danny filed a motion to continue, asserting that he had “been unable to complete his 2020 tax return due to problems with his accounting software,” and requesting that the trial be continued so that the parties could “proceed with current and accurate income information.” Additionally, Danny brought to the court’s attention that, on October 20, just twenty-one days before trial— and notwithstanding the court’s previous reticence to extend discovery deadlines—Amy had, “for the first time,” identified two expert witnesses that she intended to call at trial. Danny asserted that these disclosures should have been made “within 14 days after the close of fact discovery,” which, in this case, was some two years earlier in November 2019. Danny asked the court to bar Amy from calling these witnesses at trial and, alternatively, stated that if the court was inclined to allow Amy to call these experts, he should be afforded “the appropriate disclosures and discovery opportunities set forth” in rule 26 of the Utah Rules of Civil Procedure. As an added precaution, Danny filed a notice indicating that—contingent on the court’s ruling as to their admissibility—he would like “to receive written reports” from Amy’s newly-disclosed expert witnesses.

¶7        On the same day Danny filed his request for a continuance, Amy filed an objection. While pressing the court to move forward with the trial as scheduled, Amy simultaneously defended the timing of her expert disclosures. On this point, Amy argued that she was attempting to follow the court’s pretrial order, which stated that the list of witnesses that would be called to testify only needed to be provided twenty-eight days before the trial. And, according to Amy, she was doing just that by identifying in her pretrial disclosures the two expert witnesses she intended to call at trial. She argued that these two witnesses were “absolutely necessary” because she intended to rely on “their expert opinion” to demonstrate Danny’s “true income and the expenses being reported on his personal and business income taxes.”

¶8        Three days later, the court held a hearing on Danny’s motion. At the conclusion of the hearing, the court granted Danny’s request for a continuance of the trial date and rescheduled the trial to occur on March 1, 2022. The court also indicated that it would allow Amy to call the expert witnesses and it further observed that the continuance would give Danny time to consider whether he wanted to call a rebuttal expert witness of his own. At the conclusion of the hearing, the court noted that the main reason for continuing the trial was so that Danny could complete his 2020 tax return and disclose it to Amy, and it asked the parties whether they wanted to “set a deadline on the tax return.” Danny’s attorney stated that he’d rather not set a specific deadline, and Amy’s attorney didn’t argue for one either, stating that he and Danny’s attorney had “worked well together on that kind of stuff” and that he didn’t think any specific deadline for disclosure of the tax return would be necessary. The court pushed back a bit, asking, “Not a deadline? You’re okay just leaving it out there?” Amy’s attorney responded by stating that he was “fine with that.” In accordance with the parties’ wishes, the court set no specific deadline for Danny’s production of his 2020 tax return. The court’s previous pretrial order remained in place, however; as noted, it specified that all pretrial disclosures—including recent tax returns—were due “at least 28 days before” trial, which given the scheduled trial date would be February 1, 2022.

¶9        Not long after the November hearing on the motion to continue, Danny’s attorney withdrew. Danny then elected to proceed to trial pro se.

¶10      On February 3, less than four weeks before the trial date, the court held a status conference. At the conference, Amy’s attorney indicated that he had recently received Danny’s newly-completed 2020 tax return—specifically stating that he “just got those the other day”—but that he was still waiting to receive certain bank statements from Danny. In response, Danny—now representing himself—raised certain issues with Amy’s disclosures, indicating that he had not received all of her bank account information. After hearing from both parties, the court ordered Danny to provide Amy with the requested bank statements and ordered Amy “to do the same.”

¶11      During the status conference, the court also discussed the expert witness issue, and it asked Danny if he “had a chance to speak with or read the report from” Amy’s experts. Danny indicated that he had not received any such report. Amy’s attorney stated that he believed the report had been provided either to Danny or his previous counsel, but he offered to “resend” the report to Danny just in case.

The Trial

¶12      On March 1, the trial proceeded as scheduled, with Danny representing himself and Amy represented by counsel. At the start of the proceeding, before any evidence had been presented, Danny brought to the court’s attention that, two weeks earlier, he had filed an objection to Amy’s experts, asking that they be excluded from testifying because he still had not received any reports from them. At this, the court turned to Amy’s attorney for an explanation. Amy’s attorney this time did not claim that any expert report had ever been disclosed to Danny; instead, Amy’s attorney explained that Amy had been unable to “supplement[]” her earlier disclosures with the new experts’ reports because Danny had failed to timely provide Amy with financial information—including, most significantly, the 2020 tax return— that the court “had ordered [Danny] numerous times” to disclose. Amy’s attorney proposed that if the court was disinclined to allow these witnesses to testify as experts, they could, instead, be allowed to testify as “factual witness[es]” just to “tell [the court] what a line means on a tax return.”

¶13 Concerned about possible disclosure failings on both sides, the court asked Amy’s attorney whether it was “still the case” that Danny had failed to deliver “the documents, the returns, the information that [the court] ordered be delivered.” To this, Amy’s attorney responded, “Not timely.” Seemingly dismayed at the lack of cooperation between the parties, the court reminded them that the reason it had continued the trial was so that the parties could “exchange documents,” yet they had apparently still failed to “timely” comply with its instructions. Addressing Danny, the court stated, “So if you’re going to come to me and ask . . . that I exclude a witness, you’ve got to come in with clean hands. If your hands are soiled because you yourself have not complied with the rule and you’ve not told me that, that’s a problem, because I’m not going to apply the rules unevenly.” The court—without Amy making any specific request for a negative-inference sanction[2]—then told Danny that his apparent untimely disclosure of the 2020 tax return was “a problem that leads [the court] to think that perhaps a negative inference should be drawn against you . . . because why wouldn’t you just turn over the information that is critical to the [c]ourt’s determination on income since this is an income case?”

¶14      Before ruling on the matter, the court wanted to know how much time had elapsed between the completion of Danny’s 2020 tax return and Danny’s disclosure of that return to Amy. Danny indicated that “[p]robably two months” had elapsed between completion and disclosure. The court then asked, “Why wouldn’t you have just disclosed [the return] immediately once you had them done? Why did you wait two months to disclose [it]?” Danny explained that he was looking for new counsel at that time and that his understanding was that his “obligation was to supply” those documents with his pretrial disclosures, twenty-eight days before trial, which he did. Danny also reminded the court—twice—that, at the conclusion of the November hearing, no specific deadline for disclosure of the tax return had been set. The court then, without prompting from Amy’s attorney, began to read from rule 26 of the Utah Rules of Civil Procedure, stating to Danny that, as soon as he learned that his disclosure was “incomplete,” he was required to “timely serve on the other parties the additional or correct information.”

¶15 After allowing both sides to argue the matter, the court determined that “at the end of the day,” Danny was the one who “didn’t disclose timely.” The court therefore told Danny that Amy “couldn’t have given you a full expert report, because you hadn’t given them the predicate information that was needed so the expert could do his or her job.”

¶16      After a recess to allow the parties one last opportunity to negotiate, the court considered what, if any, sanction should be imposed on Danny for his apparent untimely disclosure of his 2020 tax return. The court believed that it could impose any of the sanctions set forth in rule 37(b) of the Utah Rules of Civil Procedure. After argument, the court determined it would be “inequitable” to allow Danny “to go forward and argue” what he thought his income should be when he “deprived the other side of [the] complete and accurate financial information that their [experts] needed in order to present a complete picture” of Danny’s finances. It therefore ordered that, during the trial, Danny would be prohibited from refuting any evidence that Amy introduced about Danny’s income, and he would not be allowed “to introduce [his] own evidence in support of what [he] believe[d]” his income should be. Basically, the only thing that Danny would be able to do at trial would be to present or challenge evidence presented related to Amy’s income.

¶17      Concerning Amy’s experts, the court determined it would be appropriate to allow them to testify as fact witnesses. Amy ended up calling only one of the two expert witnesses she listed in her pretrial disclosures, a forensic accountant (Accountant). At the beginning of his testimony, Accountant was reminded that he was not permitted to give “expert opinion” because he would, as Amy’s counsel described it, be a “factual witness.”

¶18      During his direct examination, Accountant was presented with exhibits containing Danny’s tax returns—including his 2020 tax return—and other financial documents and was asked questions concerning those documents. For example, Accountant was asked about the purpose of lines “28 A and B” on one of the forms, and he responded, “Those are there to present to the IRS sources of income from businesses that the taxpayer owns.” At another point in the trial, Accountant was also asked whether the W-2 wage on another form was for Danny or if it was “a qualified deduction” from Danny’s company. Accountant responded it was “neither,” and that “the income from the business” would be different from the amount represented on the form “because [it] specifically calculates adjusted income for [that] specific tax deduction.” Direct examination of Accountant continued in this fashion, with him testifying about several line items contained in Danny’s tax returns and what information should or should not be contained therein.

¶19 Amy was the only other witness to testify at trial. After submission of the evidence, Amy’s attorney made a closing argument. The court then went back and forth with Amy’s attorney, discussing the various figures that had been presented and what implications they might have on the calculation of child support arrearages going back to the date Amy filed her petition. After completing the calculation, the court made an oral ruling that, for child support purposes, Danny’s monthly income was $42,555 (as opposed to $8,837 under the original Decree) and that Amy’s monthly income was $6,265 (as opposed to $4,071 under the original Decree). Based on those figures, the court then calculated Danny’s ongoing child support obligation, as well as arrearages owed dating back to the month after Amy filed her petition to modify. Specifically, the court determined that Danny owed Amy $108,027 in back child support. Because of the “sizable back child support due and owing,” the court declined Amy’s request for attorney fees. A few weeks later, the court entered a written order memorializing its oral ruling.

ISSUES AND STANDARDS OF REVIEW

¶20 Danny now appeals the court’s modification order. In particular, Danny challenges the court’s findings and conclusions regarding his own monthly income, and he asserts that the court’s determinations in that regard are infirm because it improperly sanctioned him and did not allow him to present evidence supporting his position or refuting Amy’s position on that issue. Thus, Danny’s appeal centers on the court’s application of Utah rules regarding discovery, disclosure, and sanctions.

¶21      A district court’s interpretation of the Utah Rules of Civil Procedure is reviewed for correctness. Hansen v. Kurry Jensen Props. LLC, 2021 UT App 54, ¶ 19, 493 P.3d 1131. For this reason, a court’s decision regarding the adequacy of a party’s disclosures is reviewed for correctness. See Butler v. Mediaport Ent. Inc., 2022 UT App 37, ¶ 17, 508 P.3d 619 (stating that “we review for correctness the district court’s conclusion that [a party’s] disclosures were inadequate, because that determination is at root a question of interpretation of” the applicable rules).

¶22      But when a district court’s interpretation of the applicable rules is correct, we extend “a great deal of deference” to the court’s decisions regarding its choice of sanctions, and we will only disturb such rulings “if abuse of discretion is clearly shown.” Raass Bros. Inc. v. Raass, 2019 UT App 183, ¶ 11, 454 P.3d 83 (quotation simplified). Similarly, we review deferentially a “district court’s decision to admit or exclude evidence,” including its “determination regarding the admissibility of expert testimony” for an abuse of discretion. Northgate Village Dev., LC v. City of Orem, 2019 UT 59, ¶ 14, 450 P.3d 1117 (quotation simplified). A court’s determination that a witness’s testimony is “not expert testimony” is similarly reviewed for an abuse of discretion. State v. Rothlisberger, 2006 UT 49, ¶ 8, 147 P.3d 1176.

ANALYSIS

¶23      Danny’s primary challenge on appeal concerns the district court’s imposition of sanctions, which he contends were unwarranted. For the reasons discussed herein, we find merit in Danny’s position, and agree that the court erred by imposing rule 37 sanctions on Danny.

¶24 There are two different rules of civil procedure that concern discovery sanctions: rule 26 and rule 37. These two rules, “although couched in different terms,” are both “aimed at encouraging good faith compliance with the discovery obligations imposed under the rules of civil procedure and both provide the court with the authority to sanction those who fail to live up to the requirements of those rules.” PC Crane Service, LLC v. McQueen Masonry, Inc., 2012 UT App 61, ¶ 34, 273 P.3d 396. But despite certain commonalities, the sanctions available pursuant to these rules are different and have distinct prerequisites.

¶25 The sanctions that a court may impose pursuant to rule 26(d) are narrow, but they are also “automatic and mandatory” when the prerequisites are met. See Eskamani v. Auto-Owners Ins. Co., 2020 UT App 137, ¶ 48, 476 P.3d 542. That rule provides, in relevant part, as follows:

(4)   If a party fails to disclose or to supplement timely a disclosure or response to discovery, that party may not use the undisclosed witness, document, or material at any hearing or trial unless the failure is harmless or the party shows good cause for the failure.

(5)   If a party learns that a disclosure or response is incomplete or incorrect in some important way, the party must timely serve on the other parties the additional or correct information if it has not been made known to the other parties. The supplemental disclosure or response must state why the additional or correct information was not previously provided.

Utah R. Civ. P. 26(d)(4), (5).[3] Thus, when a party fails to comply with rule-based disclosure requirements, that party is “presumptively barred” from relying on that witness, document, or material at trial. See Dierl v. Birkin, 2023 UT App 6, ¶ 31, 525 P.3d 127, cert. denied, 527 P.3d 1107 (Utah 2023). A party seeking sanctions under rule 26(d)—usually a party whose litigation opponent has failed to timely disclose a required item—does not need to file a motion for sanctions and obtain a court order beforehand; rather, sanctions under this rule are “automatic and mandatory” and do “not require a predicate discovery order.” Eskamani, 2020 UT App 137, ¶¶ 47–48. Courts should, upon request, presumptively impose sanctions for noncompliance unless “the party seeking relief from disclosure requirements” can demonstrate that its noncompliance was harmless or excused by good cause. Keystone Ins. Agency, LLC v. Inside Ins., LLC, 2019 UT 20, ¶ 18 & n.7, 445 P.3d 434; see also Utah R. Civ. P. 26 advisory committee notes (stating that sanctions are “the usual and expected result” of noncompliance).

¶26        But the sanctions available under rule 26(d) are narrow and specific: a party who fails to comply with rule-based disclosure obligations, and who cannot show harmlessness or good cause, “may not use the undisclosed witness, document, or material at any hearing or trial.” See Utah R. Civ. P. 26(d)(4). Rule 26, by itself, does not speak of or authorize any other sanction.

¶27        Rule 37, by contrast, is not self-executing: a party wishing to take advantage of its more expansive sanctions menu must first obtain a discovery order from the court. Subsection (a) of that rule allows a party to “request that the judge enter an order regarding any discovery issue.” Id. R. 37(a)(1). And subsection (b) allows a “court, upon motion, [to] impose appropriate sanctions for the failure to follow its orders.” Id. R. 37(b) (emphasis added). Interpreting the language of this rule, we have recently held that imposition of sanctions under rule 37 is available only for violation of a specific court order. See Eskamani, 2020 UT App 137, ¶ 49 (“Unlike rule 26, rule 37 conditions the availability of discovery sanctions upon the failure of a party to follow a discovery order.”).

¶28      But rule 37 offers a wide variety of sanctions options, and it allows for sanctions that can be more severe than the sanction authorized under rule 26. Where the violation in question is disobedience of a court order (as opposed to noncompliance with a rule-based disclosure requirement), rule 37 authorizes a court to (among other things) “deem [a] matter . . . to be established,” give an “adverse inference” instruction, order attorney fees, hold a party in contempt, or even dismiss a party’s claim or defense. See Utah R. Civ. P. 37(b)(1), (4)–(7). As relevant here, a court may also opt to “prohibit the disobedient party from supporting or opposing designated claims or defenses or from introducing designated matters into evidence.” Id. R. 37(b)(2).

¶29      In imposing sanctions on Danny, the district court applied rule 37. It read subsection (b) of that rule to Danny, and then walked the parties through the sanctions options provided by rule 37(b). After discussion, and after a brief break to allow additional negotiations, the court told Danny that he would not be “permitted to refute” any evidence Amy presented regarding his income, and that he would not “be permitted to introduce [his] own evidence in support of what [he] believe[s his own] income should be.” This is one of the sanctions listed in rule 37(b). See id.

¶30      But under these circumstances, this sanction was improper. Rule 37 is properly invoked only for violation of a court order, see id. R. 37(b); Eskamani, 2020 UT App 137, ¶ 49, and Danny was not in violation of any court order. The only potentially applicable order is the pretrial order that commanded the parties to disclose their trial exhibits—including, significantly, their latest tax returns and other updated financial information—at least twenty-eight days prior to trial.[4] Danny complied with this order when he submitted his 2020 tax return on or before February 1, 2022—which was at least twenty-eight days prior to the scheduled March 1 trial date.[5] And on appeal, at least, Amy makes no argument to the contrary.[6] In the absence of any evidence that Danny was in violation of a court order, the court was not permitted to impose sanctions on Danny pursuant to rule 37.

¶31        Danny’s sin, as perceived by the district court, was not the violation of any specific court order. Instead, the court was apparently upset with Danny for waiting some two months after the belated completion of his 2020 tax return to provide a copy of that return to Amy. This action was arguably a violation of rule 26(d)(5), which commands parties to “timely” supplement their initial disclosures. See Utah R. Civ. P. 26(d)(5).[7] Courts certainly have authority to punish untimely supplementations. But such punishment must be imposed pursuant to rule 26(d) and not—in the absence of a violation of a court order—pursuant to rule 37(b).

¶32        Under rule 26(d), the court could have penalized Danny for his two-month disclosure delay, but any such penalty should have been limited to preventing Danny from “us[ing]” the 2020 tax return “at any hearing or trial.” See id. R. 26(d)(4). Even if we were to assume, for purposes of the discussion, that under rule 26(d) the court properly barred Danny from introducing that document on his own account, we are aware of no rule or authority that would allow the court to bar him from introducing other properly disclosed evidence about his income, or from attempting to rebut evidence about his income that Amy introduced at trial. In this vein, we note that, during her evidentiary presentation at trial, Amy introduced Danny’s 2020 tax return into evidence; Danny should not have been barred from engaging with that evidence once Amy voluntarily elected to introduce it. Thus, under the circumstances, the district court’s sanctions order was improper and unduly punitive.

¶33      And in this situation, the court’s improper sanctions order prejudiced Danny. Prejudice is demonstrated when a party shows that the court’s error “impacted the outcome of the dispute.” In re Western Ins. Co., 2022 UT 38, ¶ 55, 521 P.3d 851. In other words, a party is prejudiced if “there is a reasonable likelihood that, absent the error, the result would have been different.” Id. (quotation simplified). Danny asserts that his income is actually less than half of what the court found it to be after the one-sided evidentiary presentation, and he argues that, had he been able to present evidence as to his income, the court would not have made the same determination in that regard. Danny asserts that, if he had not been sanctioned, he would have presented (among other things) his earlier tax returns and evidence regarding his “necessary business expenses,” and would have been able to demonstrate that certain income had been improperly attributed to him. Danny plausibly contends that this would have likely made a difference, and here on appeal, Amy makes no argument to the contrary. And it appears that the district court more or less agreed with this notion, at one point stating that the sanctions imposed were “almost the equivalent of a default.”

¶34 In sum, then, the court entered an improper and unduly punitive sanctions order against Danny. That order prejudiced Danny because it prevented him from meaningfully engaging with the court and with Amy on the subject of his own income; absent the sanctions order, we think the court likely would have reached a different conclusion regarding Danny’s income. Accordingly, we vacate not only the court’s sanctions order but also its modification order (the order containing its findings regarding Danny’s income), and we remand this case to the district court for a new trial on Amy’s petition to modify.

¶35 Our opinion could end here. But we elect to address one of Danny’s other criticisms of the court’s handling of Amy’s petition to modify, in the hope that our guidance on this issue might prove useful on remand. See State v. Ogden, 2018 UT 8, ¶ 49, 416 P.3d 1132 (“Although it is unnecessary to our decision, we retain the authority to reach issues when we believe our analysis could prove helpful on remand.”); see also Young H2ORE LLC v. J&M Transmission LLC, 2024 UT App 10, ¶ 48, 543 P.3d 1264 (electing to “offer some guidance that we hope will prove useful” on remand where the issues in question “are certain to arise again”).

¶36 Danny asserts that the court acted improperly when it allowed Accountant to testify at trial as a “factual witness.”[8] We agree with Danny that Accountant’s testimony was improper.

¶37 After Amy made a late designation of expert witnesses (which the court eventually authorized Amy to do), Danny asked for a report from those witnesses, including Accountant, in lieu of taking their depositions. But despite certain initial incorrect representations from Amy’s attorney to the contrary, Amy never provided Danny with any report from Accountant.

¶38      Expert witnesses from whom reports have been requested should not be allowed—absent a showing of good cause or harmlessness—to testify about matters not “fairly disclosed in” the requested reports. See Utah R. Civ. P. 26(a)(4)(B) (stating that expert witnesses “may not testify in a party’s case-in-chief concerning any matter not fairly disclosed in the report”); id. R. 26(d)(4); see also R.O.A. Gen., Inc. v. Chung Ji Dai, 2014 UT App 124, ¶ 11, 327 P.3d 1233 (stating that, “where it is undisputed that an expert witness report has been untimely filed, the proper inquiry is whether” the party’s failure to timely submit the report was “harmless” or excused by “good cause” (quotation simplified)), cert. denied, 337 P.3d 295 (Utah 2014). It follows, then, that an expert from whom a report has been requested but who has not provided one should not be allowed to testify at all, absent a finding of good cause or harmlessness, since nothing was “fairly disclosed” in any report. See Utah R. Civ. P. 26(a)(4)(B).

¶39        In this case, the district court allowed Accountant to testify, despite the fact that Accountant never provided an expert report to Danny. The court allowed this, at Amy’s request, on the ground that Accountant would not be asked to offer any expert opinion as to Danny’s income but, instead, would merely be “a factual witness” who would offer testimony about “what a line means on a tax return.” But the court never engaged in any analysis of whether Amy’s failure to provide an expert report from Accountant should be excused for “good cause.” See id. R. 26(d)(4). While Danny’s two-month delay in supplementing his initial disclosures with his 2020 tax return may have provided some cause for Accountant’s inability to timely form opinions regarding Danny’s post-2019 income, neither Amy nor the court ever offered an explanation as to why Danny’s delay in disclosing his 2020 tax return provided any cause for Accountant’s failure to provide a report containing opinions about what line items on a tax return mean.

¶40      And we are not persuaded by Amy’s effort to characterize this kind of testimony as “fact testimony.” As an initial matter, even fact witnesses have to be disclosed in a timely manner, and— although Amy did obtain permission to make a late expert designation of Accountant—Amy did not disclose Accountant as a fact witness in a timely manner. Any such disclosure should have been made in Amy’s initial disclosures, in order to give Danny the opportunity to depose (or seek other discovery from) the witness. It is not proper, absent specific leave of court, for a party to disclose a fact witness for the first time in connection with its final pretrial disclosures. After all, witnesses and exhibits disclosed in final pretrial disclosures are intended to be merely a subset of the witnesses and exhibits already disclosed earlier in the case. See Ader v. SimonMed Imaging Inc., No. CV-17­02085, 2020 WL 13442907, at *2 (D. Ariz. Sept. 22, 2020) (stating that, “[t]ogether, initial and supplemental disclosures reveal the full universe of potentially relevant evidence for every claim or defense,” and that in preparation for making final pretrial disclosures, the parties must then “sift through” that earlier-disclosed evidence to arrive at a “narrowed universe” of evidence “aimed at trial preparation”). Allowing a party to use its pretrial disclosures to introduce new evidence and new witnesses would therefore be contrary to the very purposes of rule 26. See Johansen v. Johansen, 2021 UT App 130, ¶ 18, 504 P.3d 152 (stating that where a party’s pretrial disclosures, submitted only “28 days before trial,” identified for the first time the witnesses that the party intended to rely on at trial, that disclosure was contrary to “the purpose of rule 26, which is to preclude parties from trying to gain an advantage by offering ‘surprise’ testimony at trial that has not been properly disclosed” (quotation simplified)); see also In re Morrissey, No. AP 20-2045, 2022 WL 666803, at *5 (Bankr. D. Utah Mar. 4, 2022) (noting that if a party “were permitted to treat the [pretrial disclosure] deadline as though it were the [initial disclosure] deadline, it would completely undermine the purposes of” the rule governing initial disclosures).

¶41 But more to the point, the testimony that Accountant ended up giving at trial was not fact testimony; it was expert testimony. A “fact witness” is someone “who has firsthand knowledge of something based on the witness’s perceptions through one [or] more of the five senses.” Fact Witness, Black’s Law Dictionary (11th ed. 2019). “Lay fact testimony”—which is the type of testimony that the district court and Amy assert that Accountant provided—is “factual testimony not based on scientific, technical, or other specialized knowledge.” State v. Rothlisberger, 2006 UT 49, ¶ 11, 147 P.3d 1176; see also Warenski v. Advanced RV Supply, 2011 UT App 197, ¶ 8, 257 P.3d 1096 (stating that testimony that is “clearly based on scientific, technical, or other specialized knowledge” should be considered as “expert testimony rather than fact testimony” (quotation simplified)), cert denied, 268 P.3d 192 (Utah 2011). A fact witness is thus only allowed to “testify in the form of fact or opinion” if the testimony “is helpful to the finder of fact” and is within the witness’s “personal knowledge or perception.” State v. Sellers, 2011 UT App 38, ¶ 26, 248 P.3d 70; see also Utah R. Evid. 701.

¶42        Here, Accountant had no firsthand knowledge concerning the family in general or about Danny’s income in particular, yet he was presented with various financial exhibits, including Danny’s tax returns, and was allowed to offer testimony about them. Amy’s attorney then questioned Accountant about certain line items in those documents. At one point, for instance, Accountant explained how a wage on a W-2 form was neither for Danny nor was it “a qualified deduction” from Danny’s company, because “the income from [Danny’s] business” would be different from the amount represented in the form which “specifically calculates adjusted income for [that] specific tax deduction.” We have no difficulty concluding that this sort of testimony was expert testimony, not fact testimony, because it was based not on Accountant’s own personal observations but, instead, on his “technical” and “specialized knowledge.” See Utah R. Evid. 701.

¶43      Accountant should not have been allowed to provide this sort of testimony under these circumstances. Despite the court’s stated intention not to “apply the [discovery] rules unevenly,” in our view that is exactly what happened here. The court imposed an inappropriately severe sanction on Danny, while at the same time allowing Amy to offer undisclosed expert testimony. We trust that, on remand, these errors will be corrected.

CONCLUSION

¶44      Because Danny did not violate any discovery or disclosure order, the court’s effort to sanction him pursuant to rule 37 was improper. In addition, the court erred by allowing Accountant to offer expert testimony without having provided a requested expert report. We therefore reverse the imposition of sanctions on Danny, vacate the court’s order modifying the Decree, and remand the matter to the district court for a new trial.

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


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

[2] Prior to the trial, Amy had filed a document stating a general objection to Danny’s pretrial disclosures, asserting that some of Danny’s exhibits had not been disclosed “in a timely manner” and asking the court to enter an order barring Danny from using such exhibits at trial. Neither in that document nor at trial did Amy ask for a negative-inference sanction (at least not until after the court brought it up on its own).

[3] An earlier version of rule 37 contained a provision similar to rule 26(d)(4). See Utah R. Civ. P. 37(h) (2013). That provision was deleted in 2015, apparently because the drafters considered it redundant. See id. R. 37 advisory committee notes to 2015 amendment (“Former paragraph (h), which prohibited a party from using at a hearing information not disclosed as required, was deleted because the effect of non-disclosure is adequately governed by Rule 26(d).”). In the rules’ current iteration, this language appears only in rule 26(d)(4).

[4] Recall that the court itself—at the hearing at which it ordered a continuance of the November trial date—had been inclined to order a specific deadline for Danny’s disclosure of the belatedly prepared 2020 tax return, but ended up not doing so after both attorneys asked the court not to impose any deadline.

[5] This pretrial order was also in place in advance of the scheduled November 2021 trial date, and Danny was—at least temporarily— out of compliance with that order when he failed to hand over his 2020 tax return within twenty-eight days of the November trial date. He explained, however, that he was unable to generate the tax return because of software issues, and on that basis the court continued the November trial date, rescheduling the trial for March 2022. This continuance had the effect of curing Danny’s temporary noncompliance with the court’s pretrial order; as noted, Danny fully complied with it as it relates to the March 2022 rescheduled trial date.

[6] At trial, Amy’s attorney represented to the court that Danny’s disclosure of the 2020 tax return had been “[n]ot timely.” As discussed below, we generously interpret this as an allusion to Danny’s obligation to timely supplement his rule 26 disclosures. See Utah R. Civ. P. 26(d)(5). To the extent that this comment represented an assertion that Danny’s disclosure violated a court order, that assertion was inaccurate. Indeed, on appeal, Amy concedes that Danny produced his 2020 tax return to her “twenty-nine (29) days before trial.”

[7] 7. Conduct similar to Danny’s might, under some circumstances, also be a violation of rule 26.1(f), which provides that a party’s “[f]ailure to disclose all assets and income in the Financial Declaration and attachments” in a domestic relations action “may subject the non-disclosing party to sanctions under Rule 37.” See Utah R. Civ. P. 26.1(f). Indeed, Amy invites us to affirm the court’s sanctions order on this basis. We decline this invitation because, in our view, this alternative ground for affirmance is not apparent on the record. See Pentalon Constr., Inc. v. Rymark Props., LLC, 2015 UT App 29, ¶ 25, 344 P.3d 180 (“We will not affirm a judgment if the alternate ground or theory is not apparent on the record.” (quotation simplified)). As an initial matter, this argument is unpreserved; at trial, there was no discussion of rule 26.1 from any party or from the court, and there is no indication in the record that the court intended to base its sanction on rule 26.1(f). Moreover, it is far from apparent to us that the language of rule 26.1(f) authorizes rule 37 sanctions in the absence of a court order; certainly, Amy has not persuaded us that this is the case, especially given the plain language of rule 37(b) and our case law. See, e.g.Eskamani v. Auto-Owners Ins. Co., 2020 UT App 137, ¶ 49, 476 P.3d 542.

[8] Danny also complains that Amy never submitted initial disclosures, and that—despite a court order—she did not produce any documentation about a second source of income (rental properties). As near as we can tell from the record, Danny’s complaints are accurate. We see no need for further discussion of them here, however; Danny remains free to seek relief from the district court regarding these issues on remand.

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Sorensen v. Crossland – 2024 UT App 41 – denial of due process

Sorensen v. Crossland – 2024 UT App 41

THE UTAH COURT OF APPEALS

CANDICE CROSSLAND SORENSEN, Appellant, v. STEVEN G. CROSSLAND AND LORI A. MAY, Appellees.

Opinion No. 20220756-CA Filed March 28, 2024, Third District Court, Salt Lake Department

The Honorable Mark S. Kouris No. 180902903

Ralph C. Petty, Attorney for Appellant

Matthew N. Olsen and M. Tyler Olsen, Attorneys for Appellees

JUDGE DAVID N. MORTENSEN authored this Opinion, in which

JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN, FORSTER concurred.

MORTENSEN, Judge:

¶1 A father and mother stole from their daughter by taking settlement funds of $133,000 awarded to her and buying themselves a house. Fifteen years later, the daughter discovered the theft and sued, obtaining a judgment of nearly $279,000. In the meantime, the parents divorced and the father remarried. The daughter then filed the present action, maintaining that her father fraudulently transferred funds to his new wife for less than equivalent value, all while paying nothing on the judgment and being insolvent. The matter came before the district court for trial. Midway through the examination of the daughter’s first witness, the district court raised a legal issue, suspended the presentation of witnesses and evidence, and ordered supplemental briefing. The district court indicated that a future hearing would be held. But no such hearing occurred, and instead the district court entered a ruling—the effect of which was the dismissal of the daughter’s case. The daughter appeals, claiming legal error and a deprivation of due process. We agree and reverse.

BACKGROUND

¶2        Candice Crossland Sorensen, who was born in 1989, received about $133,000 in a medical malpractice settlement when she was a minor. The funds were placed into accounts managed by her parents, Steven G. Crossland and Cindi R. Crossland. In 1999, Steven and Cindi used these funds to purchase a house.[1] The property was titled in the parents’ names only, and Candice moved into the house with her parents.

¶3        In 2014, when Candice learned of the use of her settlement money, she sued Steven and Cindi. This suit was not resolved until March 2018, at which point a judgment was entered against Steven and Cindi, jointly and severally, in the amount of nearly $279,000, with a judgment interest rate of 3.76%. No payments were ever made to Candice, and Candice did not attempt to collect the judgment.

¶4        Steven and Cindi divorced in January 2015, prior to the entry of the judgment, and in September 2015, Steven met and began living with Lori A. May. Steven moved into a property Lori was renting, and he paid Lori $700 monthly toward rent. Lori and Steven split the remaining expenses for utilities, car payments, and groceries. In July 2016, Steven and Lori ceased renting and purchased a house, for which Steven made the mortgage payment while Lori shouldered other living expenses.[2]

¶5        In May 2018, Candice initiated this action against Steven and Lori for fraudulent transfer,[3] arguing that Steven gave money to Lori (1) without receiving anything of value in exchange, (2) “with the intent to hinder, delay, and defraud” Candice, and (3) while he was insolvent or about to become insolvent shortly after the transfer.

¶6        Extensive discovery was conducted, including the taking of depositions from Candice, Steven, and Lori. Candice also subpoenaed copies of Steven’s and Lori’s bank statements.

¶7        The action was set for a two-day bench trial, but the proceeding lasted only a half day. It began with the testimony of Steven, which was interrupted by the lunch break. Once back in session, the court ordered the parties to prepare briefs addressing the law on fraudulent transfer. Specifically, the court seemed to be concerned that Candice had not made any previous effort to collect the debt, which—in the court’s view—removed her claim from the realm of fraudulent transfer. In reference to the money Steven owed Candice, the court stated,

I don’t believe that there is a legal obligation to pay the debt [from the judgment]. I think there’s probably a moral obligation, but I don’t think there’s a legal obligation.

And the reason I think that is because once the debt is there, the law gives the creditor a number of tools by which to go get that debt. I mean, the creditor literally could seize personal assets and sell them, they could foreclose on homes, they could attach bank accounts, they could garnish wages. Those are all the tools that debt collectors have to go out and get this debt.

Fraudulent transfer is, I think, a whole different chapter in . . . that we’ve got a collector trying to [collect on the debt], but the debtor is playing games with hiding the money or moving the title somewhere else, or doing whatever he can to avoid those methods. But I think the process starts with [debt collection] methods . . . .

I don’t think . . . there have been collection efforts in this case . . . . I don’t know what has brought us to here. But I do believe, I know that the monthly rental payments and so forth that [Steven] is paying [Lori] to live in the house and so forth, I don’t believe those are unlawful transfers.

Given this concern, the court instructed the parties to prepare supplemental briefing on whether Steven “paying half his rent by paying” Lori was “somehow a fraudulent transfer.” The court indicated that once the supplemental briefing was completed, Candice was to file a request to submit and the court would “then go and schedule a hearing.”

¶8        As it turns out, no request to submit was filed, but the court nevertheless issued a ruling—without the benefit of another hearing. Candice never had the opportunity to complete her examination of Steven, call Lori as a witness (as she had indicated she would do in her disclosures), and rest her case.

¶9        The court’s ruling was premised on this point:

There was no evidence that [Candice] had initiated the traditional methods to satisfy [the] judgment. Nor that [Candice] provided evidence of even sending personal demand letters or placing similar phone calls. Instead, [Candice’s] argument is that [Steven and Lori] did not pay the outstanding judgments, but instead continued to live their lives and satisfy their routine expenses.

From the lack of effort to collect the judgment, the court concluded that Candice had proved “no instance” that “any of [Steven and Lori’s] use of money was [done] with ‘actual intent to hinder, delay, or defraud’ [Candice’s] collection efforts” under the Uniform Voidable Transactions Act. See Utah Code § 25-6­202(1)(a) (“A transfer made or obligation incurred by a debtor is voidable as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation . . . with actual intent to hinder, delay, or defraud any creditor of the debtor . . . .”). In other words, because Candice had not shown that any “pending collection effort was thwarted” by Steven and Lori’s expenditures, her claim of fraudulent transfer necessarily failed. Another current of the court’s reasoning was that Candice had not shown that any of Steven and Lori’s purchases were “unreasonable,” implying that such a showing was necessary to establish an intent to defraud.

¶10      Candice subsequently filed a motion to amend the findings and a motion for a new trial. Candice’s motions were based on the assertions that (1) Steven’s examination was interrupted by the lunch break and never completed, (2) Lori was never “examined and no evidence was entered in relation to her testimony” even though Candice had intended to call her, and (3) Candice did not “rest [her] case or indicate that [she] had completed [her] presentation of evidence to the court.” Given the “state of the proceeding when the trial was recessed,” Candice argued that many of the court’s factual findings and conclusions of law were “unjustified.” She asserted that “[w]ithout the opportunity to present the remainder of her evidence, the Court [could not] make accurate and comprehensive findings and conclusions” and that she would, accordingly, suffer “the denial of her due process rights.” The court denied both motions. Candice appeals.

ISSUE AND STANDARD OF REVIEW

¶11      Candice argues that the district court violated her right to a fair and meaningful trial under the due process clause of the Utah Constitution. See Utah Const. art. I, § 7. “Constitutional issues, including questions regarding due process, are questions of law that we review for correctness.” Salt Lake City Corp. v. Jordan River Restoration Network, 2012 UT 84, ¶ 47, 299 P.3d 990 (cleaned up).[4]

ANALYSIS

¶12      Truth be told, we are not sure what happened here. But we are sure that something seriously amiss occurred when Candice was not provided with the opportunity to fully present her case.

¶13      We agree with Candice that her due process rights to a fair and meaningful trial were denied. There is no question that Candice never completed her presentation of evidence through the examination of Steven and Lori. Indeed, in its order denying Candice’s two post-trial motions, the district court stated that “[a]fter reviewing the audio recording” of the trial, it found that Candice’s claim that she “presented only a portion of the examination” of Steven “to be true, albeit out of context.” “To provide context,” the court stated that Candice’s examination of Steven consisted entirely of “having [Steven] go line-by-line through his check register and explain each transaction” and that “the balance of this testimony would be to continue the trip through [Steven’s] check register.” It appears that the court concluded that such evidence would not be helpful, and it was at this point that the court instructed the parties to prepare supplemental briefing because the court could “[n]ot understand[]” how these transactions could be the “basis for the fraudulent conveyance claims.” The district court’s explanation fails, however, to address why, despite the court not understanding how the transactions would support Candice’s claims, it did not allow the witness to complete his testimony; nor did the district court explain why no other witnesses or evidence would be allowed.[5] Candice also never rested her case in this trial precipitously terminated by the court. The proceeding was simply suspended, as far as we can tell, but never reconvened.

¶14 “No principle is more fundamental to the integrity of a society that claims allegiance to the rule of law than the principle that a person may not be deprived of his property without first being afforded due process of law.” Brigham Young Univ. v. Tremco Consultants, Inc., 2007 UT 17, ¶ 28, 156 P.3d 782. “Due process of law requires” that a court “hears before it condemns, proceeds upon inquiry, and renders judgment only after trial.” Riggins v. District Court, 51 P.2d 645, 660 (Utah 1935) (cleaned up).

¶15      This principle is repeatedly embodied in the Utah Rules of Civil Procedure. “In all actions tried upon the facts without a jury . . . the court must find the facts specially and state separately its conclusions of law. The findings and conclusions must be made part of the record and may be stated in writing or orally following the close of the evidence.” Utah R. Civ. P. 52(a)(1) (emphasis added). And a court is allowed to make a judgment on partial findings only if “a party has been fully heard on an issue during a nonjury trial.” Id. R. 52(e) (emphasis added).

¶16      That did not happen here. Candice was never “fully heard” on her fraudulent transfer claim. Not only was she unable to complete her examination of Steven, but she was never afforded the opportunity even to begin her examination of Lori, who was disclosed as a witness. We are hard pressed to see how Candice was heard in a way that would satisfy her due process rights. Additionally, we note that the district court, shortly after it instructed the parties to submit supplemental briefing, expressly stated that it would “schedule a hearing” upon receiving Candice’s notice to submit. But Candice filed no such request, and the court did not schedule such a hearing. Given the procedural posture of the case, Candice had every reason to believe that she would be afforded the opportunity to complete her presentation of evidence and then rest her case, and it must have come as a surprise to her that the court issued its ruling prematurely.

¶17      Accordingly, we reverse the court’s ruling and remand this matter for further proceedings to allow Candice the opportunity to complete her presentation of evidence.

¶18 Because this matter is being remanded, and where the district court will likely face the same question about the applicability of Utah’s fraudulent transfer law, we provide the following guidance. See In re A. Dean Harding Marital & Family Trust, 2023 UT App 81, ¶ 149, 536 P.3d 38 (offering guidance regarding an issue ancillary to the reason for remand). The court repeatedly mentioned that Candice never made any efforts to collect on the judgment, the implication being that she could not show an intent to defraud, hinder, or delay without having first made such an effort. But we point out that there is no requirement that a person attempt any collection efforts prior to filing a fraudulent transfer action. See Utah Code § 25-6-202(1). The Uniform Voidable Transactions Act expressly states that a creditor can pull back transfers “whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred.” Id. In other words, the debt does not necessarily have to be liquidated to support a fraudulent transfer claim. The only requirement is that the debt exist, even if it’s on an unliquidated or a contingent basis. Here, there is no question that Steven’s debt to Candice existed before the alleged fraudulent transfers were made. The debt arose the moment that Candice was entitled to the medical malpractice settlement money. Indeed, Steven admitted in his deposition that he knew Candice was entitled to the money but due to his and Cindi’s actions, the money was not available:

Counsel: [A]s part of [Candice’s medical malpractice] settlement, there was a sum of approximately $133,000 that went into a trust account that was controlled by her parents, you and Cindi, that was paid for by the doctors; correct?

Steven: Yes.

Counsel: Now, the understanding was, I guess, that

when Candice reached the age of 18 years old, that that money would become hers; is that correct?

Steven: Correct.

.  . .  .

Counsel: Now, at the time Candice turned 18 or thereafter, those funds . . . that you and Cindi controlled . . . were not made available to her, were they?

Steven: No . . . .

Counsel: And the reason was because they had been

utilized for the purchase of the [first house]; is that correct?

Steven: Correct.

And it was well after Steven was aware of his indebtedness to Candice (she turned eighteen in 2007) that he made the alleged fraudulent transactions associated with the purchase of the second house with Lori in 2016. To put it plainly, Candice was under no obligation to engage in collection efforts when, as here, the debtor was well aware of his obligation. Indeed, it seems to us that any expenditures Steven made after Candice was entitled to medical malpractice settlement money could potentially—if supported by evidence that they were made with an intent to hinder, delay, or defraud—be the basis for a fraudulent transfer claim.

CONCLUSION

¶19 We conclude that Candice’s due process rights were abridged when the district court issued a ruling in the context of a trial without affording Candice the opportunity to complete her presentation of evidence. We reverse the district court’s order dismissing her case and remand this matter for proceedings consistent with this opinion.

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


[1] Because some of the parties share the same surname, we employ given names for all parties.

[2] The record is unclear as to what happened to the equity in the home purchased by Steven and Cindi.

[3] The Fraudulent Transfer Act as been renamed to the Voidable Transactions Act. See JENCO LC v. SJI LLC, 2023 UT App 151, ¶ 20 n.4, 541 P.3d 321. However, we will use the nomenclature employed by the district court.

[4] Candice also asserts that the district court erred in denying her motions to amend the findings and for a new trial. Because we resolve this appeal on the first issue, we have no need to address these other claims of error.

[5] That is not to say that a district court could never curtail the presentation of evidence that the court found unhelpful. See Utah R. Evid. 611(a) (“The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment.”). For example, the district court could have solicited a proffer of the remainder of Candice’s case in chief. See State v. Boyd, 2001 UT 30, ¶ 36, 25 P.3d 985 (“A proffer is a mechanism by which a party may create an appellate record of what the evidence would have shown.”). With that record, we might have been able to determine whether Candice’s claims could have entitled her to a judgment.

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Clarke v. Clarke – 2023 UT App 160

2023 UT App 160

THE UTAH COURT OF APPEALS

EDWIN M. CLARKE,

Appellee,

v.

ANGOZI R.S. CLARKE,

Appellant.

Opinion

No. 20220067-CA

Filed December 29, 2023

Third District Court, Silver Summit Department

The Honorable Teresa Welch

No. 174500147

Cassie Medura and Jarrod H. Jennings,

Attorneys for Appellant

Julie J. Nelson and Rebecca Ross,

Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES GREGORY K. ORME and JOHN D. LUTHY concurred.

HARRIS, Judge:

¶1        After about twenty years of marriage, Edwin (Ed) and Angozi (Anne) Clarke separated in 2016, and their divorce case proceeded to a four-day bench trial in late 2020 and early 2021. Anne appeals from some of the trial court’s findings and conclusions regarding the financial aspects of the case, chiefly the court’s determination as to how much alimony Ed was ordered to pay. And she appeals the court’s denial of her motion for a new trial. We reject Anne’s arguments and affirm the court’s rulings.

 

BACKGROUND

¶2        Ed and Anne[1] married in September 1996. Ed commenced this divorce action in 2017. During their marriage, the parties had three children together, none of whom are minors now and only one of whom was a minor at the time of trial. The bulk of the pretrial litigation in this case concerned the parties’ children, but none of the trial court’s eventual rulings regarding custody are at issue in this appeal; rather, the matters at issue here are exclusively financial.

¶3        Ed is an airline pilot by trade, and in the years leading up to trial he worked for Delta Air Lines (Delta); in 2016, he was promoted to captain. Anne was also employed during the marriage; the trial court found that, since 2006, she had been “self-employed as an Independent Clothing Salesperson” affiliated with a clothing company. Prior to trial, the parties exchanged several financial disclosures, including information about their respective incomes and claimed monthly expenses. As trial approached, the court entered a pretrial order commanding that the parties exchange “[u]pdated [f]inancial [s]tatements . . . 21 days prior to the scheduled trial date.”

¶4        Trial was eventually scheduled for a three-day setting in November 2020. In keeping with the pretrial scheduling order, the parties exchanged updated financial information in the weeks prior to the scheduled trial date. Anne submitted an updated financial declaration in September 2020, therein asserting that her gross employment income was $1,674 per month (not including alimony and child support payments Ed was making pursuant to a temporary order), that her total net income (including alimony and child support, but after taxes) was $3,894 per month, and that her expenses were $8,093 per month. Regarding expenses, the form she used contained two columns for each line item, one for the “current amount” and one for “marital expenses.” Anne filled out only the “current amount” column; she left the “marital expenses” column blank.

¶5      In his final pretrial disclosures, Ed submitted an updated financial declaration indicating that his net income was $14,849 per month. Regarding expenses, Ed filled out both columns, indicating that his “current” expenses were $16,399 and that his monthly “marital expenses” had been $17,007. Ed also produced documentation supporting his assertions regarding income and expenses, including his tax returns from 2015 through 2019, as well as a paystub dated September 30, 2020 that included 2020 year-to-date income information. While Anne raised one pretrial concern with Ed’s financial disclosures, she did not litigate that concern to completion,[2] and she lodged no other objection prior to or during trial to the scope of Ed’s financial disclosures.

¶6        Trial began on November 10, 2020. The most prominent issues at trial were financial ones, chiefly Anne’s request for alimony, and much of the trial was devoted to evidence of the parties’ respective incomes and expenses. The disputes were especially pointed regarding Ed’s income and Anne’s expenses. Neither side called any financial experts to the stand; the only witnesses to offer evidence regarding the parties’ finances were the parties themselves.

¶7        Ed was on the witness stand for the better part of three days, and he offered testimony about his income. He explained that, in 2016, he was promoted to captain and thereby earned a substantial raise, and that during the years 2016 through 2018 he earned relatively consistent annual amounts, from approximately $271,000 to $292,000. In 2019, however, he earned a significantly higher salary, making approximately $349,000. He testified that, given the COVID-19 pandemic and the ensuing change in worldwide travel conditions in 2020, this 2019 pay increase was anomalous and not representative of his earning capacity at the time of trial. He explained that his 2019 income was higher than usual because, during that year, “Delta experienced a pilot shortage” that enabled him “to work significant overtime” during this “high demand time.” And he explained that the pandemic had significantly impacted Delta’s business in several ways. In 2020, there were “far too many pilots for the flight schedules being flown,” and therefore he was not able to work even pre-2019 hours, let alone the increased 2019 hours. In addition, he explained that before the pandemic, he had, as a captain, received a profit-sharing payment from Delta; that payment from 2019 had been significant, totaling over $51,000. But he testified that, given the state of Delta’s business in 2020, he was unlikely to receive any profit-sharing payment for that year, or for the foreseeable short-term future. He testified that, given these circumstances, the income that he received during September 2020—as reflected on his paystub from that month—was most indicative of his earning capacity moving forward. In his proposed post-trial findings, Ed indicated that his net monthly income was $13,358.32, based on then-current tax codes. And he testified that his marital expenses were consistent with what he had listed on his most recent financial declaration.

¶8        Anne offered very little testimony regarding her income and expenses. She did, however, testify briefly about certain business expenses that she believed should be deducted from her income for alimony purposes. She offered no testimony regarding her total net income or how it should be computed, but she indicated in written filings (including her post-trial proposed findings) that her net income from employment (not including alimony and child support) was $920 per month.

¶9        Both parties also testified that they should receive credit, or “offsets,” for previous expenditures made using their personal funds for items or matters for which they believed both parties should be equally responsible. For instance, Ed asked for reimbursement of payments he made for maintenance of the marital home and for certain child-related expenses. Anne asked for repayment of other child-related expenses and for costs incurred in moving out of the marital home around the time of separation, and she sought some sort of credit for various other instances where she alleged Ed had used her personal funds.

¶10      As the three scheduled November 2020 trial days drew to a close, it became apparent that the parties were going to need additional time to present their evidence. After some discussion, the court agreed to schedule a fourth trial day, but the parties and the court did not have mutual availability until February 2021. Thus, the court scheduled a fourth trial day for February 11, and it scheduled closing arguments to take place on March 9.

¶11      A few weeks after the closing arguments, the court issued a lengthy ruling containing its findings of fact and conclusions of law.[3] In that ruling, the court indicated that it found Ed’s testimony about his income to be credible, and on that basis determined that the years 2019 and 2020 were both anomalous with regard to Ed’s income, and that neither year was “indicative of his normal or foreseeable income.” Instead, the court determined that the most accurate measure of Ed’s earning capacity, as of the time of trial, was an average of his 2016, 2017, and 2018 earnings. The court also believed that Ed was unlikely to receive profit-sharing income from Delta “for the foreseeable future.” Thus, the court did not include profit sharing as part of Ed’s gross income calculation. Using Ed’s 2016, 2017, and 2018 tax returns and averaging the income figures found there, the court determined that Ed’s gross monthly earning capacity, for child support and alimony purposes, was $20,452.25. And the court calculated Ed’s net income “by applying current tax rates to” the gross income figure it had come up with. Using this methodology, the court calculated Ed’s net monthly earning capacity as $13,358.32. And it calculated Ed’s reasonable monthly expenses, in light of the marital standard of living, to be $10,249.46.

¶12 The court calculated Anne’s gross earning capacity by averaging her earnings from 2015 through 2019 and then concluding, on that basis, that her earning capacity was $3,158.50 per month. The court declined Anne’s invitation to subtract business expenses from that figure, noting that, under applicable law, “[o]nly those expenses necessary to allow the business to operate at a reasonable level may be deducted from gross receipts,” and concluding that Anne had “failed to explain which, if any, business expenses claimed on her tax returns are necessary to allow [her clothing enterprise] to operate at a reasonable level.”

¶13      The court then noted that “[n]o testimony was offered at trial regarding” how to calculate Anne’s net income. The court found it “difficult to ascertain the amount of tax [Anne] actually [paid] based upon her income” given that Anne had “been receiving alimony during the pendency of the case” and had been “responsible for the tax consequences of her alimony income,” but due to changes in the tax code subsequent alimony payments would “be received tax-free.” Given these difficulties, the court looked to Anne’s 2017 tax return for guidance, and it determined that Anne had paid $390.35 in taxes on a monthly basis that year; it then applied that same tax-paid figure to Anne’s future income. Using this methodology, the court determined that Anne’s net monthly earning capacity was $2,768.25.[4]

¶14 In determining Anne’s reasonable monthly expenses, the court primarily relied on Anne’s most recent financial declaration. The court found Anne’s latest declaration to be more credible than earlier versions, explaining that Anne had testified that one of the earlier declarations was “inaccurate,” and opining that another one was “uncredible” because it claimed monthly expenses that were “more than the gross earnings of both Parties combined for the last full year of the marriage.” For the most part, the court found the expenses claimed in Anne’s most recent declaration “to be reasonable in light of the marital standard of living.” However, the court found that a few of the listed expenses were “post-separation debt for which [Anne was] solely responsible,” and it therefore deducted those expenses from the calculation. But without being asked to do so, the court added to Anne’s list a line item for health care expenses. With these adjustments, and based largely on Anne’s own requests, the court calculated Anne’s reasonable monthly expenses as $6,218.

¶15 Using these findings and conclusions, the court then computed Anne’s alimony award. In particular, it concluded that Anne had a monthly shortfall of $3,449.75 (the difference between Anne’s expenses and her earning capacity). And it concluded that Ed had capacity to pay $2,937.11 (the difference between Ed’s expenses and his earning capacity). The court split the difference between these figures, in an effort to “equalize the poverty,” as it were, and therefore ordered Ed to pay alimony to Anne in the amount of $3,193.43 per month. Separately, however, the court ruled that, in the event Ed did “receive profit sharing amounts” from Delta “during the years that [he] is paying alimony” to Anne, he would be required to make an additional payment to Anne of half of any such amount, after taxes.

¶16 The court also made a separate finding regarding the amount that the parties had been spending on a monthly basis during the marriage, an amount the court referred to as “the parties’ marital standard of living.” Using the expenses listed on Ed’s financial declaration as a starting point (after all, he was the only one who had filled out the “marital expenses” column on the form) and then making certain adjustments, the court concluded that the parties “marital standard of living” was $15,745.73 per month. But this figure did not play any role in the court’s mathematical calculation of Anne’s alimony award; as noted, the court calculated that amount by computing Anne’s shortfall and Ed’s ability to pay, and then by “equalizing the poverty.”

¶17      The court also made rulings dividing the parties’ property, assets, and debts, and most of those rulings are not at issue in this appeal. As relevant here, however, the court awarded Ed offsets for certain expenditures that “were used for family or child-related expenses, for which [Anne] should be equally responsible.” Anne also requested offsets, but the court declined to award them for several reasons, most notably because the court found that Anne “failed to provide credible and sufficient proof” supporting her requests. The court also concluded that Anne’s requests for offsets had not been timely asserted because they were “first mentioned in her Trial Brief (filed five days before trial)” and therefore Ed had been deprived of any opportunity to “conduct discovery on these requested offsets.”

¶18      Later, the court entered a decree of divorce incorporating its findings and conclusions. A few weeks after that, Anne filed a motion asking for a new trial or, in the alternative, for amendments to the decree. The main grievance asserted in this motion was Anne’s allegation that Ed had withheld relevant financial information indicating that his income was higher than he testified at trial. Shortly before filing this motion, Anne had obtained a copy of Ed’s 2020 W-2 form which, in her view, indicated that Ed had earned approximately $25,000 per month in gross income during October, November, and December 2020. Anne argued in her motion that Ed was in possession of this information during trial—certainly by the fourth day of trial, which was held in February 2021—but he did not inform her or the court of these developments. Anne also claimed that there existed “new evidence” showing that Ed was back to working at least some overtime hours during 2021 and that Delta was recovering from the pandemic faster than Ed had testified.

¶19      After full briefing, the court denied Anne’s motion, stating that Anne “did not prove the existence of newly discovered evidence that existed at the time of the trial (as opposed to facts or evidence that occurred subsequent to trial),” and noting that a “petition to modify is the appropriate mechanism for any pertinent changes that occur after trial.”

ISSUES AND STANDARDS OF REVIEW

¶20      Anne now appeals, taking issue with certain aspects of the court’s post-trial findings and conclusions, as well as with the court’s denial of her motion for a new trial.

¶21      As noted, all of Anne’s challenges to the court’s findings and conclusions involve financial rulings. “In divorce actions, a [trial] court is permitted considerable discretion in adjusting the financial and property interests of the parties, and its actions are entitled to a presumption of validity.” Gardner v. Gardner, 2019 UT 61, ¶ 18, 452 P.3d 1134 (quotation simplified); see also Miner v. Miner, 2021 UT App 77, ¶ 11, 496 P.3d 242 (“We review all aspects of the trial court’s alimony determination for an abuse of discretion . . . .” (quotation simplified)). “We will reverse only if (1) there was a misunderstanding or misapplication of the law resulting in substantial and prejudicial error; (2) the factual findings upon which the award was based are clearly erroneous; or (3) the party challenging the award shows that such a serious inequity has resulted as to manifest a clear abuse of discretion.” Gardner, 2019 UT 61, ¶ 18 (quotation simplified). “Appellants have a heavy burden to show that an alleged error falls into any of these three categories” because “we can properly find abuse only if no reasonable person would take the view adopted by the trial court.” Id. (quotation simplified).

¶22      Anne also challenges the court’s denial of her motion for a new trial. “There are two aspects to a court’s decision-making process in ruling on a motion for new trial, and there are differences in the manner in which we review each aspect.” Peterson v. Hyundai Motor Co., 2021 UT App 128, ¶ 30, 502 P.3d 320 (quotation simplified), cert. denied, 509 P.3d 768 (Utah 2022). “First, a trial court must determine that there exists a problem . . . that may require a retrial.” Id. ¶ 31. Some of the grounds for retrial listed in rule 59(a) of the Utah Rules of Civil Procedure “cannot be found to exist without some sort of factual determination on the part of the trial court,” and we review any such determination for abuse of discretion. Id. But other grounds, such as “the existence of legal errors,” “require no factual determination on the part of the trial court,” and rulings on these grounds are reviewed for correctness. Id. “Second, after determining that an error or impropriety of some kind exists, a trial court must determine whether the identified errors or improprieties are significant enough to warrant a retrial.” Id. ¶ 32. And this determination is usually reviewed for abuse of discretion. Id.

ANALYSIS

¶23      In this appeal, Anne challenges two aspects of the court’s rulings regarding the parties’ finances. Chiefly, Anne takes issue with the court’s alimony award; in her view, the award was, for several reasons, not big enough. She also asks us to review the court’s decisions regarding the parties’ claimed offsets. For the reasons explained below, we reject Anne’s challenges.

I. Alimony

¶24 Anne assails the court’s alimony award on several grounds. First, she takes issue with the court’s rulings regarding Ed’s gross monthly earning capacity. Second, with regard to her own earning capacity, she challenges the denial of her request that the court take into account certain claimed business expenses.[5] Third, she asserts that the court erred in computing the parties’ net (after-tax) incomes. And finally, she assails the overall alimony computation, arguing that the court did not properly take the parties’ pre-separation standard of living into account in assessing her reasonable monthly expenses. We discuss each argument, in turn, and find none of them persuasive.

A. Ed’s Gross Earning Capacity

¶25 Anne’s challenge to the court’s rulings regarding Ed’s gross earning capacity has two parts. First, Anne asks us to review the court’s original findings and conclusions. And second, Anne takes issue with the court’s denial of her motion for a new trial.

1

¶26      After considering the evidence presented during the four-day trial, the court made findings regarding Ed’s earning capacity. In particular, it determined that Ed’s current earning capacity, viewed from the perspective of a trial that occurred in late 2020 and early 2021, was best estimated by looking at his income in 2016, 2017, and 2018. In the court’s view, Ed’s 2019 income was anomalous, because he had worked significantly more that year than in previous years, and he was unlikely to work that much in the near future. And the court determined not to use Ed’s 2020 income either, given the uncertainty in the airline industry that year due to the pandemic. The court decided that the best indicator of Ed’s current earning capacity was an average of the three years prior to these two anomalous years. And the court determined not to include Delta profit-sharing payments in the income calculation, on the basis that—at the time of trial— airlines were struggling due to the pandemic and therefore Ed was unlikely to receive any profit-sharing payments “in the foreseeable future.” Using these parameters, the court calculated Ed’s “gross monthly income” as $20,452.25.

¶27 There was ample evidence presented during the trial to support these findings and conclusions. The parties presented tax returns and paystubs setting forth Ed’s salary and other income, and Ed offered extensive testimony in this regard that the court expressly found credible.[6] The court also heard evidence regarding conditions in the airline industry in 2019 and 2020, and about the COVID-19 pandemic. The trial record therefore contains evidence sufficient to support the court’s findings regarding which years to use in the income calculation, and regarding the specific amounts computed. And where there exists evidence sufficient to support a court’s rulings regarding a divorcing couple’s finances, that ruling will be upheld on appeal, even if evidence was presented that might have cut the other way. See Kimball v. Kimball, 2009 UT App 233, ¶ 20 n.5, 217 P.3d 733 (“The pill that is hard for many appellants to swallow is that 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. After all, it is the trial court’s singularly important mission to consider and weigh all the conflicting evidence and find the facts.”).

¶28 Anne resists this conclusion by asserting that the court specifically erred in excluding any profit-sharing payments from the income calculation. She points out—correctly—that Utah law defines “gross income” as including “prospective income from any source.” See Utah Code § 78B-12-203(1). But the court found— based on prevailing economic conditions existing at the time of trial—that Ed was unlikely to “receive profit sharing payments for the foreseeable future,” and on that basis chose not to include those amounts in its calculation of Ed’s income. As noted, there was evidence to support this determination, and it therefore survives Anne’s appellate challenge.

¶29 Moreover, we have held that, while trial courts must “consider all sources of income when determining alimony,” Utah law “does not dictate that all sources of income be counted as income received by a spouse for that purpose.” Eberhard v. Eberhard, 2019 UT App 114, ¶ 21, 449 P.3d 202. Instead, our case law “preserv[es] a [trial] court’s broad discretion to treat sources of income as the court sees fit under the circumstances.” Id. Here, the trial court certainly considered the profit-sharing component of Ed’s historical income. And after consideration, it determined not to include profit sharing in Ed’s income calculation due to unfavorable economic conditions in existence at the time of trial, but it did order—separately—that, if economic conditions improved and Ed ended up receiving profit-sharing payments from Delta “during the years that [he] is paying alimony” to Anne, Ed would be “required to pay [Anne] half” of any such payments. As Ed points out, this order has the potential to be much better for Anne, in terms of dollars received over time,

than the order she is now asserting the court should have entered. But more to the point, it was well within the court’s discretion to craft this sort of creative solution to the parties’ alimony conundrum.

¶30      In short, the trial court’s findings regarding Ed’s gross monthly earning capacity were amply supported by evidence presented during the trial, and the court’s final computations and orders were not an abuse of its discretion.

2

¶31 Next, Anne takes issue with the court’s decision to deny her motion for a new trial. In that motion, Anne asked the court to order that a new trial be held in light of information— that she claimed was new—regarding Ed’s income. In particular, Anne asserted that Ed had, during trial, withheld relevant financial information indicating that his income in late 2020 and early 2021 was higher than he testified at trial. Anne also claimed that there existed “new evidence” that Ed was back to working at least some overtime hours during 2021 and that Delta was recovering from the pandemic faster than Ed had testified. The court denied Anne’s motion, and declined her invitation to order a new trial. We perceive no error in this determination.

¶32      Under applicable rules, a new trial “may be granted to any party on any issue” for any one of several enumerated reasons. See Utah R. Civ. P. 59(a). Those reasons include “irregularity in the proceedings of the court, . . . or any order of the court, or abuse of discretion by which a party was prevented from having a fair trial,” id. R. 59(a)(1); “newly discovered material evidence that could not, with reasonable diligence, have been discovered and produced at the trial,” id. R. 59(a)(4); “insufficiency of the evidence to justify the verdict or other decision,” id. R. 59(a)(6); and “the verdict or decision [being] contrary to law or based on an error in law,” id. R. 59(a)(7). Anne asked for a new trial under each of these subsections, and we discuss them in turn.

¶33      Rule 59(a)(1): Anne first argues that she is entitled to a new trial because of an irregularity in the proceedings. She points to Ed’s 2020 W-2 form, which she obtained in September 2021 (several months after the conclusion of the trial), and she asserts that Ed’s testimony at trial was inconsistent with that document. She characterizes Ed’s testimony as materially inaccurate, and she accuses him of being less than candid with the court.[7] Based on these assertions, she concludes that there was an irregularity in the trial proceedings sufficient to justify a new trial.

¶34 In this vein, Anne asserts that Ed had an ongoing obligation, which continued even during trial, to supplement his pretrial disclosures with up-to-date financial information. She acknowledges that Ed provided then-current financial information in his final pretrial disclosures, which the court ordered the parties to exchange some three weeks prior to trial; this information included Ed’s September 2020 paystub, including year-to-date income information. But she asserts that, despite Ed’s compliance with the court’s pretrial disclosure order, Ed violated his ongoing supplementation obligation, an event she asserts contributed to creating an “irregularity” in the trial proceedings. She points out that, even though the trial was originally scheduled to conclude over three days in November 2020, the court eventually scheduled a fourth trial day to take place in February 2021. She acknowledges that, ordinarily, a party discharges its pretrial disclosure obligations by complying with the court’s pretrial disclosure order, but she asserts that, under the unique circumstances of this case—in which trial was extended for another three months, into another calendar year—Ed became obligated to update his financial disclosures without further order of the court and without any request on her part.

¶35 We are unpersuaded. When it scheduled the fourth trial date, the court did not amend its pretrial disclosure order, or otherwise command the parties to update their financial disclosures, one more time, prior to that trial date. We also note that Anne herself did not attempt to supplement her disclosures during trial (for instance, she did not provide her own year-end 2020 financial information to Ed prior to the fourth trial date in February), nor did she complain to the trial court, during trial, about Ed’s failure to do so.

¶36 And Anne cites no statute or case law in support of the specific position she advocates. The only rules to which she directs our attention are the ones containing parties’ general disclosure and supplementation obligations. See Utah R. Civ. P. 26(d)(5), 26.1. We acknowledge Anne’s point, and certainly agree with her that, during litigation, parties have ongoing supplementation obligations regarding their discovery disclosures. But we are aware of no specific rule compelling parties to continue to provide updated financial information after the final pretrial disclosure deadline; indeed, as we understand it, trial courts often set such deadlines so that trials can proceed in an orderly fashion and facilitate assessment of the litigants’ situation as of the date of the final financial disclosures.

¶37      Moreover, in the family law context, there exists a specific remedy for situations in which a party’s income changes materially after a trial has been held and findings about the parties’ financial situation have been made: a party may file a petition to modify the existing order. See id. R. 106; Utah Code §§ 30-3-5(11)(a), 78B-12-210(8). Indeed, in this case, the trial court

denied Anne’s motion for a new trial, at least in part, because it concluded that a “petition to modify is the appropriate mechanism” for addressing “any pertinent changes” in Ed’s income that have occurred “subsequent to trial.” We agree with the trial court that, ordinarily, the petition to modify remedy is the method that should be used to address post-trial changes in divorcing parties’ financial status. That remedy remains open to Anne here, despite the court’s denial of her motion for a new trial.

¶38      For all of these reasons, we perceive no abuse of discretion, under the circumstances presented here, in the trial court’s conclusion that Ed’s failure to provide ongoing paystubs and W-2 forms he received after the court’s final pretrial disclosure deadline did not constitute the sort of “irregularity in the proceedings” that would justify a new trial.

¶39      Rule 59(a)(4): Next, Anne argues that a new trial is necessary because of newly discovered evidence. See Utah R. Civ. P. 59(a)(4). Again, she points to Ed’s 2020 and 2021 W-2 forms, as well as new evidence about Delta’s 2021 resurgence, and asserts that this evidence constitutes “newly discovered material evidence” that would justify a new trial. We remain unpersuaded.

¶40      As an initial matter, “a motion for a new trial or amended judgment cannot be based on facts occurring subsequent to trial.” In re C.L., 2007 UT 51, ¶ 14, 166 P.3d 608 (quotation simplified). “Otherwise, there would be no end to litigation.” Id. (quotation simplified). Some of the “newly discovered evidence” obviously fits into this category: Ed’s 2021 W-2 was not available until well into 2022, and evidence of Delta’s 2021 resurgence was not available during any of the trial dates in this case.

¶41      Ed’s 2020 W-2 form, on the other hand, may well have been available, at least to Ed, prior to the fourth and final trial date in this case, which took place on February 11, 2021. But in order to demonstrate that the evidence in question is the kind of evidence that fits within rule 59(a)(4), Anne must show that the evidence “could not, by due diligence, have been discovered and produced

at trial.” Id. ¶ 12 (quotation simplified); see also Utah R. Civ. P. 59(a)(4) (stating that, to be “newly discovered material evidence,” the evidence in question “could not, with reasonable diligence, have been discovered and produced at the trial”). In our view, Anne has not carried her burden of demonstrating that Ed’s 2020 W-2 form could not have been discovered and discussed during the February 11 trial date. Ed testified during the proceedings on February 11, and Anne’s attorney had the opportunity to ask Ed questions that day. Yet Ed was not asked any questions about his income during late 2020 or early 2021, and in particular he was not asked if his income had changed appreciably in the months since September 2020, the last month for which documentary information had been presented during the November 2020 trial dates. We are hard-pressed to conclude that information about Ed’s income during the last three months of 2020 and the first two months of 2021 “could not, with reasonable diligence, have been discovered and produced” at the February 11 trial date, when Anne had the chance to ask Ed about those issues and did not.

¶42      For these reasons, we discern no abuse of discretion in the trial court’s determination that no new trial was warranted under rule 59(a)(4).

¶43      Rule 59(a)(6): Next, Anne suggests that the trial court should have granted a new trial on the basis that there was insufficient evidence to justify its conclusions. See Utah R. Civ. P. 59(a)(6). We need not discuss this issue further, however, given our conclusions—set forth above—that sufficient evidence existed to support the trial court’s original findings and conclusions regarding Ed’s gross earning capacity.

¶44      Rule 59(a)(7): Finally, Anne asserts that the trial court should have granted a new trial because its initial findings regarding Ed’s income were “contrary to law or based on an error in law.” See id. R. 59(a)(7). But in this regard, Anne does not make any additional arguments that we have not already addressed; as noted, we perceive no legal error in the court’s findings and conclusions regarding Ed’s gross earning capacity, and no legal

error in the way the court conducted the trial, including specifically its pretrial disclosure order.

¶45 Accordingly, we see no infirmity in the court’s rulings regarding Ed’s gross earning capacity. Its initial findings and conclusions were supported by sufficient evidence, and the court did not err in denying Anne’s motion for a new trial and advising Anne to address the issues raised there, if at all, in the context of a petition to modify the decree.

B. Anne’s Business Expenses

¶46 Anne’s next challenge to the court’s alimony award involves one aspect of its ruling regarding her own earning capacity. As noted, the court determined that Anne’s gross earning capacity was $3,158.50 per month; it derived that figure by averaging her earnings from 2015 through 2019. The court declined Anne’s invitation to subtract business expenses from that figure, concluding that Anne had “failed to explain which, if any, business expenses claimed on her tax returns are necessary to allow [her clothing enterprise] to operate at a reasonable level.” Anne takes issue with the court’s refusal to subtract her claimed business expenses from her monthly gross income computation.

¶47 Under applicable statutory guidance, when a court is assessing a self-employed person’s gross income, the court shall “subtract[] necessary expenses required for self-employment or business operation from gross receipts.” Utah Code § 78B-12­203(4)(a). However, “[o]nly those expenses necessary to allow the business to operate at a reasonable level may be deducted from gross receipts.” Id. “The person claiming business expenses” bears the burden of proving that the claimed “expenses are necessary to allow the business to operate at a reasonable level.” See Ouk v. Ouk, 2015 UT App 104, ¶ 4, 348 P.3d 751 (quotation simplified). Thus, Anne bore the burden of demonstrating, at trial, that her claimed business expenses were necessary to allow her business to operate at a reasonable level. The trial court concluded that Anne failed to carry that burden.

¶48 At trial, Anne pointed to the “Schedule Cs” on her 2017, 2018, and 2019 tax returns as evidence of her business expenses. There, she claimed expenses for “Office expense,” “Supplies,” “Travel,” and “Utilities,” among other more minor items. The trial court explained its reasoning for rejecting Anne’s claim on these items. With regard to “Office expense,” the court noted that Anne “did not explain what actual and necessary business expense this would entail,” and that Anne had “admitted that she does not have an office outside her home.” With regard to “Utilities,” the court noted that Anne had acknowledged that this expense was simply “personal expenses that she is permitted to write off for tax purposes,” and that Anne was unable, during her trial testimony, to “be certain what her claimed ‘Utilities’ expenses entailed.” And with regard to “Supplies,” the court concluded that the figure Anne listed on her tax returns was confusing, because it was unclear, even after Anne’s trial testimony, whether this figure properly accounted for revenue Anne received from selling some of these supplies “at the end of each season.” Given these evidentiary deficiencies, the court found that Anne “failed to meet her burden to demonstrate that the claimed business expenses are only those necessary to allow her business to operate at a reasonable level.”

¶49 We perceive no infirmity in this determination. Anne offered very little testimony about her business expenses, and she supported that testimony only with her tax returns. In its ruling, the court identified several legitimate concerns about the persuasiveness of the evidence Anne presented, and it determined that Anne had not carried her burden of proof. Trial courts have discretion to credit, or not credit, evidence presented to them. See id. ¶ 14 (stating that “the fact-finder is in the best position to judge the credibility of witnesses and is free to disbelieve their testimony” (quotation simplified)). Thus, under the circumstances of this case, the court did not abuse its discretion by finding that Anne had failed to carry her burden to prove the necessity of her business expenses.

C. Net Income Calculations

¶50      Anne’s next challenge to the alimony award involves the court’s net income calculations. She argues that, in assessing the impact of taxes on gross income, the court “miscalculated” her net income and “treated [her] differently than” it treated Ed.

¶51 Anne provided no testimony or documentary evidence regarding net income. That is, she offered the court no assistance in computing net income from the court’s gross income figures. And neither party hired an accountant or offered testimony from any other financial professional. Given these evidentiary realities, the court noted that it was “difficult to ascertain the amount of tax” Anne “actually pays,” especially given certain then-recent changes in the tax code regarding alimony. In the absence of better evidence, the court simply looked to Anne’s tax returns, which showed that, in 2017, Anne had paid $390.35 per month in combined federal and state taxes. The court then subtracted that number from its monthly gross income finding ($3,158.50), and found that Anne’s monthly net income, for alimony purposes, was $2,768.25. On appeal, Anne does not lodge any specific objection to this methodology at a conceptual level.

¶52      Instead, she complains that the court did not compute her net income in the same way as it computed Ed’s. In this, Anne is correct: the court did compute Ed’s net income in a different way. For Ed, the court simply took his gross income figure and applied a tax rate to it. As noted above, the court found that Ed’s monthly gross earning capacity was $20,452.25. The court simply applied “current tax rates” to that figure, without accounting for any potential tax deductions. Using this methodology, the court computed Ed’s monthly net income as $13,358.32.

¶53 Anne complains that using two different methodologies resulted in potential inequity: by using Anne’s actual “tax paid” figure from years past, the court accounted for any tax deductions she had taken, but by simply applying a tax rate to Ed’s gross income figure, the court did not similarly account for any tax deductions Ed might take in the future and effectively assumed that he wouldn’t take any. We take Anne’s point that, as a general matter and where possible, courts should compute divorcing parties’ net incomes for alimony purposes using the same methodology. But courts in appropriate cases may find it necessary to employ differing methodologies for computing spouses’ respective net incomes, and we cannot say that the court abused its discretion by doing so here.

¶54      In this case, there are differences between Anne’s and Ed’s situations. For starters, Anne did not offer any testimony or evidence regarding how the court should go about calculating her net income, so the court used the information it was given. More specifically, Anne did not provide the court any assistance in navigating the changes to the tax code regarding alimony. And with regard to Ed, the court would have found it difficult to use the “tax paid” figure from past tax returns, given that this figure may have included taxes paid on profit-sharing income, which the court had determined not to include in Ed’s future monthly gross income estimate. And as Ed points out, some of the key tax deductions he would have taken in past years (such as for children) would not be available to him in the future.

¶55 In our view, given the absence of any expert financial testimony, and given the paucity of assistance the parties offered the court in making these calculations, the court in this instance made findings within its discretion and supported by the evidence it was given. While we generally advise trial courts to use mirror-image methodologies to compute parties’ respective net incomes in family law cases, we cannot say that Anne has carried her appellate burden of demonstrating that the court abused its discretion by making the calculations it made.

D. Overall Alimony Computation

¶56 The final challenge Anne raises to the court’s alimony award is a more general one: she questions the formula the court used to arrive at its computation, and specifically challenges the manner in which the court assessed her reasonable monthly expenses. She notes that the court went to the trouble of making a finding regarding the parties’ overall marital standard of living ($15,745.73 per month), but she observes—correctly—that it is “unclear what role the marital standard of living then plays in the [c]ourt’s alimony determination.” And she points out that the court “did not use [this figure] as any sort of ‘baseline.’” It is not entirely clear exactly what Anne believes the court should have done with its $15,745.73 figure, but she complains that the court did not take it—and the marital standard of living—appropriately into account in assessing her expenses, and she laments that the court “based its alimony award wholly on [Anne’s] actual expenses at the time of trial.”

¶57 We see at least two problems with Anne’s argument, one general and one case-specific. At a general level, Anne misunderstands the formula that is to be used to compute alimony awards. As we recently observed, courts should not calculate alimony by simply dividing the couple’s pre-separation expenses in half. See Fox v. Fox, 2022 UT App 88, ¶¶ 18-19, 515 P.3d 481, cert. denied, 525 P.3d 1263 (Utah 2022). Indeed, we noted that “[t]here is usually no need for a trial court to make a separate specific finding regarding the overall ‘marital standard of living’ as measured by the total amount of money spent each month by the couple while they were married.” Id. ¶ 19. Such a finding is typically unnecessary; it is not one of the input variables that a court needs to assess before computing an alimony award.

¶58 In this case, the court did go to the trouble of making a finding about the parties’ monthly expenses prior to separation ($15,745.73). But as Anne points out, the court did not use that figure in its ultimate alimony calculation. In this case (as, we suspect, in most cases), such a finding was not necessary and only served to complicate matters. The court did not need to make this finding at all, and its failure to use the $15,745.73 figure in its alimony calculation was not error.

¶59      To be sure, trial courts may not ignore the marital standard of living when making an alimony award. The pre-separation standard of living must be taken into account, because the primary purpose of alimony is “to get the parties as close as possible to the same standard of living that existed during the marriage.” See Rule v. Rule, 2017 UT App 137, ¶ 14, 402 P.3d 153 (quotation simplified). But the way a court should take that standard into account is by assessing a party’s claimed line-item expenses in light of that standard, and not by making an overall-expenses finding and chopping it in half. See Fox, 2022 UT App 88, ¶¶ 19–21, 24; see also Miner v. Miner, 2021 UT App 77, ¶ 20, 496 P.3d 242 (examining each of the claimed line-item expenses “with the marital standard of living in mind”). To give effect to the marital standard of living, courts should—as a general rule— assess parties’ expenses as of the time of separation and not as of the time of trial. See Rule, 2017 UT App 137, ¶ 16 (cautioning “against determining alimony based upon actual expenses at the time of trial because . . . a party’s current, actual expenses may be necessarily lower than needed to maintain an appropriate standard of living for various reasons, including, possibly, lack of income” (quotation simplified)). But “in appropriate situations with regard to certain line items, a court may apply equitable principles, in its discretion, to base alimony on the standard of living that existed at the time of trial.” See Miner, 2021 UT App 77, ¶ 18 (quotation simplified). To assist with this process, the financial declaration form often used in family law cases—and used in this case—includes two columns for each expense item, one for “current amount” and one for “marital expenses.”

¶60      And this leads us to the case-specific problem with Anne’s argument: Anne provided the court with only time-of-trial expenses, and the court gave Anne credit for more or less everything she asked for on her financial declaration.

¶61      The trial court, after making its superfluous “marital standard of living” finding, then proceeded to use the correct formula to compute Anne’s alimony award. See Fox, 2022 UT App 88, ¶ 20. As relevant here, it correctly assessed “the needs of the parties, in light of their marital standard of living.” See id. (quotation simplified). In assessing Anne’s expenses, the court simply gave Anne everything she asked for—to the dollar—in her most recent financial declaration, with only a few exceptions. The court found that a few of the listed expenses were “post-separation debt for which [Anne] is solely responsible,” and it therefore deducted those expenses from the calculation.7F8 And without being asked to do so, the court added to Anne’s list a line item for health care expenses. With regard to all the rest of Anne’s claimed expenses, the court found that these expenses were “reasonable in light of the marital standard of living.” With these adjustments, and based largely on Anne’s own requests, the court calculated Anne’s reasonable monthly expenses as $6,218.

¶62 We perceive no error in the court’s analysis of Anne’s reasonable expenses. It is significant that Anne did not provide the court, in her financial declaration or in her trial testimony, with any evidence regarding the “marital expenses” amount for her claimed line items. If a party offers into evidence only time-of-trial expense amounts, and does not provide the court with any evidence of pre-separation expenses (to the extent they are different), that party has no right to complain when the court awards the time-of-trial amounts. Any complaint on Anne’s part that the court failed to appropriately take the marital standard of living into account in assessing these expenses rings hollow when Anne herself apparently didn’t take the marital standard of living into account in making her claims, and where the court—more or less—credited Anne with all of the expenses she was claiming.

¶63      We therefore reject all of Anne’s challenges to the court’s alimony award. The court employed the proper formula, and all of its determinations were supported by sufficient evidence and were within the court’s discretion.

8. On appeal, Anne does not take issue with the court’s deduction of these post-separation debts from her expenses.

II. Offsets

¶64      The only non-alimony argument Anne raises concerns the court’s rulings regarding the parties’ claimed offsets. During trial, both parties claimed that they should each receive credits, or “offsets,” for purchases made using their personal funds that they believed both parties should be equally responsible for. Ed sought reimbursement of payments he made for maintenance of the marital home and for certain child-related expenses. For her part, Anne sought repayment of other child-related expenses and of costs incurred in moving out of the marital home, and she sought equalization for various other instances where she alleged Ed had used her personal funds. In its post-trial ruling, the court granted Ed’s requests for offsets, but declined to grant Anne’s requests. The court determined that Anne’s requests were “not credible and not proven” because Anne “failed to provide credible and sufficient proof” supporting her claims. The court also concluded that Anne’s requests for offsets had not been timely asserted because they were “first mentioned in her Trial Brief (filed five days before trial)” and therefore Ed had been deprived of any opportunity to “conduct discovery on these requested offsets.”

¶65      Anne contends that the court should not have denied her requests and granted Ed’s, and again complains that the court treated her differently than it treated Ed. She directs much of her appellate ire at the court’s secondary reason for its ruling—that Anne’s requests were not timely made—and asserts that Ed’s requests suffered from the same infirmity. While the court did note that Anne did not timely disclose her offset requests, we do not perceive that as the primary basis for the court’s denial of her requests. Rather, the court’s main concern was that Anne had not carried her burden of proving her requested offsets. By contrast, the court determined that Ed had proven his requested offsets, and that he had done so through a spreadsheet exhibit and “credible” testimony.

¶66 On appeal, Anne does little to engage with the court’s conclusion that her claims—unlike Ed’s—were “not credible and not proven.” Rather, Anne lists the offset awards and denials that she disagrees with, and she offers her view that the rulings were in error. She makes conclusory statements about who paid certain expenses, without proper record citations for those propositions. And for several of the offsets awarded to Ed, Anne claims that there was insufficient evidence, but she does not explain how or why Ed’s spreadsheet exhibit, coupled with his testimony that the court found credible, does not constitute sufficient evidence.

¶67      “An appellant bears the burden of persuasion on appeal, and this burden includes engaging with and responding to the grounds for the decision the appellant is challenging on appeal.” In re A.B., 2022 UT 39, ¶ 39, 523 P.3d 168 (quotation simplified). In this case, Anne has not carried her appellate burden of demonstrating that the court erred in its offset determinations.

CONCLUSION

¶68 The trial court’s post-trial findings and conclusions regarding alimony and offsets were all supported by sufficient evidence and were not an abuse of its discretion. And the court did not err in denying Anne’s motion for a new trial. For all of these reasons, we reject Anne’s appellate challenges.

¶69 Affirmed

 

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

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Clark v. Clark – 2023 UT App 111 – divorce, exhibits, dissipation

Clark v. Clark – 2023 UT App 111

THE UTAH COURT OF APPEALS

SUSAN JEANNE CLARK,

Appellee,

v.

RICHARD LEE CLARK,

Appellant.

Opinion

No. 20210713-CA

Filed September 28, 2023

Fourth District Court, Heber Department

The Honorable Jennifer A. Brown

No. 184500153

Karra J. Porter and Kristen C. Kiburtz, Attorneys for Appellant

Julie J. Nelson, Attorney for Appellee

JUDGE AMY J. OLIVER authored this Opinion, in which JUDGES

MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY

concurred.

OLIVER, Judge:

¶1        Richard Lee Clark appeals from the district court’s decision following a two-day divorce trial. Clark challenges several aspects of the court’s ruling, including a discovery sanction for his failure to timely disclose his trial exhibits under rule 26 of the Utah Rules of Civil Procedure; findings relating to his claim that his ex-wife, Susan Jeanne Clark, dissipated the marital estate; and the court’s division of the marital property. We affirm the district court’s ruling with the exception of one aspect of the district court’s marital property determination, which we vacate and remand for additional findings.

BACKGROUND

¶2        Richard and Susan[1] married in 2002, when Richard was in his sixties and Susan was in her fifties. Richard was retired from military service and from employment as an attorney with the Department of Justice. Susan owned a wallpaper business when she met Richard but quit working shortly after they married. For the next six years, Richard and Susan lived off Richard’s retirement income from both the Army and the Department of Justice.

¶3        In 2008, Richard came out of retirement to work for a government contractor in Afghanistan, where he lived for thirty-eight months. During that time, Richard’s retirement and employment income of $814,627 was deposited into a joint account that Susan controlled. Richard returned home to find “probably about $100,000 . . . had been saved” in the joint bank account—much less than he expected—yet he said nothing to Susan at that time.

¶4        Three years after his return, Richard moved into the basement of the marital home. The following year, in 2016, Susan transferred approximately $78,000 from their joint account into her personal account, prompting Richard to confront her about what he viewed as missing money from his time in Afghanistan. Two years later, in 2018, Susan filed for divorce. Shortly afterward, Richard purchased a Harley-Davidson motorcycle with financing, which he paid off in 2020.

¶5        At the time of their divorce, Richard and Susan owned two real properties—a condo in Norfolk, Virginia (Mooring Drive), and a home in Kamas, Utah (Ross Creek). Richard had purchased Mooring Drive before the marriage for approximately $205,000. In 2003, Richard added Susan to the title of Mooring Drive, which allowed her to vote at the condominium association’s meetings and to join the board. The following year, Richard and Susan used equity loans on Mooring Drive to finance the purchase and construction of Ross Creek. From 2009—when Susan moved to Utah and Richard was in Afghanistan—until June 2019, Richard rented Mooring Drive out to others and the revenues were deposited into his separate account that was designated to pay for the property’s expenses.

¶6        During their marriage, the parties took out an equity loan on Ross Creek that matured, along with one of the equity loans from Mooring Drive, in 2019. With the divorce still pending, Susan agreed to refinance Ross Creek’s mortgage to pay off the two equity loans that were due, but only if Richard would stipulate that Mooring Drive and Ross Creek were marital property and were subject to equitable division in their pending divorce. Richard agreed, and the parties stipulated that “the Ross Creek and Mooring Drive properties shall remain marital property and shall be subject to equitable division in the parties’ divorce notwithstanding that the Ross Creek home and Mooring Drive property will no longer be jointly titled.”

¶7        In April 2019, the Mooring Drive tenants’ lease expired. Richard decided he could only offer the tenants a month-to-month lease until his divorce was over. When the tenants declined to renew and moved out in June, Richard withdrew $30,000 from the joint bank account, claiming that he needed the funds to cover Mooring Drive’s expenses. After a hearing, the court entered temporary orders in December 2019, permitting Richard to access equity in Ross Creek to pay off debt on Mooring Drive but denying his “request for financial relief based on the loss of rental income because [Richard] ha[d] not made any attempt to secure new renters.”

¶8        Trial was originally scheduled for June 2020, but when the COVID-19 pandemic hit and courts were required to hold bench trials virtually, Richard declined to proceed with a virtual trial, and it was continued without a date. In February 2021, the court held a pretrial scheduling conference and rescheduled the trial for May 2021. The court’s pretrial order stated the parties must produce pretrial disclosures on or before April 26, 2021, pursuant to rule 26(a)(5)(B) of the Utah Rules of Civil Procedure.

¶9        Richard missed the deadline. A week after it passed, he requested a continuance to hire trial counsel. Richard had been representing himself as a pro se litigant despite being eighty-four years old and not having practiced law since 1988. According to Richard, health issues arose that made him “no longer physically and mentally capable of representing” himself. The court granted the motion, rescheduling the trial for June. The new deadline for pretrial disclosures became May 24, but Richard did not submit his pretrial disclosures until June 10—eleven days before trial.

¶10      The two-day trial began with Susan’s objection to Richard’s untimely pretrial disclosures. Susan contended that Richard had “ample opportunity” to produce his pretrial disclosures given the multiple continuances of the trial. In response, Richard claimed his failure to meet the disclosure deadline was harmless because he had previously produced as discovery responses the 339 pages of financial documents—including check registers, paystubs from 2008 to 2009, and bank account information from 2011 to 2012— that he sought to admit as exhibits 2 through 8. Yet Richard did not file certificates of service for those responses, and neither party’s counsel could confirm whether Richard had previously sent the documents in exhibits 2 through 8 to Susan, leaving the district court with only Richard’s testimony to support the claim that he had previously disclosed the exhibits. The district court sustained Susan’s objection as to exhibits 2 through 8, excluding them from trial.

¶11      Both Susan and Richard testified at trial. Susan testified Richard had transferred $30,000 from their joint account to his personal account in June 2019 and contended she was entitled to half of that amount. Susan also testified about her exhibits that provided recent balances in her bank and retirement accounts.

¶12      On cross-examination, Susan admitted she had not looked for work and was unemployed despite the court’s urging in 2020 for her to seek employment. Richard then peppered Susan about numerous expenditures during his time in Afghanistan, to which Susan replied that it “was a number of years ago” and she “ha[d] no recollection at all” of the transactions. Susan did state, however, that when Richard left for Afghanistan, she recalled they “had very large credit card balances” that Richard instructed her “to start paying off” while he was away.

¶13 First testifying as Susan’s witness, Richard answered questions about some of the marital property. He testified about a recent appraisal of Mooring Drive that valued it at $390,000, his three life insurance policies that all list Susan as the beneficiary, and his purchase of the Harley-Davidson in May 2019. Susan then introduced a pleading Richard had filed with the court in November 2019 that stated, in relevant part, he had “owned three motorcycles, selling the last one when [he] moved to Norfolk,” but he has “never ridden a Harley-Davidson.” Richard replied that he had “misstated the fact,” both in that pleading and at a hearing the same month when he told the court he did not own a Harley-Davidson. Richard testified he should receive three-fourths of the equity in Mooring Drive because he purchased it before the marriage. Unable to provide a figure for what the property was worth when he married Susan, Richard claimed that “the[] prices have gone up and gone down a great deal” since their marriage, but his best guess was that Mooring Drive appreciated from $205,000 to $350,000 between 2000 and 2002. Richard continued to do some impromptu math on the stand to clarify how much equity he felt he was owed, asserting that since Mooring Drive was recently appraised at $390,000 and had been worth $350,000 in 2002—by his best guess—there is $40,000 of equity for them to divide, but then he admitted such valuation “is something I’m just not knowledgeable about.”

¶14      As his own witness, Richard testified about Susan’s alleged dissipation during his time in Afghanistan. Richard’s excluded exhibits went to the issue of dissipation, so without the financial documents from that period, Richard sought to prove Susan “dissipated money while [he] was in Afghanistan” through his testimony about his earnings and typical expenses during that time frame. Using the excluded exhibits to refresh his recollection, Richard estimated their monthly expenses before he left were approximately $10,000 to $11,000. Richard also challenged Susan’s testimony about credit card balances, claiming that “there weren’t any large credit card balances before [he] left.”

¶15      At the conclusion of trial, the district court asked both parties to submit proposed findings of fact and conclusions of law in lieu of closing arguments. After issuing an oral ruling, the district court memorialized its decision in written findings of fact and conclusions of law. The court found that Richard’s “testimony was insufficient to establish his [dissipation] claim” and that Richard had “failed to meet his burden of demonstrating dissipation.” The court also found “problems with the credibility of both parties,” specifically finding that Susan’s “credibility was lacking with regards to the dissipation issue” and Richard’s “credibility was lacking with regards to his motorcycle purchase.” Susan was awarded Ross Creek’s equity, and Richard was awarded Mooring Drive’s. The court awarded Susan $2,500 per month in alimony and an offset of $43,474 (from Richard’s purchase of the Harley-Davidson and his $30,000 withdrawal from the joint account) “to achieve an equitable division of the estate.” The court found Richard “withdrew $30,000 from the joint account without [Susan’s] knowledge or consent and deposited it into his own personal account,” but it made no findings as to how Richard spent the $30,000.

ISSUES AND STANDARDS OF REVIEW

¶16      Richard raises three main issues for our review. First, Richard challenges the district court’s exclusion of his exhibits for his failure to comply with rule 26(a)(5) of the Utah Rules of Civil Procedure. A district court “has broad discretion regarding the imposition of discovery sanctions,” and when we apply “the abuse of discretion standard to the district court’s imposition of a particular sanction, we give the district court a great deal of latitude.” Bodell Constr. Co. v. Robbins, 2009 UT 52, ¶ 35, 215 P.3d 933 (cleaned up).

¶17 Second, Richard contends the district court erred in its application of the burden of proof on Richard’s dissipation claim. A district court’s “allocation of the burden of proof is . . . a question of law that we review for correctness.” Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶ 20, 435 P.3d 179.

¶18      Finally, Richard challenges the district court’s division of the property, including the court’s finding that the marital estate included Mooring Drive and the Harley-Davidson, and its decision to deduct from the marital estate the $30,000 Richard withdrew from the parties’ joint account. A district court “has considerable discretion considering property division in a divorce proceeding, thus its actions enjoy a presumption of validity,” and “we will disturb the district court’s division only if there is a misunderstanding or misapplication of the law indicating an abuse of discretion.” Beckham v. Beckham, 2022 UT App 65, ¶ 6, 511 P.3d 1253 (cleaned up).

ANALYSIS

I. Pretrial Disclosures

¶19      Richard asserts the district court abused its discretion in excluding his exhibits 2 through 8 for failure to comply with rule 26(a)(5) of the Utah Rules of Civil Procedure because he “produced the documents that comprised the exhibits” during discovery and any “technical non-compliance with that rule” was “harmless.” We disagree.

¶20      Rule 26 governs “disclosure and discovery” in civil matters and requires parties to provide “a copy of each exhibit, including charts, summaries, and demonstrative exhibits, unless solely for impeachment, separately identifying those which the party will offer and those which the party may offer . . . . at least 28 days before trial.” Utah R. Civ. P. 26(a)(5). A party who fails to timely disclose exhibits “may not use the undisclosed witness, document, or material at . . . trial unless the failure is harmless or the party shows good cause for the failure.” Id. R. 26(d)(4). A district court “has broad discretion in selecting and imposing sanctions for discovery violations under rule 26,” and “appellate courts may not interfere with such discretion unless there is either an erroneous conclusion of law or no evidentiary basis for the district court’s ruling.” Wallace v. Niels Fugal Sons Co., 2022 UT App 111, ¶ 26, 518 P.3d 184 (cleaned up), cert. denied, 525 P.3d 1267 (Utah 2023).

¶21      Richard does not dispute that he failed to timely disclose exhibits 2 through 8. Instead, Richard argues he produced the documents in those exhibits to Susan in earlier discovery responses, so his failure to timely file pretrial disclosures was harmless, and he further argues that it was Susan’s burden to prove she had not received them. In response, Susan asserts it was Richard’s burden, not hers, to prove that he produced the documents earlier in discovery, and the failure to file his pretrial disclosures pursuant to rule 26(a)(5) was not harmless. We agree with Susan on both fronts.

¶22 First, “the burden to demonstrate harmlessness or good cause is clearly on the party seeking relief from disclosure requirements.” Dierl v. Birkin, 2023 UT App 6, ¶ 32, 525 P.3d 127 (cleaned up), cert. denied, 527 P.3d 1107 (Utah 2023). Second, Richard failed to carry his burden of demonstrating harmlessness. Although Richard “assured [his counsel] that he [had] produced records related to this 2008-to-2012 timeframe,” he did not file the required certificates of service. See Utah R. Civ. P. 26(f) (requiring a party to file “the certificate of service stating that the disclosure, request for discovery, or response has been served on the other parties and the date of service”). Thus, Richard failed to prove that the documents had previously been produced.

¶23 But even if he had proved prior production, excusing pretrial disclosures if the documents were produced earlier in discovery would “eviscerate[] the rule that explicitly requires parties to” serve a copy of the documents they intend to use “in their case-in-chief at trial.” Johansen v. Johansen, 2021 UT App 130, ¶¶ 19, 26, 504 P.3d 152 (rejecting argument to follow the spirit of rule 26 rather than “the plain language of rule 26” regarding pretrial disclosures); see also Utah R. Civ. P. 26(a)(5)(A)(iv) (requiring pretrial disclosure of “each exhibit” the party will or may offer at trial). And expecting a party to sort through hundreds, if not thousands, of pages of documents that were produced earlier by the other side during discovery and then expecting the party to predict which ones the opposing party might seek to admit at trial would be harmful and would violate the intent of rule 26.

¶24 Ultimately, “a court’s determination with respect to harmlessness . . . . is a discretionary call,” and our review of it “is necessarily deferential.” Johansen, 2021 UT App 130, ¶ 11 (cleaned up). Thus, the district court was well within its “broad discretion” to exclude Richard’s exhibits 2 through 8 under these circumstances. See Wallace, 2022 UT App 111, ¶ 26 (cleaned up).

II. Dissipation

¶25 Richard claims the district court erred in finding that he failed to meet the burden of proof on his dissipation claim. We disagree.

¶26      “The marital estate is generally valued at the time of the divorce decree or trial.” Goggin v. Goggin, 2013 UT 16, ¶ 49, 299 P.3d 1079 (cleaned up). “But where one party has dissipated an asset,” the “trial court may, in the exercise of its equitable powers,” “hold one party accountable to the other for the dissipation.” Id. (cleaned up). A court’s inquiry into a dissipation claim may consider “a number of factors,” such as “(1) how the money was spent, including whether funds were used to pay legitimate marital expenses or individual expenses; (2) the parties’ historical practices; (3) the magnitude of any depletion; (4) the timing of the challenged actions in relation to the separation and divorce; and (5) any obstructive efforts that hinder the valuation of the assets.” Wadsworth v. Wadsworth, 2022 UT App 28, ¶ 69, 507 P.3d 385 (cleaned up), cert. denied, 525 P.3d 1259 (Utah 2022).

¶27 The burden of proof for dissipation initially falls on the party alleging it. See Parker v. Parker, 2000 UT App 30, ¶ 15, 996 P.2d 565 (stating that a party seeking to assert dissipation must make an “initial showing of apparent dissipation”). The district court correctly concluded that Richard bore the “burden of demonstrating dissipation.” To meet the “initial showing of apparent dissipation,” the party alleging dissipation must first show evidence of dissipation. Id. ¶¶ 13, 15. Only after “present[ing] the trial court with evidence tending to show that [Susan] had dissipated marital assets” does the burden shift to Susan “to show that the funds were not dissipated, but were used for some legitimate marital purpose.” Id. ¶ 13.

¶28 Richard’s documentary evidence on this issue had been excluded by the court, so the only evidence he presented was his testimony in 2021 that his income while in Afghanistan from 2008 to 2012 exceeded the estimated historical marital expenses from before 2008, some thirteen years earlier. Richard asserts that his testimony alone should suffice for an initial showing of dissipation. In Parker v. Parker, 2000 UT App 30, ¶ 15, 996 P.2d 565, the husband “presented the trial court with evidence” that detailed how the wife had dissipated marital assets—exact beginning and ending balances for eight bank accounts, the marital expenses during the time in question, and specific checks the wife wrote to herself—thus shifting the burden to the wife. Id. ¶ 13. But Richard, like the wife in Parker, only “testified in conclusory and cryptic terms,” and thus “wholly failed to meet [his] burden.” Id. ¶ 14.

¶29      Therefore, the district court was well within its discretion to decide that Richard’s uncorroborated testimony about Susan’s spending that occurred many years before either party contemplated divorce[2] was insufficient evidence to meet his initial burden of proving dissipation. Accordingly, the district court did not err in its finding that Richard failed to meet his burden of proof on the dissipation claim.

III. Marital Property

¶30      Richard presents three challenges to the district court’s division of the marital property. First, Richard asserts he is entitled to his premarital contribution to Mooring Drive. Second, he alleges the Harley-Davidson he purchased during the pendency of the divorce is his separate property. Third, Richard claims the court should not have deducted from the marital estate the $30,000 that he withdrew from the joint account in June 2019.

We affirm the district court’s decision on Richard’s first two challenges and vacate the decision on the third, remanding the matter for additional findings.

A.        Mooring Drive

¶31      Although the district court awarded Richard the equity in Mooring Drive when it divided the marital estate, it did not also award Richard any premarital equity in the property for three reasons. First, it found that Richard “formally stipulated that Ross Creek and Mooring Drive were marital property subject to division in this divorce action.” Second, it found that “through a series of refinances, [Richard] transferred equity from Ross Creek to Mooring Drive, and paid expenses associated with both properties with marital funds.” Third, it found that Richard “formally conveyed the property to himself and [Susan] in 2003” when he added Susan’s name to the title. Because we affirm the district court’s decision not to award Richard any premarital equity on the basis of the parties’ stipulation, we do not address the other two reasons the district court relied upon.

¶32 Richard and Susan stipulated that “the Ross Creek and Mooring Drive properties shall remain marital property and shall be subject to equitable division in the parties’ divorce, notwithstanding that the Ross Creek home and Mooring Drive property will no longer be jointly titled.” Richard now claims that despite the language of the stipulation, he “never agreed that he should not be compensated for his premarital and separate contributions to Mooring Drive before the property became marital.” Furthermore, Richard argues, “nowhere in the stipulation did he agree that he was waiving his premarital equity in that property.”

¶33 Richard’s argument is flawed. “Parties to a divorce are bound by the terms of their stipulated agreement.” McQuarrie v. McQuarrie, 2021 UT 22, ¶ 18, 496 P.3d 44. And according to the “ordinary contract principles” that govern “contracts between spouses,” see Ashby v. Ashby, 2010 UT 7, ¶ 21, 227 P.3d 246 (cleaned up), “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,” Green River Canal Co. v. Thayn, 2003 UT 50, ¶ 17, 84 P.3d 1134 (cleaned up). See also Mind & Motion Utah Invs., LLC v. Celtic Bank Corp., 2016 UT 6, ¶ 24, 367 P.3d 994 (holding that “the best indication of the parties’ intent is the ordinary meaning of the contract’s terms”); Ocean 18 LLC v. Overage Refund Specialists LLC (In re Excess Proceeds from the Foreclosure of 1107 Snowberry St.), 2020 UT App 54, ¶ 22, 474 P.3d 481 (holding that where the “contract is facially unambiguous, the parties’ intentions are determined from the plain meaning of the contractual language . . . without resort to parol evidence” (cleaned up)).

¶34      Richard essentially argues that the district court erred when it refused to go beyond the stipulation’s language and infer his intention from what he omitted. But the district court was correct when it interpreted the parties’ intentions by what the plain language of the stipulation does say and not by what it does not. Therefore, the district court did not abuse its discretion when it abided by the parties’ stipulation and included Mooring Drive as marital property, “subject to equitable division.”

B.        The Harley-Davidson

¶35      “Prior to the entry of a divorce decree, all property acquired by parties to a marriage is marital property, owned equally by each party.” Dahl v. Dahl, 2015 UT 79, ¶ 126, 456 P.3d 276. Thus, the presumption is that property acquired during the pendency of a divorce is marital, not separate. Richard failed to rebut this presumption regarding the Harley-Davidson motorcycle he purchased because he failed to present evidence that he used separate funds.

¶36 Richard argued that he purchased the Harley-Davidson from separate, rather than marital, funds in his proposed findings of fact and conclusions of law.[3] To be clear, Richard does not assert that the Harley-Davidson is separate property because he purchased it after the parties separated or after Susan filed for divorce. Instead, he argues the only funds available to him to purchase the motorcycle came from his “separate premarital retirement income.” Richard’s argument fails for two reasons. First, Richard did not present evidence to support his argument that the funds he used to purchase the motorcycle came from separate, not marital, funds. Instead, Richard essentially places his burden on the district court by asserting, on appeal, that “[t]here was no marital account identified by the district court from which [Richard] could have made that purchase.” But Richard, not the court, bears the burden of identifying where the funds came from that he used to purchase the motorcycle.

¶37      Second, the district court found credibility problems with Richard’s testimony about the Harley-Davidson, concluding that Richard’s “credibility was lacking with regards to his motorcycle purchase.”[4] A district court “is in the best position to judge the credibility of witnesses and is free to disbelieve their testimony” or “disregard such testimony if it finds the evidence self-serving and not credible.” Ouk v. Ouk, 2015 UT App 104, ¶ 14, 348 P.3d 751 (cleaned up).

¶38      In sum, as “property acquired during [the] marriage,” the Harley-Davidson is presumptively “marital property subject to equitable distribution.” Dahl, 2015 UT 79, ¶ 26. Richard bore the burden of proof to rebut the presumption that the funds he used to purchase the Harley-Davidson were not marital, and he presented no credible evidence to the district court to support that position. Thus, the district court did not abuse its discretion by including the motorcycle in the marital estate.

C.        $30,000 Offset

¶39      Finally, Richard challenges the district court’s decision to include in the marital estate the $30,000 he withdrew from the joint account. The district court agreed with Susan that because Richard had made a unilateral withdrawal from the joint account during the pendency of the divorce, he should be held accountable for that withdrawal. Richard, on the other hand, claims he used the money for marital expenses, paying costs associated with Mooring Drive. Susan argues the money could also have been spent on personal items including travel and motorcycle payments and accessories. “How the money was spent, including whether [the] funds were used to pay legitimate marital expenses or individual expenses,” Wadsworth v. Wadsworth, 2022 UT App 28, ¶ 69, 507 P.3d 385 (cleaned up), cert. denied, 525 P.3d 1259 (Utah 2022), is a critical question that needs to be resolved.

¶40 Divorce cases often require district courts to make numerous findings of fact. And generally speaking, “for findings of fact to be adequate, they must show that the court’s judgment or decree follows logically from, and is supported by, the evidence” and such findings “should be sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.” Armed Forces Ins. Exch. v. Harrison, 2003 UT 14, ¶ 28, 70 P.3d 35 (cleaned up). Moreover, when it comes to the “unequal division of marital property,” a district court must “memorialize[] in . . . detailed findings the exceptional circumstances supporting the distribution.” Bradford v. Bradford, 1999 UT App 373, ¶ 27, 993 P.2d 887 (cleaned up). “Without adequate findings detailing why [one spouse] should be entitled to such an unequal split of the marital estate, we cannot affirm the court’s award.” Fischer v. Fischer, 2021 UT App 145, ¶ 29, 505 P.3d 56; see, e.g.Rothwell v. Rothwell, 2023 UT App 50, ¶ 57, 531 P.3d 225 (concluding that “we simply do not have enough information” to rule on whether the funds were marital or separate, “let alone to conclude that the district court

. . . erred”).

¶41      We face the same dilemma here. The district court made no findings as to how Richard spent the $30,000. The written ruling merely states, “In June 2019, [Richard] withdrew $30,000 from the joint account without [Susan’s] knowledge or consent and deposited it into his own personal account.” “We will not imply any missing finding where there is a matrix of possible factual findings and we cannot ascertain the trial court’s actual findings.” Hall v. Hall, 858 P.2d 1018, 1025–26 (Utah Ct. App. 1993). Without “adequate findings” on whether Richard used the funds for marital expenses or not, “we cannot affirm,” nor properly review, the court’s decision to offset the $30,000 against Richard in its division of the marital estate. See Fischer, 2021 UT App 145, ¶ 29. Therefore, we vacate this portion of the decision and remand the matter to the district court for it to enter findings on how the funds were spent.

CONCLUSION

¶42 The district court did not abuse its discretion when it excluded Richard’s exhibits for failure to comply with rule 26(a)(5) of the Utah Rules of Civil Procedure. The district court also did not err in its conclusion that Richard failed to meet the burden of proof for his dissipation claim nor did it abuse its discretion in how it divided the marital estate with respect to Mooring Drive and the Harley-Davidson. We vacate the district court’s decision to offset the $30,000 against Richard when it divided the marital estate and remand the matter for the district court to enter additional findings and to alter its conclusion as may be necessary.


[1] Because the parties share the same surname, we refer to them by their first names, with no disrespect intended by the apparent informality.

[2] Susan invites us to join some other states in drawing a bright-line rule concerning the timing of a dissipation claim and limit pre-separation dissipation claims to those occurring (1) in contemplation of divorce or separation or (2) when the marriage is in serious jeopardy or undergoing an irretrievable breakdown. Under our caselaw, the district court is empowered to consider the “timing of the challenged actions in relation to the separation and divorce” as one of several factors when determining “whether a party should be held accountable for the dissipation of marital assets.” Marroquin v. Marroquin, 2019 UT App 38, ¶ 33, 440 P.3d 757 (cleaned up). We see no need to alter this approach. Assessing timing as one factor among many provides the greatest flexibility to the district court to consider all the circumstances in a particular case, and we believe the district court is in the best position to evaluate the importance of such evidence on a case-by-case basis.

[3] Because the district court directed the parties to submit proposed findings of fact and conclusions of law in lieu of closing arguments, Richard’s argument was preserved for our review.

[4] Indeed, in its oral ruling, the court stated that Richard “lied to the Court about the purchase of the motorcycle.”

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What can I do if my ex won’t stop taking me to court?!

My ex has been taking me to court for over 4 years to get my joint custody taken away. Her father worked for the courts for 25 years so she hasn’t had to get a lawyer and it’s obviously harassment but they still allow it. What can I do? 

This question comes up a lot (in slightly different forms, but the core question, i.e., “At what point will the courts say ‘enough’ to my ex’s incessant litigating (typically over child custody and/or parent-time)?” remains the same). 

Because I am a divorce and family lawyer in the state of Utah, I will answer your question in the context of the law and rules governing the state of Utah. 

There are many approaches that one can take in response to an ex-spouse or coparent who litigates incessantly and for no good reason. One thing that I didn’t know about as an attorney until late in my career was a motion to have your ex-spouse found to be and then treated as a vexatious litigant under Rule 83 of the Utah Rules of Civil Procedure. Here is an excerpt from that rule: 

Rule 83.  

Utah Rules of Civil Procedure Rule 83. Vexatious litigants. 

(a) Definitions. 

(1) The court may find a person to be a “vexatious litigant” if the person, with or without legal representation, including an attorney acting pro se, does any of the following: 

(A) In the immediately preceding seven years, the person has filed at least five claims for relief, other than small claims actions, that have been finally determined against the person, and the person does not have within that time at least two claims, other than small claims actions, that have been finally determined in that person’s favor. 

(B) After a claim for relief or an issue of fact or law in the claim has been finally determined, the person two or more additional times re-litigates or attempts to re-litigate the claim, the issue of fact or law, or the validity of the determination against the same party in whose favor the claim or issue was determined. 

(C) In any action, the person three or more times does any one or any combination of the following: 

(i) files unmeritorious pleadings or other papers, 

(ii) files pleadings or other papers that contain redundant, immaterial, impertinent or scandalous matter, 

(iii) conducts unnecessary discovery or discovery that is not proportional to what is at stake in the litigation, or 

(iv) engages in tactics that are frivolous or solely for the purpose of harassment or delay. 

(D) The person purports to represent or to use the procedures of a court other than a court of the United States, a court created by the Constitution of the United States or by Congress under the authority of the Constitution of the United States, a tribal court recognized by the United States, a court created by a state or territory of the United States, or a court created by a foreign nation recognized by the United States. 

***** 

(b) Vexatious litigant orders. The court may, on its own motion or on the motion of any party, enter an order requiring a vexatious litigant to: 

(1) furnish security to assure payment of the moving party’s reasonable expenses, costs and, if authorized, attorney fees incurred in a pending action; 

(2) obtain legal counsel before proceeding in a pending action; 

(3) obtain legal counsel before filing any future claim for relief; 

(4) abide by a prefiling order requiring the vexatious litigant to obtain leave of the court before filing any paper, pleading, or motion in a pending action; 

(5) abide by a prefiling order requiring the vexatious litigant to obtain leave of the court before filing any future claim for relief in any court; or 

(6) take any other action reasonably necessary to curb the vexatious litigant’s abusive conduct. 

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

https://www.quora.com/What-can-I-do-if-my-ex-is-taking-me-to-court-for-over-4-years-to-get-my-joint-custody-taken-away-Her-father-worked-for-the-courts-for-25-years-so-she-hasnt-had-to-get-a-lawyer-and-it-s-obviously-harassment-but-they/answer/Eric-Johnson-311

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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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Horne v. Horne – 2022 UT App 54 – 60(b) motion to set aside

2022 UT App 54

THE UTAH COURT OF APPEALS

REBECCA A. HORNE, Appellee,

v.

TODD D. HORNE, Appellant.

Opinion

No. 20200845-CA

Filed April 28, 2022

Third District Court, Salt Lake Department

The Honorable Barry G. Lawrence

No. 194905732

Mary C. Corporon and Kristen C. Kiburtz, Attorneys for Appellant

Marco C. Brown and A. Leilani Whitmer, Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES DIANA HAGEN and RYAN D. TENNEY concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Todd D. Horne appeals the district court’s denial of his motion to set aside the stipulated decree of divorce entered in his divorce from Rebecca A. Horne. Because we determine that Todd did not preserve the challenge he raises on appeal, we affirm.

BACKGROUND

¶2 Todd and Rebecca were married in 2014 and have one child together. Rebecca is a lawyer and initiated divorce proceedings based on allegations that Todd sexually assaulted her while she was sleeping. According to Rebecca, Todd admitted to her that he had done this on several occasions.

¶3 According to Todd, between June and September 2019, as the parties were contemplating divorce, Rebecca told him “multiple times that she intended to report him to authorities and that he would be charged criminally for felony sexual assault, that his name would be listed on the sex offender’s registry, that he would lose his job and his reputation along with it, and that he would go to jail or prison … if he contested at all what she wrote in the divorce documents.” Rebecca filed for divorce on September 27, 2019. Todd hired an attorney on October 15, and that day, the attorney filed an appearance with the court. According to Todd, Rebecca was “livid” when she learned he had hired an attorney. That same day, Rebecca filed a police report alleging that Todd had sexually assaulted her. According to Todd, Rebecca then “pressured him to sign” the divorce settlement she had drafted and to discharge his attorney. Todd complied. Rebecca then informed the police that she “no longer wish[ed] to pursue criminal charges” and requested that they close the case. The final decree of divorce was signed in November.

¶4 Seven months later, in June 2020, Todd filed a motion in district court to set aside the divorce decree pursuant to rule 60(b)(6) of the Utah Rules of Civil Procedure. The grounds Todd asserted as a basis for setting aside the decree were that Rebecca “extort[ed] and blackmail[ed]” him “until he signed the stipulation, by advising him that she would make and pursue a false police report against him.” He asserted that he agreed to the stipulation only as a result of this “duress” and that the resulting orders in the decree of divorce “as to child custody and as to property division, child support, and alimony were grossly unjust.”

¶5 The district court denied Todd’s motion after determining it was untimely under rule 60(b). Although Todd’s motion had relied on rule 60(b)(6)—“any other reason that justifies relief”—which requires that the motion be filed “within a reasonable time,” the court determined that the reasons Todd actually asserted to justify setting aside the decree fell under rule 60(b)(3)—“fraud … , misrepresentation or other misconduct of an opposing party”—which requires that the motion be filed “not more than 90 days after entry of the judgment or order.” Utah R. Civ. P. 60(b)–(c). Accordingly, because Todd filed his motion more than ninety days after entry of the decree of divorce, the court declined to set it aside. Todd now appeals.

ISSUE AND STANDARD OF REVIEW

¶6 Todd argues that the district court should have determined that his motion was based on rule 60(b)(6) of the Utah Rules of Civil Procedure rather than rule 60(b)(3) because the court’s failure to weigh the equities of the stipulation was an independent ground for relief. “A district court’s determination that a motion is a rule [60(b)(3)] motion rather than a rule 60(b)(6) motion is a conclusion of law, which we review for correctness.” Yknot Global Ltd. v. Stellia Ltd., 2016 UT App 132, ¶ 13, 379 P.3d 36. However, “[w]e generally do not address unpreserved arguments raised for the first time on appeal.” Gowe v. Intermountain Healthcare, Inc., 2015 UT App 105, ¶ 7, 356 P.3d 683.

ANALYSIS

¶7 Rule 60(b) of the Utah Rules of Civil Procedure allows a party to be relieved of a judgment for several different reasons. See Utah R. Civ. P. 60(b). Subsection six of the rule provides that a party may be relieved from a judgment for “any other reason that justifies relief” from the operation of the judgment. Our supreme court has explained that this “catch-all” provision of rule 60(b) “is meant to operate as a residuary clause.” Menzies v. Galetka, 2006 UT 81, ¶ 71, 150 P.3d 480 (quotation simplified). Because rule 60(b)(6) permits a court to relieve a party from judgment only if the party alleges “any other reason justifying relief from the operation of the judgment,” it “may not be relied upon if the asserted grounds for relief fall within any other subsection of rule 60(b).” Id. (quotation simplified); see also id. (“[T]he grounds for relief under 60(b)(6) are exclusive of the grounds for relief allowed under other subsections.”). In fact, rule 60(b)(6) is to be “sparingly invoked and used only in unusual and exceptional circumstances.” Id. (quotation simplified). A movant may not “circumvent[ ] the time limit applicable to motions based on reasons listed in subparagraphs (1), (2), and (3) by repackaging the claim as one under subparagraph (6).” Thompson v. Wardley Corp., 2016 UT App 197, ¶ 18, 382 P.3d 682.

¶8 To the district court, Todd argued that he was “coerced under duress and extorted into signing the settlement documents” and that this “duress” provided a basis under rule 60(b)(6) to be relieved of the custody and property division provisions in the decree. As noted, the district court rejected Todd’s argument and determined that duress fell under rule 60(b)(3). See Utah R. Civ. P. 60(b)(3) (identifying “fraud … , misrepresentation or other misconduct of an opposing party” as a ground supporting a motion to set aside). In other words, his “motion, though ostensibly based on subparagraph (6), was in substance merely a repackaged motion for relief under subparagraph (3).” See Thompson, 2016 UT App 197, ¶ 18, 382 P.3d 682. Todd does not renew his argument that duress falls under rule 60(b)(6).

¶9 Instead on appeal, Todd argues that although Rebecca’s alleged fraud and duress justified setting the decree aside, he also alleged an “independent ground” under rule 60(b)(6), not fully considered by the district court, that would have allowed relief from the decree: that because “the District Court did not comply with its non-discretionary statutory obligation to consider the best interests of the child and the reasonableness and fairness of the property distribution” in signing the stipulated decree, the decree should be set aside. See Utah Code Ann. § 30-3-5(1) (LexisNexis 2019) (outlining the court’s discretion to make “equitable orders relating to the children, property, debts or obligations, and parties” in a decree of divorce); id. § 30-3-10(2) (outlining the court’s responsibility to “consider the best interest of the child” in determining custody and parent-time). Rebecca, however, contends that Todd did not raise this specific argument below and it was therefore not preserved for appellate review. We agree.

¶10 This court’s preservation requirement is well-settled. “An issue is preserved for appeal when it has been presented to the district court in such a way that the court has an opportunity to rule on that issue.” Wolferts v. Wolferts, 2013 UT App 235, ¶ 19, 315 P.3d 448. “To provide the court with this opportunity, the issue must be specifically raised by the party asserting error, in a timely manner, and must be supported by evidence and relevant legal authority.” Id. (quotation simplified).

¶11 Here, the district court was not given the opportunity to rule on the argument Todd now asserts on appeal—that before entering the stipulated decree of divorce, the court failed to exercise its duty to independently assess whether the parties’ stipulation was equitable and provided for the best interests of the child. While Todd did assert below that the custody award was inequitable and not in the child’s best interests, these assertions were framed as the undesirable results of Rebecca’s duress, not as an independent ground for relief under rule 60(b)(6). Todd did not assert, as he now does, that the district court erred in accepting the stipulation without ensuring it was fair and in the best interests of the child. In fact, so far as we can tell, Todd made no mention of district court error, focusing his arguments entirely on Rebecca’s actions.

¶12 In his reply memorandum on the motion to set aside, Todd vaguely stated that “the underlying order represents an extreme departure from the legal norm not otherwise supported by findings as to why such should be the case.” But “a party may not claim to have preserved an issue for appeal by merely mentioning an issue without introducing supporting evidence or relevant legal authority.” Pratt v. Nelson, 2007 UT 41, ¶ 15, 164 P.3d 366 (quotation simplified). This statement—and similar statements peppered throughout his pleadings below—was not specific enough to alert the district court that it needed to consider the court’s own entry of an allegedly inequitable decree as a basis to set aside. In that same reply, Todd broadly discussed a variety of cases where courts had considered grounds to fall under rule 60(b)(6). His discussion included general assertions about fairness, but he never clearly articulated the impact of fairness on the rule 60(b)(6) inquiry. Todd never focused on a specific “independent ground” as a basis to set aside the decree but instead attempted to analogize different aspects of his case to aspects of other cases where rule 60(b)(6) was invoked. To the extent that fairness was discussed, the concept was used to urge the court to be flexible and liberal in granting relief under rule 60(b) and to show that Todd had a meritorious defense as required to prevail under rule 60(b). The arguments about fairness were never articulated in such a way that the court would have understood Todd was asserting that the district court’s own alleged error in accepting an unfair stipulation was an independent ground for relief.

¶13 Additionally, Todd did not support the argument with “evidence and relevant legal authority.” See Wolferts, 2013 UT App 235, ¶ 19, 315 P.3d 448 (quotation simplified). He did not engage in any discussion of the parameters of the court’s obligation to examine a stipulation for fairness or the best interests of the child before adopting its provisions in a decree of divorce. Instead, he asserted that the provisions were unfair as a result of the duress to which he was subjected. Indeed, the primary argument on which Todd focused the district court’s attention was that the decree of divorce should be set aside because it was the result of “duress and blackmail” and that duress should fall under the catchall provision of rule 60(b)(6) rather than the fraud, misrepresentation, or other misconduct provision of rule 60(b)(3).

¶14 Moreover, it is apparent that the district court did not, in fact, understand Todd to be making the argument he now makes on appeal. Cf. Pratt, 2007 UT 41, ¶ 24, 164 P.3d 366 (concluding that even though an argument was untimely and the court did not have the benefit of the other party’s response, it was “preserved for appeal when the district court was given notice of the issue … and when the court in response to such notice made a specific ruling on the issue” (emphasis added)). Instead, the court construed Todd’s arguments about unfairness as a response to Rebecca’s assertion that he lacked a meritorious defense and discussed concerns about unfairness only in the context of addressing that issue.[1]

¶15 In short, simply expressing concerns about the fairness of the decree of divorce and whether it provided for the child’s best interests did not present the “independent ground” of district court error in such a way that the district court had an opportunity to rule on whether any alleged court error justified setting aside the parties’ decree of divorce. See Wolferts, 2013 UT App 235, ¶ 19, 315 P.3d 448. Accordingly, the question of whether that independent ground could support a motion to set aside under rule 60(b)(6) is not preserved for our review.[2]

CONCLUSION

¶16 Because Todd has not preserved the argument he raises on appeal and has not argued that any exception to the preservation rule applies in this case, we decline to review it. We therefore affirm the district court’s determination that the grounds for Todd’s motion to set aside fell under rule 60(b)(3) of the Utah Rules of Civil Procedure and that his motion was therefore untimely.


[1] In addition to asserting that Todd’s motion was untimely, Rebecca argued that he lacked a meritorious defense because he could not prove that the terms of the settlement were unfair.

[2] Todd does not assert that any exception to our preservation rule applies to his argument. See generally State v. Johnson, 2017 UT 76, ¶ 47, 416 P.3d 443 (“When an issue has not been preserved in the trial court, but the parties argue that issue on appeal, the parties must argue an exception to preservation for the issue to be reached on its merits.”).

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Can a parent take kids out of state while divorce is pending?

Can a parent who has filed for divorce and moved out with her 2 children now take her children for a week to another state for Thanksgiving, or will it be considered kidnapping? 

Great question. I will answer your question based upon the law of the jurisdiction where I practice divorce and family law (Utah). 

If the case was so recently filed that there are no temporary child custody or parent-time (visitation) orders issued by the court yet, then the answer to your question is “Yes, as long as the parent intending to travel out of state for Thanksgiving complies with the notice requirements of Utah Rules of Civil Procedure, Rule 109.” 

Utah Rules of Civil Procedure Rule 109 (Injunction in certain domestic relations cases) provides, in pertinent part: 

(a) Actions in which a domestic injunction enters. Unless the court orders otherwise, in an action for divorce, annulment, temporary separation, custody, parent time, support, or paternity, the court will enter an injunction when the initial petition is filed. Only the injunction’s applicable provisions will govern the parties to the action. 

***** 

(c) Provisions regarding a minor child. The following provisions apply when a minor child is a subject of the petition. 

(1) Neither party may engage in non-routine travel with the child without the written consent of the other party or an order of the court unless the following information has been provided to the other party: 

(A) an itinerary of travel dates and destinations; 

(B) how to contact the child or traveling party; and 

(C) the name and telephone number of an available third person who will know the child’s location. 

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

https://www.quora.com/Can-a-parent-who-has-filed-for-divorce-and-moved-out-with-her-2-children-now-take-her-children-for-a-week-to-another-state-for-Thanksgiving-or-will-it-be-considered-kidnapping/answer/Eric-Johnson-311

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In re Adoption of E.M.F. – 2022 UT App 43 time in which to appeal

In re Adoption of E.M.F… – 2022 UT App 43

THE UTAH COURT OF APPEALS

IN THE MATTER OF

THE ADOPTION OF E.M.F. AND M.S.F.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

S.S. AND B.S.,

Appellants,

v.

J.F.,

Appellee.

Opinion

No. 20200490-CA

Filed March 31, 2022

Second District Court, Ogden Department

The Honorable Joseph M. Bean

No. 182900024

Jason B. Richards, Attorney for Appellants

Emily Adams and Sara Pfrommer, Attorneys

for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY concurred.

POHLMAN, Judge:

¶1        In this stepparent adoption case, B.S. (Mother) and S.S. (Stepfather) appeal the district court’s order denying their petition to terminate the parental rights of J.F. (Father), with whom Mother shares two children, E.M.F. and M.S.F. (collectively, the Children). We do not reach the merits of the case, however, because we dismiss this appeal for lack of jurisdiction. Although Mother and Stepfather contend that the court rule dictating this result is unconstitutional on its face and as applied, we conclude that Mother and Stepfather have not demonstrated that exceptional circumstances exist for us to consider their constitutional argument.

BACKGROUND

¶2        Mother and Father were involved in a relationship between 2009 and 2014, during which time the Children were born. Mother has always had full physical custody of the Children since her separation from Father. Later, Mother married Stepfather. Mother and Stepfather then petitioned for Stepfather to adopt the Children and to terminate Father’s parental rights.

¶3        The matter proceeded to a two-day bench trial in December 2018. After hearing the evidence, the district court concluded that Mother and Stepfather had “not met their burden by clear and convincing evidence of any of the statutory requirements for terminating [Father’s] rights,” and the court accordingly denied the petition for adoption. The court announced its findings of fact and conclusions of law in court, explaining, “That will be the order of the Court.” It further announced that it did not “inten[d] to do written findings of fact and conclusions of law” but that “[c]ertainly anybody who would like to can do it themselves and submit it to the Court for approval.”[1] Similarly, the court’s December 11, 2018 minute entry from trial states, “The court does not intend on issuing written findings of facts and conclusions of law, either party may submit their own consistent with the court’s ruling for approval if they wish.” That minute entry was signed electronically and designated as an order of the court on December 13, 2018.

¶4        Neither side chose to submit findings and conclusions consistent with the court’s decision,[2] and neither side submitted a proposed judgment pursuant to rule 58A(c)(1) of the Utah Rules of Civil Procedure. Aside from the court’s exhibit tracking record filed a few days after trial, nothing more was filed in the case until Father, acting pro se, moved to release the trial transcripts on March 11, 2019. In his motion, Father asserted that the “records and transcripts [were] required for [him] to prepare findings of fact and conclusions of law requested by [the district court judge].” One month later, the court entered a certificate of destruction, stating that the court clerk had destroyed the exhibits on April 4, 2019.

¶5        Nothing else was entered on the court’s docket until December 2019, when Mother and Stepfather’s attorneys withdrew, and then Mother and Stepfather, acting pro se, filed an objection to a proposed findings of fact, conclusions of law, and order prepared by Father.[3] Among other objections, Mother and Stepfather complained that Father “failed to properly provide a copy of the proposed order to [them] before filing the document with the Court.” The court held a telephone conference the next month during which it indicated that the proposed findings “will be held due to the pending objection.” At a later hearing, the court decided to “sustain[]” Mother and Stepfather’s objection and ordered Father to submit amended findings with two specific revisions.

¶6        As ordered, Father then filed a proposed amended findings of fact, conclusions of law, and order. Finally, on June 9, 2020, the district court signed the amended findings of fact, conclusions of law, and order. The court reiterated its conclusion—rendered 546 days earlier—that, as a matter of law, Mother and Stepfather had “not met their burden to show by clear and convincing evidence any of [the] statutorily required bases for terminating [Father’s] parental rights,” and the court thus denied the petition for adoption. On June 22, 2020, Mother and Stepfather filed a notice of appeal.

ISSUES AND STANDARDS OF REVIEW

¶7        On appeal, Mother and Stepfather challenge the district court’s denial of their adoption petition. But Father contends that this court lacks jurisdiction to consider the merits of the appeal, arguing that Mother and Stepfather did not timely file a notice of appeal in light of rule 58A of the Utah Rules of Civil Procedure. In response, Mother and Stepfather insist that they timely appealed under their view of the relevant timeline and rule 58A. “Whether appellate jurisdiction exists is a question of law.” Greyhound Lines, Inc. v. Utah Transit Auth., 2020 UT App 144, ¶ 22, 477 P.3d 472 (cleaned up). Likewise, the interpretation of a rule of civil procedure is a question of law. See Ghidotti v. Waldron, 2019 UT App 67, ¶ 8, 442 P.3d 1237.

¶8        In the event that this court agrees with Father on the correct operation of rule 58A, Mother and Stepfather assert that the rule is unconstitutional on its face and as applied to the facts of this case. Constitutional challenges present “questions of law.” Menzies v. State, 2014 UT 40, ¶ 27, 344 P.3d 581, abrogated on other grounds by McCloud v. State, 2021 UT 51, 496 P.3d 179. But when, as here, an issue was not preserved in the district court, “the party must argue that an exception to preservation applies.” State v. Johnson, 2017 UT 76, ¶ 27, 416 P.3d 443.

ANALYSIS

¶9        We begin by addressing Father’s contention that this court lacks appellate jurisdiction over this matter. We then address Mother and Stepfather’s constitutional argument aimed at defeating Father’s jurisdictional contention.

I. Appellate Jurisdiction

¶10 Father contends that this court does not have appellate jurisdiction to consider this appeal. According to Father, because a separate judgment was not filed after the district court announced its findings and order from the bench on December 11, 2018, the decision was considered final and appealable 150 days after that date under rule 58A(e)(2)(B) of the Utah Rules of Civil Procedure and any notice of appeal should have been filed within thirty days of May 10, 2019. Father asserts that the court’s amended findings of fact, conclusions of law, and order—entered on June 9, 2020—could not “restart the period for filing a notice of appeal” and that Mother and Stepfather’s June 22, 2020 notice of appeal was therefore untimely. In contrast, Mother and Stepfather contend that the June 9, 2020 order constituted the required separate judgment and that they timely filed their notice of appeal from that order.[4] We agree with Father.

¶11      This case turns on the application of rule 58A of the Utah Rules of Civil Procedure to determine when the time to appeal began to run. Rule 58A(a) provides that “[e]very judgment and amended judgment must be set out in a separate document ordinarily titled ‘Judgment’—or, as appropriate, ‘Decree.’” Utah R. Civ. P. 58A(a). Of particular import here, rule 58A(e) states,

(e) Time of entry of judgment.

(e)(1) If a separate document is not required, a judgment is complete and is entered when it is signed by the judge and recorded in the docket.

(e)(2) If a separate document is required, a judgment is complete and is entered at the earlier of these events:

(e)(2)(A) the judgment is set out in a separate document signed by the judge and recorded in the docket; or

(e)(2)(B) 150 days have run from the clerk recording the decision, however designated, that provides the basis for the entry of judgment.

Id. R. 58A(e). This provision “makes explicit the time of entry of judgment” and resolves the problem of “endlessly hanging appeals.” Griffin v. Snow Christensen & Martineau, 2020 UT 33, ¶¶ 12, 14, 467 P.3d 833 (cleaned up).

¶12 The parties agree that “a separate document” was required in this case, so they therefore agree that rule 58A(e)(1) does not apply here. See Utah R. Civ. P. 58A(a); see also Griffin, 2020 UT 33, ¶ 17 (stating that a judgment “must be set out in a separate document that is prepared by the prevailing party and signed and docketed by the court”). Accordingly, this case falls under rule 58A(e)(2).

¶13      Rule 58A(e)(2) sets forth two events, the earlier of which will trigger the time when a judgment becomes complete and entered. The first occurs when “the judgment is set out in a separate document signed by the judge and recorded in the docket.” Utah R. Civ. P. 58A(e)(2)(A). In Griffin, the Utah Supreme Court explained that when rules 58A(a) and 58A(e)(2)(A) are “properly implemented, the separate judgment signals clearly that the case is over and the appeal and post-judgment motion clock has started to run.”[5] 2020 UT 33, ¶ 17.

¶14      Alternatively, “when the prevailing party fails to prepare a separate judgment, rule 58A(e)(2)(b) creates a backstop by establishing that the ‘entry of judgment’ occurs once ‘150 days have run from the clerk recording the decision, however designated, that provides the basis for the entry of judgment.’” Id. (quoting Utah R. Civ. P. 58A(e)(2)(B)); see also id. ¶ 25 n.5; Utah R. Civ. P. 58A advisory committee notes to 2015 amendments (“[I]f a separate document is required but is not prepared, judgment is deemed to have been entered 150 days from the date the decision—or the order confirming the decision—was entered on the docket.”). Indeed, the current version of rule 58A(e)(2) was adopted in response to the supreme court’s direction for the rule to “set a maximum time . . . for filing an appeal in cases where the district court’s judgment has not otherwise been finalized.” Central Utah Water Conservancy Dist. v. King, 2013 UT 13, ¶ 27, 297 P.3d 619; see also Utah R. Civ. P. 58A advisory committee notes to 2015 amendments (explaining that the current rule addressed “the ‘hanging appeals’ problem” that the supreme court identified in King); Griffin, 2020 UT 33, ¶¶ 9–11, 14.

¶15      Here, at the end of the bench trial, the district court ruled in favor of Father and announced its findings of fact and conclusions of law on the record on December 11, 2018. Neither side prepared a separate judgment, and thus rule 58A(e)(2)(A) did not apply. See Griffin, 2020 UT 33, ¶ 17. Nevertheless, the clerk “record[ed] the decision, however designated, that provides the basis for the entry of judgment” when the clerk recorded the court’s December 11, 2018 minute entry. See Utah R. Civ. P. 58A(e)(2)(B). The “backstop” of rule 58A(e)(2)(B) therefore kicked in to “establish[] that the ‘entry of judgment’ occur[red] once ‘150 days ha[d] run from the clerk recording the decision.’” See Griffin, 2020 UT 33, ¶ 17 (quoting Utah R. Civ. P. 58A(e)(2)(B)). We thus agree with Father that the court’s judgment was complete and entered in May 2019—after 150 days had transpired since the clerk recorded the court’s minute entry in December 2018. See Utah R. Civ. P. 58A(e)(2)(B).

¶16      Further, because a party’s notice of appeal “shall be filed . . . within 30 days after the date of entry of the judgment or order appealed from,” Utah R. App. P. 4(a), and because Mother and Stepfather’s June 22, 2020 notice of appeal was filed more than thirty days after May 2019, we conclude that their appeal was untimely,[6] see Serrato v. Utah Transit Auth., 2000 UT App 299,

¶ 11, 13 P.3d 616 (indicating that deadlines for notices of appeal “must be adhered to in order to prevent cases from continually lingering and to ensure finality in the system”). “Where an appeal is not properly taken, this court lacks jurisdiction and we must dismiss.” Bradbury v. Valencia, 2000 UT 50, ¶ 8, 5 P.3d 649. Accordingly, we have no choice but to dismiss Mother and Stepfather’s appeal without reaching its merits. See id.

II. The Constitutionality of Rule 58A

¶17 Notwithstanding, Mother and Stepfather contend that if rule 58A operates to deprive this court of jurisdiction over their appeal, rule 58A is unconstitutional on its face and as applied to the facts of this case because the rule “fails to provide notice to parties when an order is final for the purposes of appeal.” At the outset, Mother and Stepfather concede that they did not preserve this issue and that they are thus raising it for the first time on appeal. Given this lack of preservation, Mother and Stepfather further recognize that this court “generally will not consider an issue, even a constitutional one, which the appellant raises on appeal for the first time.” (Quoting State v. Webb, 790 P.2d 65, 77 (Utah Ct. App. 1990).) Yet they suggest this court should reach the constitutional issue under either the plain error or the exceptional circumstances exception to the preservation rule.

¶18 Mother and Stepfather “must establish the applicability” of an exception to the preservation rule to raise the issue on appeal. See State v. Johnson, 2017 UT 76, ¶ 19, 416 P.3d 443. But appellants will not carry their burden of persuasion on an unpreserved issue if they do not supply “a plain error or exceptional circumstances analysis because, in failing to do such an analysis, [they] will have necessarily failed to explain why we should reach the issue of which [they] complain[].” Baumann v. Kroger Co., 2017 UT 80, ¶ 25, 416 P.3d 512. We conclude that Mother and Stepfather have not established that either exception applies, and thus we decline to reach this constitutional issue on its merits.

¶19      Although Mother and Stepfather mention the plain error exception to the preservation rule, they have not applied the elements of plain error to this case. See Johnson, 2017 UT 76, ¶ 20 (“To demonstrate plain error, a defendant must establish that (i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful.” (cleaned up)). They thus have not engaged in a plain error analysis, much less shown that the district court plainly erred by not sua sponte declaring rule 58A unconstitutional. As a result, they have not carried their burden to establish the applicability of this exception. See Baumann, 2017 UT 80, ¶ 25; State v. Padilla, 2018 UT App 108, ¶ 19, 427 P.3d 542 (rejecting a plain error claim when the appellant “made no attempt to develop or establish” the claim).[7]

¶20 Mother and Stepfather alternatively suggest that the exceptional circumstances exception should apply, warranting our consideration of the constitutional issue for the first time on appeal. But they similarly offer little analysis on this score. They contend only that the constitutionality of rule 58A presents “a unique constitutional question, because it directly pertains to the time set to appeal” and “there is no method to preserve a constitutional challenge that only becomes an issue of controversy on appeal.” We are not persuaded.

¶21 Our supreme court has directed that the “exceptional circumstances doctrine is applied sparingly, reserving it for the most unusual circumstances where our failure to consider an issue that was not properly preserved for appeal would have resulted in manifest injustice.” Johnson, 2017 UT 76, ¶ 29 (cleaned up). Courts “apply this exception . . . where a rare procedural anomaly has either prevented an appellant from preserving an issue or excuses a failure to do so.” Id. (cleaned up). And once a party shows that a rare procedural anomaly exists, it “opens the door to a deeper inquiry” in which “additional factors must be considered to determine whether an appellate court should reach an unpreserved issue.” Id. Such factors include whether our failure to consider the issue “would result in manifest injustice,” whether “a significant constitutional right or liberty interest is at stake,” and judicial economy. Id. ¶ 37 (cleaned up). This exception thus requires a “case-by-case assessment.” Id. ¶ 38. But it cannot be used “as a free-floating justification for ignoring the legitimate concerns embodied in the preservation and waiver rules.” Id.

¶22 Mother and Stepfather have not met their burden of establishing that exceptional circumstances are present here. This is so because they have not analyzed whether they encountered a rare procedural anomaly and they have not engaged in any “deeper inquiry” of the additional factors relevant to this exception. See id. ¶ 29.

¶23      Without putting it in terms of a rare procedural anomaly, Mother and Stepfather suggest that the constitutional question regarding rule 58A became relevant only on appeal and that they were unable to complain to the district court about notice not being built into the rule. But rule 58A was in operation and became applicable once the district court announced its ruling in court on December 11, 2018.

¶24      Rule 58A(a) requires that “[e]very judgment . . . be set out in a separate document ordinarily titled ‘Judgment,’” and, as the prevailing party, Father should have, “within 14 days . . . after the court’s decision,” “prepare[d] and serve[d] on the other parties a proposed judgment for review and approval as to

form.” See Utah R. Civ. P. 58A(c)(1). But when Father did not timely serve a proposed judgment, rule 58A(c) gave Mother and Stepfather the option of preparing a proposed judgment themselves. See id. (“If the prevailing party or party directed by the court fails to timely serve a proposed judgment, any other party may prepare a proposed judgment and serve it on the other parties for review and approval as to form.”). They did not exercise that option.

¶25 Because the parties did not avail themselves of the opportunity to prepare a proposed judgment that would lead to the judgment being entered under rule 58A(e)(2)(A), the parties’ inaction meant that, by default, the backstop of rule 58A(e)(2)(B) applied, meaning that a judgment was entered once “150 days ha[d] run from the clerk recording the decision, however designated, that provides the basis for the entry of judgment.” See id. R. 58A(e)(2)(B). In other words, time was ticking toward the second event—entry of judgment under rule 58A(e)(2)(B). If Mother and Stepfather wished to appeal the district court’s decision and were concerned that they did not know when judgment would be entered (and thus when they could file a notice of appeal), they had reason to raise that concern with the district court. Parties “cannot sleep on [their] rights and just hope for a favorable outcome.” See Dahl v. Harrison, 2011 UT App 389, ¶ 28, 265 P.3d 139, abrogated on other grounds by R.O.A. Gen., Inc. v. Chung Ji Dai, 2014 UT App 124, 327 P.3d 1233.

¶26      And while it would have been unusual, it is not obvious to us that Mother and Stepfather could not have asked the district court for a declaration that rule 58A(e)(2) was unconstitutional on the ground that it did not provide for enough notice of the events relating to entry of judgment. See State v. Van Huizen, 2019 UT 01, ¶ 27, 435 P.3d 202 (stating that appellants “[have] the burden to show that [they were] unable to object . . . at the proper time”). Mother and Stepfather contend that their constitutional challenge only became “an issue of controversy on appeal.” But their complaint lies with an alleged uncertainty that materialized once the district court recorded its decision without entering a separate document to memorialize its finality, and that complaint materialized long before Mother and Stepfather filed their appeal. Under these circumstances, it is inadequate for them to simply assert that they were unable to preserve their constitutional claim. See In re X.C.H., 2017 UT App 106, ¶ 31, 400 P.3d 1154 (requiring parties invoking the exceptional circumstances exception to “demonstrate how the actual circumstances [they] encountered in the [district] court process prevented [them] from raising the [unpreserved] claim”); see also Kelly v. Timber Lakes Prop. Owners Ass’n, 2022 UT App 23, ¶ 21 n.3 (refusing to apply the exceptional circumstances exception when the appellant did “not discuss the threshold inquiry of the exceptional circumstances exception” and thus did not establish that a rare procedural anomaly existed).

¶27      Moreover, Mother and Stepfather have not engaged in the “deeper inquiry” this court must carry out to determine whether to reach an unpreserved issue under the exceptional circumstances exception. See Johnson, 2017 UT 76, ¶ 29. For example, they have not explained why our failure to consider the constitutional issue “would result in manifest injustice.” See id. ¶ 37 (cleaned up). And based on the record before us, it is far from apparent that it would be unjust for us not to consider Mother and Stepfather’s constitutional challenge to the application of rule 58A, for a couple of reasons.

¶28 First, Mother and Stepfather cannot demonstrate on this record that they did not receive notice of the entry of the district court’s decision. There is a signed minute entry in the court’s docket dated two days after the court announced its decision from the bench. Yet Mother and Stepfather make no mention of this order on appeal; instead, they focus on an unsigned minute entry and ask us to assume they did not receive notice of its entry because no certificate of service is attached. Because Mother and Stepfather do not account for the court’s signed minute entry, and because their argument depends on assumptions, the alleged injustice about which they complain is far from manifest.[8]

¶29 Additionally, even if we were to accept Mother and Stepfather’s invitation to assume they did not receive notice of the minute entry recording the district court’s decision, Mother and Stepfather (while still represented by counsel) had ways to easily resolve their claimed problem of lacking notice of when the clerk recorded the court’s decision. They were present when the court announced its decision from the bench and informed the parties that its pronouncement would stand as the order of the court. Surely, counsel understood that the court’s decision would be recorded in the docket within a few days. But if Mother and Stepfather desired even more certainty, they could have submitted a proposed judgment and, upon its entry, been confident that their time to appeal was running. See Utah R. Civ. P. 58A(e)(2)(A). And at any time during the months following the court’s announcement of its decision from the bench, Mother and Stepfather could have checked the docket[9] or called the court clerk to determine the date on which the court’s decision was recorded. But Mother and Stepfather forwent all these opportunities. In light of these missed opportunities, we do not believe that it would be manifestly unjust for us to decline to reach the unpreserved constitutional issue.[10] Cf. Dahl, 2011 UT App 389, ¶ 28 (stating that parties “cannot sleep on [their] rights”). For these reasons, we will not apply the exceptional circumstances exception here.

CONCLUSION

¶30 We agree with Father that we lack jurisdiction over this appeal, and we thus dismiss it. We also conclude that Mother and Stepfather have not established the applicability of any exception to the preservation rule and that we therefore may not reach the merits of their constitutional challenge to rule 58A of the Utah Rules of Civil Procedure.


 

[1] Mother and Stepfather filed proposed findings of fact and conclusions of law on the second day of trial, prior to the court announcing its decision. Their filing did not reflect the district court’s announced decision, and the court did not sign that document.

[2] Rule 52(a)(1) of the Utah Rules of Civil Procedure provides, “In all actions tried upon the facts without a jury or with an advisory jury, the court must find the facts specially and state separately its conclusions of law. The findings and conclusions must be made part of the record and may be stated in writing or orally following the close of the evidence. Judgment must be entered separately under Rule 58A.” And rule 54(a) specifies that “‘Judgment’ as used in these rules includes a decree or order that adjudicates all claims and the rights and liabilities of all parties or any other order from which an appeal of right lies.” Utah R. Civ. P. 54(a).

[3] This proposed document is not in the record. Mother and Stepfather assert that Father submitted this proposed order to the court on or about December 16, 2019—more than a year after the court announced its ruling from the bench.

[4] Mother and Stepfather assert that Father’s “failure to oppose the entry of the [June 2020] order should be deemed a waiver” of Father’s challenge to appellate jurisdiction. But “because subject matter jurisdiction goes to the heart of a court’s authority to hear a case, it is not subject to waiver and may be raised at any time, even if first raised on appeal.” In re adoption of Baby E.Z., 2011 UT 38, ¶ 25, 266 P.3d 702 (cleaned up); see also Widdison v. State, 2021 UT 12, ¶ 100 n.26, 489 P.3d 158 (Lee, J., concurring in judgment) (“Jurisdiction is not an argument that can be waived or ignored by the parties.”). We therefore reject this argument.

[5] We recognize that because Griffin v. Snow Christensen & Martineau, 2020 UT 33, 467 P.3d 833, was not issued until June 10, 2020, the parties did not have the benefit of its analysis until then. Nevertheless, the parties still should have been aware of the relevant court rules bearing on the events that would trigger the thirty-day period for filing an appeal. Cf. Serrato v. Utah Transit Auth., 2000 UT App 299, ¶ 9, 13 P.3d 616 (stating that “inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute excusable neglect” (cleaned up)).

[6] Father originally raised his jurisdictional argument in a motion for summary disposition, which a judge on this court denied on the ground that the June 2020 order was “the proper order used for determining appellate jurisdiction.” Mother and Stepfather now assert that because this court already rejected Father’s “exact same argument” when his motion for summary disposition was denied, the doctrine of claim preclusion bars Father from raising the issue again in his appellate brief. We disagree.

The doctrine of claim preclusion “bars a party from prosecuting in a subsequent action a claim that has been fully litigated previously.” Haskell v. Wakefield & Assocs. Inc., 2021 UT App 123, ¶ 13, 500 P.3d 950 (emphasis added) (cleaned up); see also IHC Health Services, Inc. v. D & K Mgmt., Inc., 2008 UT 73, ¶ 26 n.20, 196 P.3d 588 (explaining that res judicata, of which claim preclusion is a branch, “is more appropriately used to describe the binding effect of a decision in a prior case on a second case”). Because Father is not seeking to prosecute a claim that was adjudicated in a prior action, the doctrine of claim preclusion does not apply. Instead, Father seeks reconsideration of the conclusion, rendered in this case, that this court has jurisdiction over this appeal. This panel has the discretion to entertain Father’s request.

This court’s previous order was signed by a single judge, and rule 23(e) of the Utah Rules of Appellate Procedure “allows a panel of this court to review the actions of the single judge.” Envirotech Corp. v. Callahan, 872 P.2d 487, 501 n.12 (Utah Ct. App. 1994); see also Utah R. App. P. 23(e)(3) (“[T]he action of a single justice or judge may be reviewed by the court.”). Further, while an appeal is pending, this court “remains free” to reconsider its decisions. Cf. IHC Health Services, 2008 UT 73, ¶¶ 26–27 (explaining that the law of the case doctrine generally “allows a court to decline to revisit issues within the same case once the court has ruled on them”). Under the law of the case doctrine, this court enjoys the discretion not to reconsider a prior ruling, id. ¶ 26, but the doctrine “does not prohibit a judge from catching a mistake and fixing it,” Gillmor v. Wright, 850 P.2d 431, 439 (Utah 1993) (Orme, J., concurring).

Here, we exercise our discretion to reconsider the fundamental issue of appellate jurisdiction. See State v. Brown, 2021 UT 11, ¶ 10, 489 P.3d 152 (“Jurisdiction is the blood in our judicial system. Because of its vitalness, we have an independent obligation to ensure that we have it over all matters before us.” (cleaned up)).

[7] After this case was briefed and argued, this court issued Kelly v. Timber Lakes Property Owners Ass’n, 2022 UT App 23, in which we held that plain error review is not available in ordinary civil cases. Id. ¶ 44. Whether plain error review is available in this adoption proceeding is an unanswered question. Mother and Stepfather have not engaged on that question, and for purposes of our analysis, we assume, without deciding, that plain error review is available in this case.

[8] Preserving an issue in the district court is important because, among other things, “it allows an issue to be fully factually, procedurally, and legally developed in the district court.” Baumann v. Kroger Co., 2017 UT 80, ¶ 25, 416 P.3d 512. And “[w]ithout the benefit of a fully developed record illustrating both the district court’s thinking and the factual development bearing on the issue at hand, an appellate court is necessarily handicapped in reaching a well-considered decision.” True v. Utah Dep’t of Transp., 2018 UT App 86, ¶ 25, 427 P.3d 338. Here, the parties dispute whether the district court “ever provided notice or a copy of the clerk’s minute entry to the parties.” This is the type of factual dispute that could and should have been fleshed out in the district court, and the fact that it wasn’t hinders our ability to analyze the merits of Mother and Stepfather’s constitutional argument. See id.cf. Diversified Equities, Inc. v. American Sav. & Loan Ass’n, 739 P.2d 1133, 1136 (Utah Ct. App. 1987) (“Whether a party should be charged with ‘actual notice,’ either in the sense of having actual knowledge or being on inquiry notice, turns on questions of fact.”).

[9] Mother and Stepfather contend that “pursuant to Utah Code Ann. § 78B-6-141(2),” adoption cases are “sealed upon decision and the docket is not readily available on the Utah court’s Xchange system.” Thus, they suggest, they could not have reviewed the docket to determine when the clerk recorded the court’s decision. But section 78B-6-141 does not, by its terms, apply to the court’s docket. And even if it did, it states that any sealed documents are “open to inspection and copying . . . by a party to the adoption proceeding (i) while the proceeding is pending; or (ii) within six months after the day on which the adoption decree is entered.” Utah Code Ann. § 78B-6-141(3)(a) (LexisNexis 2018). Here, where no separate judgment was entered by the court and the court’s signed minute entry is not designated as private or sealed on the docket, it is not apparent that Mother and Stepfather could not have accessed the docket within the 180 days before their appeal was due to ascertain the exact date on which the court’s decision was recorded.

[10] It is also not apparent that if we were to reach the unpreserved issue, we would conclude rule 58A is unconstitutional as written. Mother and Stepfather contend that rule 58A is unconstitutional because it does not require notice of when the court records the decision, and the Utah Rules of Civil Procedure do not otherwise “provide for the service of signed orders through the E-Filing system.” Although we do not resolve this constitutional challenge expressly, we note that Mother and Stepfather are mistaken. Rule 5(b)(3)(A) of the Utah Rules of Civil Procedure provides that “except in the juvenile court,” “[a] paper is served . . . by . . . the court submitting it to the electronic filing service provider, if the person being served has an electronic filing account.”

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

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Hillam v. Hillam – 2022 UT App 24 – final and appealable ruling, rule 54(b)

2022 UT App 24

THE UTAH COURT OF APPEALS

JOHN DINSDALE HILLAM,

Petitioner,

v.

TARA HILLAM,

Respondent and Appellant,

v.

DUSTIN HANCOCK AS INVESTMENT TRUSTEE,

Respondent and Appellee.

Opinion

No. 20200545-CA

Filed February 25, 2022

Second District Court, Farmington Department

The Honorable David J. Williams

No. 174700031

Bart J. Johnsen and Alan S. Mouritsen, Attorneys

for Appellant

Stacy J. McNeill and Joshua L. Lee, Attorneys

for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which

JUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred.

TENNEY, Judge:

¶1        In this appeal, Tara Hillam challenges the district court’s determination that, as part of ongoing divorce proceedings, it cannot divide certain stock options that Tara’s husband previously placed into an irrevocable trust. Although the court certified this as a final and appealable ruling under rule 54(b) of the Utah Rules of Civil Procedure, we conclude that the certification was flawed. We therefore dismiss this appeal for lack of appellate jurisdiction.

BACKGROUND[1]

¶2        John and Tara Hillam were married in 2000.[2] During their marriage, John’s employer gave him certain stock options. John later set up an irrevocable trust (the Trust) and named himself as the settlor and as one of the beneficiaries of the Trust. Tara was also named a beneficiary of the Trust, but John conditioned her beneficiary status on her marriage to him. After setting up the Trust, John unilaterally moved the stock options into the Trust.

¶3        A few years later, John filed for divorce. After several months of litigation, John and Tara agreed to a partial stipulation. Based on that stipulation, the district court entered a bifurcated decree of divorce that divided some of John and Tara’s marital property. But the court reserved a few issues for a bench trial— including, notably, the “complex trust issue” of whether the stock options could be divided as part of the divorce.

¶4        Before trial, Tara filed a motion to join the Trust as a party. After she did, Dustin Hancock (the Trustee) moved for summary judgment on John’s second cause of action, seeking “a declaration that the Trust is valid and enforceable” and that the stock options were “not subject to division as part of the divorce.”

¶5        Tara opposed the Trustee’s motion. After briefing and argument, the district court determined that the stock options were marital property but were “not subject to equitable distribution” in the divorce because John had placed them in an irrevocable trust. The court accordingly granted the Trustee’s request for summary judgment, thereby excluding the stock options from division in the divorce.

¶6        The court certified its order on this issue “as final.” In doing so, it explained:

First, the Court finds there are multiple parties, and this Order fully adjudicates the only claim . . . involving [the Trustee and the other Trust beneficiaries]. Second, the Court finds there is no just reason to delay. The core of this action is the dissolution of a marriage, and the Trust Parties were joined only because of their respective interests in the Trust. However, the Trust currently exists for the benefit of [John and Tara’s] children and has no interest in the divorce-related disputes between John and Tara. It would be unnecessary and unfair to force the Trust Parties to wait for the divorce claims to go await a trial that could also be followed by a multitude of post-trial motions.

¶7        Tara appealed the court’s grant of summary judgment, and this is the appeal that is now before us. In her brief, Tara argues that the district court had “authority” to “categoriz[e] the stock options as marital property subject to equitable distribution.” The Trustee responded and argued that the court did not have any such authority.

¶8        While this appeal was pending, the district court held a bench trial on the remaining issues in the divorce. Of note, Tara asked the court during that bench trial to find that John had improperly dissipated marital assets when he transferred the stock options to the Trust. The parties litigated that issue, and the court rejected Tara’s dissipation claim in its findings of fact and conclusions of law. As part of this ruling, the court found that John “ha[d] shown, by a preponderance of the evidence[,] that the funds were not dissipated but were used for a legitimate marital purpose.”

¶9        The court issued these findings and conclusions on December 8, 2021, and the court ordered John’s counsel “to prepare any further orders/decrees as are necessary to effectuate” them. As of the date on which we publish this opinion, those findings and conclusions have not yet been incorporated into John and Tara’s decree of divorce.

¶10 We heard oral argument in this appeal on January 25, 2022. Before argument, we directed the parties to be prepared to discuss whether the district court’s rule 54(b) certification of the summary judgment ruling on the Trust issue was proper, and we then discussed that issue with the parties at oral argument.

ISSUE AND STANDARD OF REVIEW

¶11 The parties have briefed and argued the question of whether the district court could divide the stock options that are within the Trust as part of its division of John and Tara’s marital estate.

¶12 But “we may not act on an appeal, including an appeal of a putative final order under rule 54(b) [of the Utah Rules of Civil Procedure], unless we are satisfied that we have appellate jurisdiction.” Copper Hills Custom Homes, LLC v. Countrywide Bank, FSB, 2018 UT 56, ¶ 1, 428 P.3d 1133. “Whether appellate jurisdiction exists is a question of law.” Butler v. Corporation of the President of the Church of Jesus Christ of Latter-day Saints, 2014 UT 41, ¶ 15, 337 P.3d 280.

ANALYSIS

¶13 “As a general rule, an appellate court does not have jurisdiction to consider an appeal unless the appeal is taken from a final order or judgment that ends the controversy between the litigants.” Copper Hills Custom Homes, LLC v. Countrywide Bank, FSB, 2018 UT 56, ¶ 10, 428 P.3d 1133 (quotation simplified). “The obvious and principal rationale for limiting the right to appeal in this way is to promote judicial economy by preventing piecemeal appeals in the same litigation to this Court.” Id. ¶ 11 (quotation simplified). “Strict adherence to the final judgment rule” is necessary to “maintain[] the proper relationship between this Court and the district courts.” Id. (quotation simplified).

¶14 There are three exceptions to the final judgment rule: (1) when the legislature has provided a “statutory avenue for appealing nonfinal orders,” Powell v. Cannon, 2008 UT 19, ¶ 13, 179 P.3d 799; (2) when the appellate court grants a petition for an interlocutory appeal, see Utah R. App. P. 5(a); and (3) when the district court properly certifies an order as final under rule 54(b) of the Utah Rules of Civil Procedure. As noted, the district court below certified its ruling on the Trust issue as being final, thereby invoking rule 54(b) as the putative basis for our ability to review this decision.

¶15 When rule 54(b) is properly invoked, an appellate court can “weigh in on a matter even though not all of the causes of action for all of the parties have been adjudicated,” Copper Hills, 2018 UT 56, ¶ 15, and even if the ruling in question did not “end the controversy between [all] the litigants,” Anderson v. Wilshire Invs., LLC, 2005 UT 59, ¶ 9, 123 P.3d 393 (quotation simplified).

¶16 But our supreme court has “steadfastly adhered to a narrow approach to 54(b) certifications,” and it has “advised our district courts to do the same.” Copper Hills, 2018 UT 56, ¶ 17 (quotation simplified). Consistent with this, the supreme court has held that “[b]y the terms of [r]ule 54(b)” itself, “a ruling must meet three requirements in order to be appealable.” Pate v. Marathon Steel Co., 692 P.2d 765, 767 (Utah 1984). “The first requirement is that there must be multiple claims for relief or multiple parties to the action.” Copper Hills, 2018 UT 56, ¶ 16 (quotation simplified). The second is that “the judgment appealed from must have been entered on an order that would be appealable but for the fact that other claims or parties remain in the action.” Butler v. Corporation of the President of the Church of Jesus Christ of Latter-day Saints, 2014 UT 41, ¶ 25, 337 P.3d 280 (quotation simplified). And the third is that the district court, “in its discretion, must make a determination that there is no just reason for delay of the appeal.” Id. (quotation simplified).

¶17      With respect to this third requirement, it is not enough for a district court to simply state that “there is no just reason for delay.” In Copper Hills, the supreme court linked that requirement to rule 52(a) of our rules of civil procedure, which in turn “requires district courts to enter findings supporting the conclusion that the certified orders are final.” 2018 UT 56, ¶ 21 (quotation simplified). The supreme court held that these findings must “detail the lack of factual overlap between the certified and remaining claims,” and they “should also advance a rationale as to why” there “is no just reason for delay.” Id. (quotation simplified).

¶18 The supreme court did “agree that in multiple party cases”—as opposed to multiple claims cases—rule “54(b) certification may still be appropriate even if there is complete overlap between the certified claims and the remaining claims.” Id. ¶ 28 n.14. But even in “multiple party cases,” the supreme court “still require[d] our district courts to explain whether in any given matter there is factual overlap between the certified claims and the remaining claims,” as well as “why, despite any overlap, 54(b) certification is appropriate.” Id.

¶19 Under this framework, we conclude that the rule 54(b) certification in this case was insufficient because the district court’s certification did not satisfy this third requirement.

¶20 Although the district court did make an express determination that there was no just reason for delay, the court did not include any findings about the “factual overlap between the certified and remaining claims.” Id. ¶ 21 (quotation simplified). And although this case is properly viewed as a multiple party case—which meant that certification could occur even if there was factual overlap—the district court was still required to explain whether there was any factual overlap between the certified claims and the remaining claims, and it was also required to advance a rationale for certification despite any overlap that it had identified. See id. ¶ 28 n.14. The court didn’t do either, so its certification here was infirm.

¶21      Indeed, the circumstances of this case illustrate why such findings are required. Copper Hills instructs district courts to provide a “clear articulation” of their “reasons for granting certification” so that the appellate courts can have a “basis for conducting a meaningful review” of that certification. Id. ¶ 22 (quotation simplified). And when we conduct such a review, we seek to avoid the promotion of “piecemeal appeals,” Anderson, 2005 UT 59, ¶ 9 (quotation simplified), that would “needlessly increase the risk of inconsistent or erroneous decisions” on factually intertwined issues, Copper Hills, 2018 UT 56, ¶ 11.

¶22      As noted, Tara challenges the district court’s ruling on the Trust issue. In her brief, Tara asks us to adopt a test under which a court may equitably divide marital property contained in an irrevocable trust “if the evidence shows that the spouse created the irrevocable trust in contemplation of divorce or with the aim of frustrating the equitable distribution of property in the event of a divorce.” (Emphases added, quotation simplified.) Thus, her proposed test largely turns on the transferring spouse’s intent.

¶23      But in the bench trial that occurred while this appeal was pending, Tara made a dissipation of marital assets claim. That claim likewise turned on John’s intent when he transferred the stock options into the trust. As noted, the parties litigated that issue fully, and the district court has now entered findings on that question.

¶24 Thus, there is significant factual overlap between the certified ruling that led to this appeal and other issues that remained behind and have just recently been litigated. While we are skeptical that a rule 54(b) certification would be appropriate in such circumstances, we have no basis for conducting the necessary review because, as discussed, the district court did not provide an explanation of either the degree of overlap or why it believed that Tara’s appeal of the ruling in question should proceed anyway.

¶25      Like the supreme court, we are cognizant of the fact that a jurisdiction-based dismissal like this one may “leave the parties feeling that form has triumphed over substance.” Copper Hills, 2018 UT 56, ¶ 2. “But we cannot fabricate the power to hear a case.” Id. (quotation simplified). Moreover, we note that the Trust’s counsel agreed at oral argument that, if we dismiss for lack of appellate jurisdiction, Tara could still challenge the court’s ruling about the stock options in an appeal from the final judgment in the divorce case. We think this concession was well taken. And since the district court has not yet entered that final judgment, Tara will still have that right when a final judgment has actually been entered.

¶26 As for this appeal, however, we hold that the district court’s rule 54(b) certification was incomplete because it contained no findings about the factual overlap between the certified and remaining claims, nor did it contain an explanation of why this appeal should proceed despite any overlap.

CONCLUSION

¶27 For the foregoing reasons, we conclude that the district court’s rule 54(b) certification was improper. Because of this, we dismiss this appeal for lack of appellate jurisdiction.[3]

——————————————————————

[1] Because we dismiss this appeal on jurisdictional grounds, “[t]he underlying facts of this case are not [particularly] relevant on appeal,” so “we summarize them only for context.” Miller v. San Juan County, 2008 UT App 186, ¶ 2, 186 P.3d 965. We also note that, pursuant to rule 11 of the Utah Rules of Appellate Procedure, the record has been supplemented with the district court’s findings of fact and conclusions of law from a bench trial that was held in October 2021, and we accordingly consider those findings and conclusions in this appeal.

[2] As is our custom, we refer to John and Tara by their first names because they share the same last name. We intend no disrespect by the apparent informality.

[3] “[W]e have discretion under Utah Rule of Appellate Procedure 5(a) to treat certain improper rule 54(b) certifications as interlocutory appeals.” First Nat’l Bank of Layton v. Palmer, 2018 UT 43, ¶ 14 n.4, 427 P.3d 1169. But the supreme court has cautioned us to use this discretion “judiciously and sparingly.” Copper Hills Custom Homes, LLC v. Countrywide Bank, FSB, 2018 UT 56, ¶ 29 n.15, 428 P.3d 1133. We decline to exercise this discretion here. As noted, the issue that Tara seeks to litigate on appeal is factually intertwined with an issue that she separately litigated below in the October 2021 bench trial. Because she will be entitled to raise this issue in an appeal from the final judgment in the divorce case, allowing this appeal to be heard now would not enhance “judicial economy.” Kennedy v. New Era Indus., Inc., 600 P.2d 534, 535 (Utah 1979).

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2022 UT App 15 – Miller v. DaSilva – protective order objections

2022 UT App 15 – Miller v. DaSilva

http://www.utcourts.gov/opinions/view.html?court=appopin&opinion=Miller v. Dasilva20220203_20200719_15.pdf

THE UTAH COURT OF APPEALS

LISA M. MILLER,
Appellant,
v.
AMY ELIZABETH DASILVA,
Appellee.

Opinion

No. 20200719-CA

Filed February 3, 2022

Third District Court, Salt Lake Department

The Honorable Robert P. Faust

No. 204904364

Steve S. Christensen and Clinton Brimhall, Attorneys
for Appellant

Amy Elizabeth Dasilva, Appellee Pro Se

JUDGE DIANA HAGEN authored this Opinion, in which JUDGES
GREGORY K. ORME and MICHELE M. CHRISTIANSEN FORSTER concurred.

HAGEN, Judge:

¶1        A final judgment on a petition for a cohabitant abuse protective order cannot be entered based on a commissioner’s recommendation until the parties are afforded their statutory right to object. If a timely objection is filed, the objecting party is entitled to a hearing before the district court. In this case, once the commissioner recommended that the protective order be denied and the case dismissed, a final order was immediately entered and the petitioner’s timely objection was subsequently denied without a hearing. Because a final judgment was entered before the time for filing an objection had passed and without holding a hearing on the objection, we vacate the final judgment and remand to the district court to hold the required hearing.

BACKGROUND

¶2        Lisa Miller petitioned the district court for a cohabitant abuse protective order against her former friend and tenant, Amy Dasilva. A temporary protective order was issued, and a hearing was scheduled before a commissioner. At the conclusion of the hearing, the commissioner made the following findings:

I cannot find that there is sufficient evidence to support a finding that Ms. Da[s]ilva has been stalking Ms. Miller. And I cannot find a fear of ongoing physical harm.[1] And, therefore, I am going to respectfully dismiss the protective order.

A minute entry reflected that the “Commissioner recommends” that the petition “be DENIED and this case be dismissed” because “[t]he evidence does not support the entry of a protective order.”

¶3        That same day, at the direction of a district court judge, the court clerk entered a final order that stated: “This case is dismissed. Any protective orders issued are no longer valid.”

¶4        Miller filed a timely objection to the commissioner’s recommendation, requesting an evidentiary hearing before the district court pursuant to rule 108 of the Utah Rules of Civil Procedure. The next day, the district court denied that objection on the grounds that “dismissal of a protective order . . . is not a matter that is heard by the District Court Judges under Rule 108 as it is not a recommendation of the Commissioner, but rather a final decision.”

¶5        Miller filed a timely notice of appeal.

ISSUE AND STANDARD OF REVIEW

¶6        The dispositive issue before us is whether, under Utah Code section 78B-7-604(1)(f), the district court was permitted to immediately dismiss the case based on the commissioner’s recommendation and thereafter deny Miller’s objection and request for a hearing. “The proper interpretation and application of a statute is a question of law, and we afford no deference to the trial court in reviewing its interpretation.” Patole v. Marksberry, 2014 UT App 131, ¶ 5, 329 P.3d 53 (cleaned up).

ANALYSIS

¶7        Under the Cohabitant Abuse Act, the court may issue a protective order without notice to the other party (an ex parte protective order) if it appears from the petition “that domestic abuse has occurred” or is substantially likely to occur. Utah Code Ann. § 78B-7-603(1)(a) (LexisNexis Supp. 2020). If the court issues an ex parte protective order, it must schedule a hearing and provide notice to the respondent. Id. § 78B-7-604(1)(a). After notice and a hearing, the court may issue a cohabitant abuse protective order, which is effective until further order of the court. Id. § 78B-7-604(1)(e). If such an order is not issued, the ex parte protective order expires unless extended by the court. Id. § 78B-7-604(1)(b).

¶8 A commissioner may conduct the required hearing in cohabitant abuse cases and “[m]ake recommendations to the court.” Utah R. Jud. Admin. 6-401(1)–(2)(D). If the hearing takes place before a commissioner, “either the petitioner or respondent may file an objection within 10 days after the day on which the recommended order [is issued by the commissioner] and the assigned judge shall hold a hearing within 20 days after the day on which the objection is filed.”[2] Utah Code Ann. § 78B-7­604(1)(f).

¶9        Here, the district court denied Miller’s objection to the commissioner’s recommendation without holding a hearing. Miller argues this was a “violation of the mandate in Utah Code Ann. § 78B-7-604(1)(f).” We agree.

¶10 In denying Miller’s objection, the court ruled that “dismissal of a protective order” is not a matter that can be heard by the district court under rule 108 because “it is not a recommendation of the commissioner, but rather a final decision.” Because commissioners are prohibited from making “final adjudications,” Utah R. Jud. Admin. 6-401(4)(A), we assume that the district court was referring not to the commissioner’s recommendation, but to the order dismissing the case entered at the direction of a district court judge immediately after the hearing before the commissioner. Even so, the rule expressly provides that “[a] judge’s counter-signature on the commissioner’s recommendation does not affect the review of an objection.” Utah R. Civ. P. 108(a). Once Miller filed a timely objection to the commissioner’s recommendation and a request for hearing, the district court was statutorily required to hold a hearing within twenty days. See Utah Code Ann. § 78B-7­-604(1)(f). The district court erred by denying the objection without holding such a hearing.

CONCLUSION

¶11 The district court did not have authority to enter a final order dismissing this case before the time for filing an objection to the commissioner’s recommendation had expired. Because Miller filed a timely objection and request for hearing, she was entitled to a hearing before the district court. Accordingly, we vacate the final judgment, reverse the district court’s order denying the objection, and remand for the district court to hold the hearing required by statute.

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

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Sanders v. Sanders – 2021 UT App 122

2021 UT App 122 

THE UTAH COURT OF APPEALS 

KRISTINE L. SANDERS, Appellee, 
v.
TRAVIS JAMES SANDERS, Appellant. 

Opinion 

No. 20200618-CA 

Filed November 12, 2021 

Third District Court, Salt Lake Department 
The Honorable Todd M. Shaughnessy 
No. 014901182 

  1. Grace Acosta, Attorney for Appellant

Steven M. Rogers, Nic R. Russell, Kelly J. Baldwin, 
and Wylie C. Thomas, Attorneys for Appellee 

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN concurred. 

ORME, Judge: 

¶1 Travis James Sanders appeals the district court’s order dismissing his motion brought under rule 60(b) of the Utah Rules of Civil Procedure to invalidate a “renewed” judgment Kristine L. Sanders obtained against him. We reverse and remand to the district court with instructions to consider the motion on its merits. 

BACKGROUND 

¶2 Travis and Kristine divorced in 2001.1 Soon thereafter, Kristine obtained several judgments against Travis. In 2011, the district court renewed these judgments at Kristine’s request. Kristine was unable to fully collect on these judgments, and in January 2019, she again moved to have them renewed. Travis opposed the renewal and moved under rule 60(b) of the Utah Rules of Civil Procedure to set aside the judgments, primarily arguing that he had already satisfied them. The court denied Travis’s 60(b) motion, consolidated the judgments into a single lump-sum judgment, and renewed the judgment for a second time in May 2019. Travis did not appeal this order. 

¶3 Nearly a year later, Travis filed a second 60(b) motion, this time under rule 60(b)(4) seeking to set aside the consolidated judgment as void on the theory that the court lacked jurisdiction under the Renewal of Judgment Act to renew the judgment for a second time. See Utah Code Ann. § 78B-6-1802 (LexisNexis 2018). The district court denied the second motion, ruling that it was “procedurally improper” because “[t]he arguments raised in that motion could and should have been raised in the prior motion.”2 Travis appeals.  

ISSUE AND STANDARD OF REVIEW 

¶4 Travis argues that the district court erred in denying his motion on procedural grounds.3 Normally, “we review a district court’s denial of a 60(b) motion under an abuse of discretion standard of review.” Menzies v. Galetka, 2006 UT 81, ¶ 54, 150 P.3d 480. But when dealing with a rule 60(b)(4) motion seeking to set aside a judgment as void, we review the district court’s decision for correctness. See Migliore v. Livingston Fin., LLC, 2015 UT 9, ¶ 25, 347 P.3d 394. In addition, we review a district court’s interpretation and application of our rules of civil procedure for correctness. Conner v. Department of Com., 2019 UT App 91, ¶ 15, 443 P.3d 1250. Kristine implores us to review the court’s decision for abuse of discretion. But here, given that the district court’s ruling dealt with a rule 60(b)(4) motion to set aside the judgment as void and because the court was interpreting our rules of civil procedure when it ruled Travis’s motion was procedurally improper, we do not grant the district court any discretion, and we review its decision for correctness. Compare Menzies, 2006 UT 81, ¶ 54, with Conner, 2019 UT App 91, ¶ 15. 

ANALYSIS 

¶5 As relevant here, rule 60 of the Utah Rules of Civil Procedure provides as follows: 

(b) Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc. On motion and upon just terms, the court may relieve a party or its legal representative from a judgment, order, or proceeding for the following reasons: 

(1) mistake, inadvertence, surprise, or excusable neglect; 

(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); 

(3) fraud . . . , misrepresentation or other misconduct of an opposing party; 

(4) the judgment is void; 

(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or vacated, or it is no longer equitable that the judgment should have prospective application; or 

(6) any other reason that justifies relief. 

(c) Timing and effect of the motion. A motion under paragraph (b) must be filed within a reasonable time and for reasons in paragraph (b)(1), (2), or (3), not more than 90 days after entry of the judgment or order or, if there is no judgment or order, from the date of the proceeding. The motion does not affect the finality of a judgment or suspend its operation. 

(d) Other power to grant relief. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment . . . . 

Utah R. Civ. P. 60(b)–(d). 

¶6 The district court dismissed Travis’s second 60(b) motion on the basis that “[t]he arguments raised in that motion could and should have been raised in the prior motion,” thereby rendering the motion “procedurally improper.” Travis argues that the court erred in this ruling because our rules of civil procedure do not prohibit him from bringing a second motion on the ground that the judgment was void due to the court’s lack of subject matter jurisdiction given the terms of the Renewal of Judgment Act. This argument appears to be sound. 

¶7 Kristine disagrees. She defends the district court’s waiver ruling and advances two alternative grounds on which she believes we should uphold the ruling. Her first alternative argument is that Travis’s second motion was simply a motion to reconsider, which is not allowed. Second, she contends that the district court’s ruling can be upheld because Travis failed to file his second motion within ninety days of entry of the judgment as renewed a second time or in a reasonable time as provided in rule 60(c). We first address and reject the court’s ruling that Travis waived his 60(b)(4) argument by not bringing it in his first motion. We then turn to address each of the alternative arguments Kristine believes nonetheless warrant our affirming the district court. 

  1. Waiver

¶8 Travis asserts that rule 60(b) did not prohibit him from bringing his second 60(b) motion in May 2020, which motion was premised on the judgment being void under rule 60(b)(4). Kristine counters by pointing to Utah v. 736 North Colorado Street, 2005 UT 90, 127 P.3d 693, which states that “a party waives the right to bring [additional defenses] if the party does not raise that defense in his initial rule 60(b) motion.” Id. ¶ 11. But 736 North Colorado Street is distinguishable from the case at hand. 

¶9 In 736 North Colorado Street, the State initiated forfeiture proceedings against the petitioner to seize his property. Id. ¶ 2. After unsuccessful attempts to serve the petitioner by mail, the State moved for, and was granted, default judgment. Id. After learning of the default judgment, the petitioner filed a 60(b) motion to set aside the judgment. Id. ¶ 3. As part of his motion, the petitioner argued that the Utah Code “mandated that a notice of seizure be personally served and that the service by mail was improper under Utah Rule of Civil Procedure 4.” Id. In so doing, the petitioner “did not directly refer to or specifically raise a defense based on insufficient service of the complaint.” Id. The district court denied the motion, id. ¶ 4, and the petitioner later filed a second rule 60(b) motion on the ground “that the district court lacked jurisdiction to enter a default judgment against him because he was not personally served with the complaint,” id. ¶ 5. The court denied the second motion, “concluding that [the petitioner] had waived that defense by not raising it in his initial rule 60(b) motion.” Id. 

¶10 Our Supreme Court affirmed the district court’s denial of the second motion. Id. ¶ 14. It noted that while the petitioner “did not articulate which prong of rule 60(b) he brought his motions under, it appears that the motions were rule 60(b)(4) motions to set aside a default judgment because ‘the judgment is void.’” Id. ¶ 3 n.3. It then held that rule 12(h) of the Utah Rules of Civil Procedure “applies to rule 60(b) motions.” Id. ¶ 7. Rule 12(h), in turn, provides, 

A party waives all defenses and objections not presented either by motion or by answer or reply, except (1) that the defense of failure to state a claim upon which relief can be granted, the defense of failure to join an indispensable party, and the objection of failure to state a legal defense to a claim may also be made by a later pleading, if one is permitted, or by motion for judgment on the pleadings or at the trial on the merits, and except (2) that, whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court must dismiss the action. . . . 

Accordingly, the Court held that the petitioner waived his 60(b)(4) argument that the judgment was void due to lack of personal jurisdiction, and therefore he could not bring it in a second motion because “[h]e could have asserted his complaint defense in [the first] motion but did not.” 736 N. Colo. St., 2005 UT 90, ¶ 9. 

¶11 This precedent is readily distinguishable from the case before us. For one thing, the motions in 736 North Colorado Street targeted precisely the same judgment while, in this case, Travis’s motions attacked two separate renewed judgments. His first motion targeted the judgment as initially renewed and was filed before the judgment was renewed for a second time. In this motion, he sought to prevent its second renewal primarily on the basis that it had been satisfied. But his second motion was squarely directed at the judgment as renewed for a second time, on the ground that the applicable statute does not authorize multiple renewals of the original judgment. Thus, Travis could not have waived the arguments he made in his second rule 60(b) motion because Travis’s first motion was brought before the judgment was renewed for a second time, and his second motion came after it had been renewed for that second time and because it was again renewed.4 

¶12 Be all that as it may, 736 North Colorado Street is ultimately distinguishable here because the petitioner in that case attempted to bring a personal jurisdiction argument under rule 60(b)(4) in his second motion, an argument the Court determined the petitioner had waived under rule 12(h) by not bringing it in his initial 60(b) motion. Here, Travis’s second 60(b) motion asserted that the judgment was void under rule 60(b)(4) because the court lacked subject matter jurisdiction given the terms of the Renewal of Judgment Act, which is an argument that Travis could not have waived under the plain terms of rule 12(h). See Utah R. Civ. P. 12(h) (stating that parties do not waive arguments “that the court lacks jurisdiction of the subject matter”). Given this important difference, we hold that Travis did not waive his subject matter jurisdiction argument and could bring it in a second 60(b) motion because waiver under rule 12(h) does not bar subject matter jurisdiction arguments. 

¶13 The district court therefore erred in ruling that because Travis could have argued in his first motion that the court lacked subject matter jurisdiction to renew the judgment for a second time, it was procedurally improper for him to raise that argument in a second motion. Rule 12(h) did not bar such an argument in a second motion, and the court should have addressed Travis’s motion on the merits. 

  1. Motion to Reconsider

¶14 We now turn to Kristine’s first alternative ground. She asserts that we should affirm the district court on the basis that Travis’s second motion was essentially a post-judgment motion to reconsider, which is not permitted in Utah. See Gillett v. Price, 2006 UT 24, ¶¶ 1, 10, 135 P.3d 861. Occasionally, we will affirm a district court’s order on an alternative ground that is apparent from the record, “[b]ut we ha[ve] no obligation to do so.” Scott v. Scott, 2020 UT 54, ¶ 31, 472 P.3d 897. Kristine asserts that Travis’s motion was a motion to reconsider simply because his “second Rule 60 motion asserted the same grounds and no additional facts” and because even though “[t]he analysis of the law was slightly different[,] . . . the substantive grounds of the motion[s] were identical.” Travis responds that his motion was not a motion to reconsider because he raised new and distinct legal arguments. We agree with Travis. 

¶15 Kristine’s “slightly different” characterization of the second motion is incorrect. In Travis’s first motion, he primarily argued that, pursuant to rule 60(b)(5), the judgment as first renewed should not be renewed a second time because he had already satisfied the underlying judgment. He further argued that the district court should use its equitable powers under rule 60(d) to release him from the judgment. In his second motion, filed a year after the judgment was renewed for a second time, he focused on a new legal theory, namely that the judgment as renewed a second time was void under rule 60(b)(4) because, under the Renewal of Judgment Act, the court lacked subject matter jurisdiction to renew it for a second time. Our review of the record shows that this argument never appeared in Travis’s first motion, where he sought relief from the judgment as first renewed and opposed further renewal of the judgment. Thus, we decline to affirm the court’s ruling on this alternative ground because Travis’s second motion was not functionally a motion to reconsider but asserted a new theory for why a subsequently entered judgment, i.e., the judgment as renewed for a second time by the court, should be set aside pursuant to rule 60(b)(4). 

III. Timeliness 

¶16 Kristine argues a second alternative basis on which we can affirm the district court notwithstanding any error in its waiver ruling. Kristine points out that Travis’s second motion came after rule 60(c)’s ninety-day deadline or, in the alternative, that it came so late as to have exceeded a reasonable time. As previously stated, we will occasionally affirm a district court’s order on an alternative ground that is apparent from the record, “[b]ut we ha[ve] no obligation to do so.” Scott v. Scott, 2020 UT 54, ¶ 31, 472 P.3d 897. Although we consider this argument, we ultimately decline to exercise our discretion to affirm on this alternative ground. 

¶17 Rule 60(c) requires that motions to set aside a judgment pursuant to rules 60(b)(1), (2), and (3) must be filed within ninety days “after entry of the judgment or order.” Utah R. Civ. P. 60(c). The rule also prescribes that motions filed pursuant to 60(b)(4), while not subject to the ninety-day rule, “must be filed within a reasonable time.” Id. See In re Estate of Willey, 2016 UT 53, ¶¶ 7, 12, 16, 391 P.3d 171. Thus, because Travis premised his second motion on the ground that the judgment was void under 60(b)(4), it was not subject to the ninety-day limit. But due to the somewhat inconsistent nature of the applicable caselaw on this issue, it is not entirely clear whether even the “reasonable time” limit applies to motions brought under 60(b)(4). 

¶18 In January 2015, our Supreme Court held in Migliore v. Livingston Financial, LLC, 2015 UT 9, 347 P.3d 394, that a defendant’s rule 60(b)(4) motion asserting the judgment was void on the ground that “he was denied due process of law,” which motion was “brought nearly two years after entry of summary judgment, [was] not time barred” because “‘where the judgment is void . . . the time limitations of [former5] [r]ule 60(b) have no application.’” Id. ¶¶ 23–24 (quoting Garcia v. Garcia, 712 P.2d 288, 290 (Utah 1986)). Under this rationale, Travis’s motion would be timely. 

¶19 But less than two years later, in November 2016, the Court issued In re Estate of Willey, 2016 UT 53, 391 P.3d 171, in which it noted that “[i]t is an unsettled question in Utah whether all claims that judgments are void under rule 60(b)(4) are subject to the reasonable time limit imposed by rule 60(c).” Id. ¶ 16. The Court continued: 

Although the language of rule 60(c) states that all motions under paragraph (b) must be filed within a reasonable time, this court has held that “where the judgment is void because of a fatally defective service of process, the time limitations of [r]ule 60(b) have no application.” Garcia v. Garcia, 712 P.2d 288, 290 (Utah 1986). While Garcia and a prior case, Woody v. Rhodes, 23 Utah 2d 249, 461 P.2d 465, 466 (1969), limited their holdings to motions based on a “fatally defective service of process,” we recognize that Garcia continued to state, “there is no time limit on an attack on a judgment as void.” 712 P.2d at 291 (citation omitted). But the language in Garcia advancing the notion that “the requirement that the motion be made within a ‘reasonable time,’ . . . cannot be enforced with regard to [a rule 60(b)(4)] motion” is dicta given the clear holding of the case. Id. (citation omitted). Garcia held only that “where the judgment is void because of a fatally defective service of process, the time limitations of [r]ule 60(b) have no application.” Id. at 290 (emphasis added). Therefore, apart from the dicta in Garcia, this court has not extended the exemption from the reasonable time requirement in rule 60(c) to claims other than those based on “fatally defective service of process.” Id. 

In re Estate of Willey, 2016 UT 53, ¶ 17 (alterations in original) (footnote omitted). The Court then determined that it was “unnecessary for [it] to resolve whether the reasonable time limit applies to all motions made under rule 60(b)(4)” and proceeded to address and reject the motion before it on the merits. Id. ¶¶ 19, 42. 

¶20 In In re Estate of Willey, the Court did not acknowledge or explain Migliore’s seemingly strong embrace of the language in Garcia and its apparent application to all motions brought pursuant to rule 60(b)(4). Therefore, it must be regarded as an unsettled issue whether all motions brought under rule 60(b)(4), aside from those turning on defective service of process, see Garcia, 712 P.2d at 290, are subject to the reasonable time requirement of 60(c), and we cannot rely on the language in Migliore to conclude that Travis’s second motion was not subject to the reasonable time limit imposed by rule 60(c). 

¶21 But just as our Supreme Court did in In re Estate of Willey, we determine that it is unnecessary to resolve this question in this case,6 and we decline to exercise our discretion to rule on this alternative ground. See Scott, 2020 UT 54, ¶ 31. We do so because it is undisputed that the district court did not dismiss Travis’s second motion on the ground that it was filed beyond a reasonable time under rule 60(c) but rather on the erroneous ground that Travis had waived his voidness argument because he could and should have raised it in his first motion. Because this reasoning was incorrect, we believe it best at this juncture that the district court first address the merits of Travis’s second motion free of any concern that his arguments should have been raised in his earlier motion. 

CONCLUSION 

¶22 The district court erred in dismissing Travis’s second motion on procedural grounds because rule 12(h) did not bar Travis from bringing his subject matter jurisdiction argument under rule 60(b)(4) in that motion. We also decline to affirm the district court’s ruling on Kristine’s alternative arguments that Travis’s motion was essentially a motion to reconsider or that it was untimely under rule 60(c). Therefore, we remand the case to the district court for it to consider on the merits the motion to set aside the second renewed judgment on the theory that the judgment was void based on a lack of subject matter jurisdiction pursuant to the terms of the Renewal of Judgment Act. 

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

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Johansen v. Johansen – 2021 UT App 130 – compliance with court rules

2021 UT App 130 

THE UTAH COURT OF APPEALS 

COLTEN JOHANSEN, 

Appellee, 

KATHY JOHANSEN, 

Appellant. 

Opinion 

No. 20200234-CA 

Filed November 26, 2021 

Second District Court, Ogden Department 

The Honorable Joseph M. Bean 

No. 114900531 

Charles R. Ahlstrom, Attorney for Appellant
Jason B. Richards, Attorney for Appellee 

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N. MORTENSEN 

concurred. 

ORME, Judge: 

¶1 Kathy Johansen challenges the district court’s denial of her motion to dismiss Colten Johansen’s petition to terminate alimony. She argues that the court erred in finding that Colten’s failure to provide initial disclosures was harmless.12 We agree and reverse. 

BACKGROUND13  

¶2 In 2011, Kathy and Colten divorced. The divorce decree required Colten to pay Kathy alimony that was to terminate after 15 years or upon Kathy’s remarriage or cohabitation. On October 30, 2018, Colten filed a petition to terminate alimony, alleging that Kathy had been cohabitating with another man (Boyfriend) since at least January 2018. Acting pro se, Kathy filed her answer on November 8, 2018, denying the allegation. A pretrial conference was held the following March, during which the district court set the case for a three-day bench trial to begin in late August 2019. On July 29, Colten, having never filed his initial disclosures, provided pretrial disclosures that included his witness list and his exhibits. The witness list named Kathy, Colten, a private investigator, and Kathy and Colten’s daughter (Daughter). On August 6, Kathy moved to dismiss the petition to terminate alimony, alleging that Colten never served initial disclosures as required by rule 26 of the Utah Rules of Civil Procedure. Pursuant to rule 26, Colten was required to provide these disclosures way back in November 2018, 14 days after Kathy filed her answer to his petition. See Utah R. Civ. P. 26(a)(2)(A). 

¶3 Just before the trial began, the district court addressed Kathy’s motion to dismiss. Although the court stated that Colten appeared to have violated rule 26’s disclosure requirements, it declined to exclude Colten’s witnesses and exhibits because it found that the apparent violation of the rule was harmless. Specifically, while addressing Kathy, the court ruled: 

[Colten’s] responsibility exists in and of itself to provide those initial disclosures to you. However, there is an exception. If . . . they can show that the failure is harmless or there is good cause, . . . they can overcome that requirement. 

There’s one other requirement, and that is they don’t have to disclose anything to you that would be used for impeachment purposes. And so what they would do is they would simply call you to testify in their case in chief, allow you to testify. 

Once you testify in a certain way, then [Colten] is going to say, “Well, we have witnesses.” 

You’ll say, “Wait, those witnesses weren’t disclosed to me.” 

And then he’ll say, “These are for rebuttal purposes or impeachment purposes only. We didn’t have to disclose impeachment evidence,” and so, really, it turns out to be harmless. It’s just a matter of the order in which they call their witnesses. 

And in calling you first and having you testify first, then they bring in people [such as] a private investigator, your daughter or whoever that would be in the nature of impeachment evidence, which they are not required to disclose under Rule 26. 

So the Court finds that while this does appear to be a violation of . . . or I’ll say could be a violation of Rule 26(a)(2) and Rule 26.1(b), the violation would be harmless in that they’re not required under Rule 26 or 26.1(b) to disclose impeachment evidence that was retained for impeachment purposes only. 

¶4 And a few months after trial, at a hearing on Kathy’s motion to amend the court’s findings, the court added to its harmlessness finding: 

As a party and as a person involved in a case, to . . . disclose [Kathy] as a potential witness certainly is helpful, but what is she going to do to then go find out from herself what her testimony will be and to find out from herself what her documents may be? She’s already got those. She should have that knowledge. That . . . is harmless. . . . I think this a prime and premium example of harmlessness, because her attempts to depose herself or subpoena her own documents or anything like that, that . . . just doesn’t make sense at all why that is necessary. 

. . . . She had . . . at least 28 days to prepare for the fact that she was going to be a witness. 

I believe . . . the [pretrial disclosures filed on July 29, 2019,] also disclosed the impeachment witnesses that were going to testify. So it’s not like she didn’t know that either. 

So all of the purposes of Rule 26 were served under these circumstances[.] 

¶5 At trial, Colten first called Kathy to testify. She testified that during the time in question, Daughter and other family members lived with her. She stated that she and Boyfriend had been dating for approximately two years. Although she did affirm that Boyfriend kept a few dress shirts and a pair of running shoes at her house, and that he occasionally spent the night there, she denied that he had ever lived in the home with her. Colten then presented Kathy with photographs taken from inside her home. One photograph showed a carburetor that Boyfriend had designed and a plaque that he had received as an award for it. Kathy explained that Boyfriend had gifted both to her. The second photograph depicted a laptop and a pair of glasses. Kathy claimed that the laptop was Boyfriend’s that he let her borrow and that the glasses belonged to her. The next photograph was taken in her bathroom and showed shaving cream, a razor, and a bag. Kathy claimed that the shaving cream and razor were hers but the bag belonged to Boyfriend, which contained “his stuff to stay overnight.” Colten then showed Kathy multiple photos of a computer, her bedroom, and a spare bedroom. Kathy claimed that most of the items depicted in the photographs belonged to her or her children, with the exception of the dress shirts and running shoes that belonged to Boyfriend. Throughout Kathy’s testimony, she continued to aver that, while Boyfriend obviously spent time at the house, he did not live there. 

¶6 Colten next called himself as a witness. He testified that when he went to pick up his children from Kathy’s home, they “would tell me that [Boyfriend] was there the whole time that they would stay there.” Colten also testified that Boyfriend’s car would be at Kathy’s house a majority of the time he came by to pick them up. Colten then offered into evidence a mailed envelope, addressed to Boyfriend at Kathy’s address, that he found in a garbage can in front of Kathy’s house. Kathy objected to this evidence, claiming that she was not made aware of the envelope when Colten identified exhibits in his pretrial disclosures. The court overruled her objection, stating, “For impeachment purposes those things are not required to be disclosed.” 

¶7 Colten next called Daughter to testify. She stated that Boyfriend was living with Kathy in the home, that he kept his personal belongings in the home, that he had a key to the home, and that he had complete access to the home at all times. She also claimed that Boyfriend slept in the same room as Kathy, gave Kathy money, and bought groceries. Daughter stated that she had taken the photographs that were shown to Kathy during Kathy’s testimony, and that the computer, clothes, and other items mostly belonged to Boyfriend and not to Kathy or to Kathy’s children, as Kathy had claimed. Finally, Daughter testified that Boyfriend spent approximately 95% of his nights at the home. 

¶8 Colten’s final witness was a private investigator. He testified that over the course of the five days he spent surveilling the home, he witnessed Boyfriend carry groceries from his vehicle into the home, take tools from the garage and put them in his truck, have conversations with neighbors in which he presented himself as Kathy’s husband, enter the home in the evening and leave the next morning in different clothes, and undertake other actions indicative of Boyfriend living in the home. Colten then offered into evidence the investigator’s written report, which the court accepted. 

¶9 Kathy called no witnesses of her own. The district court subsequently found that Kathy and Boyfriend had cohabitated from January 2018 until at least November 2018, when Colten served Kathy with the petition to terminate alimony. Accordingly, the court terminated Colten’s alimony obligations retroactive to January 2018 and entered judgment against Kathy in the amount of the excess alimony Colten had paid since that time. 

¶10 Kathy appeals. 

ISSUE AND STANDARD OF REVIEW 

¶11 Kathy contends that the district court erred in denying her motion to dismiss Colten’s petition to terminate alimony and bar all his witnesses as a sanction pursuant to rule 26(d)(4) of the Utah Rules of Civil Procedure.14 “We review a district court’s interpretation of our rules of civil procedure, precedent, and common law for correctness.” Keystone Ins. Agency v. Inside Ins., 2019 UT 20, ¶ 12, 445 P.3d 434. But in reviewing a court’s determination with respect to harmlessness and good cause, our review is necessarily deferential. This is because “a court’s decision in discovery matters is a discretionary call, and . . . we will affirm such decisions when the court’s discretion was not abused, even if we or another court might have made a different decision in the first instance.” Segota v. Young 180 Co., 2020 UT App 105, ¶ 22, 470 P.3d 479 (quotation simplified). Accordingly, we will reverse a court’s harmlessness determination “only if there is no reasonable basis for the district court’s decision.” See Berger v. Ogden Reg’l Med. Center, 2020 UT App 85, ¶ 15, 469 P.3d 1127 (quotation simplified). 

ANALYSIS 

¶12 In relevant part, rule 26 of the Utah Rules of Civil Procedure requires parties to serve initial disclosures “without waiting for a discovery request.” Utah R. Civ. P. 26(a)(1). These disclosures must include “the name and, if known, the address and telephone number of . . . each individual likely to have discoverable information supporting its claims or defenses, unless solely for impeachment . . . ; and . . . each fact witness the party may call in its case-in-chief and, except for an adverse party, a summary of the expected testimony.” Id. R. 26(a)(1)(A). A party is further required to serve on the opposing party “a copy of all documents, data compilations, electronically stored information, and tangible things in the possession or control of the party that the party may offer in its case-in-chief.” Id. R. 26(a)(1)(B). 

¶13 A plaintiff is required to make initial disclosures “within 14 days after filing of the first answer to the complaint.” Id. R. 26(a)(2)(A). If a party fails to serve these disclosures, “that party may not use the undisclosed witness, document or material at any hearing or trial unless the failure is harmless or the party shows good cause for the failure.” Id. R. 26(d)(4). In cases like the one now before us, “where initial disclosures were not provided at all,” a party faces an uphill battle to show harmlessness because otherwise it would shift “an unacceptable burden on the opposing party to closely parse the pleadings and discovery exchanged (if any) to decrypt which individuals even have discoverable information.” Hansen v. Kurry Jensen Props., 2021 UT App 54, ¶ 44 n.12, 493 P.3d 1131 (Mortensen, J., and Pohlman, J., concurring). See also Ollier v. Sweetwater Union High School Dist., 768 F.3d 843, 863 (9th Cir. 2014) (“An adverse party should not have to guess which undisclosed witnesses may be called to testify.”), cited with approval in Hansen, 2021 UT App 54, ¶ 44 n.12. 

And even in cases that do not involve “complicated” factual disputes, this burden may still be significant. As just one example, witnesses known to the opposing party may nevertheless speak to other individuals (unknown to the opposing party) about the operative facts of the case. These individuals would thus, unbeknownst to the opposing party, have discoverable information and might even be crucial witnesses. 

Hansen, 2021 UT App 54, ¶ 44 n.12 (internal citation omitted). Thus, “a disclosing party who endeavors, by stratagem or otherwise, to disclose as little as possible faces a significant risk that the disclosure will be found insufficient and the evidence or the witness may not be allowed. To minimize this risk, disclosing parties should be liberally forthcoming rather than minimally compliant and risk the possible consequences of testimony exclusion.” RJW Media Inc. v. Heath, 2017 UT App 34, ¶ 30, 392 P.3d 956 (quotation simplified). 

¶14 Here, it is undisputed that Colten completely failed to file his rule 26 initial disclosures detailing the witnesses or the material supporting his claim, insofar as then in his possession, either when initially due or at any time thereafter. Thus, the presumptive sanction was for his evidence to be barred from trial. See Utah R. Civ. P. 26(d)(4). But because the district court found this failure to be harmless, Colten was ultimately allowed to present all his evidence at trial. To come to this conclusion, the court made what is in essence a two-part ruling. First, it found that Colten’s failure to disclose Kathy as a case-in-chief witness was harmless because she presumably knew what her testimony would be. Second, having found that this was harmless, it essentially piggybacked on that ruling and determined Colten did not have to disclose the remaining witnesses and evidence under rule 26’s impeachment exception. We disagree on both counts. 

  1. Kathy’s Testimony

¶15 Colten argues that the district court’s harmlessness ruling in regard to his calling Kathy as a witness was correct because “it is nonsensical to think that Kathy would need to depose or seek document production from herself” and because “[t]here were many times throughout the history of the case where Kathy was put on notice that her alleged cohabitation was the only issue for trial.” All this, Colten argues, put Kathy “at absolutely no disadvantage by her not being listed on Colten’s initial disclosures.” We disagree. 

¶16 Colten and the district court both focus unduly on the fact that Kathy would know what her testimony would be. But both fail to recognize that if Colten had actually served his initial disclosures informing Kathy that she was the only witness on whom his case was based—and the court’s order assumes he had to disclose only Kathy—that disclosure could have completely altered Kathy’s legal strategy, including her decision on whether she should retain counsel. 

¶17 Knowing that Colten was going to make his case based on her testimony would be quite instructive concerning Colten’s trial strategy or lack thereof. Having knowledge of this important fact early on, Kathy likely would have deposed Colten or at least sent him interrogatories to ferret out how he believed her testimony would help him prove his case-in-chief, given the denial in her answer that she was cohabitating. See Saudi v. Valmet-Appleton, Inc., 219 F.R.D. 128, 134 (E.D. Wis. 2003) (“The importance of . . . witness disclosures and the harms resulting from a failure to disclose need little elaboration. When one party does not disclose, the responding party cannot conduct necessary discovery, or prepare to respond to witnesses that have not been disclosed[.]”), cited with approval in Hansen v. Kurry Jensen Props., 2021 UT App 54, ¶ 44 n.12, 493 P.3d 1131 (Mortensen, J., and Pohlman, J., concurring). Early disclosure of Kathy’s pivotal role in Colten’s case-in-chief would have led Kathy to discover the “impeachment” witnesses and materials Colten had in reserve and through which he actually intended to prove his case under the guise of impeaching Kathy’s testimony, long before he made Kathy aware of this information in his pretrial disclosures just 28 days before trial. 

¶18 Thus, had Kathy been informed that she would be Colten’s only case-in-chief witness,15 she would have been given a better opportunity to decide whether she needed to hire an attorney and investigate what Colten’s case really hinged on, better preparing herself for trial. Not being provided this information until 28 days before trial—months past the rule 26 deadline for initial disclosures—went against the purpose of rule 26, “which is to preclude parties from trying to gain an advantage by offering ‘surprise’ testimony at trial that has not been [properly] disclosed.” Arreguin-Leon v. Hadco Constr. LLC, 2018 UT App 225, ¶ 24, 438 P.3d 25, aff’d, 2020 UT 59, 472 P.3d 927. See also Utah R. Civ. P. 26 advisory committee notes (“The intent of [initial disclosures] is to give the other side basic information concerning the subjects about which the witness is expected to testify at trial, so that the other side may determine the witness’s relative importance in the case, whether the witness should be interviewed or deposed, and whether additional documents or information concerning the witness should be sought.”). As we have explained, 

Disclosure of specific facts and opinions is required so that parties can make better informed choices about the discovery they want to undertake or, just as important, what discovery they want to forgo. More complete disclosures serve the beneficial purpose of sometimes giving the opposing party the confidence to not engage in further discovery. But this is only true if the potential for surprise is reduced by at least minimum compliance with the rule 26 disclosure requirements. 

RJW Media Inc. v. Heath, 2017 UT App 34, ¶ 25, 392 P.3d 956. While RJW Media dealt with disclosures about expert testimony, these policy considerations apply to all disclosures and to the circumstances present in the instant case. 

¶19 Essentially, Colten’s and the district court’s rationale would lead to the conclusion that it is always harmless to omit from initial disclosures the fact that the plaintiff plans to call the opposing party as a witness because that party will always know their own testimony. But this approach essentially eviscerates the rule that explicitly requires parties to designate the opposing party as a witness if they intend to call the opposing party in their case-in-chief at trial, albeit with a less extensive disclosure duty than with other witnesses. See Utah R. Civ. P. 26(a)(1)(A)(ii) (requiring parties to designate “each fact witness the party may call in its case-in-chief and, except for an adverse party, a summary of the expected testimony”). Ultimately, this rationale misses the point that an opposing party can be harmed in this situation. A party may well know the content of their own testimony, but the fact that they will or will not be called as a witness by the other side in the other side’s case-in-chief undoubtedly will dictate how they prepare to prosecute or defend at trial. Thus, the district court exceeded its discretion in determining that Colten’s failure to provide initial disclosures naming Kathy as his only case-in-chief witness was harmless, and the court should have precluded Colten’s use of her testimony due to his clear violation of the rule. 

¶20 This is not the end of the inquiry, however, because “when we determine that a trial court erred, we do not reverse unless there is a reasonable likelihood that a different result would have been reached absent the errors,” or, in other words, we do not reverse unless the aggrieved party was prejudiced. Lee v. Williams, 2018 UT App 54, ¶ 69, 420 P.3d 88 (quotation simplified). See also Utah R. Civ. P. 61 (“The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”). We need not belabor this analysis. It is perfectly clear that had the court excluded Kathy from testifying as Colten’s witness, it is certain that a different result would have been reached given that Colten’s strategy was to call Kathy and then prove his case by impeaching her testimony. Specifically, had the court precluded Colten from calling Kathy to testify, Colten would have had no testimony to impeach and he would have been unable to prove his case for lack of evidence. Thus, Kathy was prejudiced by the court’s failure to exclude her as a witness for Colten. 

  1. Remaining Evidence

¶21 Colten argues that the district court did not err in admitting his remaining evidence because rule 26 “does not require a party to disclose witnesses or evidence if it is solely used for impeachment.” See Utah R. Civ. P. 26(a)(1)(A)(i). Colten also asserts that because “Utah has not held that the ‘solely for impeachment’ language means that you can only present it when challenging a particular witness’s veracity or credibility . . . , the trial court ha[d] the discretion to use impeachment evidence to assist in establishing the core facts of a case.” We disagree and we reverse the court’s ruling concerning the remaining evidence on two grounds. 

  1. First Ground: Kathy’s Testimony

¶22 To be clear, in a technical sense, we need not reach the district court’s impeachment ruling because of the nature of its order regarding Colten’s ability to call Kathy as a witness. Specifically, the court actually excluded Colten’s remaining witnesses and evidence from being used in his case-in-chief for anything other than impeachment by reason of his failure to make his initial disclosures. Accordingly, under the court’s ruling, and had Kathy been precluded from testifying as she should have been, Colten would not have been able to present any of his remaining evidence because the court would allow it only for the purpose of impeaching Kathy. And because we have determined that the court exceeded its discretion in allowing Colten to call Kathy as a witness despite not having initially disclosed his plan to do so, it necessarily follows that none of Colten’s remaining witnesses and evidence should have been allowed. Because Kathy could not properly have been called, there would have been no testimony to impeach. Kathy was thus necessarily prejudiced because, without this evidence, Colten could not have proven his case, and the district court should have then dismissed his petition. See Lee v. Williams, 2018 UT App 54, ¶ 69, 420 P.3d 88. 

  1. Second Ground: Limits of Impeachment Exception

¶23 We also reverse the district court’s ruling on the independent ground that, even if it was not error to allow Kathy to testify in Colten’s case-in-chief, the court misapplied the rules of civil procedure in allowing Colten to present his remaining witnesses and documents as impeachment evidence. Regardless of whether Kathy should have been permitted to testify, the court still erred in allowing Colten’s remaining evidence under rule 26’s impeachment exception.16  

¶24 Rule 26 states that 

(a)(1) . . . a party shall, without waiting for a discovery request, serve on the other parties: 

(A) the name and, if known, the address and telephone number of: 

(i) each individual likely to have discoverable information supporting its claims or defenses, unless solely for impeachment, identifying the subjects of the information; and 

(ii) each fact witness the party may call in its case-in-chief and, except for an adverse party, a summary of the expected testimony; 

(B) a copy of all documents, data compilations, electronically stored information, and tangible things in the possession or control of the party that the party may offer in its case-in-chief . . . . 

Utah R. Civ. P. 26(a)(1). 

¶25 “When we interpret a procedural rule, we do so according to our general rules of statutory construction.” Arbogast Family Trust v. River Crossings, LLC, 2010 UT 40, ¶ 18, 238 P.3d 1035. Thus, “we start by examining the ordinary meaning or usually accepted interpretation.” Id. If we determine the language is unambiguous, then the inquiry ends there. Pilot v. Hill, 2018 UT App 105, ¶ 11, 427 P.3d 508, aff’d, 2019 UT 10, 437 P.3d 362. Cf. Amax Magnesium Corp. v. Utah State Tax Comm’n, 796 P.2d 1256, 1258 (Utah 1990) (“[S]tatutory construction mandates that a statute be read according to its literal wording unless it would be unreasonably confusing or inoperable.”). In undertaking this inquiry, we presume “that the words and phrases used were chosen carefully and advisedly.” Amax Magnesium Corp., 796 P.2d at 1258. 

¶26 Based on the plain language of rule 26, the “solely for impeachment” exception is found within subsection (a)(1)(A)(i), which addresses only “individual[s] likely to have discoverable information supporting [the party’s] claims or defenses.” Utah R. Civ. P. 26(a)(1)(A)(i). This exception does not appear in subsections (a)(1)(A)(ii) or (a)(1)(B), which deal with witnesses and documents and other tangible things that a party plans on using in its case-in-chief. Thus, because we presume that the drafters of the rule used the words and phrases in rule 26 “carefully and advisedly,” Amax Magnesium Corp., 796 P.2d at 1258, an impeachment exception cannot be read into subsections (a)(1)(A)(ii) and (a)(1)(B) to allow for witnesses or documents and tangible things a party plans to use in its case-in-chief to not be initially disclosed even if their use is focused on impeachment. Therefore, an analysis of whether a witness should have been disclosed turns initially on whether that witness will be called in a party’s case-in-chief or held in reserve as a possible rebuttal witness whose testimony is “solely for impeachment.” 

¶27 This interpretation comports with the purpose of the rule as a whole, see id. (“A principal rule of statutory construction is that the terms of a statute should not be interpreted in a piecemeal fashion, but as a whole.”), which is to maximize disclosure “to preclude parties from trying to gain an advantage by offering ‘surprise’ testimony at trial that has not been [properly] disclosed,” see Arreguin-Leon v. Hadco Constr. LLC, 2018 UT App 225, ¶ 24, 438 P.3d 25, aff’d, 2020 UT 59, 472 P.3d 927. If we were to allow a party to forgo disclosing in initial disclosures the witnesses and documents it planned to use in its case-in-chief and then slip them in at trial under the impeachment exception, then we would not be following the clear language of the rule, much less honoring its purpose.17  

¶28 We first address the documents and tangible things the court allowed and then turn to the witnesses Colten was permitted to call at trial. 

  1. Documents and Tangible Things

¶29 Once Colten filed his petition, under subsection (a)(1)(B) any documents and tangible things in his possession that Colten intended to present in his case-in-chief were required to be disclosed to Kathy in initial disclosures. In making initial disclosures, no impeachment exception exists allowing such evidence not to be disclosed. Therefore, all the pictures Colten presented from inside Kathy’s home and the private investigator’s report should not have been allowed at trial because Colten failed to disclose any of it to Kathy in his initial disclosures.18 Utah R. Civ. P. 26(a)(1)(B); id. R. 26(d)(4). 

  1. Witnesses

¶30 Colten, Daughter, and the private investigator were all witnesses Colten called as part of his case-in-chief for purposes of subsection (a)(1)(A)(i) of rule 26. They were not merely “individual[s] likely to have discoverable information supporting [his] claims” who had nothing to offer beyond impeachment evidence, which would make them exempt from disclosure under subsection (a)(1)(A)(ii). On the contrary, as witnesses used exclusively in Colten’s case-in-chief, their contact information and a summary of their expected testimony was required to be served on Kathy in initial disclosures. See id. R. 26(a)(1)(A)(ii). 

¶31 Colten’s trial strategy was to first call Kathy in his case-in-chief, and she categorically denied that she was cohabitating with Boyfriend. Continuing with his case-in-chief, Colten then called himself, Daughter, and the private investigator to testify that Kathy was, in fact, cohabitating with Boyfriend.19 The court allowed these witnesses to testify in Colten’s case-in-chief even though they had not been disclosed in initial disclosures because it ruled that they were used solely for impeaching Kathy’s testimony and did not have to be disclosed under subsection (a)(1)(A)(i). This reasoning was flawed because this subsection’s “solely for impeachment” exception did not properly come into play.20 While these witnesses may have been impeaching Kathy’s testimony, they were still called in Colten’s case-in-chief, before Kathy presented any evidence in her defense, and were thus fact witnesses Colten intended to call in his case-in-chief for purposes of subsection (a)(1)(A)(ii), thus requiring that they be disclosed in initial disclosures. This is borne out by the fact that had Colten simply called Kathy in his case-in-chief and then rested, his case would have been dismissed for lack of evidence. Rather, after he called Kathy to testify, he continued his presentation of witnesses and called himself, Daughter, and the private investigator to establish that Kathy was cohabitating—all as part of his case-in-chief. 

¶32 Based on the plain language of rule 26, the district court 

erred in allowing Colten to call any of his witnesses or to present the photographs and investigator’s report because it was all used in Colten’s case-in-chief and was required to be disclosed in initial disclosures pursuant to subsections (a)(1)(A)(ii) and (a)(1)(B). Yet, the court essentially allowed Colten to present his entire case-in-chief under subsection (a)(1)(A)(i)’s impeachment exception, which is an incorrect use of that extremely limited exception, constituting reversible error.21 Because Colten was required to serve his initial disclosures detailing this information and failed to do so, Colten has to show that such failure was harmless to Kathy or that his failure to disclose was a result of good cause. See id. R. 26(d)(4). He has not made that showing, and Kathy was prejudiced by the district court’s erroneous ruling because without the evidence Colten presented during his case-in-chief, he could not have proven that Kathy cohabited with Boyfriend. See Lee v. Williams, 2018 UT App 54, ¶ 69, 420 P.3d 88. 

CONCLUSION 

¶33 The district court erred in allowing Colten to call his witnesses and present his documents at trial. Kathy was harmed by not being informed in the required initial disclosures that she would be called as a witness by Colten in his case-in-chief, and the court misapplied rule 26 of the Utah Rules of Civil Procedure in allowing Colten’s remaining witnesses to testify under the “solely for impeachment” exception because they were witnesses used in Colten’s case-in-chief. The court also erred in allowing Colten to present any of his documents and tangible things under the inapplicable impeachment exception. We therefore vacate the judgment against Kathy and remand with instructions to dismiss Colten’s petition to terminate alimony. 

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

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Thomas v. Thomas – 2021 UT App – contempt, modification of custody

Thomas v. Thomas – 2021 UT App

2021 UT App 8
THE UTAH COURT OF APPEALS
JEREMY THOMAS, Appellant,
v.
JODY TASKER THOMAS, Appellee.
Opinion
No. 20190242-CA
Filed January 22,2021
Fourth District Court, Nephi Department
The Honorable Anthony L. Howell
No. 114600077
Rosemond G. Blakelock and Megan P. Blakelock, Attorneys for Appellant
Todd F. Anderson, Attorney for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.
CHRISTIANSEN FORSTER, Judge:

¶1        Jeremy Thomas appeals the district court’s order following a January 10, 2019 hearing, in which it held him in contempt and imposed various sanctions. We affirm but remand for a calculation of fees and costs on appeal.

BACKGROUND

¶2        Jeremy and Jody Tasker Thomas were divorced in 2013. The parties have two children: Son and Daughter. The divorce decree provided that during the school year, Jeremy would have primary custody of Son and Jody would have primary custody of Daughter. The parties were to share joint physical custody of the children during the summer. Since their divorce, the parties have had numerous conflicts regarding the children, which ultimately led the parties to stipulate to appointment of a special master to help them resolve their parenting disputes. With respect to establishing an order governing the special master’s authority (Order Appointing Special Master), the parties stipulated to use the “standard Special Master Order as used by Jay Jensen or Sandra Dredge.”[1]

¶3        The special master issued numerous orders in the years following his appointment. For example, he issued orders governing the children’s communication and cell phone use during parent-time and requiring both the parents and children to participate in therapy. He also issued orders outlining procedures for exchanges for parent-time that were intended to minimize conflict and prevent the children from defying the parent-time schedule.

¶4        Four years after the decree was entered, Jody filed a motion for order to show cause in which she alleged that Jeremy had violated various provisions of the parties’ divorce decree and the special master’s orders. These allegations revolved around one primary issue: that Jody believed Jeremy was alienating the children from her by speaking “derogatorily or disparagingly” about Jody, “[p]utting the children in the middle,” “discussing adult issues with the children,” and denying her parent-time.

¶5        The district court held a hearing on Jody’s motion for order to show cause, as well as various other pending motions, in November 2017. With respect to Jody’s motion, the court found that Jeremy was “using the teenager[s’] busy schedules as a way to triangulate animosity and contempt of the children against their mother,” that his actions made Jody out to be the “bad guy,” and that he had “shown a continued pattern towards alienating the love and affection of the children towards” Jody. The court also found that Jeremy had not complied with an order of the special master that he “engage in individual therapy.”

¶6        Based on these findings, the court concluded that Jeremy had violated provisions of the divorce decree as well as “multiple orders of the Special Master,” that Jeremy knew of the orders, that he had the ability to comply, and that he willfully refused to do so. As a result, the court found him in contempt and ordered sanctions of thirty days incarceration in county jail, suspension of any licenses issued by the state, and a $1,000 fine (the First Contempt Order). However, the court stayed the sanctions and gave Jeremy an opportunity to purge the contempt by doing four things: (1) “fully comply[ing] with the Special Master order(s) regarding counseling”; (2) “mak[ing] progress regarding his alienation of the children”; (3) “provid[ing] necessary releases for [his therapist] to provide regular reports to the Special Master and [Jody] regarding [Jeremy’s] progress”; and (4) paying Jody’s attorney fees and costs relating to several motions. The court then set the matter for further review. At the subsequent hearing, the court did not consider whether Jeremy had purged his contempt, but it ordered Jeremy:

  1. To strictly comply with the Custody order.
  2. To make no alterations or changes to the custody order without the prior agreement of [Jody].
  3. To compel the children to comply with the custody order, and to do so without any further alienation of the children.
  4. To not schedule or allow to be scheduled any activity with the children in conflict with the custody order.
  5. To not allow [Son’s] sports and motocross to interfere with [Jody’s] visitation without [Jody’s] agreement to a trade.
  6. To compel [Son] to comply with the custody order.
  7. To not allow the children to refuse to comply with the custody order.

¶7        As the year progressed, tensions between the parties continued. Several contentious issues arose relating to exchanges of the children, in which Jeremy “fail[ed] to ensure the children attend parent-time.” Although Jeremy would take the children to the exchange location, the children would refuse to go with Jody, and Jeremy would then allow them to go home with him. Additionally, when conflicts arose between Son’s extracurricular activities and his parent-time with Jody, Jeremy left it to Son to coordinate scheduling changes and make-up time with Jody, putting the full responsibility of disappointing Son on Jody if changes to the schedule could not be arranged.

¶8 Then, at some point in the summer of 2018, Daughter hatched a plan that would allow her to move in with Jeremy during the school year. She informed Jeremy that Jody had given her permission to register for school in Jeremy’s district. Without verifying this information with Jody, Jeremy went to the school and pre-registered Daughter to attend school where he lived. When it became apparent that Jody had not given permission for Daughter to change schools, Daughter “refused to go to school for a considerable time” in the hope that “if [she] didn’t go to school, they’d let [her] go to [her] dad’s.” Additionally, Daughter made attempts to harm Jody, which culminated in Daughter being placed in juvenile detention and referred to the Utah Juvenile Court system.

¶9        Jody filed another motion for order to show cause in December 2018, in which she alleged that Jeremy had failed to purge his contempt and that he should additionally be held in contempt for failing to obey a subpoena and for violating numerous orders of the court and special master. The district court held an evidentiary hearing on the motion on January 10, 2019, and again found Jeremy in contempt (the Second Contempt Order). In light of the voluminous evidence relating to Jeremy’s alienation of the children submitted to the court at that hearing and throughout the pendency of the case, the court made findings regarding anecdotal incidents that it believed were representative of the alienating behavior.

¶10 First, the court recited text messages from an incident in February 2018 in which Daughter refused to return to Jody’s home after parent-time with Jeremy and Jeremy supported her refusal. It then addressed an incident in July 2018 in which Jeremy “knew the children did not want to do” parent-time with Jody and “failed to do anything to encourage or ensure the children comply with [Jody’s] parent-time as required by the orders of the Court.” The court found that this conflict was “only one example of many where [Jeremy] failed to encourage and/or compel the children’s compliance with” Jody’s parent-time.

¶11      The court also made several findings regarding the school incident. The court found that either (1) Jeremy was lying to the court when he claimed Daughter told him Jody gave permission for her to “look at enrolling and attending school” in Jeremy’s district or (2) Daughter lied to Jeremy and Jeremy made no attempt to communicate with Jody to verify Daughter’s “unbelievable statement that she had [Jody’s] permission.” The court found that “as a result of [Jeremy’s] failure to act, [he] implanted the idea into [Daughter’s] mind that [he] was going to aid [her] in her plot to” live with Jeremy: “[T]he best-case scenario is that [Jeremy] was complicit with [Daughter’s] lies and plans. The worst-case scenario is that [Jeremy] helped [Daughter] orchestrate her plot and is lying to the Court.” The court found that Jeremy’s “willingness to allow [Daughter’s] defiance” was a “significant contributor” to her “pushing the envelope of her defiance” by “refusing to attend school for many weeks” and attempting to harm Jody.

¶12 Moreover, the court adopted as part of its order findings of fact submitted by the special master on December 18, 2018, and January 4, 2019. The special master found that although “there was an added measure of compliance” by Jeremy following the First Contempt Order, noncompliance escalated during the late summer and early fall of 2018 and Jeremy had “failed to demonstrate strict and consistent compliance with the custody order.” The special master’s findings went on to detail various incidents of parent-time conflicts and noncompliance by Jeremy, as well as how Jeremy’s failure to respond to the special master and comply with his orders had impeded the special master’s investigation of various incidents and allegations.

¶13 The special master also found that although Jeremy had attended ten sessions with his therapist following the First Contempt Order, he had not met with the therapist for the nine months prior to the January 2019 hearing. However, apart from observing that the therapist appeared not to have a full understanding of the situation, the court did not make additional findings regarding Father’s compliance with orders that he attend therapy.

¶14 The court determined that “the alienation of the children . . . is the most critical issue that the Court has taken into consideration.” It therefore found Jeremy “in continued contempt as [he] has failed to purge his contempt previously found, and also continued to violate the same orders,” including provisions of the divorce decree regarding alienation and putting the children in the middle, as well as “multiple orders of the Special Master.”

¶15      As a result of its contempt findings, the court ordered the following sanctions: (1) that Jeremy pay all Jody’s attorney fees and costs “incurred in relation to this case and her difficulty in co-parenting since February 3, 2018”; (2) that Jeremy pay all the special master “fees and costs incurred since November 14, 2017”; (3) that Jeremy pay for “all uninsured costs of counseling for the parties’ minor children” as well as for individual treatment for Jody and Jeremy with the family counselor; (4) that all parent-time and communication between Jeremy and Daughter be supervised until the special master makes findings that the alienation issues have been sufficiently addressed; (5) that custody of Son be changed from Jeremy to Jody and all parent-time and communication between Jeremy and Son be supervised; and (6) that the stay on two days of the thirty-day jail sentence imposed in the previous contempt order be lifted and that Jeremy serve those two days in the Juab County Jail. However, the court stayed the sanction changing custody and instituting supervised parent-time of Son conditioned on Son strictly complying with court-ordered parent-time and Jeremy showing “a good faith effort to ensure that the minor children are repairing their relationships with [Jody].”

¶16 Custody of Son never actually changed, and the parties reached a stipulation in July 2019 in which they agreed that “[c]ustody of [Son] shall remain [with Jeremy] based on the recommendation of the Special Master, who believes that [Jeremy] has (as of the date of the signing of this Stipulation) been in sufficient compliance with” the conditions imposed by the court in the Second Contempt Order. Son turned eighteen in August 2020.

¶17 Jeremy now challenges the Second Contempt Order on appeal.

ISSUES AND STANDARDS OF REVIEW

¶18      First, Jeremy claims that the district court violated rule 53 of the Utah Rules of Civil Procedure by treating the special master’s orders as orders of the court, the violation of which could justify a contempt finding. “The proper interpretation of a rule of procedure is a question of law, and we review the trial court’s decision for correctness.” American Interstate Mortgage Corp. v. Edwards, 2002 UT App 16, ¶ 10, 41 P.3d 1142 (quotation simplified).

¶19      Second, Jeremy raises several issues relating to the district court’s contempt findings and sanctions: (1) that the court exceeded its discretion in concluding that he had not purged his prior contempt found in the First Contempt Order, (2) that the court exceeded its discretion in finding him in further contempt of the court’s orders, (3) that the court lacked authority to change the custody of Son as a sanction for his contempt when no petition to modify was pending in the case, and (4) that other sanctions were inappropriate. “An order relating to contempt of court is a matter that rests within the sound discretion of the trial court.” Dansie v. Dansie, 1999 UT App 92, ¶ 6, 977 P.2d 539. Moreover, “we overturn a sanction only in cases evidencing a clear abuse of discretion.” Chaparro v. Torero, 2018 UT App 181, ¶ 20, 436 P.3d 339 (quotation simplified). “An abuse of discretion may be demonstrated by showing that the district court relied on an erroneous conclusion of law or that there was no evidentiary basis for the trial court’s ruling.” Id. (quotation simplified).

ANALYSIS

  1. Special Master Orders

¶20 Rule 53 of the Utah Rules of Civil Procedure states that “[a]ny or all of the issues in an action may be referred by the court to a master upon the written consent of the parties.” Utah R. Civ. P. 53(a). Regarding the powers of a special master, the rule states that “[t]he order of reference to the master may specify or limit [the master’s] powers.” Id. R. 53(c).

¶21      A special master was appointed in this case based on the parties’ stipulation, in which they agreed to give the master authority in accordance with “[t]he standard Special Master Order as used by Jay Jensen or Sandra Dredge.” The Order Appointing Special Master grants the special master authority to issue “directives” regarding numerous specified issues such as scheduling, communication, and therapy and specifies that these directives “are effective as orders when made and . . . continue in effect unless modified or set aside by a court of competent jurisdiction.” The Order Appointing Special Master also grants the special master the authority to issue “recommendations” on other specified issues, such as significant changes to parent-time or conflicts on fundamental parenting decisions relating to healthcare, religion, and education. It states that recommendations—unlike directives—do not become court orders unless and until the district court adopts them.

¶22 Jeremy first asserts that the district court erred in determining that “all the Special Master ‘Orders’ issued” as of the January 10, 2019 hearing “are ‘directives’” under the Order Appointing Special Master, because the court did not “examin[e] the subject matter contained in each pleading the Special Master filed.” However, Jeremy provides no support for his assertion that the district court did not examine the subject matter of the individual special master orders. Further, he makes no attempt to point us to orders that should have been considered recommendations rather than directives. Thus, he has not adequately briefed his claim that the district court erred in classifying all the prior special master orders as directives. See State v. Thomas, 961 P.2d 299, 304 (Utah 1998) (“It is well established that a reviewing court will not address arguments that are not adequately briefed.”).

¶23 Jeremy further asserts that even if the special master orders were directives, they could not have become effective until the district court acknowledged them as such in its Second Contempt Order. But this position is contrary to the plain language of the Order Appointing Special Master, which states that directives “are effective as orders when made and . . . continue in effect unless modified or set aside by a court of competent jurisdiction.” The court’s acknowledgment that the special master orders were directives is not the event that made them effective. They were effective and binding at the time the special master issued them, in accordance with the Order Appointing Special Master.

¶24 To the extent that Jeremy challenges the special master’s authority to make binding directives under rule 53, such a challenge was previously foreclosed by this court in Wight v. Wight, 2011 UT App 424, 268 P.3d 861, in which we rejected a similar argument challenging a district court’s ability to grant a special master limited power under rule 53 to make binding decisions on specific issues. Id. ¶ 16. While rule 53 does not directly give the special master authority to make binding directives, it gives the court the ability to “specify or limit” the special master’s powers in the Order Appointing Special Master. See Utah R. Civ. P. 53(c). The parties in this case stipulated to the appointment of the special master and to the Order Appointing Special Master that would be used. The grant of limited decision-making power in an Order Appointing Special Master is permitted under the “considerable discretion” rule 53 grants district courts in using a special master. See Wight, 2011 UT App 424, ¶ 16. Thus, the court’s acknowledgment of the binding nature of the special master’s directives in this case is not contrary to rule 53. As in Wight, “nothing in the [Order Appointing Special Master] limited either party’s ability to challenge the decisions of the special master by filing objections with the trial court.” Id. But unless and until such an objection was made and ruled on, the special master’s directives were “effective as orders” under the Order Appointing Special Master.

¶25      And while Jeremy asserts that his due process rights were violated when the court treated the directives as orders of the court and held him in contempt for violating them, he has failed to explain why. “At its core, the due process guarantee is twofold—reasonable notice and an opportunity to be heard.” In re adoption of B.Y., 2015 UT 67, ¶ 16, 356 P.3d 1215. Jeremy does not assert that he lacked notice of the orders of the special master. Moreover, given that the orders were directives—a finding that Jeremy has failed to adequately challenge, see supra ¶ 22—and that the Order Appointing Special Master clearly informed Jeremy that directives are binding when issued, he should have known that he was required to comply with them. Further, the Order Appointing Special Master gave Jeremy an opportunity to present any grievances regarding the special master’s orders to the court by means of an objection. He does not assert that he was somehow precluded from objecting to the special master’s orders in the manner prescribed by the Order Appointing Special Master. Therefore, we find no merit in Jeremy’s claim that the district court violated his due process rights in holding him accountable for failing to comply with the special master’s orders.[2]

II. Contempt Finding and Sanctions

¶26 Next, Jeremy raises several challenges to the district court’s contempt findings and sanctions. We address each in turn.

A. Failure to Purge Contempt

¶27 Jeremy first asserts that the court exceeded its discretion in finding that he had not purged his prior contempt, claiming that its findings were not supported by the evidence. To purge his contempt, Jeremy was required to do the following four things: (1) “fully comply with the Special Master order(s) regarding counseling”; (2) “make progress regarding his alienation of the children”; (3) “provide necessary releases for [his therapist] to provide regular reports to the Special Master and [Jody] regarding [Jeremy’s] progress”; and (4) pay Jody specific attorney fees and costs.

¶28 Jeremy asserts that the district court did not make appropriate findings regarding whether he had purged his contempt. As to the first, third, and fourth requirements imposed by the court, we agree that the district court did not clearly address Jeremy’s compliance.[3] However, that fact does not undermine the court’s determination that Jeremy had not purged his contempt. To purge the contempt, Jeremy was required to comply with all four of the requirements. Thus, his failure on even one of the requirements would support a determination that he had not purged his contempt.

¶29 The court made extensive findings regarding Jeremy’s failure to comply with the second requirement—that he make progress on his alienation of the children. Indeed, the court observed that “alienation of the children . . . is the most critical issue that the Court has taken into consideration” in concluding that Jeremy had “failed to purge his contempt.” The court’s findings regarding alienation were extensive and included detailed recitals of the events relating to contentious exchanges in February and July 2018, as well as the events relating to Jeremy’s support of Daughter’s scheme to change schools. Further, the court adopted the special master’s findings, which recited additional instances of parent-time interference and found that Jeremy had “not made consistent progress with the issues of alienation” and, despite “greater compliance and progress” initially following the First Contempt Order, had “fallen into old patterns, continuing to impact the children’s relationship with” Jody.

¶30 Jeremy does not assert that the evidence could not support these findings but instead reargues the evidence, relying solely on the testimony of his own therapist that Jeremy’s progress on alienation issues had been “very good.” But the district court discredited this testimony as unreliable because it believed that, “whether intentionally or unintentionally,” Jeremy had given the therapist “a grossly distorted history of this case,” so the therapist did “not have an understanding of what is actually going on.”[4] Further, the court made extensive findings concerning events that demonstrated Jeremy had not made progress on alienation issues. The underlying evidence supports these findings, and in turn, the findings support the district court’s determination that Jeremy had failed to purge his contempt.

B. Additional Contempt

¶31 Jeremy also asserts that he should not have been held in further contempt, but his arguments in support of this assertion lack merit.

¶32      To find someone in contempt, a court must find “that the person cited for contempt knew what was required, had the ability to comply, and intentionally failed or refused to do so.” Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988). Here, the court found all three of these elements. Jeremy does not directly challenge the court’s findings on these elements[5] but raises related issues that he claims precluded the court from finding him in contempt.

¶33      First, he takes issue with a statement the court made in its findings about a conflict between the parties over a trip to England that had occurred prior to the First Contempt Order. The court’s findings regarding alienation in the Second Contempt Order stated that it had “identified, with specificity, three circumstances that are not the only examples, but typify the behavior [Jeremy] has engaged in that encourages alienation between the minor children and [Jody].” The court then follows this introduction with the statement, “First, during the course of the evidentiary hearing, in the Court’s questioning of [Jeremy], the Court brought up the previous canceled trip to England and the findings the Court made regarding that event.” Jeremy asserts that it was inappropriate for the court to rely on incidents relating to the England trip to find him in further contempt because those events occurred before the First Contempt Order.

¶34 Admittedly, the inclusion of this statement here is somewhat confusing. Subparagraphs underneath this statement in the court’s order proceed to recite the details of the February 2018 parent-time incident and do not again refer to the England trip. In fact, the court does not mention or discuss the England trip beyond the above-quoted language. Moreover, the court goes on to discuss three distinct incidents, apart from the England trip, as examples of Jeremy’s alienating behavior—the February 2018 incident, the July 2018 incident, and the incident involving Daughter’s schooling.

¶35 Given the complete lack of any further discussion of the England trip and the fact that the court indicated its intent to discuss “three circumstances” that typified Jeremy’s behavior, we are inclined to believe that the statement about the England trip was misplaced and that it was the other three incidents, discussed in more detail, that formed the basis of the court’s contempt finding. The court made no findings or conclusions relating to the England trip but merely mentioned that it had questioned Jeremy about it. And the other three incidents, in addition to the other incidents identified in the special master’s findings, which the court adopted as part of the Second Contempt Order, provided ample support for the district court’s contempt finding. Thus, there is no indication in the Second Contempt Order that the court actually placed any weight on the England trip incident when finding Jeremy in further contempt.

¶36 Second, Jeremy asserts that the court’s findings improperly relied on certain affidavit evidence provided by Jody that he claims was not appropriately admitted. However, any error by the court in considering that evidence was invited when Jeremy indicated that he had no objection to the court considering affidavits “in lieu of direct testimony, so long as the party is then available for cross examination.” See Pratt v. Nelson, 2007 UT 41, ¶ 17, 164 P.3d 366 (“A party cannot take advantage of an error committed at trial when that party led the trial court into committing the error.” (quotation simplified)). Furthermore, at the evidentiary hearing, Jody reaffirmed the statements in her affidavit, and Jeremy took the opportunity to cross-examine her about them.

¶37 In short, we see no merit to any of Jeremy’s arguments challenging the basis for the court’s new findings of contempt. Indeed, the evidence of Jeremy’s alienating behavior was substantial, and the court’s findings were thorough. We do not hesitate to uphold the court’s additional contempt findings in the Second Contempt Order.

C. Change of Custody

¶38 Jeremy next argues that the district court exceeded its discretion by awarding a change of custody of Son as a sanction for his contempt, particularly where no petition to modify was pending. However, this particular sanction was stayed, and the stay was never lifted. Instead, the court entered a new order, pursuant to the parties’ stipulation, in July 2019. This order declared that “[c]ustody of [Son] shall remain [with Jeremy] based on the recommendation of the Special Master, who believes that [Jeremy] has (as of the date of the signing of this Stipulation) been in sufficient compliance with” the conditions imposed by the court in the Second Contempt Order. The order went on to indicate that the parties’ stipulation “resolves any and all issues related to . . . custody of [Son].” Moreover, Son turned eighteen in August 2020 and is therefore no longer subject to the jurisdiction of the court. See generally Utah Code Ann. § 15-2-1 (LexisNexis 2013) (“The period of minority extends . . . to the age of 18 years . . . .”); id. § 30-3-1(5)(d) (2019) (granting district courts jurisdiction over “the custody and maintenance of minor children” in a divorce).

¶39 Because the change-of-custody sanction was never implemented and Son is no longer subject to the jurisdiction of the court, we agree with Jody that this issue is moot. See State v. Steed, 2015 UT 76, ¶ 6, 357 P.3d 547 (“An argument is moot if the requested judicial relief cannot affect the rights of the litigants. In other words, an appeal is moot if the controversy is eliminated such that it renders the relief requested impossible or of no legal effect.” (quotation simplified)).

¶40      Jeremy nevertheless asks us to review this issue “because it is of wide concern, affects the public interest, is likely to recur, and yet evades review.” See Osguthorpe v. Osguthorpe, 872 P.2d 1057, 1058 (Utah Ct. App. 1994). But this does not appear to us to be an accurate statement. Indeed, our court has previously addressed this very issue. See Chaparro v. Torero, 2018 UT App 181, ¶ 40, 436 P.3d 339 (“A district court cannot avoid making [best interests] findings by modifying custody arrangements as a sanction.”); see also Blanco v. Blanco, 311 P.3d 1170, 1175 (Nev. 2013) (en banc) (“A court may not use a change of custody as a sword to punish parental misconduct, such as refusal to obey lawful court orders, because the child’s best interest is paramount in such custody decisions.” (quotation simplified)), quoted in Chaparro, 2018 UT App 181, ¶ 40. Thus, the issue is clearly not one that evades review, and it is one on which we have already provided guidance. Accordingly, we decline to consider this moot issue.

D. Other Sanctions

¶41 Finally, Jeremy asserts that “all sanctions, including attorneys fees, supervised parent-time, and the change of custody should be reversed.” However, we reject his arguments on this point because they are inadequately briefed. State v. Thomas, 961 P.2d 299, 304 (Utah 1998) (“It is well established that a reviewing court will not address arguments that are not adequately briefed.”).

¶42 First, he asserts that attorney fees for “things such as charges on December 17, 2018 regarding mediation discussions with a mediator and charges on July 11, 2018 regarding a separate case involving a Lis Pendens” were unrelated to the order to show cause and therefore should not have been included in the sanctions. This is the extent of his argument. He makes no attempt to explain specifically why these charges were unrelated to the show cause motion or even to identify all the charges he is contesting. Jeremy’s limited analysis is inadequate to challenge the propriety of the attorney fees sanction, and we therefore decline to address his argument.

¶43 Apart from Jeremy’s minimal discussion regarding the propriety of the attorney fees, he does not challenge the appropriateness of the sanctions. Instead, his argument alleges that the court “failed to make the required findings with respect to contempt.” See generally Marsh v. Marsh, 1999 UT App 14, ¶ 10, 973 P.2d 988 (explaining that a court cannot hold someone in contempt unless it finds “from clear and convincing proof that the contemnor knew what was required, had the ability to comply, and willfully and knowingly failed and refused to do so” (quotation simplified)). But this argument, too, is inadequate. Jeremy makes two points: (1) that he could not have “willfully refused to allow [Daughter] to attend school” because he did not have custody of her and (2) that Jody “failed to submit any evidence of [his] contempt.”

¶44 The first argument is irrelevant because the school issue was not that Jeremy did not allow Daughter to attend but that he, at best, “was complicit with [Daughter’s] lies and plans” and, at worst, “helped [Daughter] orchestrate her plot” not to attend school and that his actions exemplified “the behavior [he] has engaged in that encourages alienation between the minor children and” Jody. Moreover, other instances of alienation supported the court’s decision to hold Jeremy in contempt for violating provisions of the divorce decree pertaining to alienation, so even if we agreed with him that the school incident could not support the contempt finding, his failure to specifically challenge the other findings supporting the contempt would preclude us from reversing the court’s decision. Cf. Gilbert v. Utah State Bar, 2016 UT 32, ¶ 24, 379 P.3d 1247 (“[We] will not reverse a ruling of the district court that rests on independent alternative grounds where the appellant challenges only one of those grounds.”). As to his second argument, we have already addressed and rejected it. See supra ¶ 36. Thus, we reject Jeremy’s challenge to the court’s contempt sanctions.

III. Attorney Fees

¶45      Jody requests her attorney fees and costs on appeal on the ground that she was awarded fees below. “The general rule is that when a party who received attorney fees below prevails on appeal, the party is also entitled to fees reasonably incurred on appeal.” Robertson’s Marine, Inc. v. I4 Solutions, Inc., 2010 UT App 9, ¶ 8, 223 P.3d 1141 (quotation simplified). Although there are exceptions to this general rule, see, e.g., Liston v. Liston, 2011 UT App 433, ¶ 27 n.6, 269 P.3d 169, Jeremy has not argued that any exception applies here. Thus, because Jody has prevailed on appeal, we grant her request for fees and costs on appeal and remand for the district court to calculate the award.

CONCLUSION

¶46 Neither the Order Appointing Special Master nor the court’s interpretation and application of that order violated rule 53 of the Utah Rules of Civil Procedure. Further, Jeremy has not adequately alleged any error or abuse of discretion in the court’s determination that he had failed to purge his prior contempt and that he had engaged in additional contemptuous acts. Jeremy’s challenge to the change-of-custody sanction is moot, and his challenges to the other sanctions are inadequately briefed. Because Jody has prevailed on appeal and was awarded fees below, she is also entitled to fees on appeal. Accordingly, we affirm the Second Contempt Order but remand for the district court to calculate an award of fees and costs to Jody on appeal.

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

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[1] Although details about Jay Jensen and Sandra Dredge are not found in the record, we take judicial notice, purely for the purpose of providing background information, that the former is a therapist and the latter an attorney. Both have practices in Utah County and have served as special masters in several domestic cases there.

[2] Even if we were persuaded that the court somehow erred in holding Jeremy in contempt based on the orders of the special master, it is unclear how that would alter the outcome of this case. The court’s contempt finding was not based solely on violations of the special master’s orders but rested in large part on his violation of those provisions of the divorce decree prohibiting alienation.

[3] The adopted findings of the special master did suggest that Jeremy had not “fully compl[ied] with the Special Master order(s) regarding counseling,” as he had not met with therapist for the nine months prior to the January 2019 hearing. However, the district court did not analyze Jeremy’s compliance with this mandate.

[4] Jeremy does not challenge the court’s determination that his therapist’s testimony was not credible but instead blames the special master and the district court for any distortion of the facts because the special master selected and the court appointed the therapist to function solely as an individual therapist for Jeremy and not to meet with other members of the family or evaluate the family as a whole. He asserts that if the therapist had been required to consult with others, the therapist would have had a fuller picture of the situation and that the lack of such consultation precluded Jeremy from complying with the court’s mandate that he make progress on his alienation issues. But even accepting Jeremy’s premise, these facts suggest only that the therapist’s lack of information from other sources might have limited his utility as a witness to Jeremy’s progress, not that Jeremy was precluded from making progress on his alienation issues. It was Jeremy who continued to make poor decisions by interfering with parent-time, supporting Daughter’s scheme to change schools, and generally undermining Jody. And it was Jeremy who, in meeting with the therapist, left out crucial information that could have helped the therapist better understand and help him with the alienation issues. The fact that Jeremy failed to make progress in spite of therapy does not come down to whether the special master or court ordered the therapist to meet with other individuals in the family. Ultimately, it was Jeremy’s responsibility to comply with the court’s order that he make progress on his alienation issues, and he failed to do so.

[5] Jeremy does attempt to challenge the court’s findings regarding the school incident, but he does so in the context of challenging the sanctions rather than in the context of challenging the contempt finding. In any event, we reject those arguments as discussed infra ¶ 44.

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2020 UT App 171 – Miller v. Miller THE UTAH COURT OF APPEALS RYAN MILLER, Appellant, v. BRENDA MILLER, Appellee

2020 UT App 171 – Miller v. Miller
THE UTAH COURT OF APPEALS
RYAN MILLER, Appellant,
BRENDA MILLER, Appellee.
Opinion
No. 20190748-CA
Filed December 24, 2020
Second District Court, Farmington Department
The Honorable Michael Edwards
No. 134701192
Jonathan Hibshman, Marco Brown, and Rodney R. Parker, Attorneys for Appellant
Dustin D. Gibb, Attorney for Appellee
JUDGE KATE APPLEBY authored this Opinion, in which
JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.
APPLEBY, Judge:

¶1        Ryan Miller appeals the district court’s dismissal of his petition to modify the parties’ divorce decree. Ryan’s[1] petition asked that he be appointed the primary custodial parent of the parties’ children. The district court dismissed the petition for failure to state a claim under rule 12(b)(6) of the Utah Rules of Civil Procedure and, alternatively, for the parties’ failure to engage in a dispute resolution procedure before seeking court intervention. On appeal, Ryan contends the court applied the wrong standards for dismissal under rule 12(b)(6) and for determining whether a change of circumstances justified modifying the divorce decree. He also challenges the court’s dismissal of his petition based on his failure to use a dispute resolution procedure before filing the petition. We reverse and remand for further proceedings.

BACKGROUND

¶2        Ryan and Brenda divorced in June 2014. The divorce decree incorporated, and was based on, the parties’ stipulation and property settlement agreement. The parties stipulated, and the court decreed, that they would have joint legal and physical custody of their children, with Brenda as the “primary physical custodial parent” and the children attending school based on her residence. The parties’ stipulation and the decree also separately provided parent-time for Ryan.

¶3        Additionally, the parties stipulated to a parenting plan. As relevant here, the plan expressed an overarching preference for resolving co-parenting disputes between them, using “experts to assist them” in doing so “when they are unable to resolve conflict themselves” and to “solve problems and make joint decisions by working through [the] decision-making procedure” included in the plan. It also expressed the parties’ agreement to make “major decisions” regarding the children together and to use a mediator before seeking a resolution in court when, “after following the joint decision-making procedure and implementing the governing principles,” the parties were unable to “reach a consensus.”

¶4        In May 2019, Ryan filed a petition to modify the divorce decree (the Petition). He contended it was in the children’s best interest that he be awarded “primary custody” of them, “with Brenda enjoying parent-time pursuant to Utah Code Annotated, Section 30-3-35.1.”[2] Ryan asserted there had been “substantial and material changes in circumstances that were unforeseeable” at the time the decree was entered, and he made twelve allegations in support.

¶5 Specifically, Ryan alleged: (1) “Brenda does not communicate with Ryan regarding [the children] and their needs”; (2) Ryan was “not informed” when one of the children “suffered a concussion” or about the associated “activity restrictions”; (3) “Brenda has refused to allow [the children] to attend significant events in Ryan’s and [the children’s] lives”; (4) Ryan and his current spouse have a two-year-old child “with whom [the children] are bonded and with whom they desire to spend more time,” and Ryan’s current spouse works from home and is able to care for the children; (5) “Ryan’s job and work hours have stabilized” since the decree was entered, “giving him predictability in when he is at home and able to spend time” with the children; (6) during Ryan’s Thursday overnight parent-time, he “spends much of the time . . . doing homework” with the children, “which has accumulated throughout the week” while the children were with Brenda; (7) “Brenda does not give [the children] their medication”; (8) the children “have been neglected in their personal hygiene and appearance”; (9) Brenda allows the children “constant screen time”; (10) Brenda is cohabiting with someone who is “forcing [the children] into a vegan lifestyle, resulting in malnourishment,” and who has warrants out for his arrest; (11) the children have asked “Ryan if they can spend more time with him”; and (12) “Brenda has an established pattern of neglecting” the children.

¶6        Brenda filed a motion to dismiss the Petition pursuant to rule 12(b)(6) of the Utah Rules of Civil Procedure, which provides that a party may move for dismissal of a complaint for “failure to state a claim upon which relief can be granted.” Brenda contended Ryan’s allegations “fail[ed] to meet the high burden required for a change of custody” because none of them, “even if true, constitute[d] a material and substantial change in circumstances.” Therefore, Ryan had “failed to state a claim upon which the relief he seeks, a change of custody, could possibly be granted.”[3] Brenda did not argue that the Petition should be dismissed for the additional reason that Ryan had failed to use dispute resolution procedures in relation to his request to modify custody.

¶7        After an evidentiary hearing, the district court dismissed the Petition on two independent grounds. First, the court agreed with Brenda that the Petition failed to state a claim under rule 12(b)(6) for modification of custody. It addressed each of the changed-circumstances allegations and determined most of them “could support some change.” But it determined many of the allegations were entitled to “little weight” as part of its “substantial and material change in circumstances analysis.” Ultimately, the court concluded that the allegations, taken “as a whole,” “as true,” and “in the light most favorable to [Ryan]” “do not amount to an allegation that there has been a material and substantial change in the circumstances of the parties and their children that would justify the change requested.” On this basis, the court concluded Ryan failed to state a claim upon which the custody modification could be granted and dismissed the Petition.

¶8        Second, as an alternative ground for dismissal, the court determined Utah Code section 30-3-10.4(1)(c)[4] “means what it says” regarding the use of dispute resolution procedures to resolve disputes related to the modification of custody. During the hearing on Brenda’s motion, the court sua sponte raised the issue of whether the parties had attempted to use a dispute resolution procedure, and the court determined they had not. Because Ryan “admitted through counsel that he has not sought” to engage in such procedures, the court determined the Petition was additionally dismissed “for failure to properly use alternative dispute resolution procedures.”

¶9        Ryan timely appeals.

ISSUES AND STANDARDS OF REVIEW

¶10      Ryan appeals the Petition’s dismissal under rule 12(b)(6) of the Utah Rules of Civil Procedure. “We review a decision granting a motion to dismiss for correctness, granting no deference to the decision of the district court.” Fehr v. Stockton, 2018 UT App 136, ¶ 8, 427 P.3d 1190 (quotation simplified). “We likewise review the district court’s subsidiary legal determinations for correctness.” Id.[5]

¶11 Ryan also challenges the court’s dismissal of the Petition for failure to use dispute resolution procedures, contending the court erred by sua sponte determining that his failure to use dispute resolution procedures justified dismissal of the Petition. While district courts generally have inherent authority and discretion regarding the “manage[ment of] their own affairs so as to achieve the orderly and expeditious disposition of cases,” see PDC Consulting, Inc. v. Porter, 2008 UT App 372, ¶ 14, 196 P.3d 626 (quotation simplified), to the extent this issue implicates the process afforded to Ryan, it is a legal question we consider under a correctness standard, see Brigham Young Univ. v. Tremco Consultants, Inc., 2007 UT 17, ¶ 25, 156 P.3d 782.

ANALYSIS

¶12      The district court dismissed the Petition for failure to state a claim under rule 12(b)(6) of the Utah Rules of Civil Procedure. Ryan contends the court misapplied the dismissal standard under, and exceeded the scope of, the rule. He argues the court improperly “established facts” and “proceeded to the merits of [his] claims in reviewing his allegations of changed circumstances.” Relatedly, Ryan contends the court erred by applying an incorrect standard for a petition to modify a divorce decree. Characterizing the Petition as requesting only a change in parent-time rather than a change of custody, he argues the court erred by applying the heightened changed-circumstances standard applicable to custody change requests.

¶13 Ryan also argues the district court erred by granting the motion to dismiss on the alternative ground that he had not utilized dispute resolution procedures in seeking modification of the decree.

¶14 We address each issue below, ultimately concluding the court erred in granting Brenda’s motion for dismissal under rule 12(b)(6) for failure to state a claim and in sua sponte dismissing the Petition due to the parties’ failure to engage in dispute resolution procedures.

I. Dismissal for Failure to State a Claim

A. Applicable Principles

¶15 “A complaint states a claim upon which relief can be granted if it alleges the facts and sets forth the legal basis for an available legal remedy.” Simmons Media Group, LLC v. Waykar, LLC, 2014 UT App 145, ¶ 15, 335 P.3d 885 (quotation simplified). “A rule 12(b)(6) motion to dismiss admits the facts alleged in the complaint but challenges the plaintiff’s right to relief based on those facts.” Blanch v. Farrell, 2018 UT App 172, ¶ 14, 436 P.3d 285 (quotation simplified). Our review of a rule 12(b)(6) dismissal is “concerned solely with the sufficiency of the pleadings, and not the underlying merits of the case.” Fehr v. Stockton, 2018 UT App 136, ¶ 8, 427 P.3d 1190 (quotation simplified); see also Capri Sunshine, LLC v. E & C Fox Invs., LLC, 2015 UT App 231, ¶ 11, 366 P.3d 1214 (“The purpose of a rule 12(b)(6) motion is to challenge the formal sufficiency of the claim for relief, not to establish the facts or resolve the merits of a case.” (quotation simplified)); Shah v. Intermountain Healthcare, Inc., 2013 UT App 261, ¶ 6, 314 P.3d 1079 (explaining that a rule 12(b)(6) review concerns the “legal sufficiency of the claim”). “We assume the truth of the factual allegations in the complaint and draw all reasonable inferences therefrom in the light most favorable to the plaintiff.” Fehr, 2018 UT App 136, ¶ 8 (quotation simplified). While courts “need not accept legal conclusions or opinion couched as facts,” Miller v. West Valley City, 2017 UT App 65, ¶ 12, 397 P.3d 761 (quotation simplified), “[a] district court should grant a motion to dismiss only if it is clear from the allegations that the non-moving party would not be entitled to relief under the set of facts alleged or under any facts it could prove to support its claim,” O’Hearon v. Hansen, 2017 UT App 214, ¶ 10, 409 P.3d 85; see also Van Leeuwen v. Bank of Am. NA, 2016 UT App 212, ¶ 6, 387 P.3d 521 (stating that dismissal under rule 12(b)(6) “is justified only when the allegations of the complaint clearly demonstrate that the plaintiff does not have a claim” (quotation simplified)).

¶16 The Petition requested a change in primary custody. Modification of an order establishing joint physical or legal custody is governed by Utah Code section 30-3-10.4. It provides that upon petition by “one or both of the parents, . . . the court may, after a hearing, modify or terminate an order that established joint legal custody or joint physical custody if” “the verified petition or accompanying affidavit initially alleges that admissible evidence will show that the circumstances of the child or one or both parents or joint legal or physical custodians have materially and substantially changed since the entry of the order to be modified” and that “a modification of the terms and conditions of the order would be an improvement for and in the best interest of the child.” Utah Code Ann. § 30-3-10.4(1)(a), (b) (LexisNexis 2019). This is a two-part test: the court “first must decide whether there are changed circumstances warranting the exercise of the court’s continuing jurisdiction to reconsider the custody award,” and it may then proceed to the best interest determination “only if circumstances have materially and substantially changed.” Erickson v. Erickson, 2018 UT App 184, ¶ 14, 437 P.3d 370 (quotation simplified).

¶17 The change-in-circumstances inquiry is a threshold requirement for reopening a custody order. Doyle v. Doyle, 2011 UT 42, ¶ 25, 258 P.3d 553. It has two requirements: “the party seeking modification must demonstrate (1) that since the time of the previous decree, there have been changes in the circumstances upon which the previous award was based; and (2) that those changes are sufficiently substantial and material to justify reopening the question of custody.” Peeples v. Peeples, 2019 UT App 207, ¶ 15, 456 P.3d 1159 (quoting Hogge v. Hogge, 649 P.2d 51, 54 (Utah 1982)). “Prohibiting a court from reopening the custody question until it has first made a threshold finding of substantially changed circumstances serves multiple interests.” Doyle, 2011 UT 42, ¶ 25 (quotation simplified). “First, because a custody decree is predicated on a particular set of facts, that decree is res judicata,” with the result that the changed-circumstances requirement “prevents an unnecessary drain on judicial resources by repetitive litigation of the same issue when the result would not be altered.” Id. (quotation simplified). Second, the changed-circumstances requirement “protects the custodial parent from harassment by repeated litigation.” Id. (quotation simplified). Finally, the requirement “protects the child from ‘ping-pong’ custody awards.” Id. (quotation simplified); see also Peeples, 2019 UT App 207, ¶ 14 (noting the “important ends” served by the changed-circumstances requirement are avoiding “the deleterious effects of ‘ping-pong’ custody awards that subject children to ever-changing custody arrangements” and “prevent[ing] the undue burdening of the courts and the harassing of parties by repetitive actions” (quotation simplified)).

¶18 Our courts have recognized that “the change in circumstances required to justify a modification of a divorce decree varies with the type of modification sought.” Erickson, 2018 UT App 184, ¶ 16 (quotation simplified). For example, when modifying parent-time (as opposed to custody), “the petitioner is required to make only some showing of a change in circumstances, which does not rise to the same level as the substantial and material showing required when a district court alters custody.” Id. (quotation simplified); see also Blocker v. Blocker, 2017 UT App 10, ¶ 12, 391 P.3d 1051.

¶19 Further, “in some cases, a lesser showing of changed circumstances may support modifying a stipulated award than would be required to modify an adjudicated award,” because “the res judicata policies underlying the changed-circumstances rule are at a particularly low ebb.” Peeples, 2019 UT App 207, ¶ 15 (quotation simplified); see also Elmer v. Elmer, 776 P.2d 599, 603 (Utah 1989); Zavala v. Zavala, 2016 UT App 6, ¶¶ 16–17, 366 P.3d 422.

¶20      Nevertheless, for custody changes, “[t]he required finding of a material and substantial change of circumstances is statutory,” with the result that “[n]either this court nor the supreme court has purported to—or could—alter that requirement.” Zavala, 2016 UT App 6, ¶ 16; see also Peeples, 2019 UT App 207, ¶ 13. As a result, although the changed-circumstances showing may differ depending on the case, “[i]f a custody award has already been entered, custody will not be re-examined absent a material and substantial change of circumstances.” Zavala, 2016 UT App 6, ¶ 16; see also Peeples, 2019 UT App 207, ¶ 15 (acknowledging “that the change-in-circumstances requirement still applies even in cases involving stipulated (as opposed to adjudicated) custody orders”). See generally Doyle, 2011 UT 42, ¶ 38 (“Even an overwhelming case for the best interest of the child could not compensate for a lack of proof of a change in circumstances.”).

¶21      Applying these principles, we conclude the district court improperly applied the rule 12(b)(6) standard when it dismissed the Petition. As we discuss below, in evaluating the Petition, the court properly determined Ryan requested a change in custody rather than a change in parent-time. But although the court properly categorized the Petition as seeking a change in custody and recited the correct rule 12(b)(6) standard, the court exceeded the scope of that standard when it weighed the change-of-circumstances allegations on their merits instead of assuming their truth to determine whether the Petition “allege[d] that admissible evidence will show that the circumstances of the child or one or both parents or joint legal or physical custodians have materially and substantially changed since the entry of the order to be modified.” See Utah Code Ann. § 30-3-10.4(1)(a); see also Fehr, 2018 UT App 136, ¶ 8. On this basis, we reverse the rule 12(b)(6) portion of the district court’s dismissal order.

¶22      Because the court’s application of rule 12(b)(6) depends on its determination that the Petition sought a change in custody rather than in parent-time, we first address Ryan’s challenge to the court’s custody standard determination, then address the court’s rule 12(b)(6) application in light of the proper custody standard.

B. Custody Standard

¶23      Ryan contends the district court, in evaluating the Petition, improperly applied the heightened changed-circumstances standard applicable to custody changes. He claims the Petition merely requested a change in parent-time and asserts the court erred by declining to apply the lesser changed-circumstances showing applicable to changes in parent-time.

¶24 The district court determined the standard applicable to modification requests for custody changes in Utah Code section 30-3-10.4(1) was the appropriate standard to apply, which required the Petition to allege “that admissible evidence will show that the circumstances of the child or one or both parents or joint legal or physical custodians have materially and substantially changed since the entry of the order to be modified.” Utah Code Ann. § 30-3-10.4(1)(a) (LexisNexis 2019). In doing so, the court noted that Ryan’s request was “the polar opposite” of the custody and parent-time arrangement in place under the decree. And ultimately it concluded, applying the standard articulated in section 30-3-10.4(1), that the allegations did not demonstrate “the circumstances of the children or one or both of the parents [had] materially and substantially changed since the entry” of the divorce decree. (Emphasis added.)

¶25 We perceive no error in the changed-circumstances standard the court applied. First, although the divorce decree granted the parties joint legal and physical custody, Brenda was designated as the “primary physical custodial parent,” with Ryan awarded parent-time. The Petition plainly requested the court to award Ryan “primary custody” of the children, “with Brenda enjoying parent-time,” and set forth a number of “substantial and material change[s] in circumstances” Ryan believed supported his request. Although on appeal Ryan characterizes his request merely as a change in parent-time, he nevertheless agrees that it asked to “mak[e] him the primary physical custodian.”

¶26 In this respect, Ryan’s request is more than merely a request to change parent-time. If the request were granted, Ryan would be deemed the primary custodial parent, with Brenda receiving parent-time. This change would dramatically decrease the number of overnights the children would spend per year with Brenda while increasing them for Ryan. Among other things, Brenda’s overnights would decrease from 220 per year to 145, and Ryan’s would increase to 220. See generally id. § 30-3-35.1 (LexisNexis 2019) (setting forth the number of overnights and schedule applicable to parent-time). The change also would substantially disrupt and alter the children’s routines, expectations, and time with Brenda attendant to her designation as the children’s primary custodial parent since the 2014 decree. Additionally, the change could affect where the children attend school because the decree provided they would “attend school based upon [Brenda’s] residence” as she was designated the primary custodial parent.

¶27 Thus, we do not agree with Ryan that his request is properly characterized merely as a change in parent-time; in substance, he has asked for an order to have the children’s primary custodial parent changed.[6] We therefore conclude the court correctly applied the statutory changed-circumstances standard applicable to custody modification requests under section 30-3-10.4—whether there has been a substantial and material change in circumstances justifying a modification of the divorce decree—as opposed to the lesser showing applicable to mere parent-time changes.[7]

¶28 In short, we perceive no error in the court’s decision to apply to the Petition the standard applicable to custody change requests under Utah Code section 30-3-10.4(1).

C. Rule 12(b)(6) Standard

¶29 Ryan contends the district court erred by dismissing his Petition under rule 12(b)(6) of the Utah Rules of Civil Procedure. He argues it misapplied, and exceeded the scope of, rule 12(b)(6) in dismissing the Petition. We agree.

¶30 Rule 12(b)(6) permits a party to move for dismissal of a complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Utah R. Civ. P. 12(b)(6). This means that, even accepting the complaint’s allegations as true, “it is clear . . . that the non-moving party would not be entitled to relief under the set of facts alleged or under any facts it could prove to support its claim.” O’Hearon v. Hansen, 2017 UT App 214, ¶ 10, 409 P.3d 85; see also Van Leeuwen v. Bank of Am. NA, 2016 UT App 212, ¶ 6, 387 P.3d 521 (stating that dismissal under rule 12(b)(6) “is justified only when the allegations of the complaint clearly demonstrate that the plaintiff does not have a claim” (quotation simplified)).

¶31 The Petition sought a change in the parties’ custody arrangement. See supra ¶¶ 23–28. As discussed above, in the context of petitions to modify custody orders, the allegations must demonstrate “that admissible evidence will show that the circumstances of the child or one or both parents or joint legal or physical custodians have materially and substantially changed since the entry of the order to be modified.” Utah Code Ann. § 30-3-10.4(1)(a) (LexisNexis   2019).  To meet the changed-circumstances requirement, the Petition thus had to include allegations demonstrating “(1) that since the time of the previous decree, there have been changes in the circumstances upon which the previous award was based; and (2) that those changes are sufficiently substantial and material to justify reopening the question of custody.” Peeples v. Peeples, 2019 UT App 207, ¶ 15, 456 P.3d 1159 (quoting Hogge v. Hogge, 649 P.2d 51, 54 (Utah 1982)).

¶32 Here, the district court articulated the correct legal standard, but ultimately misapplied it. It recognized its duty “to review [the changed-circumstances allegations] of the Petition . . . and to take those alleged facts at face value and any inferences that can be drawn from them in favor of the non-moving party” to determine whether the Petition stated a claim for modifying the custody order. And the court recited the appropriate standard in reaching its conclusion that Ryan had “not supported the allegation that admissible evidence will show that the circumstances of the children or one or both of the parents have materially and substantially changed since the entry of the order to be modified,” stating it reached its conclusion by “taking all allegations together and considering them in the light most favorable to [Ryan].”[8]

¶33 But in reaching that conclusion, the court acknowledged that most of the Petition’s allegations “could support some change” and thereby constituted appropriate considerations for evaluating a custody change. Nevertheless, the court discounted those allegations in conducting its analysis of the changes. The court determined that, for various reasons, many of the Petition’s allegations were entitled to little weight. For example, it determined that allegations about Brenda’s failure to communicate, failure to allow the children to attend “significant events,” allowance of constant screen-time, and neglect were entitled to “little weight” in the overall substantial and material change analysis. Similarly, the court determined that several of the allegations, including the homework-related, cohabitation, and medication-regime allegations, were “of less value” in the substantial and material change analysis as the result of Ryan’s failure to engage in alternative dispute resolution and enforcement proceedings before bringing the Petition. And for certain allegations, including those regarding screen-time and Brenda’s cohabitation, the court acknowledged that it needed more facts to properly analyze the weight and consideration to be afforded them in the overall change-of-circumstances analysis, yet it also discounted the allegations for that reason.

¶34 By analyzing the weight and value of the allegations as well as the necessity of more facts, the court proceeded past the proper rule 12(b)(6) question—whether the Petition stated a legally sufficient claim for a substantial and material change in circumstances—to the merits-related questions of whether the various allegations actually constituted a material and substantial change in circumstances. See Fehr v. Stockton, 2018 UT App 136, ¶ 8, 427 P.3d 1190 (stating that a rule 12(b)(6) inquiry is “concerned solely with the sufficiency of the pleadings, and not the underlying merits of the case” (quotation simplified)). Doing so was error.

¶35 To be sure, the determination of whether allegations of changed circumstances amount to a material and substantial change is a legal one. See Huish v. Munro, 2008 UT App 283, ¶ 19, 191 P.3d 1242 (characterizing a court’s conclusion about “whether a material change in circumstances has occurred that would warrant reconsidering the original decree” as a “legal conclusion” (quotation simplified)); Hudema v. Carpenter, 1999 UT App 290, ¶ 21, 989 P.2d 491 (same). As a result, if changed-circumstances allegations clearly raise only circumstances that our courts have already determined to be insufficient to justify modification of a divorce decree as a matter of law, a district court may dismiss a modification petition as failing to state a legally sufficient claim. See generally O’Hearon, 2017 UT App 214, ¶ 10 (stating a motion to dismiss should be granted “only if it is clear from the allegations that the non-moving party would not be entitled to relief under the set of facts alleged or under any facts it could prove to support its claim”); cf. Peeples, 2019 UT App 207, ¶¶ 25, 27 (stating “[i]ssues that were present prior to the decree, and continue to be present in much the same way thereafter,” as well as “violations of a custody order by one party,” ordinarily do not “justify reexamining the propriety of the [custody] order”); Kelley v. Kelley, 2000 UT App 236, ¶ 22, 9 P.3d 171 (concluding “remarriage and/or failure to make support payments cannot alone justify a modification” of a divorce decree). Likewise, if 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, 2017 UT App 214, ¶ 10; 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”).

¶36      But because a determination of whether “substantial and material changes have occurred is a fact-intensive legal determination,” see Doyle v. Doyle, 2009 UT App 306, ¶ 15, 221 P.3d 888, aff’d, 2011 UT 42, 258 P.3d 553, a decision that a modification petition may be dismissed as legally insufficient under rule 12(b)(6) will be unusual. Here, the court expressly found that most of the allegations were appropriate considerations for a change-of-circumstances analysis and potentially could have supported a change of custody. In doing so, the court necessarily determined the allegations suggested that “admissible evidence will show that the circumstances of the child or one or both parents or joint legal or physical custodians have materially and substantially changed since the entry of the order to be modified.” See Utah Code Ann. § 30-3-10.4(1)(a). Once it made such a determination, the court’s task under rule 12(b)(6) was at an end. See Fehr, 2018 UT App 136, ¶ 8. It was improper for the court to proceed beyond the question of sufficiency of the pleadings to merits-related questions of how much weight, value, or type of consideration to give to certain allegations in the overall changed-circumstances analysis, particularly in light of the court’s acknowledgement that more facts were needed regarding some of the allegations for it to make that assessment in the first place. See id.

¶37 For these reasons, we conclude the district court erred in dismissing the Petition for failure to state a claim under rule 12(b)(6). The court exceeded the scope of a proper rule 12(b)(6) inquiry in dismissing the Petition. Accordingly, we reverse the rule 12(b)(6) portion of the court’s dismissal of the Petition.

II. Dismissal for Failure to Use Dispute Resolution Procedures

¶38      Ryan also challenges the district court’s alternative ground for dismissal because of his failure to use dispute resolution procedures, arguing the court exceeded its discretion to dismiss the Petition on this ground. He contends the court erred by sua sponte raising the dispute resolution procedure issue and then ruling on it as an alternative ground for dismissal. He points out that Brenda’s motion to dismiss “did not raise the issue of the alternate dispute resolution requirement” as a ground for dismissal, and he asserts the parties “had no knowledge the issue was being considered” by the court as a ground for dismissal until the hearing. On this basis, he contends the court erred by dismissing the Petition on this ground without allowing the parties to “fully brief the issue.” We agree.

¶39 Our supreme court has explained that Utah’s “appellate system has developed along the adversarial model, which is founded on the premise that parties are in the best position to select and argue the issues most advantageous to themselves, while allowing an impartial tribunal to determine the merits of those arguments.” State v. Johnson, 2017 UT 76, ¶ 8, 416 P.3d 443. In this respect, as a general rule, “all parties are entitled to notice that a particular issue is being considered by a court and to an opportunity to present evidence and argument on that issue before decision.” Plumb v. State, 809 P.2d 734, 743 (Utah 1990). “Sua sponte decisions by [district] courts are inconsistent with the notion of due process when parties are not provided advance notice that the court is considering a given course of action, and the losing party is not allowed to be heard thereon.” Jenkins v. Weis, 868 P.2d 1374, 1383 (Utah Ct. App. 1994) (Bench, J., dissenting). In other words, “[t]imely and adequate notice and an opportunity to be heard in a meaningful way are the very heart of procedural fairness.” Nelson v. Jacobsen, 669 P.2d 1207, 1211 (Utah 1983); see also Rubins v. Plummer, 813 P.2d 778, 780 (Colo. App. 1990) (“The right to prior notice and an opportunity to be heard is a critical part of our judicial system.” (citing Goldberg v. Kelly, 397 U.S. 254 (1970))). And, as to sua sponte dismissals in particular, a court should “normally refrain” from doing so unless the deficiency or issue “is brought to its attention by way of pleadings or motions by the parties.” See Rubins, 813 P.2d at 779. “[I]f the court is inclined to dismiss sua sponte, it must afford the plaintiff an opportunity to be heard” and to “persuade the court that dismissal is not proper” as a “matter of fundamental fairness, if not procedural due process.” Id.

¶40      Here, Brenda’s motion to dismiss did not raise the failure to use dispute resolution procedures in relation to the request to modify custody as a basis for failure to state a claim under rule 12(b)(6) or for dismissal on another basis; her motion sought dismissal only for failure to state that a material and substantial change had occurred, as required under Utah Code section 30-3-10.4(1)(a). Further, the relevant notice of hearing indicated the issue to be considered during the hearing was the motion to dismiss. See generally In re Cannatella, 2006 UT App 89, ¶ 3, 132 P.3d 684 (“To satisfy an essential requisite of procedural due process, a hearing must be prefaced by timely notice which adequately informs the parties of the specific issues they must prepare to meet.” (quotation simplified)).

¶41      As a result, Ryan was first made aware during the hearing itself that the court was considering dismissal on the additional ground that he had failed to use dispute resolution procedures before seeking court intervention. The court raised the dispute resolution issue sua sponte at the hearing, and apparently in the context of determining whether Ryan had satisfied the requirements for modification of custody under section 30-3-10.4(1). And without allowing Ryan an opportunity to brief the issue, it announced its ruling from the bench at the end of the hearing and dismissed the Petition on the additional ground that the parties had not met the dispute resolution requirement.

¶42 In doing so, the court denied Ryan an adequate opportunity to prepare for and address the dispute resolution issue before it announced its dismissal on that ground. For example, had Ryan been made aware that the court was considering the dispute resolution issue in conjunction with Brenda’s motion, he might have made an informed decision to forgo pursuing the Petition in favor of engaging in mediation or another dispute resolution procedure. In this respect, because of the court’s sua sponte treatment of the issue, Ryan was not afforded the opportunity to prepare for and address, with authority, whether engaging in dispute resolution proceedings, as set out in section 30-3-10.4, is required to state a claim for modification of custody or is otherwise required in every case before court intervention is sought. Cf. In re Adoption of B.Y., 2015 UT 67, ¶ 23, 356 P.3d 1215 (“Mere notice is an empty gesture if it is not accompanied by a meaningful chance to make your case.”). This denial of a briefing opportunity in light of the court’s sua sponte dismissal was significant where the court’s decision to dismiss on this ground appears to have been rooted in the court’s belief that engaging in a dispute resolution procedure is a prerequisite, under section 30-3-10.4, to filing a petition to modify custody. Relatedly, the court’s sua sponte consideration and ruling on the dispute resolution issue denied Ryan an opportunity to prepare for and address whether, given the particular nature of the allegations allegedly justifying a modification of custody and the terms of the parties’ parenting plan, the failure to engage in dispute resolution procedures before seeking court intervention was insufficient to justify the Petition’s dismissal.

¶43 Indeed, as Ryan has pointed out on appeal, there were some important questions raised by the court’s sua sponte treatment of the issue, including whether compliance with a dispute resolution procedure is required to state a claim for modification of custody or whether use of a dispute resolution procedure was required under the circumstances and in light of the allegations in this case. Because the court both sua sponte raised the issue for the first time and then rendered dismissal on it during the hearing, Ryan was denied an opportunity to research authority and consider, prepare for, and respond to these and other related issues. See In re Cannatella, 2006 UT App 89, ¶ 3.

¶44 For these reasons, the court’s sua sponte consideration of and dismissal based on the dispute resolution procedure issue, without affording Ryan the opportunity to research authority and prepare to address it, was error. In light of the lack of notice before the hearing that the court was considering dismissal for failure to engage in dispute resolution procedures and the complexity of the issues (as well as the variety of responses Ryan might have made had he been informed before the hearing that the court was evaluating the viability of the Petition on that ground), the court should not have dismissed on this ground before providing Ryan the opportunity to brief the issue. Accordingly, we reverse the court’s dismissal on the alternative ground of failure to use a dispute resolution procedure.

CONCLUSION

¶45 The district court applied the proper changed-circumstances standard in evaluating the Petition. But it misapplied the rule 12(b)(6) standard in dismissing the Petition. The court also erred by dismissing the Petition for failure to use dispute resolution procedures before seeking court intervention. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

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

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2020 UT App 16 – THE UTAH COURT OF APPEALS – lack of jurisdiction

2020 UT App 16 – THE UTAH COURT OF APPEALS

NOUR AL-SALEH, Appellee v. ASAAD AL-SALEH, Appellant.

Per Curiam Opinion
No. 20191013-CA
Filed January 30, 2020
Third District Court, Salt Lake Department
The Honorable Patrick Corum
No. 154905136
Cassandra Elyse Gallegos and Gregory B. Wall,
Attorneys for Appellant
Kendall Peterson, Attorney for Appellee
Before JUDGES DAVID N. MORTENSEN, JILL M. POHLMAN, and DIANA HAGEN.

PER CURIAM:

¶1           Asaad Al-Saleh (Husband) seeks to appeal the district court’s order denying his request to modify his child support obligations. The district court issued an order certifying the order as final pursuant to rule 54(b) of the Utah Rules of Civil Procedure. This matter is before the court on its own motion for summary disposition based upon lack of jurisdiction due to the absence of a final, appealable order or an order properly certified pursuant to rule 54(b).

¶2           For an order to be properly certified as final under rule 54(b), three requirements must be met. See Copper Hills Custom Homes, LLC v. Countrywide Bank, FSB, 2018 UT 56, ¶ 16, 428 P.3d 1133. “There must be multiple claims for relief or multiple parties to the action; . . . the judgment appealed from must have been entered on an order that would be appealable but for the fact that other claims or parties remain in the action; . . . [and the district] court, in its discretion, must make an express determination that there is no just reason for delay.” Id. (quotation simplified). In regard to the second criterion, i.e., the appealability of the order, the Utah Supreme Court has instructed that district courts must “enter findings supporting the conclusion that the certified orders are final,” and “detail the lack of factual overlap between the certified and remaining claims.” Id. ¶ 21 (quotation simplified). These findings are important in assessing the propriety of the rule 54(b) certification because of the need to determine the potential res judicata effect of an appeal on the issues remaining before the district court. Kennecott Corp. v. Utah State Tax Comm’n, 814 P.2d 1099, 1104 (Utah 1991). “Where the facts are sufficiently similar to constitute res judicata on the remaining issues, 54(b) certification is generally precluded.” Id. at 1104–05.

¶3           Here, the district court’s certification order does not comply with the standard set forth by the Utah Supreme Court. Specifically, the order does not include detailed findings concerning the lack of factual overlap between the certified claim and the remaining claims. The order states generally that there is “no overlap in the issue sought to be appealed . . . and the other issues.” However, it does not set forth what other claims remain and whether those other claims may involve some of the same facts that were relevant to the order concerning the modification of child support.[1] The Supreme Court specifically stated in Copper Hills Custom Homes that when there is no discussion of such issues “it is self-evident that we cannot review the district court’s analysis in this regard if analysis is not provided.” Id. ¶ 28. Therefore, the certification order in this case is deficient.

¶4           Accordingly, the appeal is dismissed without prejudice to the filing of a timely appeal after the district court enters a proper rule 54(b) certification or a final, appealable order.

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

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[1] Rather than make the necessary findings, the district court found that Husband represented that “he does not at this time intend to pursue” the issues raised in his pending petition to modify, and that Wife’s pending petition appears to have “little likelihood of success.” (Emphasis added). While the court’s assessment may be accurate, it must still enter proper findings on the factual overlap between the order on appeal and the pending claims. One of the principal rationales for limiting the right to appeal under Rule 54(b) “is to promote judicial economy by preventing piecemeal appeals in the same litigation.” Copper Hills, 2018 UT 56, ¶ 11 (quotation simplified). Our supreme court has also expressed concern “that multiple rulings in the same litigation on narrow issues taken out of context may needlessly increase the risk of inconsistent and erroneous decisions.” Id. (quotation simplified). If there are overlapping claims before the district court that the parties do not intend to pursue or do not have merit, the principles underlying Rule 54(b) generally will be best served if those claims are resolved prior to appeal.

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How can I get my high-conflict ex to violate any terms of our court order?

How can I get my high-conflict ex to violate any terms of our court order? He operates within the confines of the legal language, but harasses and torments me at every opportunity. I have no recourse because he hasn’t broken any law, technically.

OK, I think I understand what you’re asking and why. I don’t think you’re saying that you want to entrap your ex into violating your divorce decree orders when your ex has no intention of violating them.

I believe that you are frustrated with how your ex is making you miserable without having violated the decree of divorce or otherwise appearing to you to have done anything illegal for which he can be held accountable.

The good news is that if your ex is chronically tormenting you, he probably is violating at least one law and or doing something for which the law has a remedy for you.

Go talk to the police or to the prosecuting attorney in your city or county.

Let me give you a few examples from the jurisdiction where I practice divorce and family law:

Temporary Restraining Orders

Utah Rules of Civil Procedure Rule 65A. Injunctions

Electronic communication harassment

Utah Code § 76-9-201. Electronic communication harassment — Definitions — Penalties

Civil Stalking

Utah Code § 77-3a-101. Civil stalking injunction — Petition — Ex parte injunction

Criminal Stalking

Utah Code § 76-5-106.5. Stalking — Definitions — Injunction — Penalties — Duties of law enforcement officer

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

https://www.quora.com/How-can-I-get-my-high-conflict-ex-to-violate-any-terms-of-our-court-order-He-operates-within-the-confines-of-the-legal-language-but-harasses-and-torments-me-at-every-opportunity-I-have-no-recourse-because-he-hasn-t/answer/Eric-Johnson-311

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How can I get a divorce if I don’t know where my spouse is?

If I’m married with a child (separated for 4 years), how do I get a divorce and establish a child support order, if I don’t know where my spouse is? (might not be in the same country)?

In Utah, where I practice divorce law, the process is as follows (it is likely similar in other jurisdictions too):

1. Prepare and file the complaint for divorce (and a few other initial required documents as part of the filing process) with the court (Utah Rules of Civil Procedure, Rule 3).

2. Make duly diligent efforts to locate your spouse you are suing for divorce. Check his/her last few last-known residential and work addresses and see if he/she is there. Check and see if he/she is staying with close family members or friends or at a boyfriend’s/girlfriend’s house. Try contacting him/her on his/her last few last-known telephone numbers and work and personal e-mail addresses he/she uses or has used in the past. Look on social media to see if that gives you any hints as to where he/she may be. Ask common friends and contacts of yours and your spouse if they know where to find your spouse. That’s a duly diligent search (Utah Rules of Civil Procedure, Rule 4(d)(5)(A)).

3. If, despite your duly diligent search, the whereabouts of your spouse are still unknown, if service is impracticable under the circumstances, or if there is good cause to believe that your spouse is avoiding service, you may file a motion to allow service by some other means. Your motion must include an affidavit or declaration describing your efforts to identify, locate, and serve your spouse, or the circumstances that make it impracticable to serve him/her. (Id.)

If your spouse is located in a foreign country, you still have to get him/her served (either personally or by alternative means), and that process is a little complex (not extremely complex, but it takes some effort). Here are two links that introduce you to that process: How to Serve a Spouse with Divorce Papers in another Countryand How to Get an International Divorce.

4. 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 your spouse of the action (Utah Rules of Civil Procedure, Rule 4(d)(5)(B)). What does “means reasonably calculated, under all the circumstances, to apprise” mean? Back when newspapers were so ubiquitous, it meant placing a notice in the “legal notices” section of a newspaper of general circulation in a county where your spouses was believed to be or likely to be, for 3–4 weeks. But now that far fewer people read newspapers, “means reasonably calculated to apprise” means still possibly the publication in the newspaper or a text message to the person’s last-known telephone number(s), an e-mail, a certified letter, or a post or instant message on social media, if your spouse has an active social media profile.

5. After you have filed proof of attempted alternate service with the court, if the time for publication has passed (usually at least 21 -30 days), and if your spouse has not filed a responsive pleading, he/she will be in default. You can then apply to the court for entry of default and for default judgment (Utah Rules of Civil Procedure, Rule 55 Default).

6. As long as your complaint for divorce is sworn or verified and contains all of the factual allegations and information that the court will either grant default judgment “on the pleadings” themselves or after a brief hearing in which you would appear before the court to provide the court with testimony and evidence to establish your claims.

7. If default judgment is granted, the court will either draft the documents needed to process your case to a close or ask you or your lawyer to prepare those documents: findings of fact and conclusions of law and a decree of divorce. If you sought an award of child support in your complaint for divorce and the court granted that request, your decree will contain provisions awarding you child support, along with the other relief you sought in your complaint.

And that’s it.*

* If, after entry of default against your spouse were to try to have his/her default and default judgment overturned (“set aside” is the language the court rules use), then if he/she can show the court good cause to set the default judgment aside, then it can set aside so that the case can be argued and decided on the merits of the case, instead of by default (Utah Rules of Civil Procedure, Rule 55(c)).

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

https://www.quora.com/If-you-are-still-legally-married-with-a-child-separated-for-4-years-how-do-you-get-a-divorce-establish-a-child-support-order-if-you-do-not-know-where-your-spouse-is-Might-not-be-in-the-same-country/answer/Eric-Johnson-311

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Proposed Amendments to the Utah Rules of Civil Procedure – Comment Period Closes July 19, 2018

Amendments to the Utah Rules of Civil Procedure have been proposed. The comment period closes July 19, 2018. If you want to comment, you can. Just click here: https://www.utcourts.gov/…/rules-of-civil-procedure…/

Rules of Civil Procedure – Comment Period Closes July 19, 2018

URCP Rule 109 (this would be a new rule).

http://www.utcourts.gov/utc/rules-comment/wp-content/uploads/sites/31/2018/06/URCP109.For-comment.New_.pdf

Automatic injunction in certain domestic relations cases. New. Provides that in certain domestic relations cases, an automatic injunction will enter upon the filing of the case. Its provisions address areas such as disposing of property, disturbing the peace of the other party, committing domestic violence, using the other party’s identification to obtain credit, interfering with telephone or utility service, modifying insurance, and behavior around the minor children. The injunction is binding on the petitioner upon filing the initial petition and on the respondent after the filing of the initial petition and upon receipt of a signed copy of the injunction.

URCP Rule 5

http://www.utcourts.gov/utc/rules-comment/wp-content/uploads/sites/31/2018/06/URCP005.For-comment.Service-by-email.pdf

Service and filing of pleadings and other papers. Amend. Paragraph (b)(3)(B) is amended to remove the requirement that a person must agree to accept service by email in order to be served by email. If a person provides an email address pursuant to Rule 10(a)(3) or Rule 76, the person may be served Rule 5 papers at that address.

If you ask me, these are both welcome changes to the Utah Rules of Civil Procedure.

Rule 5 simply brings the rules into harmony with modernity, and this will cut down on wasted time and money.

Rule 109 They will cut down on wastes of time and money on the part of the divorcing parties. This appears to be in part modeled after the California Family Codes “Automatic Temporary Restraining Orders (ATROS)”, so it’s not as though this is a weird or untested innovation.

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

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