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Tag: Utah Supreme Court

In re Adoption of M.A. – 2024 UT 6 – petition to unseal adoption records – good cause

In re Adoption of M.A. – 2024 UT 6

This opinion is subject to revision before final publication in the Pacific Reporter

2024 UT 6 IN THE SUPREME COURT OF THE STATE OF UTAH

In the matter of the adoption of M.A.

MARIANNE TYSON,  Appellant.

No. 20221097

Heard November 8, 2023

Filed February 22, 2024

On Certification from the Court of Appeals

Third District, Salt Lake County

The Honorable Laura S. Scott No. 223902369

Attorney: David Pedrazas, Millcreek, for appellant

ASSOCIATE CHIEF JUSTICE PEARCE authored the opinion of the

Court, in which CHIEF JUSTICE DURRANT, JUSTICE PETERSEN,

JUSTICE HAGEN, and JUSTICE POHLMAN joined.

ASSOCIATE CHIEF JUSTICE PEARCE, opinion of the Court:

INTRODUCTION

¶1 Marianne Tyson wants to see the court records that memorialized her 1978 adoption.[1] Tyson does not know who her birth parents are but hopes to learn “health, genetic, or social information” about them to inform her doctors about any medical predispositions she may have.

¶2 The Utah Legislature has made a number of policy choices concerning adoption records. “An adoption document and any other documents filed in connection with a petition for adoption are sealed” and closed from public view for a century following the adoption. UTAH CODE § 78B-6-141(2), (3)(e). The Legislature has also decided that those sealed adoption records can be inspected or copied when a petitioner has shown “good cause.” See id. § 78B-6-­141(3)(c). The Legislature has not, however, defined good cause. This court has implemented the Legislature’s “good cause” directive through Utah Rule of Civil Procedure 107(d). That rule instructs a court to determine “whether the petitioner has shown good cause and whether the reasons for disclosure outweigh the reasons for non-disclosure.” UTAH R. CIV. P. 107(d).

¶3 The district court denied Tyson’s petition to examine her adoption records. The court reasoned that good cause “require[d] something more than a desire to obtain health or genetic or social information unrelated to a specific medical condition of [Tyson]” and that to require less would “severely undermine[]” the “Legislature’s policy determination that adoption records should be sealed for 100 years.”

¶4 Tyson appeals, arguing in part that the district court misinterpreted the statute. We agree and remand to permit the district court to reassess Tyson’s petition under the correct standard.

BACKGROUND

¶5 Tyson was less than a year old when she was adopted in 1978. Some four decades later, she petitioned the district court to unseal her adoption file to discover “health, genetic, or social information” about her birth parents. Before her petition, Tyson had requested records from Utah’s voluntary adoption registry, which could not find a parental match.[2] In her petition, Tyson claimed that her doctors had requested family medical history regarding “menopause, high blood pressure and/or stroke” and that she could not provide the history because of her lack of access to her birth parents’ records. Tyson argued that her lack of family medical history was sufficient good cause to unseal her record under section 78B-6-141(3)(c). With respect to rule 107’s balancing requirement, she contended that her desire to understand her family medical history forty-four years after her adoption outweighed any interest in keeping the record sealed from her view.

¶6 Before the district court, Tyson admitted she was not aware that she suffered from any genetic condition for which it would be beneficial to have a better understanding of her family’s medical history. The court asked for additional briefing on the question of how it should interpret good cause. The court noted that “as I interpret the statute correctly or incorrectly, good cause is something more than simply the adult adoptee’s desire to have a general understanding of health or background or ethnicity or who the parents are.”

¶7 At the next hearing, Tyson continued to argue that her right to know her birth parents and their respective medical histories outweighed the birth parents’ privacy interests. The district court denied Tyson’s petition. It recognized that “good cause” is not defined in the statute nor in rule 107. The court also noted that there was no controlling precedent to provide a definition. The court nonetheless concluded that good cause “require[d] something more than a desire to obtain health or genetic or social information unrelated to a specific medical condition of [a] [p]etitioner.” The court reasoned that to require less would “severely undermine[]” the “Legislature’s policy determination that adoption records should be sealed for 100 years. ”

¶8 The district court acknowledged that Tyson correctly asserted that “[i]t is the intent and desire of the Legislature that in every adoption the best [interest] of the child should govern and be of foremost concern in the court’s determination.” (First referencing UTAH CODE § 78B-6-102; and then citing In re Adoption of B.B., 2017 UT 59, ¶ 35, 417 P.3d 1.) But the court also noted that the Legislature has decided that an unmarried mother is entitled to privacy regarding her pregnancy and adoption plan and that it protected this right through the one-hundred-year seal and the good cause requirement for unsealing. (Citing UTAH CODE § 78B-6­-102(5)(b), (7).) The court refused to use the best interest of the child standard for its inquiry, instead adhering to the good cause standard it had outlined.

¶9 The district court next conducted the balancing that rule 107 contemplates and determined that Tyson’s proffered reasons for unsealing her adoption records did not outweigh her birth mother’s privacy interests. The court found this was especially true “given the confidentiality that the statute afforded [the birth mother] when she made the decision to place [Tyson] for adoption over 40 years ago.” The court also noted that “in the absence of good cause, the court is required to guard the confidentiality of adoption records consistent with the Utah Legislature’s policy that such records be sealed.” In accordance with this analysis, the court determined that Tyson was not entitled to obtain the requested records and denied her petition.

STANDARD OF REVIEW

¶10 The Legislature has given district courts discretion to decide if good cause exists to unseal adoption records. We review that decision for an abuse of that discretion. But “[w]hen district courts have discretion to weigh factors[] [or] balance competing interests, . . . those discretionary determinations must rest upon sound legal principles.” State v. Boyden, 2019 UT 11, ¶ 21, 441 P.3d 737. A “[m]isapplication of the law constitutes an abuse of discretion.” Id. ¶ 19. Thus, “when a legal conclusion is embedded in a district court’s discretionary determination, we peel back the abuse of discretion standard and look to make sure that the court applied the correct law.” Id. ¶ 21. We review a lower court’s statutory interpretation for correctness. Scott v. Benson, 2023 UT 4, ¶ 25, 529 P.3d 319.

ANALYSIS

¶11 Tyson raises three arguments on appeal. She first claims that the best interest of the child is the overriding consideration in all adoption cases. And therefore, Tyson contends, the district court abused its discretion when it failed to consider whether the unsealing of her adoption records was in her best interest. Tyson next argues that the district court abused its discretion when it concluded that she was not entitled to obtain the records under Utah Code section 78B-6-141(3)(c). Finally, she contends that the district court abused its discretion when it held that the interest in non-disclosure outweighed Tyson’s justifications to unseal the records under Utah Rule of Civil Procedure 107.[3]

I. THE GOOD CAUSE STANDARD, NOT THE BEST INTEREST OF THE CHILD STANDARD, APPLIES TO PETITIONS TO UNSEAL ADOPTION RECORDS

¶12 Tyson first asserts that the district court erred because it failed to afford primacy to the “child’s best interest” in its analysis. Before the district court, Tyson argued that the Legislature has recognized that “in every adoption the best interest of the child should govern” and that standard should apply to her petition. (Quoting UTAH CODE § 78B-6-102(1).) The court refused to apply that standard and instead analyzed Tyson’s petition using what it understood to be the good cause standard found in Utah Code section 78B-6-141(3)(c).

¶13 Tyson argues that as an adult who was adopted as a minor, she maintains the protections that the law affords to adopted children.[4] Tyson advocates that the Legislature’s mandate—that “in every adoption the best interest of the child should govern”— applies to all proceedings related to a child’s adoption, regardless of when the proceedings occur. Tyson further argues that because “the best interests of the child are paramount[,] . . . [w]hen the interests of a child and an adult are in conflict, the conflict must be resolved in favor of the child.” (Citing In re Adoption of B.B., 2017 UT 59, ¶ 35 n.14, 417 P.3d 1.) Tyson contends we should categorically consider her interest, “as the adult adoptee, over the interest of her birth parents.”

¶14 Even assuming, without deciding, that the child’s best interest standard would otherwise apply to this proceeding, a basic canon of statutory interpretation defeats Tyson’s argument. “When we interpret a statute, we start with the plain language of the provision, reading it in harmony with other statutes in the same chapter and related chapters.” Buck v. Utah State Tax Comm’n, 2022 UT 11, ¶ 27, 506 P.3d 584 (cleaned up). “And where there is an inconsistency between related statutory provisions, the specific provision controls over the general.” Latham v. Off. of Recovery Servs., 2019 UT 51, ¶ 35, 448 P.3d 1241.

¶15 Here, Tyson wants us to promote the general over the specific. Section 78B-6-102(1) speaks about the “intent and desire of the Legislature” generally regarding adoptions, in that “in every adoption the best interest of the child should govern.” Section 78B­6-141(3)(c) speaks directly to the issue presented here—what a petitioner must show to unseal adoption records. We presume that the Legislature intended the more specific provision to control over the general statement. Therefore, the district court did not err when it applied the good cause standard instead of examining what was in Tyson’s best interest.

II. THE DISTRICT COURT ERRED WHEN IT RELIED ON THE LEGISLATURE’S DECISION TO SEAL ADOPTION RECORDS FOR ONE HUNDRED YEARS TO DERIVE THE MEANING OF “GOOD CAUSE”

¶16 The district court concluded that a desire to obtain health information “unrelated to a specific medical condition” was categorically insufficient to make a good cause showing under section 78B-6-141(3)(c). The court relied on what it perceived as the Legislature’s strong emphasis on privacy in adoption statutes to reach that conclusion. Tyson’s desire to provide family medical history to her doctors regarding “menopause, high blood pressure and/or stroke” did not, in the court’s eyes, constitute good cause to unseal her adoption records.

¶17 Tyson challenges the district court’s definition of good cause. She argues that the privacy concerns the Legislature addresses lose their potency over time. Tyson claims her birth mother has enjoyed over forty years of privacy and that affording her further confidentiality cannot outweigh Tyson’s desire to know her family medical history. Specifically, Tyson states that the only reason the Legislature protects a birth mother’s privacy is to assure “the permanence of an adoptive placement.” (Quoting UTAH CODE § 78B-6-102(5)(b).) Tyson argues that “once the Adoptee is an adult, there is no other interest in protecting the privacy of the mother and/or adoptee” because permanence has been achieved. In other words, “once the adoptee has become an adult, the legislative intent has been met and satisfied.” So, according to Tyson, “[t]he interest of Adult Adoptee[s] [like Tyson] should outweigh whatever interest the [S]tate has in protecting . . . [the] privacy of the mother from an Adult Adoptee.”

¶18 Utah Code section 78B-6-141(3)(c) states that an adoption petition and all other documents filed in connection with a petition for adoption “may only be open to inspection and copying . . . upon order of the court expressly permitting inspection or copying, after good cause has been shown.” When it applied this provision to Tyson’s petition, the district court stated that good cause required Tyson to show “something more than a desire to obtain health or genetic or social information unrelated to a specific medical condition.” The court further reasoned that “if this was all that was required to show good cause, the Utah Legislature’s policy determination that adoption records should be sealed for 100 years would be severely undermined.” In essence, the court concluded that a desire to see one’s medical record unrelated to a specific medical condition could not constitute good cause as a matter of law because it would weaken the privacy protections the statute affords to birth parents.

¶19 The Legislature did not define good cause in the context of section 78B-6-141(3)(c). This stands in contrast to other statutory provisions where the Legislature makes clear what it intends good cause to mean. For example, in Utah Code section 32B-14-102(3), the Legislature tells us that good cause equates to “the material failure by a supplier or a wholesaler to comply with an essential, reasonable, and lawful requirement imposed by a distributorship agreement if the failure occurs after the supplier or wholesaler acting in good faith provides notice of deficiency and an opportunity to correct.”

¶20 At times, the Legislature has granted courts broad discretion by not defining good cause, only to add a definition after it sees how the courts have applied the standard. We noted in State v. Ruiz that, under a prior version of the plea withdrawal statute, judges “had broad discretion to determine the scope of circumstances that constituted ‘good cause’ and warranted withdrawal of a plea.” 2012 UT 29, ¶ 31, 282 P.3d 998. But we also noted that the Legislature had amended the statute so that “judges may now grant a motion to withdraw only when they determine that a defendant’s plea was not knowingly and voluntarily entered.” Id. ¶ 32.

¶21 When a court deals with an undefined good cause standard, it has discretion to look to the facts and arguments presented to decide the question. Although it deals with a rule and not a statute, Reisbeck v. HCA Health Services of Utah, Inc. is instructive. See 2000 UT 48, ¶¶ 5–15, 2 P.3d 447. The appellant in Reisbeck failed to file her notice of appeal within the thirty days that Utah Rule of Appellate Procedure 4(a) requires and sought a discretionary extension from the trial court for “good cause” under Utah Rule of Appellate Procedure 4(e). Id. ¶¶ 5, 7. We refused to “establish any specific criteria for determining good cause” because “the assessment of the justifications offered by a moving party will remain highly fact-intensive, and because any given justification may entail aspects both within and beyond the moving party’s control.” Id. ¶¶ 14–15 (cleaned up). That is, an undefined good cause standard provides courts with discretion to consider the merits of individual cases.

¶22 Here, the district court attempted to breathe a more specific meaning into the phrase “good cause.” Although it is understandable that the court would want more guidance than the statute provides, it interpreted the statute in a fashion that rewrote the law. The district court opined that good cause must mean “something more than a desire to obtain health or genetic or social information unrelated to a specific medical condition of [Tyson].” The court reasoned that to require less would “severely undermine[]” the “Legislature’s policy determination that adoption records should be sealed for 100 years.”

¶23 But the statute already balances the policy determination that records be sealed for one hundred years against a petitioner’s desire to see those records. The Legislature resolved the question of when a petitioner can have access to those records by stating that a petitioner can unseal those records whenever she can show a court that good cause exists to do so. To impose additional requirements—such as more than a general desire to know one’s medical history—is inconsistent with the statute’s language. Stated differently, if the Legislature had wanted to impose a requirement that a petitioner point to something more than wanting to know her medical history, it could have put that in the statute. It did not, and it was error for the court to do so.

III. THE DISTRICT COURT DID NOT CONSIDER THE REASONS FOR DISCLOSURE IN ITS RULE 107 DETERMINATION

¶24 The district court not only concluded that Tyson had failed to establish good cause under section 78B-6-141(3)(c), it also determined that she could not meet the showing Utah Rule of Civil Procedure 107(d) requires.

¶25 Rule 107 provides, in relevant part, that: (i) a petition to open adoption records “shall identify the type of information sought and shall state good cause for access”; (ii) if seeking “health, genetic or social information, the petition shall state why the health history, genetic history or social history of the Bureau of Vital Statistics is insufficient for the purpose“; and (iii) in its resolution of the petition, “[t]he court shall determine whether the petitioner has shown good cause and whether the reasons for disclosure outweigh the reasons for non-disclosure.”[5] UTAH R. CIV. P. 107(b), (d).

¶26 Here, the district court ruled that Tyson’s “reasons for wanting access to the adoption records” did not “outweigh her birth mother’s interest in privacy.” But instead of balancing both interests under rule 107, the court focused solely on the birth mother’s privacy interests. The court did not consider the reasons for disclosure. This is likely because the court had already discounted Tyson’s desire to see her adoption records when it interpreted “good cause.” In other words, once the court determined that Tyson could not show good cause under section 78B-6-141(3)(c), it may have concluded that it had nothing to put on the disclosure side of the scale when the court balanced disclosure against non-disclosure.

¶27 We remand to permit the district court to evaluate Tyson’s petition under a correct interpretation of section 78B-6-141(3)(c) and to conduct a rule 107 balancing that gives weight to both the birth mother’s privacy interests and Tyson’s reasons for wanting to see her adoption records.

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


[1] In juvenile matters, we typically refer to the subject of the case by their initials. Tyson used her name in the district court briefing and in the briefing before this court. We acknowledge the importance of maintaining confidentiality in juvenile cases, but because Tyson is an adult who uses her full name in court documents, we do so as well.

[2] The Utah Adoption Registry is a voluntary, mutual-consent registry that helps adult adoptees born in Utah and their birth parents and blood-related siblings reunite with one another. See UTAH CODE § 78B-6-144.

[3] On appeal, Tyson asserts that “[e]very person has the constitutional and natural right to know their health, genetic or social information” and that by denying her that right and refusing to unseal her adoption records, we are denying her equal protection under the law as guaranteed by the Fourteenth Amendment. But Tyson has failed to offer any authority or legal basis to support that argument. Advancing a successful argument requires more than dangling an interesting soundbite. “A party may not simply point toward a pile of sand and expect the court to build a castle.” Salt Lake City v. Kidd, 2019 UT 4, ¶ 35, 435 P.3d 248. Tyson has inadequately briefed her constitutional argument, and we will leave the question for a case in which it has been fully briefed.

[4] Tyson cites the District of Columbia high court to support her proposition that the legal protections afforded to children should extend to minor adoptees who have become adults. (Citing In re G.D.L., 223 A.3d 100 (D.C. 2020).) That case is not helpful because the District of Columbia’s unsealing statute is significantly different from Utah’s. The D.C. statute provides that adoption records may only be unsealed “when the court is satisfied that the welfare of the child will . . . be promoted or protected.” D.C. CODE § 16-311.

[5] At first blush, Utah Rule of Civil Procedure 107 appears to smear some extra-textual gloss on the statute when it requires a petitioner to state why she cannot get medical information from the Bureau of Vital Statistics, and when it instructs a court to assess whether the “reasons for disclosure outweigh the reasons for non­disclosure.” Tyson does not challenge rule 107 and we will leave that question for another case.

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2023 UT App 65 – State v. Meyer – Parent Charged With Child Abuse

2023 UT App 65 – State v. Meyer

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,

v.

ELIZABETH LYDIA MEYER,

Appellant.

Opinion

No. 20210718-CA

Filed June 15, 2023

First District Court, Brigham City Department

The Honorable Spencer Walsh

No. 181100556

Wendy M. Brown, Debra M. Nelson, and Benjamin Miller, Attorneys for Appellant

Blair T. Wardle, Attorney for Appellee

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

MORTENSEN, Judge:

¶1        Elizabeth Lydia Meyer’s[1] ex-husband (Father) discovered bruising on their daughter (Child) after picking her up from Meyer’s home. The State charged Meyer with child abuse and, at a bench trial, used a process-of-elimination approach to argue that Meyer was the only possible cause of the bruising. The district court convicted Meyer, and she now appeals. Meyer asserts that the court erred in admitting the preliminary hearing testimony of her now-husband. We agree that this action was erroneous and prejudiced Meyer, so we vacate her conviction.

BACKGROUND

¶2          One Wednesday in July 2018, Father picked up Child, then two years old, from Meyer’s home for a regular midweek visit. Meyer and Father had been through a “fairly contentious” divorce, and their relationship was sometimes “volatile,” so Father had made it a habit to record via cellphone his pickups of Child. His video recording from this day shows marks on the upper portions of both of Child’s arms. But Father did not notice the marks until later, when he was at a restaurant with Child. Father exchanged texts with Meyer about the marks:

Father: I noticed that [Child] has what looks like bruises on her arm. Is she okay?

Meyer: Yes, she’s fine.

Father: How did she get those marks?

Meyer: How do children get the majority of their bruises? What direction are you trying to go with this?

Father: I’m just concerned because the bruising pattern is not consistent with normal childhood injuries.

Meyer: Since when did you become an expert in that matter? I understand that you want to pretend to care about my daughter, but I do not wish to have you go on a third witch hunt and falsely accuse someone like you already have done twice, even though we both know you’re dying to. You do not make any of her medical appointments. And the last I knew you have not completed any courses in the direction. So please leave your harassing comments to yourself.

¶3          After dinner, Father drove to the police station and asked for an officer to examine Child’s arms. An officer (Officer) and a caseworker (Caseworker) from the Division of Child and Family Services (DCFS) met with Father and photographed Child’s arms approximately two hours after Father had picked up Child.

¶4          Officer and Caseworker then visited Meyer’s home. Outside, they met Michael Glenn, Meyer’s then-boyfriend whom she married before the case went to trial. Glenn was initially “defiant” and did not want them to enter the house, but when they showed him photos of Child’s bruises, he was concerned and let them in.

¶5          Officer and Caseworker entered the house and spoke with Meyer, who was very upset. Officer asked Meyer what could have caused bruising on Child’s arms, and Meyer gave multiple possible explanations, including Child falling out of the car when she arrived home from daycare, Child playing with hair ties that were like rubber bands (which she snapped on her arms), or Child playing roughly with her older brother and sometimes getting rug burns from the roughhousing. Caseworker asked Meyer how she had picked Child up when Child fell out of the car after returning from daycare, and Meyer responded along the lines that she picked Child up like any mother would and cleaned her face. Meyer also reported that she had caused a mark on Child’s upper arm when Child ran into the street and Meyer pulled her back. Caseworker showed Meyer photos of Child’s bruises, and Meyer was very surprised, saying, “They were not like that.”

¶6          Glenn gave Officer contact information for Child’s daycare provider (Daycare Provider). When Officer spoke to Daycare Provider on the phone, she confirmed that Child had been in her care that day. Daycare Provider also confirmed that she had asked Meyer about a mark on Child’s arm when Meyer picked Child up that day and that Meyer told her she had grabbed Child to prevent her from running into the street.

¶7          The next day, Father took Child for a physical exam, which was completed by a forensic nurse examiner (Nurse). In her report, Nurse identified “[p]ositive physical findings of injury to bilateral upper arms and left forearm” and described the upper arm injuries as “circumferential and linear with equal spacing between” them and stated that the bruises were “highly indicative for a squeezing mechanism and physical abuse.” Child was not returned to Meyer’s care.

¶8          The case was transferred to a detective (Detective), who called Meyer two days after the alleged incident and recorded the phone call. During the call, Meyer implied that Father was the source of Child’s bruises because, according to her, Child had no bruises until she was in Father’s care and Meyer believed that “[h]e [was] trying to get [her] daughter away from [her].” Meyer was very upset during the call and indicated that she had been previously accused of child abuse, presumably by Father. Meyer also stated that she did not see any bruises or marks on Child— other than the mark from the incident she reported of grabbing Child to stop her from running into the road—before giving Child to Father. But she explained that Child would sometimes scratch herself, leaving marks, and hit and bite things. Meyer also spoke about Glenn’s whereabouts on the day of the incident, indicating that Glenn was asleep when Child came home and remained asleep until after Father had picked Child up.

¶9          Detective wrote in his police report that Child’s older brother, then four years old, “was asked where his sister got the marks on her arm and he said that it was from someone who had power and squeezed hard.” Detective spoke to Daycare Provider, though he did not inspect her home; perform a background check on her; or speak with the parents of other children she babysat or with the three children she had living with her, who were ages fourteen, ten, and eight and may have had access to Child. Detective later testified that he didn’t really consider Daycare Provider a suspect after speaking with her. He also ruled out Glenn as a suspect based on Meyer’s statement that Glenn had been asleep between the time Child came home from daycare and the time Father picked up Child. However, in his report he wrote that he told Meyer he didn’t think the incident causing the bruising had happened on that day. But at trial he testified that, based on his investigation, the timeline he established was that there were no visible bruises—other than the one caused by Meyer stopping Child from running into the street—until the time between Meyer picking Child up from daycare and Father picking her up from Meyer within the next forty-five minutes.

¶10 In August 2018, another officer (Sergeant) interviewed Meyer in person at Detective’s request. Meyer’s statements were consistent with those she had made previously. Specifically, Meyer again stated that Glenn was asleep when Child returned from daycare and did not wake up until after Child left with Father.

¶11        In December 2018, the State charged Meyer with one count of child abuse, a class A misdemeanor.

¶12        The district court held a preliminary hearing in May 2019. Among other witnesses, the State subpoenaed Glenn to testify at the hearing. When he was called to testify, he was hostile, and the court threatened to hold him in contempt and take him into custody. But Glenn ultimately did testify. While he first declared that it was “100 percent incorrect” that he told Officer and Caseworker that the marks had not been on Child in the morning, after reviewing Officer’s bodycam footage, he admitted that he did say that. He also testified that after waking up that morning, he went straight to the car and didn’t notice any marks on Child’s arms, but he said he was busy “concentrating on driving and getting to and from.” He described how he went with Meyer to drop Child off at daycare in the morning. He testified that he was asleep when Meyer brought Child home. And he declared that he did not cause Child’s bruising.

¶13 Sometime after the preliminary hearing, Meyer married Glenn, and Meyer’s defense counsel (Defense Counsel) informed the State via email that Glenn intended to invoke his spousal privilege related to testifying at trial. The State told Defense Counsel that Glenn was “still required to show up to court to produce evidence that he [was], in fact, married . . . and take the stand to actually invoke the privilege.” The prosecutor insisted, “This is important because then he will become an unavailable witness. As an unavailable witness, I will then be able to play his preliminary hearing audio in lieu of his testimony.” Defense Counsel indicated that she “had anticipated that [the State] would be able to get Glenn’s preliminary hearing testimony in at trial.”

¶14        When Defense Counsel later informed the State that Glenn would be on bed rest following surgery on the date of trial (which had been continued multiple times), they discussed the possibilities of Glenn testifying via video during trial or of filing stipulated facts related to his testimony. But Glenn filed a motion to quash the subpoena against him. The State then sent Defense Counsel a transcript and redacted audio file of Glenn’s preliminary hearing testimony that it intended to have admitted at trial, and Defense Counsel responded, “I would absolutely object to both the transcript and the audio coming in at trial. . . . Glenn’s testimony is hearsay[,] and to introduce it would also be a violation of my client’s confrontation rights.” Defense Counsel explained, “The Utah Supreme Court has ruled that because there is a different motive for examining witnesses at a preliminary hearing than that at a trial, said testimony is inadmissible.”

¶15        The State then filed a motion to admit Glenn’s preliminary hearing testimony. After receiving briefing and hearing oral argument, the court found that Glenn’s testimony fell under the exception to hearsay in rule 804(b)(1) of the Utah Rules of Evidence for former testimony of an unavailable witness. The court acknowledged caselaw indicating that defendants are restricted in developing testimony at preliminary hearings, see State v. Goins, 2017 UT 61, ¶¶ 32–33, 423 P.3d 1236, but it distinguished that caselaw from the facts of this case and admitted the testimony.

¶16 The court held a bench trial in May 2021. In its opening statement, the State indicated that “through the process of elimination,” it would “show beyond a reasonable doubt that it was . . . Meyer who committed child abuse.”

¶17 In addition to Glenn’s testimony, Daycare Provider testified at trial that Child had been in her care from roughly 9:00 a.m. to 4:45 p.m. that day. She stated that she did not see any marks or injuries on Child when Child was dropped off and she never saw marks like those photographed, but she did notice a different mark on Child’s arm later in the day, and this was the mark she asked Meyer about. She also testified that on the day of the bruising, she did not take Child to the park, she did not know of any equipment Child could have accessed that would have caused the injuries, Child did not get injured playing with toys, Child did not receive any injuries while in her care, and Child did not cry or appear to be in pain while in her care. She admitted, though, that she was aware that Child had been “kicked out of her previous day care . . . for playing too rough” and that Child “play[ed] really rough with toys and hit[] dolls a lot.”

¶18        Nurse testified that after examining Child, she “speculated . . . that because of the spacing, and the shape, and the location of the injuries, the colors that [she] saw, they were most definitely bruises,” the spacing of which “could fit a hand.” She said, “I’m not telling you it’s fitting a hand because—you know, I can’t say it was a hand unless I watched it happen, but I can tell you that those are bruises that are in a linear form that you don’t just get from falling down.” She further testified that based on the location, direction, and shape of the bruising, she did not believe that the incidents Meyer had described as possible accidental sources of injury had caused Child’s bruises. She also testified that the marks were “fresher bruises” that, based on coloration, could have been caused within hours of when Officer and Caseworker photographed Child’s injuries. But she acknowledged that “there’s no scientific way to date a bruise” and said that while it was “likely that it occurred” that day, “literally there is no way to determine when it happened.”

¶19 The State played a clip from the recorded interview between Meyer and Sergeant, in which Meyer stated that Child had a temper tantrum after arriving home from daycare and that Child tried to get out of being held and Meyer needed to grab her arm from the side.

¶20        In its closing argument, the State asked, “[W]ho caused the abuse?” and answered that “this is where we get into the process of elimination.” The State then explained its theory that the evidence proved that no one else could have caused the bruising, including Glenn, who “slept through the whole thing.”

¶21 The court ultimately found Meyer “guilty of a lesser-included offense of [c]lass B misdemeanor, child abuse, for having inflicted this injury on [Child] in a reckless manner.” The court provided its rationale, explaining in part that it “found highly credible the testimony” of Nurse that the “bruising was consistent with the types of bruising she has seen in her child abuse conferences and trainings.” The court ruled out Glenn as a potential source of the injuries by saying, “You know, . . . Glenn is asleep by the time [Child] gets home and doesn’t really interact at all. And then we know for a fact that the injuries took place . . . definitively prior to when [Father] arrive[d] based off of the video.” The court concluded, “And so there’s just no doubt in the [c]ourt’s mind that Mom, you lost your cool, you crossed a line, you squeezed your daughter’s arms, and it left that injury. It couldn’t have been anyone else.” The court sentenced Meyer to 180 days of jail but suspended 179 days. It also ordered a fine and probation.

¶22        Meyer subsequently filed a motion for a new trial through Defense Counsel. Defense Counsel then withdrew from representing Meyer. Meyer appeared pro se and asked the court to appoint counsel, but the State objected, and the court decided that Meyer did not qualify for appointed counsel based on her income. The court ultimately denied Meyer’s motion for a new trial. Meyer now appeals.

ISSUE AND STANDARD OF REVIEW

¶23        Meyer argues on appeal that Glenn’s “preliminary hearing testimony should not have been admitted at trial” under an exception to the bar on hearsay.2 “When reviewing rulings on hearsay, [appellate courts] review legal questions regarding admissibility for correctness, questions of fact for clear error, and the final ruling on admissibility for abuse of discretion.” State v. Leech, 2020 UT App 116, ¶ 31, 473 P.3d 218 (cleaned up), cert. denied, 481 P.3d 1039 (Utah 2021). But even “if we determine that the hearsay testimony should not have been admitted, we will reverse only if a reasonable likelihood exists that absent the error,

  1. Meyer also argues that the district court “committed plain error by failing to obtain a valid waiver of counsel before having [Meyer] represent herself on her motion for a new trial.” Because we rule in her favor on the first issue, we need not address this argument.

the result would have been more favorable to the defendant.” Id. (cleaned up).

ANALYSIS

  1. Similar Motive and Opportunity

¶24 Meyer argues that the district court erred in admitting Glenn’s preliminary hearing testimony. She asserts that Glenn’s testimony fails to qualify for the rule 804 exception to the evidentiary bar on hearsay. This exception applies when “the declarant is unavailable” and the declarant’s testimony was “given . . . at a trial, hearing, or lawful deposition” and is now “offered against a party who had . . . an opportunity and similar motive to develop it by direct, cross-, or redirect examination.” Utah R. Evid. 804(b)(1). Meyer argues that caselaw on this point “compels the conclusion that the admission of Glenn’s preliminary hearing testimony was erroneous” because that caselaw indicates that the motive to develop an adverse witness’s testimony at a preliminary hearing differs from the motive to do so at trial.

¶25        In State v. Goins, 2017 UT 61, 423 P.3d 1236, our supreme court discussed the effect of the 1994 amendment to Article I, Section 12 of the Utah Constitution, which limited “the function of preliminary examination to determining whether probable cause exists,” id. ¶ 31 (cleaned up) (discussing Utah Const. art. I, § 12). The court stated that, “by and large,” this provision “places most credibility determinations outside the reach of a magistrate at a preliminary hearing.” Id. ¶ 33. Therefore, “[o]ur constitution specifically limits the purpose of preliminary hearings in a manner that can undercut defense counsel’s opportunity to cross-examine witnesses at a preliminary hearing and thereby modify the interest counsel has in developing testimony on cross-examination.” Id. ¶ 41. But the court “eschewed a blanket rule” of inadmissibility for preliminary hearing testimony because it could “envision scenarios where, for whatever reason, defense counsel possesses the same motive and is provided the same opportunity to cross-examine as she would have at trial.” Id. ¶¶ 36–37. However, the court indicated that “such cases might prove rare.” Id. ¶ 36.

¶26 The Goins court then analyzed the motive for cross-examining a witness at the preliminary hearing by considering the facts of the case, which included the defendant allegedly brandishing a knife and accusing the later-unavailable witness of stealing his phone, after which the witness fled and the defendant assaulted the witness’s acquaintance. Id. ¶¶ 3–6. The court held that it was “apparent on the record . . . that [the defendant’s] counsel did not possess the same motive to develop testimony at the preliminary hearing that she would have had at trial” because the witness’s “testimony referenced concerns with [the defendant] and a prior incident between” the pair, so the defendant’s “counsel had a motive to develop this testimony and question [the witness’s] credibility” at trial “that went beyond a preliminary hearing’s constitutionally limited purpose.” Id. ¶ 46.

¶27 Subsequent cases have reached similar conclusions. In State v. Ellis, 2018 UT 2, 417 P.3d 86, a defendant faced a charge of aggravated robbery for allegedly robbing a cupcake shop at gunpoint, id. ¶¶ 1, 4. The store clerk testified at trial as to the events within the store, id. ¶ 19, but another witness—a witness who saw the perpetrator leave the scene, run across the road, and get into a car whose license plate she then reported—was not able to be in court on the day of the trial, id. ¶¶ 7–8, 16. The court admitted her preliminary hearing testimony, id. ¶ 19, but our supreme court held that this was improper, id. ¶ 40. It stated that in Goins, it had “conditioned the admissibility of preliminary hearing testimony on a showing that defense counsel really did possess the same motive and was permitted a full opportunity for cross-examination at the preliminary hearing.” Id. ¶ 39 (cleaned up). And it said that “Goins foreclose[d] the admissibility of the . . . preliminary hearing testimony” because, “as in Goins, . . . [the court had] no basis to conclude that [the defendant’s] counsel’s preliminary hearing motive to cross-examine was similar to what would have existed at trial.” Id. ¶ 40 (cleaned up).

¶28        Similarly, in State v. Leech, 2020 UT App 116, 473 P.3d 218, cert. denied, 481 P.3d 1039 (Utah 2021), this court applied the holding of Goins where a defendant faced charges related to the alleged kidnapping of two men and murder of one of them, id. ¶¶ 22–24. The court considered the admissibility of preliminary hearing testimony from a man who helped tie up the victims, drove the group to the murder site, supplied the gun, and observed the murder. Id. We noted that “whether the defense had a similar motive to develop prior testimony for purposes of rule 804(b)(1) will often turn on the nature of a witness and her testimony.” Id. ¶ 40 (cleaned up). Where the witness in question “was not only a critical eyewitness, but also an accomplice to each of the crimes,” we determined that “[t]he opportunity to cross-examine this type of witness at a preliminary hearing will likely be a poor substitute for confronting the witness at trial, where the jury can observe [the witness’s] demeanor and assess . . . credibility firsthand.” Id. Accordingly, we held that “the State did not demonstrate that [the defendant] had an adequate opportunity and similar motive to cross-examine [the witness] at the preliminary hearing as he would have had at trial.” Id. ¶ 41.

¶29 The district court believed that the present case was distinguishable from Goins because that case involved an “incident that could have caused motive for [the witness] to fabricate or fashion . . . testimony in such a way that would be damaging to [the defendant].” See Goins, 2017 UT 61, ¶ 46. On the other hand, the court stated, “in the case before the [c]ourt, there’s nothing that has been pointed to specifically that would indicate that there is a similar motive for . . . Glenn to have fabricated any of his testimony.” But the court’s analysis on this point was inadequate, as a witness’s motive for fabrication is not the only circumstance that might impact a defendant’s motive for questioning a witness at a preliminary hearing. This is obvious from Ellis, where the witness had no motive to fabricate testimony and our supreme court still held that it had “no basis to conclude that [the defendant’s] counsel’s preliminary hearing motive to cross-examine was similar to what would have existed at trial.” 2018 UT 2, ¶ 40 (cleaned up).

¶30 The district court erred in concluding that the motives at the preliminary hearing and at trial were the same. The court stated that during the preliminary hearing “there was an opportunity to cross-examine [Glenn] as to whether he was the source of . . . the injuries, whether he abused [Child].” “In fact,” it pointed out, “the State specifically questioned him on that.” It continued, “[The preliminary hearing judge] would have never shut that down and said, ‘No, even though the State had questioned specifically, did you cause the injuries, [d]efense you’re prohibited from going after him to follow up on that question.’ Certainly that would have been permitted by . . . the [j]udge.” But this analysis does not align with our supreme court’s in Goins. The Goins court specifically addressed the reality that a per se rule of admissibility for preliminary hearing testimony of unavailable witnesses “places magistrates in the uncomfortable position of choosing between conducting preliminary hearings in fidelity with article I, section 12 and permitting the type of examinations” that were standard before the constitutional amendment limited the scope of preliminary hearings. 2017 UT 61, ¶ 34. The district court fails to accept that, as the supreme court suggests, Defense Counsel could have reasonably expected the court to limit questioning to that which was necessary for probable cause and prepared to cross-examine Glenn accordingly. See id. We reasoned similarly in Leech, where the defendant’s “counsel admitted that he did not pose a question during his cross-examination of [the witness] that was objected to and sustained, but he maintained that he did not have the same opportunity and motive to cross-examine [the witness] as he would have had at trial because he understood the limited scope of the hearing.” 2020 UT App 116, ¶ 28 (cleaned up). Accordingly, the district court erred in determining that Meyer had the same motive and opportunity to question Glenn in the preliminary hearing as she did at trial because the judge would— presumably—not have prevented follow-up questions to those that were asked.

¶31        Instead, the court should have recognized that the motives changed with respect to questioning witnesses at the preliminary hearing versus at trial. The State was clear that its case was based on a process of elimination. This point is hardly significant at a preliminary hearing, which seeks to determine if there was probable cause—a low standard—for a jury to conclude Meyer caused the bruising. See id. ¶ 20 (reciting the magistrate’s explanation at the defendant’s preliminary hearing that “different standards of proof apply at a probable cause hearing than apply at trial” and that “probable cause means enough evidence that the court is convinced that a reasonable jury could find, not that they necessarily would, but that they could find the offenses charged were committed and that [the defendants] were the individuals who committed them” (cleaned up)). Moreover, at a preliminary hearing, the facts are construed in the light most favorable to the State’s case. See id. (indicating that the magistrate informed the defendant that “one of the most important [differences] is that any doubts or questions about evidence at a preliminary hearing get resolved in favor of the State and against the defendants” and explained that “the benefit of the doubt goes to the State in a preliminary hearing” (cleaned up)). On the other hand, at trial the State must prove a defendant’s guilt beyond a reasonable doubt, see, e.g.id. ¶ 64, and here the State needed to eliminate all other possible suspects beyond a reasonable doubt during trial. So the motive in questioning each witness at the preliminary hearing was to show lack of probable cause that Meyer was the source of Child’s bruises, while the motive at trial was to introduce reasonable doubt as to Meyer causing the bruises by convincing the court that someone else may have done so. In other words, with respect to Glenn, the motive shifted from showing that Glenn was the more likely source of the bruising to showing that Glenn could have caused the bruising such that there was reasonable doubt that Meyer caused it. Therefore, we hold, as did the Goins court, that it was “apparent on the record . . . that [Meyer] did not possess the same motive to develop testimony at the preliminary hearing that she would have had at trial” because at trial Meyer “had a motive to . . . question [Glenn’s] credibility that went beyond a preliminary hearing’s constitutionally limited purpose.” See 2017 UT 61, ¶ 46.

  1. Prejudice

¶32 “A determination of error in admitting [Glenn’s] preliminary hearing testimony is not alone enough to sustain a reversal. We must also find that error prejudicial. Prejudice in this setting requires a showing of a reasonable likelihood that the decision to admit [Glenn’s] preliminary hearing testimony altered the . . . verdict.” See State v. Ellis, 2018 UT 2, ¶ 41, 417 P.3d 86 (cleaned up).

¶33 The relevant caselaw indicates that errors in admitting preliminary hearing testimony are sometimes harmless. In Goins, the court held that the error was prejudicial as to one charge but harmless as to another because on the first charge, the “testimony was the primary evidence admitted in support of” that charge but on the second charge, the testimony did not address the major underlying facts and the guilty verdict was supported by other witness testimony and corroborating photographs. State v. Goins, 2017 UT 61, ¶¶ 50–51, 423 P.3d 1236.

¶34        Similarly, in Leech, this court identified prejudice with respect to one count but not as to three others. State v. Leech, 2020 UT App 116, ¶ 48, 473 P.3d 218, cert. denied, 481 P.3d 1039 (Utah 2021). For the first, we determined that the “charge could not be proven without crediting” the testimony of the kidnapping victim who wasn’t killed and “there [was] a reasonable likelihood that the jury would not have believed” this person “without the corroboration [the unavailable witness’s] testimony provided.” Id. ¶ 63. But we held that two of the convictions were independently supported by three other witnesses. Id. ¶ 52. And for the final charge, one of its elements “was not disputed at trial” and the other two elements “did not depend on the veracity of the [unavailable witness’s] account of the murder itself.” Id. ¶ 62.

¶35        In Ellis, the court found prejudice where “the preliminary hearing testimony in this case was central to the prosecution’s case on this charge.” 2018 UT 2, ¶ 2. The court so concluded because the witness “provided key pieces of evidence that the jury likely credited,” including her being “the only witness who could testify that the robber fled in a car”—making her “the crucial link for what occurred after [the clerk] lost sight of the robber.” Id. ¶¶ 43, 45.

¶36 Here, the court’s error in admitting Glenn’s testimony prejudiced Meyer because there is a “reasonable likelihood that the decision to admit [Glenn’s] preliminary hearing testimony altered the . . . verdict.” See id. ¶ 41 (cleaned up). The State’s presentation of the case against Meyer as a “process of elimination” impacts the fact-finder’s weighing of the evidence such that, for Glenn’s testimony to have been prejudicial, Meyer need show only that without the testimony, the court would have had a reasonable doubt that she was the source of the injuries. Meyer points us to this helpful insight offered by the Supreme Court of Illinois: “[I]f [the prosecution] intend[s] to obtain a conviction by the process of elimination by showing that no one else but [the] defendant could have been guilty, the burden [is] upon it to show that there was no one else in the other room.” People v. Boyd, 161 N.E.2d 311, 315 (Ill. 1959).

¶37        We agree with Meyer that removing Glenn’s erroneously admitted testimony makes a finding of reasonable doubt as to Meyer’s guilt much more likely. While Meyer’s own testimony corroborated Glenn’s account from the preliminary hearing that he was sleeping during the time Child was home from daycare until Father picked her up, that is not the only information Glenn provided. Glenn also testified that he did not cause the bruising. And he testified that, on the morning in question, he woke up and went directly to the car to drive Child to daycare, giving him no opportunity to interact with Child such that he could have caused her bruising that day.

¶38        The court, in providing the rationale for its conviction of Meyer, explained that it “found highly credible the testimony of” Nurse that the “bruising was consistent with the types of bruising she has seen in her child abuse conferences and trainings.” And it said, “You know, . . . Glenn is asleep by the time [Child] gets home and doesn’t really interact at all. And then we know for a fact that the injuries took place . . . definitively prior to when [Father] arrive[d] based off of the video.” The court clearly found that the bruises were caused before Father arrived, but it did not make a specific finding that the bruises could not have been caused earlier in the day. And Nurse, whose testimony the court found “highly credible,” testified multiple times that she could not provide a timeline for the cause of the bruising. When asked if it was “possible to at least rule out certain time frames,” Nurse responded, “What we were trained was that a fresher bruise is red or purple. . . . Red or purple means that this happened probably fairly close to the time that I saw her because of the darkness of the color, but . . . there’s no scientific way to date a bruise.” Nurse agreed that the bruises could have been caused “within hours.” But when Defense Counsel pressed, asking, “You testified a minute ago that you—it’s your opinion that with bruising, from what you observed, it’s more likely that it occurred like four hours before?” Nurse answered, “That day.” Defense Counsel stated, “That day. Two hours before, five hours before.” Nurse responded, “Purple-red is the colors you see first with bruising and there is—literally there is no way to determine when it happened.”

¶39 Given that removing Glenn’s testimony would have heightened the possibility that Glenn caused the injuries at some time outside the window between Child’s return from daycare and Father’s arrival, we conclude that Meyer was prejudiced. The State’s process-of-elimination approach makes Glenn’s preliminary hearing statements that he did not cause the bruising and did not have the opportunity to cause the bruising before Child went to daycare all the more significant. The State admitted as much when it argued for the admission of Glenn’s testimony, saying that “his testimony [was] necessary to the State to prove the case at trial.” We are hard-pressed to conclude that the testimony’s faulty admission was harmless when the State was so adamant that the testimony was essential in the first place. And the State fails to argue that Meyer was not prejudiced by the faulty admission or to point us to other evidence corroborating these key points of Glenn’s testimony. So without the preliminary hearing testimony, Glenn was not excluded—or at least not as easily excluded as he would have otherwise been. The State’s theory required it to eliminate all other possible suspects; without Glenn’s preliminary hearing testimony, it did not do so, and it is likely that the court would have concluded as much. In this respect, Glenn’s testimony is like that at issue in Ellis, because it was “central to the prosecution’s case” and “provided key pieces of evidence” under the State’s process-of-elimination approach. See 2018 UT 2, ¶¶ 2, 43. And this testimony is unlike that deemed nonprejudicial in Goins and Leech because Meyer’s conviction did “depend on the veracity of [Glenn’s] account.” See Leech, 2020 UT App 116, ¶ 62. Accordingly, the court’s error in admitting Glenn’s preliminary hearing testimony prejudiced Meyer.

CONCLUSION

¶40 The district court erred in admitting Glenn’s preliminary hearing testimony, and Meyer was prejudiced by that error. We therefore vacate Meyer’s conviction and remand this matter for further proceedings consistent with this opinion.

 

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

 

[1] Since the time of her charges, the defendant has remarried. She uses a different last name but still accepts the use of “Meyer.” We continue to use “Meyer” for simplicity and for consistency with the case name.

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Scott v. Benson – 2023 UT 4 – Fraudulent Voluntary Declaration of Paternity

2023 UT 4

IN THE

SUPREME COURT OF THE STATE OF UTAH

TAYLOR LYNN SCOTT,

Respondent,

v.

SARAH CATHERINE BENSON,

Petitioner.

No. 20210922

Heard October 3, 2022

Filed April 20, 2023

On Certiorari to the Utah Court of Appeals

Third District, Salt Lake

The Honorable Richard D. McKelvie

No. 194903038

Attorneys:

Jeremy G. Jones, Jeffrey C. Jensen, Sandy, for respondent

Julie J. Nelson, Millcreek, Alexandra Mareschal, Salt Lake City,

for petitioner

ASSOCIATE CHIEF JUSTICE PEARCE authored the opinion of the Court in

which CHIEF JUSTICE DURRANT, JUSTICE PETERSEN, JUSTICE HAGEN, and

JUDGE REUBEN RENSTROM joined.

Having recused herself, JUSTICE POHLMAN did not participate;

DISTRICT COURT JUDGE REUBEN RENSTROM sat.

ASSOCIATE CHIEF JUSTICE PEARCE, opinion of the Court:

INTRODUCTION

¶1 Utah law permits parents to establish the paternity of their child by signing and filing a voluntary declaration of paternity (VDP) with the Office of Vital Records and Statistics. UTAH CODE §§ 78B-15-301-302. Sarah Benson and Taylor Scott, an unmarried couple, signed a VDP in which they both represented that Scott was the father of Benson’s child (Child). Problem was, Scott was not Child’s biological father, and both Scott and Benson knew that when they signed the VDP.[1]

¶2 After they submitted the VDP to the state, Benson continued to allow Scott to act as a father to Child, much as she had since Child’s birth. But she eventually cut off contact between Scott and Child. Scott filed a complaint, asserting he was Child’s father and asking the court for joint legal and physical custody. Benson challenged the VDP and asked the court to declare that Scott was not Child’s father.

¶3 The district court applied the Utah Uniform Parentage Act and concluded that the VDP should be set aside because of the parties’ fraud and a mutual mistake. See id. § 78B-15-307(1). But it also concluded that, under the Act, Scott should be adjudicated to be Child’s father. See id. § 78B-15-608. Benson appealed, and the court of appeals affirmed.

¶4 Before us, Benson argues that the court of appeals misinterpreted the Act because once the district court concluded that the VDP was the product of fraud and mistake, the Act did not provide a path for Scott to continue to assert that he should be deemed to be Child’s father.

¶5 We reject Benson’s reading of the Act and affirm.

BACKGROUND

¶6 Benson was pregnant with Child when she met and began dating Scott. Scott knew that Benson was pregnant with Child while they were dating and that he was not Child’s biological father.

¶7 But Scott attended Child’s birth and played a substantial role as a parental figure in Child’s life for the next seven years. Child’s biological father passed away shortly after Child’s birth.

¶8 During their dating relationship, Benson became pregnant with Scott’s biological child (Sibling). Before Sibling was born, Benson and Scott—who had never married—split up.

¶9 Because the couple never married, Utah law did not consider Scott to be Sibling’s “presumed father.” Benson initiated a paternity action, which established that Scott was Sibling’s biological father. See supra ¶ 31 n.7. Scott and Benson settled that action by agreeing to sign a voluntary declaration of paternity (VDP)—in which Scott acknowledged that he was Sibling’s father—and by obtaining an order that gave Scott joint custody of and required him to pay child support for Sibling.[2] Under their custody agreement, Scott enjoyed near-equal parent-time with Sibling.

¶10 Scott often cared for Child at the same time and in the same manner that he cared for Sibling. This pattern continued even after Scott married someone other than Benson.[3]

¶11 At some point, Benson was arrested and charged with driving under the influence. Benson pleaded guilty, and her driving privileges were suspended. For the next several months, Scott—at Benson’s request—was the primary caregiver to both Child and Sibling.

¶12 Benson suffered from mental health issues during this period. She wanted a plan to ensure that both of her children would be cared for if she were no longer around. This thinking culminated in Scott and Benson signing and submitting a VDP that represented to the state that Scott was Child’s biological father, even though both Scott and Benson knew that representation was false. The Office of Vital Records updated Child’s birth certificate to reflect Scott’s paternity.

¶13 For a year or so after signing the VDP, Scott and Benson maintained contact and shared parenting responsibilities for both children. Eventually Benson—who had married and whose husband wanted to adopt Child—cut off contact between Scott and Child.

¶14 Scott filed a paternity action, seeking to be declared Child’s legal father and asking for joint legal and physical custody of Child. Benson counter-petitioned, challenging Scott’s paternity and asking to have the VDP set aside.

¶15 The district court treated Benson’s counter-petition as an action to invalidate the VDP under the Utah Uniform Parentage Act. The Act provides that a VDP can be challenged because of fraud, duress, or material mistake of fact. UTAH CODE § 78B-15-307. Benson also filed a motion asking the court to compel Scott to submit to genetic testing, which she asserted would demonstrate that Scott was not Child’s biological father.

¶16 Scott agreed that a genetic test would prove he was not Child’s biological father, and the parties stipulated to that fact. But Scott asked the court to disregard the biological reality under section 608 of the Act—a provision that allows a court to disregard genetic test results in certain circumstances.[4]

¶17 Benson moved for summary judgment and asked the court to set aside the VDP because the parties had made a “material mistake of fact,” a term statutorily defined to include situations in which “genetic test results . . . exclude a declarant father.” Id. § 78B­15-307(5). Benson’s motion also asked the court to find that Scott and Child did not have a father-child relationship because the VDP had been “successfully challenged.”

¶18 The court denied the motion, reasoning that, even though genetic test results would show Scott was not Child’s father, there was no “mistake” because both parties knew Scott was not Child’s biological father when they signed the VDP, and because they “chose at the time to jointly raise a child.”

¶19 After denying Benson’s summary judgment motion, the court held a three-day evidentiary hearing. The district court found that Scott and his witnesses were “generally credible” and that Scott’s description of his relationship with Child was “particularly credible.” The court found that Benson’s own testimony was also “generally credible” but rejected her testimony regarding some aspects of Scott and Child’s relationship.

¶20 The district court reversed the reasoning it had employed to deny summary judgment and concluded that the parties had been operating under a “material mistake of fact” when they signed the VDP. The court also found that Scott and Benson did not defraud each other but that the VDP was still the product of fraud because it committed “fraud against the Utah State Division of Vital Statistics.” The district court determined that the VDP should be set aside and that it was void ab initio and had “no legal force or effect.”

¶21 The district court also accepted the parties’ stipulation that Scott was not Child’s biological father as the “genetic testing” the Act references. The district court also accepted that this “testing” confirmed Scott was not Child’s biological father.[5]

¶22 But the district court ultimately determined that Scott was Child’s legal father, reasoning that its conclusion that the VDP should be set aside “draws the court to [section 608].” The court determined that Benson’s conduct estopped her from denying Scott’s parentage and that it would be inequitable to disrupt Scott and Child’s relationship. The district court also concluded that, after a review of the factors in section 608, it was in Child’s best interest for Scott to be Child’s legal father. The court found that Scott “played a substantial role in [Child’s] life for the first seven years of [Child’s] life, and that role was involuntarily terminated” by Benson. The court also found that “[t]here is and has been a strong bond and attachment between [Scott] and [Child], and there has been since [Child’s] birth.”

¶23 Benson appealed to the court of appeals, which upheld the district court’s ruling. Scott v. Benson, 2021 UT App 110, ¶ 1, 501 P.3d 1148. Like the district court, the court of appeals concluded that Scott was Child’s legal father even though Benson successfully challenged the VDP under section 307 of the Act. See id. ¶¶ 31–32. But, unlike the district court, the court of appeals reasoned that a successful 307 challenge did not render the VDP void from its inception. Id. ¶ 40. The court of appeals instead held that a successful 307 challenge meant that a VDP could be “set aside, on a going-forward basis,” but only as long as section 608 “does not counsel otherwise.” Id. And it concluded that section 608 did not demand a different conclusion than the one the district court reached. See id. ¶¶ 40, 43.

¶24 Benson petitioned for certiorari review contending that the court of appeals misinterpreted the Act.

STANDARD OF REVIEW

¶25 “We review questions of statutory interpretation for correctness, affording no deference to the lower court’s legal conclusions.” Cardiff Wales, LLC v. Washington Cnty. Sch. Dist., 2022 UT 19, ¶ 16, 511 P.3d 1155 (cleaned up).

ANALYSIS

¶26 Benson first claims that the court of appeals wrongly opined that the Act permitted the district court to conduct a section 608 analysis after it concluded that the VDP was fraudulent and based on a material mistake of fact. According to Benson, the court of appeals erred because once a VDP is successfully challenged, the court’s analysis should end in favor of the challenger. Benson also claims that the court of appeals’ interpretation of the statute raises constitutional issues, leads to absurd results, and promotes bad policy.

I. THE COURT OF APPEALS DID NOT ERR WHEN IT APPLIED
SECTION 608 TO DISREGARD THE GENETIC TEST RESULTS

A. The Court of Appeals Correctly Upheld the District Court’s
Decision to Apply Section 608

¶27 Benson first argues the court of appeals incorrectly upheld the district court’s decision to set aside the genetic test results that showed that Scott was not Child’s biological father.[6] Benson argues that section 608 “does not apply to every proceeding commenced under 307” and that, in this case, section 608 “has no application that is consistent with the language of the statute.”

¶28 The Act outlines two ways a VDP can be set aside. It allows either of the signatories to rescind a VDP by filing a voluntary rescission within sixty days of the date the VDP became effective or before “the date of notice of the first adjudicative proceeding to which the signatory is a party, before a tribunal to adjudicate an issue relating to the child, including a proceeding that establishes support,” whichever is earlier. UTAH CODE § 78B-15-306(1). If neither signatory rescinds the VDP—as in this case—they must look to section 307 to challenge the VDP.

¶29 Section 307 provides:

After the period for rescission . . . has expired, a signatory of a declaration of paternity or denial of paternity, or a support-enforcement agency, may commence a proceeding to challenge the declaration or denial only on the basis of fraud, duress, or material mistake of fact.

Id. § 78B-15-307(1).

¶30 In other words, after the VDP has been signed, either of the signatories can rescind it before the earliest of sixty days or notice of an adjudicative proceeding. Id. § 78B-15-306(1). After the statutory rescission period passes, either a signatory or a support-enforcement agency can challenge the validity of the VDP. This challenge can be based on fraud, duress, or material mistake of fact. Id. § 78B-15­307(1). A challenge based on fraud or duress can be brought at any time. Id. § 78B-15-307(3). A challenge based on material mistake of fact can only be brought within four years after the declaration is filed. Id. § 78B-15-307(4).

¶31 The Act also contemplates that, in some situations, a court can ignore genetic test results when determining paternity. Id. § 78B­15-608. Section 608 permits the district court to do this when “the conduct of the mother or the presumed or declarant father estops that party from denying parentage” and “it would be inequitable to disrupt the father-child relationship between the child and the presumed or declarant father.” Id. § 78B-15-608(1).[7]

¶32 Subsection 608(2) outlines factors a court must consider to determine whether disregarding test results is in the best interest of the child. These factors include how long a presumed or declarant father acted as a child’s father, the nature of the relationship between the child and potential father, and harm to the child if the relationship between the child and potential father is disrupted.[8]

¶33 Benson argues that the court of appeals misread the statute when it endorsed the district court’s decision to conduct the section 608 analysis after it set aside the VDP under section 307. She claims that genetic testing, and therefore section 608, is “irrelevant” to this inquiry “because the ground to set aside the VDP was already established: fraud.” In Benson’s view, the district court starts with the section 307 inquiry and cannot look to section 608 if the court finds that the VDP is the product of fraud, duress, or mistake of fact.

¶34 The court of appeals disagreed with Benson’s argument and held that the district court appropriately applied section 608 because, while other provisions of the Act state when the VDP should be considered “invalid from its inception,” section 307 does not. Scott v. Benson, 2021 UT App 110, ¶¶ 34, 37–38, 501 P.3d 1148. The court of appeals concluded the central question was about “the consequence of a successful Section 307 challenge.” Id. ¶ 36. The court of appeals determined that “the Act’s silence on this point must be viewed in tandem with the specific instructions” given for successfully voiding or rescinding a VDP in other sections of the Act. Id. ¶ 38.

¶35 The court of appeals reasoned that “there is no statutory basis for concluding that a declaration of paternity is void simply because a Section 307 challenge is successful.” Id. ¶ 32. The court of appeals therefore concluded that a district court may look to section 608 to decide whether to disregard genetic testing even after the district court finds a ground to set the VDP aside under section 307.

¶36 In other words, the court of appeals sees the process to challenge a VDP as requiring two steps. In the first step, the district court examines the VDP under section 307 and determines if a challenge to its validity is successful. Id. ¶ 40. If the challenge is successful, the district court moves to step two and applies section 608 to assess whether principles of equity and estoppel should prevent the court from allowing the declaration to “be set aside, on a going-forward basis.” Id. Benson also appears to see this as a two-step process, but she reads the Act to end the inquiry after the first step if the section 307 challenge is successful.

¶37 The aim of statutory interpretation “is to ascertain the intent of the legislature,” and the “best evidence of the legislature’s intent is the plain language of the statute itself.” Castro v. Lemus, 2019 UT 71, ¶ 17, 456 P.3d 750 (cleaned up). We “read the plain language of the statute as a whole, and interpret its provisions in harmony with other statutes in the same chapter and related chapters.” State v. Barrett, 2005 UT 88, ¶ 29, 127 P.3d 682 (cleaned up). Occasionally, “statutory text may not be plain when read in isolation, but may become so in light of its linguistic, structural, and statutory context.” Bryner v. Cardon Outreach, LLC, 2018 UT 52, ¶ 12, 428 P.3d 1096 (cleaned up).

¶38 When we read the statute’s plain language, we see a different structure than Benson and the court of appeals did. The Act does not contemplate the sequential inquiry that the court of appeals describes and that Benson wants. Rather, when a party challenges a VDP, the Legislature intends that, in appropriate cases, the section 608 factors be considered as part of the question of whether the VDP should be invalidated.

¶39 Section 308, titled “Procedure for rescission or challenge,” sets forth the procedure a court must employ to decide whether to set aside a VDP. UTAH CODE § 78B-15-308. Among the instructions section 308 provides to the district court is the mandate that a “proceeding to rescind or to challenge a declaration of paternity or denial of paternity must be conducted in the same manner as a proceeding to adjudicate parentage under Part 6, Adjudication of Parentage.” Id. § 78B-15-308(4) (emphasis added).

¶40 This means that when Benson challenged the VDP under section 307, the procedure to challenge the VDP had to be conducted in the same manner as adjudication of parentage under Part 6.[9] And, under Part 6, section 608, a district court can ignore genetic test results in appropriate circumstances. Thus, by section 308’s plain language, the court must follow the procedures of Part 6, which, in appropriate cases, incorporates the section 608 analysis into a proceeding challenging a VDP’s validity. This causes us to read the statute as calling for a single-step rather than a two-step inquiry.[10]

¶41 This reading resolves the first problem that Benson identifies. Benson claims that the district court erred (and the court of appeals erred in blessing the district court’s decision) because it looked to section 608’s factors after it concluded that the VDP was the product of mutual mistake and fraud on the state. Benson claims that the district court should not have moved to “step two” (a section 608 analysis), because the inquiry ended after “step one” (a conclusion under section 307 that the VDP was the product of fraud and mutual mistake)[11]

¶42 That problem does not arise when the statute is read correctly. A district court conducts a proceeding on a section 307 challenge in the same manner it conducts a proceeding on a challenge to paternity. Thus, in a proceeding challenging a VDP, the court can consider whether or not to set aside genetic testing based on the factors in section 608, just as it could in a proceeding to challenge paternity.[12]

B. Benson’s Argument that the Court of Appeals’ Reading Creates a
Conflict with Other Provisions of the Act Is Unavailing

¶43 Benson next argues that the court of appeals erred because its reading of the statute creates a conflict between section 608 and section 617.[13]

¶44 Section 617 states:

The tribunal shall apply the following rules to adjudicate the paternity of a child:

The paternity of a child having a presumed, declarant, or adjudicated father may be disproved only by admissible results of genetic testing excluding that man as the father of the child or identifying another man as the father of the child.

Unless the results of genetic testing are admitted to rebut other results of genetic testing, a man identified as the father of a child under Section 78B-15-505 must be adjudicated the father of the child, unless an exception is granted under Section 78B-15-608.

. . . .

(4) Unless the results of genetic testing are admitted to rebut other results of genetic testing, a man properly excluded as the father of a child by genetic testing must be adjudicated not to be the father of the child.

UTAH CODE § 78B-15-617.

¶45 Benson argues that Scott was “properly excluded” as Child’s father and therefore must “be adjudicated not to be the father of the child” without the section 608 analysis, because subsection 617(2) mentions section 608, and subsection 617(4) does not. Id. § 78B-15­617.

¶46 The court of appeals “acknowledge[d] the apparent inconsistency between subsections (2) and (4) of Section 617,” but held that, if they followed Benson’s interpretation, “Section 608— which exists only to give courts an opportunity to disregard genetic evidence in appropriate circumstances—would be effectively excised from the Act.” Scott, 2021 UT App 110, ¶ 38 n.9. Because the court did “not perceive therein a legislative intent to abrogate Section 608,” it held that Benson’s reading was unpersuasive. Id.

¶47 We see neither the conflict Benson perceives nor the inconsistency the court of appeals described. Section 617(2) refers to “a man identified as the father” and requires that a man whom genetic testing identifies as the father must be adjudicated the father unless the district court disregards the test results under section 608. UTAH CODE § 78B-15-617(2).

¶48 Section 617(4) refers to a man “properly excluded as the father of a child by genetic testing.” Id. § 78B-15-617(4). That subsection also provides that a man properly excluded by genetic testing must be adjudicated to not be the father. Id. Although subsection 617(4) does not explicitly reference section 608, it does so implicitly by referring to a man “properly excluded” by genetic testing. A man is not “properly excluded” by genetic testing if the district court disregards that testing under section 608.

¶49 Here, Scott was identified as the non-genetic father. But he was not “properly excluded as the father” of Child because the genetic testing in this case was set aside as the statute contemplates. There is no conflict between sections 608 and 617.

II. BENSON’S CONSTITUTIONALITY, ABSURDITY, AND PUBLIC POLICY RGUMENTS DO NOT DICTATE A DIFFERENT RESULT

¶50 For her next set of arguments, Benson strays from the text and contends that we should reject the court of appeals’ interpretation because it raises constitutional issues, leads to absurd results, and is contrary to public policy.

A. Benson Has Not Demonstrated that the Court of Appeals’ Reading

of the Statute Raises Constitutional Concerns That Require

a Different Interpretation

¶51 Benson contends that the court of appeals interpreted the Act in a way that raises constitutional concerns. She further argues that the court of appeals’ reading of section 608 is one that “allows a legal and genetic stranger to take advantage of its provisions” and thus “diminish[es] a mother’s fundamental right to ‘direct the upbringing of [her] children,’” (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). Benson asserts that we should apply the constitutional avoidance canon and reverse the court of appeals.

¶52 The constitutional avoidance canon permits a court to “reject[] one of two plausible constructions of a statute on the ground that [one interpretation] would raise grave doubts as to [the statute’s] constitutionality.” Utah Dep’t of Transp. v. Carlson, 2014 UT 24, ¶ 23, 332 P.3d 900. But when we can, we “decide cases on the preferred grounds of statutory construction, thereby avoiding analysis of underlying constitutional issues unless required to do so.” Id. ¶ 24 (cleaned up).

¶53 Moreover, we do not usually invoke the canon just because we have “doubts about the constitutionality” of a statute. Id. ¶ 25. Nor can we use the canon to “break faith with the statute’s text” and “rewrite the statute” to save an unconstitutional statute. State v. Garcia, 2017 UT 53, ¶ 59, 424 P.3d 171. We simply recognize that where there are two plausible constructions of a statute, and one steers clear of constitutional problems, we presume that the Legislature intended to enact the constitutional interpretation.[14] See Carlson, 2014 UT 24, ¶ 23.

¶54 We take Benson’s point that the Act has the potential to tread into constitutional territory. This court has recognized that “parents have a fundamental right to make decisions concerning the care and control of their children.” Jensen ex rel. Jensen v. Cunningham, 2011 UT 17, ¶ 73, 250 P.3d 465. Section 608, in which the Legislature provides a path to declare a person who is not genetically related to the child a parent, has the potential to compromise the genetic parent’s constitutional right.

¶55 But Benson does not offer us a plausible reading of the Act that avoids the potential constitutional concern. Instead, Benson’s proffered solution is to read the Act so that section 608 does not apply to most non-biological fathers. This would require us to rewrite the statute, something that we cannot do.

¶56 Where Benson cannot offer a plausible interpretation of the text that avoids the constitutional concern, Benson’s obligation is to demonstrate that the statute is unconstitutional. Benson has not made that argument.

¶57 That is not to say that we do not understand Benson’s concern. The Act allows someone who is not a genetic parent to gain parental rights and to potentially exercise them at the expense of the genetic parent’s rights. But Benson does not explain how, under the circumstance before us, this would violate her constitutional rights. She does not discuss the impact of her own role in seeking to defraud the State by conspiring to sign a VDP she knew was inaccurate. Nor has she analyzed the impact on her parental rights of permitting Scott to exercise parental-like rights for a number of years. Nor has she explained the impact of the district court’s unchallenged finding that it was in Child’s best interest to not set the VDP aside.

¶58 With neither a plausible interpretation of the statute that both adheres to the text and avoids the constitutional concerns, nor briefing aimed at demonstrating that sections of the Act should be struck as unconstitutional, we reject Benson’s challenges.

B. The Court of Appeals’ Interpretation Does Not Lead to Absurd Results in This Case

¶59 Benson asks us to employ the absurd consequences canon to overturn the court of appeals’ interpretation of the statute. According to Benson, holding that Scott was the “declarant father,” after the district court found the VDP was successfully challenged, leads to absurd results. As an initial matter, for the reasons we outline above, we do not agree that the VDP was “successfully challenged.” But even assuming we could accept that premise, the absurd consequences canon does not require a different interpretation. Benson claims, by way of example, that it would be absurd for a woman who was coerced into signing a VDP to have to endure a section 608 analysis where a district court would consider whether it was in the best interests of her child to set aside the VDP she was coerced to sign.

¶60 The absurd consequences canon allows us to “resolve an ambiguity by choosing the reading that avoids absurd results when statutory language plausibly presents us with two alternative readings.” Utley v. Mill Man Steel, Inc., 2015 UT 75, ¶ 47, 357 P.3d 992 (Durrant, C. J., concurring in part on behalf of the majority) (cleaned up). We conclude that statutory language yields absurd results when those results are “so overwhelmingly absurd no rational legislator could have intended them.” Id. ¶ 46.

¶61 Even if we can conceive of scenarios where the statute the Legislature enacted might produce an absurd result, we do not stray from the statute’s text in a case where the application of the Act in the case before us does not lead to an absurd result. See, e.g.State v. Sanders, 2019 UT 25, ¶ 54 n.13, 445 P.3d 453.

¶62 In Sanders, for example, we upheld Sanders’ conviction for illegal possession of a firearm. Id. ¶ 2. Sanders argued that the State’s proffered statutory construction—which did not leave room for an innocent possession defense—was absurd because there were circumstances where the application of that construction could yield an absurd result. Id. ¶ 51. We agreed with Sanders that it was “not difficult to conceive of factual scenarios where the lack of an innocent possession defense might lead to an absurd result,” such as a felon taking a gun from a toddler to place it safely out of reach. Id. ¶ 54. But the potential for an absurd result in a hypothetical case did not help Sanders, because this was “not the case before us.” Id. Sanders’ arguments were unavailing because they did not demonstrate absurd legislative policy or “that the application of that policy to [Sanders], under the circumstances presented [in that case], yielded an absurd result.” Id. ¶ 51.

¶63 As in Sanders, Benson does not meet her burden of demonstrating that the court of appeals’ statutory interpretation led to absurd results in her case. A rational legislature could have intended the result the district court ordered. At least, Benson has not convinced us that a rational legislature could not have intended that the district court look to the real-world effects on Child if it divested Scott of the parental relationship Benson had allowed to grow.

C. Benson’s Policy Arguments Do Not Allow Us to Ignore or Modify the Statute’s Text

¶64 Benson also advances policy arguments to support a different reading of the Act. Benson claims that conducting a section 608 analysis after a VDP is successfully challenged ignores “a statutory preference for genetic paternity” and would thereby “undermine[] the purposes and policies that form the basis of the comprehensive statutory scheme.”[15] She also claims this interpretation would encourage fraudulent VDPs, possibly at the expense of biological fathers.

¶65 When we can glean the Legislature’s intent from the statute’s text, we have no reason to entertain arguments that we might be able to enact better policy by placing judicial glosses on the text. We have advised that “[w]here the legislature has spoken[,] our role is limited. In the face of duly-enacted legislation we no longer have a primary policymaking role. We are left only to interpret the terms of the statute and then to implement them.” M.J. v. Wisan, 2016 UT 13, ¶ 69, 371 P.3d 21 (cleaned up). Benson may have legitimate policy concerns and may even be able to articulate a statutory scheme that better promotes public policy than the one on the books. But “we have repeatedly declined invitations to interpret statutes contrary to their plain language even when a party offers an interpretation that might better advance the Legislature’s purpose.” Zilleruelo v. Commodity Transporters, Inc., 2022 UT 1, ¶ 40, 506 P.3d 509. We do so again.

CONCLUSION

¶66 The court of appeals correctly concluded that the district court did not err when it looked to the factors in Utah Code section 78B-16-608 to disregard the genetic test results that would have excluded Scott as Child’s father.

¶67 We affirm the court of appeals’ decision and remand the case to the district court for further proceedings.

 

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

[1] The record refers to the appellant as both Benson and Cooper— Cooper being the last name she took when she married. To remain consistent with the court of appeals’ opinion, we refer to the appellant as Benson.

[2] Utah Code section 78B-15-301 creates and authorizes the use of VDPs. Utah law permits the “mother of a child and a man claiming to be the genetic father of the child . . . [to] sign a declaration of paternity to establish the paternity of the child.” Id. The VDP must be signed or authenticated “under penalty of perjury, by the mother and by the declarant father.” Id. § 78B-15-302(1)(b). By signing, the mother and declarant father aver that “the child whose paternity is being declared: (i) does not have a presumed father, or has a presumed father whose full name is stated; and (ii) does not have another declarant or adjudicated father.” Id. § 78B-15-302(1)(d). The VDP is effective once it is “filed and entered into a database established and maintained by the Office of Vital Records.” Id. § 78B­15-302(9).

[3] Benson and Scott disagree on the extent to which Scott had equal parenting time with both Sibling and Child, but Benson’s brief concedes that Scott “continued to have a relationship with Child.”

[4] Under section 608, a court can disregard genetic test results that exclude a declarant father from genetic parentage if the behavior of one of the VDP signatories estops that party from denying parentage and if disrupting the child and declarant-father relationship would be inequitable. Id. § 78B-15-608(1). When a court decides whether to ignore genetic testing, the Act instructs it to focus on the child’s best interest by examining several factors, including the bond between the declarant father and child, and the potential harm to a child if paternity is disestablished. Id. § 78B-15-608(2).

[5] The Act provides a detailed description of what constitutes genetic testing. See id. § 78B-15-102(13). Notably, that definition does not include a stipulation concerning what the genetic tests would show had a test been performed. The district court nevertheless concluded: “Genetic testing has confirmed that Petitioner is not the biological father of [Child].” This conclusion was not directly challenged on appeal, so we do not address it further other than to emphasize that we explicitly offer no opinion on whether a stipulation can be the genetic testing the Act contemplates.

[6] Benson also argues that genetic tests were unnecessary because the parties agreed Scott was not Child’s biological father, so section 608, which only allows the court to set aside genetic testing (or deny a motion for testing), does not apply. But Benson does not directly challenge the district court’s conclusion that the stipulation qualifies as genetic testing for the purposes of section 608. Because Benson has not mounted a challenge to the district court’s conclusion, we accept, without comment, the district court’s decision that the stipulation was the equivalent of a genetic test. See supra ¶ 21 n.5.

[7] A “presumed father” must be someone who, at one point, was married to the mother. See id. § 78B-15-204(1) (defining when a man is a presumed father). Because Benson and Scott were never married, Scott is not and never was Child’s presumed father.

[8] The full list of factors is

(a) the length of time between the proceeding to adjudicate parentage and the time that the presumed or declarant father was placed on notice that he might not be the genetic father;

(b) the length of time during which the presumed or declarant father has assumed the role of father of the child;

(c) the facts surrounding the presumed or declarant father’s discovery of his possible nonpaternity;

(d) the nature of the relationship between the child and the presumed or declarant father;

the age of the child;

(f) the harm that may result to the child if presumed or declared paternity is successfully disestablished;

(g) the nature of the relationship between the child and any alleged father;

(h) the extent to which the passage of time reduces the chances of establishing the paternity of another man and a child-support obligation in favor of the child; and

(i) other factors that may affect the equities arising from the disruption of the father-child relationship between the child and the presumed or declarant father or the chance of other harm to the child.

Id. § 78B-15-608(2).

 

 

[9] Although Benson sometimes references “section 307” in her briefs, it bears noting that section 307 does not outline what a party must show to successfully challenge a VDP. Rather, section 307 details the circumstances in which a party can bring a challenge after the sixty-day period has expired. Id. § 78B-15-307. Section 308 contains the Legislature’s instructions on how to proceed with a VDP challenge, and that section directs a court to proceed in the same manner as any other adjudication of parentage under Part 6.

[10] It is not difficult to envision why the Legislature would structure the statute this way. In many—if not most—cases, a party will use genetic test results to prove the fraud or mutual mistake of fact that could be used to set aside the VDP.

[11] The court of appeals also opined that a successfully challenged VDP “is subject to being declared ineffective on a forward-looking basis.” Scott, 2021 UT App 110, ¶ 31. The Act itself is largely silent on the effects of setting aside a VDP. We know that the Legislature told us that a declarant father whose VDP is rescinded cannot claw back child support he paid. See UTAH CODE § 78B-15-308(6) (“If the declaration is rescinded, the declarant father may not recover child support he paid prior to the entry of an order of rescission.”). And we know that the Legislature has declared that at “the conclusion of a proceeding to rescind or challenge a declaration of paternity, . . . the [court] shall order the Office of Vital Records to amend the birth record of the child, if appropriate.” Id. § 78B-15-308(5). But the Act does not tell us what other consequences might flow from setting a VDP aside. Since we don’t need to answer that question to resolve this case, we vacate the court of appeals’ conclusion that a successfully challenged VDP may be “ineffective on a forward-looking basis.” See Scott, 2021 UT App 110, ¶ 31. And we leave the question for a case where that determination matters to the outcome and is specifically briefed.

[12] Benson also argues that the district court erred when it applied section 608 because that section applies to declarant fathers, and “[o]nce the court granted [Benson’s section 307] challenge, Child was no longer a child ‘having a declarant father.’” Benson additionally claims that Scott was not a declarant father because subsection 201(2) of the Act, the provision on father-child relationships, means a successful VDP challenge disestablishes a father-child relationship. UTAH CODE § 78B-15-201(2). As we have explained, if the section 307 challenge is conducted in the same manner as a paternity determination—as the statute requires—the district court applies section 608 as part of the determination to set the VDP aside. And someone in Scott’s position does not lose his declarant father status unless the court invalidates the VDP.

[13] 13 Benson also argues that the court of appeals erred because the Act should be interpreted in light of the Act’s purported purpose— favoring the recognition of genetic parentage. Benson argues that the court of appeals’ interpretation of the statute “which would allow the signatory to a successfully challenged VDP to nonetheless rely on section 608, undermines the purposes and policies that form the basis of the comprehensive statutory scheme.” But we don’t normally interpret the statute in light of its supposed purpose when the plain text tells us how the Legislature intended the statute to operate. See Zilleruelo v. Commodity Transporters, Inc., 2022 UT 1, ¶ 31, 506 P.3d 509 (“In general, where a statute’s language is unambiguous and provides a workable result, we need not resort to other interpretive tools, and our analysis ends.” (cleaned up)). Sticking to the text helps us avoid “the peril of interpreting statutes in accordance with presumed legislative purpose” as “most statutes represent a compromise of purposes advanced by competing interest groups, not an unmitigated attempt to stamp out a particular evil.” Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 23 n.6, 248 P.3d 465. Thus, in a case like this, where the statutory language is plain, we have no need to start poking around the statute’s purposes in hopes of finding a gloss to put on the text.

 

[14] In State v. Garcia, for example, we employed the canon to choose between two interpretations of “unlawful user” in determining how to read a statute. We chose the interpretation that “comport[ed] better with the statute’s text” because following the text of the statute best “preserve[d] the legislative intent.” Garcia, 2017 UT 53, ¶ 61.

[15] We again note that we do not agree with Benson that the VDP had been “successfully challenged.” We nevertheless engage with the substance of her arguments.

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

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

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

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

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

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

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In re J.L… 2022 UT 12 – termination of parental rights

2022 UT 12 

IN THE SUPREME COURT OF THE STATE OF UTAH 

STATE OF UTAH, in the Interest of J.A.L. and J.O.L.,
Persons Under Eighteen Years of Age 

J.L. and J.A.,
Appellants, 

STATE OF UTAH,
Appellee. 

No. 20200271 

Heard September 16, 2021
Filed February 24, 2022 

On Certification from the Court of Appeals 

Fifth District Juvenile, Iron County
The Honorable Troy A. Little
No. 1161641, 1161642 

Attorneys:1  

Alexandra Mareschal, J. Frederic Voros, Jr., Julie J. Nelson, Salt Lake
City, Christa G. Nelson, Cedar City, for appellant J.L. 

Colleen K. Coebergh, Salt Lake City, Candice N. Reid, Cedar City,
for appellant J.A. 

Sean D. Reyes, Att’y Gen., Carol L. C. Verdoia, John M. Peterson,
Asst. Att’ys Gen., Salt Lake City, for appellee 

Martha Pierce, Salt Lake City, Guardian ad Litem
for J.A.L. and J.O.L. 

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court in
which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE, and
JUSTICE PETERSEN joined. 

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court: 

¶1 This is an appeal from a juvenile court order terminating the parental rights of the mother and father of two children. The Division of Child and Family Services has been engaged with this family since at least July 2018. A range of support services has been provided over time. The children were removed from the mother’s custody in December 2018 and placed in foster care. And at various times both the father and mother have been subject to a court order prohibiting contact between them and to orders requiring treatment for domestic violence, substance abuse, and mental health issues. 

¶2 The Division initially pursued a permanency goal of reunification with the parents. When reunification failed, the Division petitioned to change the goal to adoption. After a hearing and an order granting the new permanency goal, the children were moved to a kinship placement with the father’s brother in Arkansas. The uncle had agreed to adopt the children. And after a subsequent hearing on the termination of parental rights, the juvenile court entered an order terminating the parental rights of both the mother and father. 

¶3 In the termination proceeding, the juvenile court found that both parents were “unfit” and had “neglected” the children. The court based its determination on factors listed in Utah Code section 78A-6-508(2)—concluding that the children were “abused and neglected” by “[t]he domestic violence perpetrated by the Father and the Mother’s failure to protect the children,” and that the parents’ substance abuse “render[ed] [them] unable to care for the children.” 

¶4 After finding statutory grounds to terminate, the court determined that termination was “strictly necessary” in the “best interest” of the children. It concluded that the children could not be returned home “today”—or “at this point”—because the mother and father had failed to sufficiently rehabilitate themselves. And it held that the children’s “tremendous need for permanency and stability” could not be met while preserving the parents’ rights within a permanent custody and guardianship arrangement. 

¶5 Six weeks after the termination order was entered, the adoptive placement with the uncle failed. The children returned to state custody in Utah. 

¶6 After the kinship placement failed, the father and mother filed motions for post-judgment relief. The mother sought 60(b)(6) relief in light of the “extraordinary circumstances” of the failure of the kinship placement. The father filed a 60(b)(6) motion on the same grounds. He also sought relief under 60(b)(5), asserting that the failed kinship placement meant that the judgment was “no longer equitable.” The juvenile court denied the motions. 

¶7 The mother and father appealed. The court of appeals certified the matter to this court based on a perceived need for our review of “a challenge to the current appellate standard of review in child welfare proceedings” and to consider “an issue regarding the effect of statutory changes on supreme court case law.” 

¶8 The mother and father raise different claims of error on appeal. The mother challenges only the juvenile court’s findings, made at an evidentiary permanency hearing and allegedly at a subsequent review hearing, that she appeared “under the influence” at various hearings. She asserts that a judge is not qualified to make such findings without expert testimony. And she contends that the court denied her due process of law by making the findings without giving her notice and an opportunity to be heard. 

¶9 The father challenges the juvenile court’s best interest determination2 and the court’s denial of his motions for post-judgment relief. As an initial matter, the father asks us to conduct de novo review of termination proceedings—and overturn the deferential standard of review established in State ex rel. B.R., 2007 UT 82, 171 P.3d 435. He also asks us to require specific factual findings and legal conclusions in parental rights termination orders. Regardless of our decision on the appropriate standard of review, the father contends that the juvenile court erred in concluding that termination of the father’s rights was “strictly necessary” to promote the “best interest” of the children. 

¶10 We affirm in part and reverse and vacate in part. First, we note that the mother’s claims are unpreserved and hold that she has failed to carry the burden of establishing plain error. Second, we reject the father’s request that we abandon a deferential standard of review of a best interest determination but find threshold legal errors in the juvenile court’s best interest analysis—in the assessment of whether the father had made sufficient progress in his rehabilitation under Utah Code section 78A-6-509(1)(b), and in the assessment of whether termination of parental rights is “strictly necessary” under Utah Code section 78A-6-507. Third, we vacate and remand for a new best interest determination under the law as clarified in this opinion. In so doing, we note that the mother failed to highlight the legal errors identified by the father in her briefs on appeal but conclude that the mother’s rights should be on the table on remand in the unique circumstances of this case. 

I 

¶11 The mother challenges the juvenile court’s findings that she appeared “under the influence” at court hearings. She asserts that the judge is not qualified to make such findings without expert testimony. And she claims that the court infringed her right to due process by making these findings without notice that the observations were being made and without affording her an opportunity to respond. 

¶12 None of these points was preserved in the juvenile court, however. To succeed on appeal, the mother would therefore need to make a showing of plain error—that “(1) an error exists; (2) the error should have been obvious to the trial court; and (3) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome.” State v. Low, 2008 UT 58, ¶ 20, 192 P.3d 867 (citations and internal quotation marks omitted).3 And the mother has failed to carry that burden. 

¶13 We have previously upheld a juvenile court’s legal conclusions based on observations of “outbursts” made in open court. In re T.E., 2011 UT 51, ¶¶ 44–45, 266 P.3d 739. And the juvenile court in this case did not even go so far as to make a legal conclusion. It relied on its observation of the mother in court to require her to be subjected to testing for substance use—a follow-up under a standing order requiring ongoing substance abuse testing.4 So we do not see how it could have been error—and certainly not an obvious error—for the court to use its observations as a basis for such testing where the mother’s sobriety was already at issue. 

¶14 Nor do we see a basis for concluding that any alleged error was prejudicial. In the termination order, the court refers to its “personal observations” of the mother only once—as a single consideration in a set of reasons supporting one of the five grounds for termination found by the court. And earlier in the proceedings, the court continued reunification services for the mother despite making a concurrent finding that “[t]hree quarters of the times the Mother is in court it appears she [is] under the influence of drugs”— and despite terminating reunification services as to the father in the same evidentiary permanency hearing. The mother has not established that there is any likelihood that her parental rights would not have been terminated if the juvenile court had not ordered testing on the basis of its observations, or if it had afforded the mother the right to respond that she asserts as a matter of due process. 

II 

¶15 The father challenges the termination of his parental rights on two grounds. He contends that the juvenile court erred in (a) concluding that termination of his rights was “strictly necessary” in the “best interest” of the children; and (b) denying his motions for post-judgment relief. We reverse on the first ground and decline to reach the second because it is mooted by our threshold decision. 

A 

¶16 The father prefaces his challenge to the juvenile court’s best interest analysis with a request that we overrule our longstanding case law on the standard of review of parental rights termination orders—requesting that we replace the established deferential standard of review with a de novo review for correctness. But we rejected parallel requests in two recent decisions. See In re G.D., 2021 UT 19, ¶¶ 1, 3, 491 P.3d 867; State ex rel. E.R., 2021 UT 36, ¶ 13, 496 P.3d 58. And the father has not identified a persuasive ground for reconsidering these decisions. 

¶17 In E.R. we clarified that the best interest inquiry is a fact-like “mixed determination of law and fact” that is subject to deferential review. 2021 UT 36, ¶¶ 17, 22. Appellate deference, of course, is not absolute. The juvenile court’s best interest analysis may be set aside if it is “against the ‘clear weight of the evidence.’” Id. ¶ 6. It is also subject to reversal where it is premised on a threshold legal error. See id. ¶ 16 (noting that we “afford [n]o deference” to the juvenile court’s “analysis of abstract legal questions” (alteration in original) (citation and internal quotation marks omitted)). 

¶18 We reverse the juvenile court’s termination of the father’s parental rights on this basis. The juvenile court’s order was infected by two legal errors. And those errors foreclose the usual basis for deference to the conclusion that termination of the father’s rights was “strictly necessary” in the “best interest” of the children under Utah Code section 78A-6-507(1) (2020).5 See Rocky Ford Irrigation Co. v. Kents Lake Reservoir Co., 2020 UT 47, ¶ 78, 469 P.3d 1003 (citation omitted) (holding that a district court’s findings were not owed deference where they were “infected by legal error”). 

1 

¶19 In terminating the father’s parental rights, the juvenile court concluded that it would be “neglectful” to “[r]eturn[] the children to the Father today.” (Emphasis added.) It also found that a reunification of the children with the father would introduce a significant “safety risk” “at this time.” (Emphasis added.) And it raised the concern that the father might not “be successful outside of treatment” given the lack of “any indication of future success” based on “the Father’s past.” 

¶20 These statements are premised on legal error. In a case where the child is not in the parent’s physical custody, the court must consider a set of “specific considerations” in assessing whether termination is strictly necessary in the best interest of children. UTAH CODE § 78A-6-509. And the listed considerations include “the effort the parent or parents have made to adjust their circumstances, conduct, or conditions to make it in the child’s best interest to return [the child to the] home after a reasonable length of time.” Id. § 78A-6509(1)(b) (emphasis added). 

¶21 The statute does not establish a specific timeframe for parents to “adjust their circumstances, conduct, or conditions.” But it does afford a parent a “reasonable length of time” to make any necessary adjustments. And that requires the court to consider whether any needed adjustments were made within a reasonable time. 

¶22 The court retains a measure of discretion in deciding on the length of the “reasonable” time.6 But by statute it must exercise that discretion. And the juvenile court failed to do so here. It held that the father “ha[d] failed to appropriately adjust” his “circumstances, conduct, or conditions to make return in the children’s best interest.” In so doing, it failed to consider whether he had had a “reasonable length of time” to do so.7 And it exacerbated the problem by focusing on static assessments that it would be “neglectful” to “[r]eturn[] the children to the Father today” and would introduce a significant “safety risk” if they returned to him “at this time.” 

2 

¶23 The juvenile court also premised its termination decision on concerns about the “tremendous need for permanency and stability” of the children. It considered the possibility of preserving the father’s legal rights while awarding permanent custody to a guardian. But it rejected that move on the ground that it “would not . . . offer the same degree of permanency as an adoption,” given that a permanent guardianship could be terminated at the request of the guardian or at least subject to visitation by the father. And it held that this “lack of stability would be harmful for the children.” 

¶24 This too was error. The court was right to consider the feasibility of a permanent guardianship. See In re B.T.B., 2020 UT 60, ¶¶ 66–67, 472 P.3d 827 (explaining that the “strictly necessary” analysis requires consideration of the possibility of “feasible options” like awarding custody to a permanent guardian (citation and internal quotation marks omitted)). But it fell into legal error in concluding that this option would not provide the “same degree of permanency as an adoption.” That is not the question under our law. A permanent guardianship by definition does not offer the same degree of permanency as an adoption. And there is always some risk that the permanent guardianship could come to an end, or be affected by visitation by the parent. If these categorical concerns were enough, termination and adoption would be strictly necessary across the board. But such categorical analysis is not in line with the statutory standard. 

¶25 By statute, the juvenile court must assess whether a permanent guardianship can “equally protect[] and benefit[]” the children in the case before it. G.D., 2021 UT 19, ¶ 75 (citation omitted). That standard is not met by the categorical concern that a permanent guardianship is not as stable or permanent as an adoption. It requires analysis of the particularized circumstances of the case before the court. No such analysis is presented here. And the court’s categorical dismissal of the possibility of a permanent guardianship is a further ground for reversal of the juvenile court’s decision. 

B 

¶26 The above legal errors undermine our confidence in the juvenile court’s basis for terminating the father’s parental rights. They also foreclose the need for us to consider the father’s challenge to the denial of his motions for post-judgment relief. The correctness of the denial of those motions is mooted by our decision to reverse in light of the legal errors in the parental termination order. 

III 

¶27 The father has established that the juvenile court’s termination order was infected by the above-noted legal errors. That leaves the question of the effect of those errors on our disposition on appeal. We conclude that a remand to the juvenile court is appropriate. And we hold that both parents’ legal rights should be on the table on remand. 

A 

¶28 The juvenile court’s threshold legal errors foreclose the usual basis for deference to its factual findings and mixed determinations. In the face of such errors, an appellate court has at least two options. It may reverse and remand to the lower court for rehearing under a correct legal standard.8 Or it may review the lower court’s findings under a non-deferential standard of review.9 We take the former course of action here in light of the important role that our juvenile courts play in applying a complex body of law to a matter encompassing an extensive factual and procedural record. 

B 

¶29 In the parties’ briefing on appeal, only the father identified the above-noted legal errors as a basis for reversal. The mother’s appeal was limited to her challenge to the juvenile court’s findings that she appeared “under the influence” in court. 

¶30 The father urges this as a basis for concluding that the mother is foreclosed from participating in the proceedings on remand, or from having her rights on the table in a new “best interest” analysis in line with the refinements in our law set forth above. See supra ¶¶ 21–22, 24–25. He notes that a claim is generally waived if not raised on appeal. See State v. Johnson, 2017 UT 76, ¶¶ 15–16, 416 P.3d 443. And he asks us to hold that the mother forfeited her stake in a remand under claims of legal error that she failed to advance on appeal. 

¶31 The father’s position finds some threshold footing in our law. As a general rule, our courts respect the prerogatives of the parties in deciding which claims to pursue (or forgo) in litigation. See Utah Stream Access Coalition v. VR Acquisitions, LLC, 2019 UT 7, ¶¶ 36–37, 439 P.3d 593. In deference to those prerogatives, and in the interest of judicial economy and repose, the parties are generally stuck with the moves they make in litigation. Patterson v. Patterson, 2011 UT 68, ¶¶ 15–17, 266 P.3d 828. Our courts do not lightly second-guess the parties by reviving a claim they have forfeited by their pleading or briefing decisions.10  

¶32 The mother presumably would be foreclosed from participating in the proceedings on remand if she had failed to file an appeal.11 But the mother did file an appeal. And the father has cited no case law that controls in the unusual circumstances presented here—where two appellants filed briefs on appeal and one of them has identified a legal error that affected not just both of the appellants but also the interests of other parties to this proceeding (the children). 

¶33 In these circumstances, we are reluctant to give conclusive, controlling effect to the briefing decisions of the parties. The juvenile court’s legal missteps infected its decision to terminate both the father’s and the mother’s legal rights.12 And those missteps may bear significant consequences not just for the parents but for their children. The rights and interests of the parents and the children are not only substantial but intertwined. On remand, the decision whether to terminate one parent’s rights could be affected by the decision whether to terminate the other’s rights. And the decision whether one or both parents should retain their rights may have substantial bearing on the analysis of the best interest of the children.13  

¶34 With these concerns in mind, we conclude that the mother’s briefing decisions should not foreclose her from participating in the case on remand. Both parents’ legal rights should be on the table. 

¶35 In remanding, we are not foreclosing the possibility that concerns expressed in the juvenile court’s order—such as the risk and effects of domestic violence—may be a sufficient basis for termination of the parents’ legal rights. Nor are we suggesting that the parents have not yet had a “reasonable length of time” to adjust their “circumstances, conduct, or conditions.” On these and other points, we are simply holding that the juvenile court’s opinion is too affected by legal error to merit deference on appeal. And we are sending the matter back to the juvenile court to exercise its discretion under a correct formulation of the law. 

IV 

¶36 We vacate the juvenile court’s order terminating the parental rights of the parents. In so doing, we leave in place any threshold orders not challenged on appeal—such as the court’s order establishing the parents’ unfitness. But we remand the case for rehearing on the question whether termination of their parental rights is strictly necessary in the best interest of the children, under the governing legal standard as clarified in this opinion. 

http://www.utcourts.gov/opinions/view.html?court=supopin&opinion=In re J.L…20220224.pdf 

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What are the divorce laws in Utah?

I don’t want to appear immodest, but honestly, my book is probably the best source in one volume: 

https://store.legal.thomsonreuters.com/law-products/Treatises/Utah-Family-Law-2020-2021-ed-Vol-2-Utah-Practice-Series/p/106664782 

You can also find the laws governing Utah divorce and family law at the Utah State Legislature’s website, particularly (but not exclusively) in these Chapters of the Utah Code: 

Utah Code, Title 30, Husband and Wife, Chapter 3. Divorce 

Utah Code, Title 78B, Judicial Code, Chapter 12, Utah Child Support Act, Part 2. Calculation and Adjustment 

And you can learn a lot about how divorce law works in Utah by reading divorce and child custody decisions of the Utah Supreme Court and Utah Court of Appeals. 

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

https://www.quora.com/What-are-the-divorce-laws-in-Utah/answer/Eric-Johnson-311?prompt_topic_bio=1  

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2021 UT 36 – In re E.R.

2021 UT 36 – In re E.R. 

IN THE SUPREME COURT OF THE STATE OF UTAH    

State of Utah, in the interest of E.R., a person under eighteen years of age  

J.R., Petitioner,  

STATE OF UTAHRespondent.  

No. 20200163  

Heard April 8, 2021  

Filed July 29, 2021    

On Certiorari to the Utah Court of Appeals    

Fourth District, Provo  

The Honorable F. Richards Smith  

No. 1012098  

Attorneys: Margaret P. Lindsay, Provo, for petitioner  

Sean D. Reyes, Att’y Gen., Carol L. C. Verdoia, John M. Peterson, Asst. Att’y Gens., Salt Lake City, for respondent  

Martha Pierce, Salt Lake City, Guardian ad Litem for E.R.    

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE, and JUSTICE PETERSEN joined.  

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:  

¶1 This case arises from the termination of a mother’s parental rights. The juvenile court removed E.R. from his mother’s custody in January 2016, after the Division of Child and Family Services (DCFS) supported a finding of dependency against the mother. The court first set a primary permanency goal of reunification with the mother, with a concurrent goal of permanent custody and guardianship with a relative. After several months of receiving services from DCFS, however, the mother failed to come into substantial compliance with the reunification plan. In November 2016, the juvenile court “terminated reunification services” and “set a primary goal of adoption with a concurrent goal of permanent custody and guardianship.”  

¶2 A year later the state petitioned for termination of the mother’s parental rights. At that point, the court found there were statutory grounds to terminate and determined that it was in E.R.’s best interest to do so. The court concluded that E.R. “has a particular aversion to anything court related” and that he “has a significant need for stability in his placement.” And with that in mind, the court determined that it was “strictly necessary to terminate” the mother’s parental rights to provide E.R. with “true permanency through adoption and so that all court proceedings come to an end.”  

¶3 The mother appealed the termination, asserting that the juvenile court had “exceeded its discretion in terminating her parental rights” and that “termination was not in E.R.’s best interest.” State ex rel. E.R., 2019 UT App 208, ¶ 9, 457 P.3d 389; see UTAH CODE § 78A-6-507 (setting forth grounds for termination and providing that termination is permitted if it is “strictly necessary” “from the child’s point of view”).1 In the mother’s view, the juvenile court had failed to give adequate consideration to reasonable alternatives to termination, as required for the “strictly necessary” inquiry. Id. ¶¶ 10–11; see also In re B.T.B., 2020 UT 60, ¶ 76, 472 P.3d 827 (stating that “a court must specifically address whether termination is strictly necessary to promote the child’s welfare and best interest”). And the mother sought reversal on that basis.  

¶4 The court of appeals affirmed the decision of the juvenile court. Applying the standard of review set forth in State ex rel. B.R., 2007 UT 82, ¶ 12, 171 P.3d 435, the court of appeals stated that “the juvenile court’s decision should be afforded a high degree of deference” and concluded that the result could be overturned only if it is “against the clear weight of the evidence” or leaves the appellate court “with a firm and definite conviction that a mistake has been made.” E.R., 2019 UT App 208, ¶ 8 (quoting B.R., 2007 UT 82, ¶ 12). The court determined that the mother had failed to “demonstrate that the juvenile court’s findings were against the clear weight of the evidence.” Id. ¶ 13. It concluded that the juvenile court had “examined the specific circumstances of this case and the individual needs of E.R.” when making its decision and that its best interest determination was adequate. Id. And the court of appeals thus concluded that the “finding that termination was strictly necessary was not against the clear weight of the evidence.” Id. ¶ 15.  

¶5 The mother filed a petition for certiorari, which we granted. Her briefs filed in our court are aimed at challenging the propriety of the standard of review applied by the court of appeals. She first asks us to rule that the deferential standard of review laid out in B.R. applies only to determinations of parental fitness in termination proceedings, not to best interest determinations. If we conclude that B.R. does apply to best interest determinations, she next asserts that the standard is too deferential, and should be replaced with a non-deferential, de novo standard of review.  

¶6 We affirm. First, we hold that the court of appeals correctly applied the B.R. standard of review to the juvenile court’s best interest determination. Second, we reject the mother’s request that we replace the B.R. standard with a de novo standard of review. Third, we acknowledge some points of imprecision and possible confusion in B.R., and clarify that the governing standard is the same deferential standard that applies to any fact-intensive decision of any lower court—such determinations are upheld unless they are against the “clear weight of the evidence.”  

 

¶7 In State ex rel. B.R., this court stated that a juvenile court’s termination decision “should be afforded a high degree of deference.” 2007 UT 82, ¶ 12, 171 P.3d 435. We noted that the question “[w]hether a parent’s rights should be terminated presents a mixed question of law and fact.” Id. And we held that an appellate court may thus overturn the juvenile court’s decision on termination only where it is “against the clear weight of the evidence or leave[s] the appellate court with a firm and definite conviction that a mistake has been made.” Id. (alteration in original, citation and internal quotation marks omitted). Such a decision may be overturned, in other words, “only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” Id.  

¶8 The mother contends that only determinations of parental fitness, and not determinations of a child’s best interest, are reviewed under the standard set forth in B.R.2 She cites language from B.R. stating that “the legal standard of unfitness is the ultimate question.” Id. And she accordingly insists that B.R. concerned only a parental fitness determination, not a best interest determination. See id.  

¶9 This is a misread of our opinion in B.R. Our opinion addressed the larger question of what level of review to apply to a juvenile court’s analysis of “[w]hether a parent’s rights should be terminated.” Id. And parental termination implicates not just parental fitness but also the child’s best interest—a point made clear by subsequent precedent.  

¶10 In State ex rel. A.C.M., we reiterated the B.R. standard and applied it to a juvenile court’s decision to terminate a father’s rights. We thus applied this standard to two questions—to whether the juvenile court had “sufficient grounds to terminate his rights,” and to whether it had failed to consider the child’s “best interests.” 2009 UT 30, ¶ 8, 221 P.3d 185. In considering these questions, we stated that “[w]e afford great deference to the juvenile court’s findings of fact and overturn the result only if the facts are against the clear weight of the evidence.” Id.  

¶11 Our recent decision in In re G.D. is along the same lines. There we stated that “[w]hen reviewing a fact-intensive mixed question of fact and law, such as whether a particular placement serves a child’s best interests, . . . [a]n appellate court must not overturn the trial court’s decision unless it is against the clear weight of the evidence.” In re G.D., 2021 UT 19, ¶ 72 n.46, __ P.3d __.  

¶12 These cases foreclose the mother’s first argument. The standard of review established in B.R. applies to all aspects of the juvenile court’s termination of parental rights determination, and not just to the parental fitness determination. We have routinely applied the standard to both parental fitness and best interest determinations. The court of appeals was thus correct to apply the B.R. standard to the juvenile court’s best interest determination.  

II  

¶13 The mother asserts that the standard we established in B.R. is too deferential for a best interest determination. But the deferential standard established in B.R. is in line with the standard of review we apply to similar fact-intensive decisions. And the mother has not identified a basis for repudiation of this deferential standard in favor of the de novo standard she asks us to apply.  

¶14 The appropriate standard of review for a lower court’s decision is dependent upon the “nature of the issue.” In re Adoption of Baby B., 2012 UT 35, ¶ 42, 308 P.3d 382. We apply differing standards of review to findings of fact, conclusions of law, and determinations of mixed questions of law and fact.  

¶15 Factual determinations are accorded a high degree of deference. This is because “a lower court often has a comparative advantage in its firsthand access to factual evidence.” In re United Effort Plan Trust, 2013 UT 5, ¶ 17, 296 P.3d 742 (citation and internal quotation marks omitted). And as factual issues “are unique to each case,” there is “no particular benefit in establishing settled appellate precedent on issues of fact.” Id. (citation omitted). With this in mind, we review determinations of fact with a “highly deferential standard,” overturning the lower court “only when clearly erroneous.” Id. (citation omitted).  

¶16 Our review of conclusions of law is at the other end of the spectrum. We afford “[n]o deference . . . to the lower court’s analysis of abstract legal questions.” Id. ¶ 18 (citation omitted). “[S]ettled appellate precedent is of crucial importance in establishing a clear, uniform body of law.” Id. (citation omitted). And appellate courts have comparative advantages in establishing such precedent. We apply a non-deferential de novo standard to questions of law for that reason.  

¶17 A best interest determination involves neither a pure finding of fact nor an abstract conclusion of law. This is a mixed determination of law and fact—in which the abstract law is applied to a given set of facts.  

¶18 The standard of review for mixed questions “depends on the nature of the issue.” Baby B., 2012 UT 35, ¶ 42. “Law-like mixed questions are reviewed de novo, while fact-like mixed questions are reviewed deferentially.” Sawyer v. Dep’t of Workforce Servs., 2015 UT 33, ¶ 11, 345 P.3d 1253. To determine “whether a mixed question should be deemed law-like or fact-like, we evaluate the ‘marginal costs and benefits’ of conducting either a searching de novo review or a deferential review of a lower tribunal’s resolution of the mixed question.” Id. ¶ 12 (quoting Baby B., 2012 UT 35, ¶ 42).  

¶19 De novo review of mixed questions is appropriate “where a fresh appellate reconsideration of the issues present[s] little downside and significant upside.” Baby B., 2012 UT 35, ¶ 44. Issues that are “law-like” are matters that “lend[] themselves to consistent resolution by uniform precedent.” Id. Appellate courts are in a preferred position on such issues. They can establish a uniform body of precedent establishing “consistent rule[s]” that litigants and lower courts can rely on. Id. And a need to establish such rules cuts against a standard of deference to lower courts.  

¶20 Other mixed questions do “not lend [themselves] to consistent resolution by a uniform body of appellate precedent” because the factual scenarios presented are “so complex and varying that no rule adequately addressing the relevance of all these facts can be spelled out.” Id. ¶¶ 42–43. On these issues, “the trial court is in a superior position” to make a determination and deference is appropriate. Id. ¶ 42.  

¶21 Our cases identify a “cost-benefit” basis for distinguishing “law-like” and “fact-like” mixed determinations through the lens of a three-factor test laid out in State v. Levin. See Sawyer, 2015 UT 33, ¶ 12This test considers:  

(1) the degree of variety and complexity in the facts to which the legal rule is to be applied; (2) the degree to which a trial court’s application of the legal rule relies on facts observed by the trial judge, such as a witness’s appearance and demeanor, relevant to the application of the law that cannot be adequately reflected in the record available to appellate courts; and (3) other policy reasons that weigh for or against granting discretion to trial courts.  

State v. Levin, 2006 UT 50, ¶ 25, 144 P.3d 1096 (citation and internal quotation marks omitted).  

¶22 Under this test, a juvenile court’s best interest determination involves a “fact-like” mixed question subject to deferential review. First, this is a “factually intense . . . inquiry” dependent on the unique circumstances and needs of each child. State ex rel. B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. Each case presents its own complexity and variety. And these considerations stand in the way of appellate development of categorical rules in this field.  

¶23 Second, the juvenile court has a superior perspective in light of its view of the demeanor of both parents and children. We have “previously noted that a party’s demeanor” is a factor that “may be probative in a best interest analysis.” State ex rel. T.E., 2011 UT 51, ¶ 44, 266 P.3d 739. Such evidence “may be probative of a parent’s credibility, a parent’s attitude toward his or her child, and a parent’s attitude in fulfilling parental obligations.” Id. And again this cuts in favor of a standard of deferential review.  

¶24 The mother’s principal counter is her assertion that “policy reasons” are sufficient to outweigh the above. She notes that there are “fundamental interests at stake” in a best interest determination. And she cites recent amendments to the Utah Code that in her view indicate that “the standard of review as to whether termination is in the best interest of the child should be rebalanced between juvenile and appellate courts.”  

¶25 We see no basis in the cited authority for an alteration of our longstanding standard of deference to best interest determinations. A parent certainly has a “fundamental right, protected by the Constitution, to sustain his relationship with his child.” In re J.P., 648 P.2d 1364, 1372 (Utah 1982) (citation omitted). But there is no hard-and-fast rule that any and all determinations affecting a party’s fundamental rights are subject to searching de novo review. And in our view the best interest determination is properly subject to deferential review for reasons set forth above.  

¶26 The mother has identified no persuasive ground for her request that we overrule the standard set forth in B.R. She has made little or no effort to justify a reversal of course as a matter of stare decisisSee Eldridge v. Johndrow, 2015 UT 21, ¶ 22, 345 P.3d 553  

(setting forth factors for consideration in deciding whether to overrule our precedent). And we decline her request and reaffirm the standard set forth in B.R. for reasons set forth above.  

III  

¶27 Although we reinforce B.R., we also take this occasion to refine it. We uphold the central standard of deferential review set forth in that opinion. But we acknowledge some potential points of confusion and inconsistency and clarify the standard going forward.  

¶28 The parties’ briefs have highlighted potential problems with the formulation of the standard as stated in B.R. The mother points to clauses in the opinion that purportedly are viewed as effectively insulating juvenile court decisions from effective review on appeal. And even the State concedes that under B.R., “Juvenile Court judges have long been afforded even greater deference than their district court counterparts.”  

¶29 We see the matter differently, but understand that some of the language in B.R. may be contributing to some misunderstanding. At least two sentences in B.R. may be adding to a sense that juvenile court judges are entitled to an extra measure of deference: (a) the statement that a “juvenile court’s decision should be afforded a high degree of deference,” and (b) the assertion that “[w]hen a foundation for the court’s decision exists in the evidence, an appellate court may not engage in a reweighing of the evidence.” State ex rel. B.R., 2007 UT 82, ¶ 12, 171 P.3d 435.  

¶30 We disavow these sentences, and any other “language in B.R.” that could be read to “suggest[] that there is a different standard of review for juvenile courts.” See In re G.D., 2021 UT 19, ¶ 72 n.46, __ P.3d __ (making a parallel point). And we hereby clarify that the deference afforded to the juvenile court is the same level of deference given to all lower court findings of fact and “fact-like” determinations of mixed questions.  

¶31 There is no universal bar on an appellate court “reweighing” evidence considered by the juvenile courts. And the bare existence of any conceivable “foundation for the court’s decision . . . in the evidence” is no trump card foreclosing appellate review. Instead, any “reweighing” or consideration of “foundation” in the evidence must be guided by the operative deferential standard of review: “[T]he juvenile court’s decision [can] be overturned only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” B.R., 2007 UT 82, ¶ 12. (emphasis added).  

¶32 Under this standard, an appellate court should not perform its own independent “reweighing” of the evidence to decide how it would have resolved the matter in the first instance. A measure of deference is owing. But such deference is not absolute. Not every conceivable “foundation” in evidence is a basis for affirmance. The lower court’s decision should be respected unless the court “failed to consider all of the facts” or reached a decision “against the clear weight of the evidence.” Id.  

¶33 We affirm the court of appeals’ decision in this case under this clarified standard. In affirming the juvenile court’s decision terminating the mother’s parental rights, the court of appeals vaguely noted that “due to ‘the factually intense nature’ of a termination decision, ‘the juvenile court’s decision should be afforded a high degree of deference.’” State ex rel. E.R., 2019 UT App 208, ¶ 8, 457 P.3d 389 (quoting B.R., 2007 UT 82, ¶ 12). But it ultimately applied the correct standard of review. And we affirm on that basis.  

¶34 The court of appeals stated that it would overturn the juvenile court’s decision “only if the result is ‘against the clear weight of the evidence’ or leaves us ‘with a firm and definite conviction that a mistake has been made.’” Id. (quoting B.R., 2007 UT 82, ¶ 12). And in affirming the juvenile court’s decision, the court of appeals did not just consider whether any “foundation for the court’s decision exists in the evidence.” B.R., 2007 UT 82, ¶ 12. It also considered the evidence presented to the juvenile court and determined that the mother’s challenges failed to “demonstrate that the juvenile court’s findings were against the clear weight of the evidence.” E.R., 2019 UT App 208, ¶ 13.  

¶35 This was a correct application of the governing standard of review set forth in B.R. And the mother in this case has identified no other basis for reversal. We accordingly affirm the decision of the court of appeals.  

 

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New Developments in Utah Law Governing Termination of Alimony

New developments in Utah case law governing the termination of alimony with the case of Scott v. Scott. In this case, the ex-husband moved to terminate alimony and won.

The ex-wife claimed that her relationship with her post-divorce boyfriend did not rise to the level of cohabitation required by law to terminate her alimony award.

The district court terminated alimony by finding that the ex-wife’s relationship exhibited many of the hallmarks of a marriage relationship that Utah’s case law recognizes. Like a married couple, ex-wife and her boyfriend (a) engaged in an extended and exclusive sexual relationship; they spent a significant amount of time together at the boyfriend’s homes and elsewhere, including on vacations and holidays;  they established a common household involving shared expenses and shared decisions, boyfriend authorized ex-wife as a user on his credit cards, and the two participated jointly in financial and other decisions related to the purchase of a home together, a house where Jillian acted like a spouse, made decorating decisions, to which she and her boyfriend agreed she had her own a key. Ex-wife’s boyfriend gave her “family status” at a country club based on his representation that the couple was “living together and maintaining a common household. When boyfriend broke up with ex-wife he paid her a financial settlement on the condition that she “sign a release from all future claims.”

Ex-wife claims that the determination of “shared residence” was a threshold legal requirement that must be established before any other “hallmarks” of marriage are considered in the cohabitation analysis. The Utah Supreme Court disagreed.

Ex-wife took the view that the home the couple shared was not the legal domicile for either her boyfriend or her. The Utah Supreme Court disagreed.

Ex-wife argued that the shared-residence threshold requires a couple to live together for a longer period of time than she and her boyfriend did. The Utah Supreme Court disagreed.

Shared residence is not a threshold element that must be met before other hallmarks of marriage may be considered in the cohabitation analysis. The key hallmarks of a marriage-like relationship under Myers go to the “nature and extent” of a couple’s “common residence, relationship, and interactions.” These considerations are assessed in a holistic inquiry that recognizes that there is no single prototype of a relationship akin to marriage.

Moreover, the term “shared residence” does not mean legal domicile.

[The Utah Supreme Court did not delve into the distinction between domicile and residence, but in a nutshell: essentially domicile involves one’s intent while residence is where one actually is.]

The home in question in this case may not have been the prototypical “principal domicile,” but it was a common residence or dwelling. Neither ex-wife or her boyfriend were visitors in that home. It was a common residence—albeit one of several.

The Supreme Court acknowledged that “shared residence” implies some period of time that is indicative of a marriage-like relationship, but declined to endorse a hard-and-fast rule as to a precise minimum number of days to establish shared residency in all circumstances.

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Scott v. Scott – 2020 UT 54 – termination of alimony

This opinion is subject to revision before final publication in the Pacific Reporter
2020 UT 54
IN THE SUPREME COURT OF THE STATE OF UTAH

JILLIAN SCOTT, Appellant,
v.
BRADLEY SCOTT, Appellee.
No. 20180210
Heard March 11, 2020
Filed July 29, 2020
On Certification from the Utah Court of Appeals
Third District, Salt Lake County
The Honorable Robert P. Faust
No. 124903563
Attorneys:
Troy L. Booher, Julie J. Nelson, Salt Lake City, for appellant
Karra J. Porter, Kristen C. Kiburtz, Salt Lake City,
Frederick N. Green, Sandy, for appellee

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in which CHIEF JUSTICE DURRANT, JUSTICE PEARCE, JUSTICE PETERSEN, and JUDGE POHLMAN joined.
Having recused himself, JUSTICE HIMONAS does not participate herein; COURT OF APPEALS JUDGE JILL M. POHLMAN sat.

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:

¶1     This is the second time that Jillian Scott has asked this court to reverse a lower court decision terminating her right to alimony on the basis of her alleged cohabitation. When the case first came to this court, Jillian’s right to alimony had been terminated under Utah Code section 30-3-5(10)—a statute that then provided that an alimony order “terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.”[1] See Scott v. Scott (Scott I), 2017 UT 66, ¶ 3, 423 P.3d 1275. We interpreted the statute to “require[] the paying spouse to establish that the former spouse is cohabiting at the time the paying spouse files the motion to terminate alimony.” Id. ¶¶ 10, 33. And we reversed a decision terminating Jillian’s right to alimony to the extent it relied on this statute, concluding that Jillian was not cohabiting with her ex-boyfriend at the time the motion to terminate was filed (even if she had been cohabiting previously). See id. ¶¶ 1, 21, 21 n.5, 23, 33.

¶2 On the heels of this decision, Jillian’s ex-husband filed a new motion to terminate Jillian’s right to alimony under the terms of the couple’s divorce decree, which provided that her alimony would terminate “upon” her “cohabitation.” (Emphasis added.) And the district court granted that motion. We now uphold that decision. The subtle distinction between the wording of the statute and the divorce decree makes all the difference. Jillian may not have been cohabiting at the time Bradley filed his motion. But there is ample evidence to support the district court’s determination that she had cohabited previously. And that triggered termination of Bradley’s alimony obligations under the decree. We affirm on that basis, while rejecting Jillian’s assertions that there could be no cohabitation here because she and her ex-boyfriend had no shared legal domicile and did not have a common residence for a sufficient period of time.

¶3    In so doing we reiterate that “a marriage-like cohabitation relationship is difficult to define with a hard-and-fast list of prerequisites.” Myers v. Myers, 2011 UT 65, ¶ 24, 266 P.3d 806. And we hold that the district court is entitled to substantial deference in its fact-intensive determination on the existence of such a relationship. We reverse on one minor point, however, concluding that Jillian was entitled to an award of her costs on her prior appeal.

I. BACKGROUND

A. Factual Background

¶4 Jillian and Bradley Scott married in 1979. During their marriage, the couple amassed a level of personal wealth that allowed them to “live[] a lifestyle beyond even the imagination of most of humanity.” But they ultimately ended up divorcing in 2006 after Jillian walked in on Bradley with another woman.

¶5    The divorce decree obligated Bradley to pay Jillian $6,000 per month after they separated in 2006. But it also provided that Bradley’s alimony obligation would terminate “upon the remarriage or cohabitation” of Jillian. From the time of the divorce until 2018, the Utah Code provided that “[a]ny order” requiring “a party [to] pay alimony to a former spouse terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.” See UTAH CODE § 30-3-5(10).

¶6    In October 2008, Jillian began dating James Okland. Their “intimate” and “exclusive” relationship was a serious one that involved celebrating holidays, traveling, and otherwise spending a significant amount of time together. But their relationship was atypical in many ways.

¶7 Okland’s immense personal wealth allowed the couple to enjoy a lavish lifestyle very different from that of most people. When the couple began dating, Okland owned at least two homes—one in Salt Lake City, Utah (his primary residence) and one in Sun Valley, Idaho.[2] He later purchased an additional home in Rancho Santa Fe, California. Okland also had access to a private jet and owned multiple vehicles, including a Porsche that he later had shipped to the Rancho Santa Fe house. Though Jillian had her own condominium in Salt Lake City, she spent the majority of her time traveling with Okland or at one of his homes. During the relationship, the couple took approximately thirty-six trips together. These trips included work trips for Okland as well as many trips to Okland’s homes, where they would stay for a week or more at a time. In light of the couple’s frequent vacationing and traveling, Jillian arranged to have all but her junk mail delivered electronically.

¶8 Jillian spent upwards of eighty percent of her time traveling with Okland or in one of his homes. She accompanied him on work trips. The couple celebrated holidays and special occasions together, including Okland’s retirement (a twenty-five-day cruise) and Jillian’s daughter’s high school graduation (a trip to Hawaii). Okland also gave Jillian’s daughter $5,000 as a graduation gift.

¶9 The two spent more than just time together. They also spent money together. Jillian was an authorized user on Okland’s credit cards. And Jillian made good use of these cards, paying for necessities such as groceries, gas, and lodging, as well as wedding gifts, Christmas and birthday gifts, and presents for grandchildren.

¶10 In 2010, around the time Jillian’s daughter moved to southern California for college, the couple began looking to acquire a home in Rancho Santa Fe, California. While Okland ended up financing the purchase, both “shared [in the] decisions regarding the selection and ultimate purchase of the home,” and viewed the home as a joint acquisition. Jillian hired the real estate agent, and she was charged with locating a home to her liking. In August 2010, she wrote to the agent and said that the house “ha[d] [her] name all over it!,” while noting that Okland “still want[ed] to look at the covenant and get a feel for everything.” The next month, she wrote that they were “looking for a really good buy!!!” She also explained that Okland was “very conservative with his money” and commented that he had said that they “pa[id] cash for everything.”[3] She also wrote that “it’s really up to James at this point” and noted that she had told him that she “want[ed] to grow old” in Rancho Santa Fe with him and “[h]e [had] agreed!” About a month later, Okland made an offer on behalf of both of them, stating: “Jill and I would like to offer $2,125,000 all cash and close within 15 days.” (Emphasis added.)

¶11 In February 2011 (after Okland had purchased the home), the couple flew to Rancho Santa Fe in Okland’s plane. Okland also had his Porsche shipped there. The real estate agent noted that Jillian “act[ed] like a spouse” as she decorated and replaced furniture in the home. Jillian had several personal items shipped to the home on Okland’s dime, including paintings, Italian tables, dining room cabinets, bedroom chairs, ottomans, a wooden desk, a game table and chairs, Navajo rugs, and three stone cheetahs. Both Jillian and Okland had keys and full access to the home, and Jillian participated in decisions about who else should have a key. Okland also gave Jillian “family status” at the community country club—a move that required him to represent that the couple was “living together and maintaining a common household.”

¶12 There is no indication, however, that Okland viewed the new home as his primary residence. He arranged to have his bills associated with that property sent to Salt Lake and testified that he viewed the Rancho Santa Fe home as a vacation property. Jillian, conversely, put her Salt Lake condominium up for sale.

¶13 Despite access to Okland’s substantial financial resources, Jillian was loath to “give up [her] alimony,” which she described on one occasion as her “extra ‘fun money.’” And fear of losing out on that cash flow may have been a factor in the couple putting off marriage. As she wrote to a friend, “[w]e have talked about marriage but I am not ready to give up my alimony.”[4] The record also suggests that the couple may have openly told others that they remained unmarried only because they didn’t want Jillian to lose her alimony. And while Okland did not recall ever proposing or telling others that the alimony was what stood in the way of their marriage, he did testify that he had purchased a diamond for Jillian. He also acknowledged that his memory was imperfect.

¶14 Jillian’s relationship with Okland eventually fell apart. Around the beginning of April 2011, Okland left Rancho Santa Fe and returned to Salt Lake. He then abruptly ended the relationship by leaving Jillian a voice message.

¶15 Like many breakups, this one left an ex-partner upset and disoriented. In an email to Okland shortly after the breakup, Jillian wrote “I just don’t understand how this happened. . . . You buy a dream home for us to share our lives in. . . . We decorate it with my furniture . . . . You then voice mail me it’s over with no explanation. My dream has now become a nightmare[;] I wish I never shared Rancho Santa Fe with you.” She said that she was “sad, really sad, [and] confused.” In a later email she called Okland a “DREAM STEALER,” a “needy user,” and a “Spineless Snake.”

¶16 Like their relationship, however, their breakup was also singular in many ways. Because Jillian had contracted a dangerous staph infection following a breast augmentation surgery that Okland had paid for (a $17,000-plus bill), Okland told her that she could stay at the Rancho Santa Fe house following the breakup until she recovered. He also said that she could continue to use his credit card for gas and groceries. As a result, Jillian continued to treat the California home as her own. On April 10, she posted a picture of the roses at the Rancho Santa Fe home on Facebook and wrote “I love my rose garden.” In an email to Okland on April 13, she told him that she had bought things to make the home “earth-quake ready.”

¶17 The couple also began discussing a possible financial settlement. Eventually Okland paid Jillian $110,000. And when Okland emailed Jillian and asked her to “sign a release from all future claims,” Jillian responded that “[w]hen the money is in my account, you may consider this e-mail as the disclaimer to any and all future claims against you.” Okland also informed Jillian that he wanted his Porsche back, though he suggested that he was willing to either pay for a one-year lease or give her $36,000 to buy a new car. Neither Jillian nor Okland had ever had a relationship with a boyfriend or girlfriend that had ended in financial settlement.

B. Procedural Background

¶18 Following the break-up, Jillian’s ex-husband Bradley filed a petition to terminate his alimony payments. He argued that Jillian had cohabited with Okland and that termination was proper under both the divorce decree and state statute, the latter of which provided that “[a]ny order” requiring “a party [to] pay alimony to a former spouse terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.” UTAH CODE § 30-3-5(10). The district court held that Okland and Jillian had cohabitated and terminated alimony “pursuant to Utah Code § 30-3-5(10).”

¶19 The court of appeals affirmed on the same ground. See Scott v. Scott, 2016 UT App 31, ¶¶ 9 n.2, 39, 368 P.3d 133, rev’d, Scott I, 2017 UT 66, 423 P.3d 1275. We reversed, holding that “Utah Code section 30-3-5(10) requires the paying spouse to establish that the former spouse is cohabiting at the time the paying spouse files the motion to terminate alimony.” Scott I, 2017 UT 66, ¶¶ 10, 33. It was undisputed that Jillian had not been cohabiting at the time of Bradley’s filing, and we did not address the question whether she and Okland had ever done so. Like the lower courts, we “d[id] not consider the decree’s language.” Id. ¶ 3 n.1.

¶20 After we issued our opinion, Bradley moved to terminate alimony under the divorce decree rather than the statute. And Jillian filed a motion for an award of her costs in the Scott I appeal under Utah Rule of Appellate Procedure 34(a), under which the costs of an appeal are “taxed against the appellee” “if a judgment or order is reversed” “unless otherwise ordered.”

¶21 Jillian opposed Bradley’s motion, asserting that Bradley was foreclosed from relying on the decree under the “mandate rule” given that Bradley had presented his appeal as if the decree and statute were “coextensive for purposes of the law of the case.” Jillian thus contended that Bradley had waived the right to rely on the divorce decree as an alternative ground for termination of alimony. She also opposed the motion on its merits. She asserted that there could be no finding of cohabitation because she and Okland had never established a shared legal domicile and because the two of them had not resided together for more than a temporary or brief period of time.

¶22 The district court granted Bradley’s motion. It first held that it was not foreclosed from considering the decree under the mandate rule. It also held that Bradley had carried his burden of establishing Jillian’s cohabitation with Okland, relying on findings and conclusions entered in the first round of proceedings (under the statute) and noting that Jillian had not contested any of the court’s findings.

¶23 The district court also denied Jillian’s motion for an award of costs. It did so without explanation.

¶24 Jillian then filed this appeal, which the court of appeals certified for our consideration. Jillian raises three principal claims of error on appeal. First, she contends that the district court violated the mandate rule in addressing Bradley’s motion under the divorce decree. Next, she challenges the district court’s termination of alimony on the merits, asserting error in the determination that Jillian cohabited with Okland under the terms of the decree. Finally, Jillian claims that she was entitled to an award of her costs on appeal in Scott I and that the district court erred in refusing to enter an award in her favor. We affirm on the first two points and reverse on the third.

II. MANDATE RULE

¶25 In Scott I we assessed whether Bradley’s alimony obligation was properly terminated under Utah Code section 30-3-5(10). 2017 UT 66, 423 P.3d 1275. That statute contemplated termination of alimony upon a showing that a former spouse was cohabiting with another at the time the petition for termination was filed. Because there was no basis for concluding that Jillian had been cohabiting with Okland in October 2011 when Bradley filed his termination petition, we reversed a decision terminating alimony under the terms of the statute. And we did so without considering whether Jillian and her ex-boyfriend had cohabited at some point prior to the filing of Bradley’s petition.

¶26 Thereafter, the district court considered a motion to terminate alimony under the divorce decree—a document that contemplates termination “upon cohabitation” and thus does not require a showing of cohabitation at the time the motion to terminate is filed. Jillian sought to avoid an inquiry into cohabitation under the decree. She pointed to an element of the “law of the case” doctrine called the “mandate rule.” In her view this rule prevents a litigant (appellee) from taking a position on remand that he previously “represent[ed] . . . [was] not an alternative ground [on which] to affirm” a lower court in appellate proceedings. And Jillian claimed that this rule barred Bradley from relying on the divorce decree in proceedings on remand in the district court, since in her view Bradley had affirmatively represented that the divorce decree and the statute “presented the same issue”—and thus impliedly represented that the decree was not “an alternative ground [on which] to affirm.”

¶27 We accept Jillian’s formulation of the mandate rule for the sake of argument (without formally endorsing it). But we reject her position because we find no basis for the assertion that Bradley represented that the divorce decree could not provide an alternative ground for affirmance.

¶28 Jillian initially appealed from a district court decision that terminated alimony solely “[p]ursuant to Utah Code § 30-3-5(10).” Before the court of appeals and this court, Jillian relied on an (unpreserved) argument that Utah Code section 30-3-5(10) required ongoing cohabitation. In response, Bradley argued that the statute did not require ongoing cohabitation. In so doing, he did not ignore the decree; he cited it in support of his position that the parties had understood that the statute did not require ongoing cohabitation. In the course of this argument, Bradley did once assert that the standard under the decree and the statute was “similar or the same.” But Bradley made this point in the context of his broader argument that the statute did not require ongoing cohabitation.[5] So contrary to Jillian’s characterization, Bradley did not represent that termination under the decree rose or fell with the court’s acceptance or rejection of Jillian’s statutory argument. He simply asserted that the statute did not support Jillian’s argument, as evidenced by the fact that the parties had understood the statute differently when they made their agreement.

¶29 Because the parties focused their attention on the statute rather than the decree, both the court of appeals and this court relied on the statute and refused to consider whether the decree could lead to a different outcome. As we explained in Scott I, “[o]n certiorari, neither party contends that the language of the decree controls or that under the decree this court should reach a different result.” 2017 UT 66, ¶ 3 n.1. We accordingly limited “our analysis to the parties’ arguments,” and did not “consider the decree’s language.” Id. We even went so far as to note that “the language of the divorce decree may point to a different result.” Id. ¶ 21 n.5.

¶30 As an appellee, Bradley had the prerogative of identifying alternative grounds for affirmance. See State v. Van Huizen, 2019 UT 01, ¶ 39, 435 P.3d 202. But he was under no obligation to do so. See Utah Dep’t of Transp. v. Ivers, 2009 UT 56, ¶ 17, 218 P.3d 583; Madsen v. Washington Mut. Bank fsb, 2008 UT 69, ¶ 26, 199 P.3d 898. Because Jillian was challenging decisions (in the district court and the court of appeals) that were based solely on the statute, Bradley was under no obligation to make an argument under the divorce decree; he was free to simply argue that he should prevail under the statute.

¶31 Our prerogative as an appellate court was similar. We were in a position to “affirm the judgment appealed from if it [was] sustainable on any legal ground or theory apparent on the record.” Madsen, 2008 UT 69, ¶ 26 (citation and internal quotation marks omitted). But we had no obligation to do so. Id. The fact that “we have the discretion to affirm [a] judgment on an alternative ground” that is “apparent in the record,” moreover, does not mean “that our declining to rule on an alternative ground can be construed as a ruling on the merits of the alternative ground.” Id. When our decisions leave issues open, “the trial court ordinarily has discretion to permit amended or supplemental pleadings as to those matters.” Ivers, 2009 UT 56, ¶ 12 (citation omitted). That is what our decision in Scott I did—it left open the decree issue. And that left the district court free to consider arguments on that issue thereafter.

¶32 In hindsight, Bradley’s decision to litigate the initial round of appeals under the alimony statute alone may seem to have been a poor one.[6] While Bradley was not obligated to rely on the decree as an alternative ground for affirmance, the decree’s language would have provided a powerful response to Jillian’s statutory “is” argument. And, as our decision today shows, this court would have reached a different outcome in Scott I if we had exercised our discretion to consider the decree. Yet none of this changes the fact that Bradley was under no obligation to raise this argument and we were under no obligation to address it. Because we chose not to address it, the district court was permitted to consider the decree’s language even after our decision in Scott I.

III. COHABITATION

¶33 The district court relied on the terms of the divorce decree in its decision following Scott I. It noted that the divorce decree provided that Bradley’s alimony obligation would terminate “upon the remarriage or cohabitation” of Jillian. And it terminated Jillian’s right to alimony on the ground that Jillian began cohabitating with Okland on February 17, 2011.

¶34 The district court’s cohabitation determination is a fact-intensive determination of a mixed question of fact and law that is entitled to substantial deference on appeal.[7] See In re Adoption of Baby B., 2012 UT 35, ¶ 42, 308 P.3d 382 (noting that “fact-like” mixed determinations are subject to a deferential standard of review). And there is ample evidence to support the district court’s decision.

¶35 Our case law holds that the “key question” in the cohabitation analysis is whether an unmarried couple has “entered into a relationship akin to that generally existing between husband and wife.” Myers v. Myers, 2011 UT 65, ¶ 22, 266 P.3d 806 (citation and internal quotation marks omitted). We have emphasized that such a relationship is “difficult to define with a hard-and-fast list of prerequisites,” given that “there is no single prototype of marriage” to which “all married couples conform.” Id. ¶ 24. With this in mind, our case law “identif[ies] general hallmarks of marriage (and thus cohabitation)” rather than laying out bright-line rules in this area. Id.

¶36 The hallmarks of a marriage relationship include “a shared residence, an intimate relationship, and a common household involving shared expenses and shared decisions.” Id. Other factors such as “the length and continuity of the relationship, the amount of time the couple spends together, the nature of the activities the couple engages in, and whether the couple spends vacations and holidays together” may also “inform the question whether a relationship resembles that of a married couple.” Id. ¶ 24 n.3.

¶37 Jillian’s relationship with Okland exhibited many of the above-noted hallmarks of a marriage relationship. Like a married couple, Okland and Jillian (a) engaged in an extended and exclusive sexual relationship that lasted around thirty months;[8] spent a significant amount of time together at Okland’s homes and elsewhere, including on vacations and holidays;[9] established “a common household involving shared expenses and shared decisions,”[10] in which Jillian was an authorized user on Okland’s credit cards and the two participated jointly in financial and other decisions related to the purchase of a home; purchased a shared residence together—a house in Rancho Santa Fe—where Jillian acted like a spouse in the purchase, in decorating decisions, and in deciding who would have a key, and where Jillian was given “family status” at a country club based on Okland’s representation that the couple was “living together and maintaining a common household”;[11] and (e) ended their relationship with a financial settlement, in which Okland paid Jillian $110,000 on the condition that she “sign a release from all future claims.”

¶38 In light of the evidence of these hallmarks of a marriage relationship, Jillian is in no position to challenge the district court’s determination of cohabitation on the ground that it exceeded the bounds of its discretion. And in fact, Jillian does not raise that kind of challenge to the district court’s decision. Instead she contends that the district court applied a faulty legal standard in assessing cohabitation.

¶39 Jillian claims that the determination of “shared residence” is a threshold legal requirement that must be established before any other “hallmarks” of marriage are considered in the cohabitation analysis. And she cites two purported legal errors in the district court’s shared residence analysis. First, she contends that the threshold showing of shared residence requires proof that both members of the relationship deem the residence their principal “domicile.” Because in Jillian’s view the Rancho Santa Fe home was not the legal domicile for either Okland or for her, she asserts that any remaining hallmarks of marriage are insufficient to establish cohabitation. Second, she argues that the shared-residence threshold requires a couple to live together for a longer period of time than she and Okland ever did. As she notes, they lived together in the Rancho Santa Fe home for only forty-two days. And she argues that a stay of that length is insufficient under our case law as well as the cohabitation law of other states.

¶40 We reject the premise that shared residence is a threshold element that must be met before other hallmarks of marriage may be considered in the cohabitation analysis. The key hallmarks of a marriage-like relationship under Myers go to the “nature and extent” of a couple’s “common residence, relationship, and interactions.” Id. ¶ 22. These considerations are assessed in a holistic inquiry that recognizes that there is no single prototype of a relationship akin to marriage. And that framework is incompatible with the rigid rule that Jillian proposes.

¶41 We also conclude that our case law has not established the bright-line rules on residence proposed by Jillian. First, we hold that “shared residence” does not mean legal domicile. And we find that there is ample evidence in the record to sustain the determination that the Rancho Santa Fe home was a shared residence. Next, we consider the question of a minimum duration standard for shared residence. We acknowledge that “shared residence” implies some period of time that is indicative of a marriage-like relationship. But we decline to endorse a hard-and-fast rule precluding a decision to credit the forty-two days of shared residency in the circumstances of this case.

A. Shared Residence, Not Legal Domicile

¶42 Jillian’s position on the definition of “shared residence” may seem to find support in our decision in Haddow v. Haddow, 707 P.2d 669 (Utah 1985). There we said that “common residency means the sharing of a common abode that both parties consider their principal domicile.” Id. at 672 (emphasis added). And there is a sense of “domicile” that would suggest that the Rancho Santa Fe home
was not Okland’s legal domicile, and perhaps not Jillian’s either.[12]

¶43 That said, we do not interpret Haddow to impose a requirement of a shared legal domicile, or to foreclose evidence of other hallmarks of marriage until after proof of a shared residence. Haddow did not establish a requirement of a unitary legal conception of domicile like that advocated by Jillian. In context, we think the Haddow reference to “domicile” is best viewed as a colloquial use of the term—a synonym for residence or dwelling place. See Domicile, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictiona ry/domicile (last visited July 5, 2020) (“a dwelling place: place of residence”).

¶44 Haddow speaks of a couple’s “principal domicile.” 707 P.2d at 672. And the existence of a shared, unitary domicile in the legal sense would undoubtedly weigh strongly in favor of a determination of cohabitation. We find no room in our law for the imposition of a hard-and-fast requirement of proof of such a domicile, however.

¶45 Haddow contrasts the status of a “resident” with that of a “visitor.” Id. at 673. A “resident will come and go as he pleases in his own home, while a visitor, however regular and frequent, will schedule his visits to coincide with the presence of the person he is visiting.” Id. This is key to understanding the Haddow notion of residence. It focuses on a person’s status and place in the home, without any firm requirement that it be his only home.

¶46 This is reinforced in our more recent case law. In Myers we emphasized that there is no one-size-fits-all conception of a marriage-like relationship. 2011 UT 65, ¶ 24, 266 P.3d 806. With that in mind, we declined to “delineate a list of required elements of cohabitation,” electing instead to merely identify the “hallmarks” of the relationship. Id. And our framework for this analysis is incompatible with the rigid, unitary notion of legal domicile proposed by Jillian.

¶47 Just as there is no single prototype of a marriage-like relationship, there is likewise no required conception of a couple’s “common residence.” Our law considers the “nature and extent” of the couple’s shared residence as an important element of the overall inquiry into the existence of a relationship akin to marriage. Id. ¶ 22. And we have no trouble concluding that there was a basis for the district court to conclude that Jillian and Okland established a common residence in their home in Rancho Santa Fe—a residence indicative of a marriage-like relationship.

¶48 The Rancho Santa Fe home may not have been the prototypical “principal domicile” that we spoke of in Haddow. But it was a common residence or dwelling. Neither Jillian nor Okland were visitors in that home. It was a common residence—albeit one of several.

¶49 As the purchase process revealed, Okland and Jillian viewed the Rancho Santa Fe property as a shared dwelling. Jillian was heavily involved in the purchase process, and Okland recognized that he was buying the house for the both of them. Tellingly, he made the offer on the home on behalf of both himself and Jillian. And given that Okland financed the purchase, there is no question the home was one of his residences.

¶50 In February 2011, Jillian (accompanied by Okland) moved herself and substantial personal items into the Rancho Santa Fe home. This was not a visit. And neither Okland nor Jillian treated it as such. Both were aware that Jillian was trying to sell her home in Salt Lake. And they acted as if they were spouses as they ordered their affairs concerning the home. As the real estate agent observed, Jillian acted like a spouse as she made decisions about decorations and furnishings. Both had keys and full access to the home. Jillian also made decisions about who else would have a key. And Okland gave Jillian “family status” at the community country club, which required representing to the club that the couple was “living together and maintaining a common household.”

¶51 The above record facts are significant. They amply support the district court’s determination that the Rancho Santa Fe home was a shared residence under our case law.

B. Shared Residence for a Period Indicative of a Marriage-Like Relationship

¶52 Jillian’s position on the duration standard for common residence is also rooted in our opinion in Haddow. There we spoke of a “common abode” shared by a couple “for more than a temporary or brief period of time.” Haddow v. Haddow, 707 P.2d 669, 672 (Utah 1985). In this case Jillian and Okland shared the Rancho Santa Fe home for only a forty-two-day period. And Jillian insists that that is a “temporary or brief period”—insufficient under our case law, and short of the period required in a number of other jurisdictions.

¶53 Jillian claims that our case law has already established that a shared stay of two months and ten days is too “temporary or brief” to sustain a determination of shared residence—and by association, cohabitation. And because forty-two days falls short of that benchmark, she suggests that the district court erred in finding cohabitation.

¶54 Jillian claims to find support for her position in Knuteson v. Knuteson, 619 P.2d 1387 (Utah 1980). And she notes that other states have adopted minimum time bars that support her view that forty-two days fails as a matter of law.[13] She further asserts that almost no cases from jurisdictions without a statutory time bar have found cohabitation when confronted with such a short stay.

¶55 We understand the impulse to establish a clear time standard. A very brief period of shared residence may not resemble a marriage-like relationship. And a spouse with a right to alimony could certainly benefit from a clear rule, which would facilitate planning and protect reliance interests. We decline to set a clear rule here, however, as we find it unsupported by our case law— which again emphasizes that “there is no single prototype of marriage that all married couples conform to,” and subjects the cohabitation inquiry to a holistic, multi-factor analysis. Myers v. Myers, 2011 UT 65, ¶ 24, 266 P.3d 806. So although we do not foreclose the possibility of establishing a minimum time standard in a future case, for now we fall back on our flexible, multi-factor inquiry and leave for the legislature the decision whether to set a fixed standard by statute.

¶56 Our existing case law does not support Jillian’s view. Knuteson did not set a generally applicable minimum period of “two months and ten days.” We did make reference to that period. Knuteson, 619 P.2d at 1388. But the time period itself was not the basis for our holding. Instead we were focused on the circumstances and motivation of the spouse who moved in with a neighbor in that case (Ms. Knuteson)—the fact that she had been forced to move out of her own home when her ex-husband had failed to pay alimony and thereby left her unable to pay her utility bills, which “resulted in the utility companies cutting off the light, gas, and water.” Id. We also emphasized that Ms. Knuteson moved back to her own home “as soon as [she] could resume her normal life in her own home”—once Mr. Knuteson was forced to pay alimony, and the utilities were turned back on. Id. at 1389. This was the basis for our determination that the period of shared residence in Knuteson was “a temporary stay at another’s home.” Id. But this was not the establishment of a minimum period of shared residence. It was a holding based on the unique circumstances of the case, which highlighted that Ms. Knuteson’s stay was “temporary” in the sense that it was not a marriage-like shared residence, but the result of an unfortunate economic necessity.

¶57 Jillian’s and Okland’s shared residence bore little resemblance to the residence that Ms. Knuteson shared with a neighbor. So the Knuteson determination that two months and ten days was a “temporary stay” and not a marriage-like shared residence is not particularly helpful to the question presented here. And it is certainly not controlling under the flexible, multi-factored analysis under Myers.

¶58 In light of all the unique facts and circumstances of this case, we conclude that Jillian shared a residence with Okland for a sufficient period of time to support a determination of cohabitation. In so holding, we emphasize the deferential standard of review that applies to our review of a fact-intensive determination of cohabitation. And we acknowledge that the relatively brief period of Jillian’s shared residence with Okland is the most tenuous element of the inquiry into her alleged cohabitation.[14] But we affirm because we see no basis for a determination that the district judge exceeded the bounds of his ample discretion on the fact-intensive question presented for our decision.

IV. COSTS OF SCOTT I APPEALS

¶59 Jillian filed a motion for an award of the costs incurred in her appeal in the first appeal in this case (in Scott I). She invoked rule 34 of the Utah Rules of Appellate Procedure, which states that “if a judgment or order is reversed, costs shall be taxed against the appellee unless otherwise ordered.” UTAH R. APP. P. 34(a). The district court denied that motion. We now reverse.

¶60 The simple standard set forth in rule 34 was satisfied here. In the Scott I appeal Jillian secured a reversal of the judgment entered against her. She did so on the basis of our determination that the governing statute required proof that an ex-spouse “is cohabiting at the time” of a motion to terminate alimony. See Scott I, 2017 UT 66, ¶ 33, 423 P.3d 1275.

¶61 That holding entitled Jillian to an award of her costs under rule 34. A “judgment or order” was “reversed” in Scott I. That required that “costs shall be taxed against the appellee unless otherwise ordered.” UTAH R. APP. P. 34(a). And we did not otherwise order. We reverse the denial of Jillian’s motion for an award of costs on that basis. And we remand to allow the district court to determine the amount of such costs in the first instance.

V. CONCLUSION

¶62 Our Utah standard of cohabitation requires a fact-intensive inquiry into the nature and extent of a couple’s “common residence, relationship, and interactions.” Myers v. Myers, 2011 UT 65, ¶ 22, 266 P.3d 806. The goal is to determine whether these considerations sustain a determination that an ex-spouse has entered into a relationship akin to marriage. Such a determination triggers a deferential standard of review. We affirm the termination of Jillian’s right to alimony under that standard, while reversing the denial of her motion for costs on her first appeal.

———————————-

https://www.utcourts.gov/opinions/supopin/Scott%20v.%20Scott20200729_20180210_54.pdf

[1] This statutory language was amended in 2018 following our decision in Scott I. We cite to the “the version of the statute that was in effect at the time of the events giving rise to [the] suit.” Harvey v. Cedar Hills City, 2010 UT 12, ¶ 12, 227 P.3d 256 (alteration in original) (citation and internal quotation marks omitted).

[2] Okland “may have either owned or had use of a home in Scottsdale, Arizona” as well.

[3] The direct quote was, “[W]e pay cash for everything. We only financed a part of the plane!” (Emphases added.)

[4] In November 2010, Jillian endorsed one alimony check by signing and then writing “hahahahaha.”

[5] In the oral argument before the court of appeals, for example, Bradley argued that the “is” in the statute “just means are they cohabiting at some point after the divorce . . . , which is also consistent with what the parties themselves understood because . . . they . . . agree[d] to a decree that said [alimony] terminates upon cohabitation. They knew that’s what the statute meant and that’s what they agreed to.” And in his brief in both appellate courts Bradley asserted that “Ms. Scott’s argument is not supported by the statute, or by the stipulated Decree itself (which provides that alimony terminates ‘upon’ cohabitation).”

[6] The strategy was perhaps understandable, however, given that Jillian did not raise her statutory “is” argument until the case arrived at the court of appeals. For that reason, Bradley may have had no reason to ask the district court to adjust its order to rely on the decree rather than the statute. And because he had already won on statutory grounds before the district court, he may have simply thought he could do so again on appeal. Such an assumption would not have been completely unfounded. The question of timing under Utah Code section 30-3-5(10) that we considered in Scott I was a close call, as evidenced by the fact that Bradley convinced a panel of court of appeals judges that he should prevail under that statute.

[7] The court of appeals has occasionally employed a different standard of review in cohabitation cases. See, e.g., Hosking v. Chambers, 2018 UT App 193, ¶ 23, 437 P.3d 454 (reviewing the ultimate determination of cohabitation for correctness). To the extent those cases suggest that a different standard of review applies, they are hereby overruled.

[8] See Myers v. Myers, 2011 UT 65, ¶ 24, 266 P.3d 806 (noting that the hallmarks of marriage include “an intimate relationship”); id. ¶ 24 n.3 (identifying “the length and continuity of the relationship” as a factor that informs the cohabitation inquiry).

[9] See id. ¶ 24 n.3 (identifying “the amount of time the couple spends together” and “whether the couple spends vacations and holidays together” as cohabitation considerations).

[10] Id. ¶ 24.

[11] Id. (identifying “shared residence” as a hallmark of marriage).

[12] See Lilly v. Lilly, 2011 UT App 53, ¶ 13, 250 P.3d 994 (stating that “[a] person may . . . have multiple physical residences at any one time but only one domicile or legal residence”); see also 25 Am. Jur. 2d Domicil § 24 (2020) (”One does not lose one’s domicil by mere physical presence elsewhere unless that presence is accompanied by an intention to abandon the old residence and adopt the new.”).

[13] See N.D. CENT. CODE ANN. § 14-05-24.1(3) (requiring cohabitation for one year); S.C. CODE ANN. § 20-3-130(B) (ninety days); VA. CODE ANN. § 20-109(A) (one year).

[14] Perhaps another judge encountering these same facts might have concluded that Jillian’s shared residence with Okland was for too short a period of time to sustain a determination that they cohabited in a manner that was akin to a marriage relationship. And perhaps we would also sustain that determination on a record like this one. But that just underscores the significance of the standard of review in a case like this one, and the importance of the district judge’s exercise of discretion.

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State v. Norton – 2020 UT 46 – Utah Supreme Court

https://www.utcourts.gov/opinions/supopin/State%20v.%20Norton20200713_20180514_46.pdf
This opinion is subject to revision before final publication in the Pacific Reporter
2020 UT 46
IN THE SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH, Respondent,
v.
LONNIE NORTON, Petitioner.

No. 20180514
Heard May 13, 2019
Filed July 13, 2020
On Certiorari to the Utah Court of Appeals

Third District, West Jordan
The Honorable Bruce C. Lubeck
No. 131400015

Attorneys: Sean D. Reyes, Att’y Gen., Christopher D. Ballard, Asst. Solic. Gen., Salt Lake City, for respondent
Lori J. Seppi, Salt Lake City, for petitioner

JUSTICE PETERSEN authored the opinion of the Court with respect
to Parts I–IV in which CHIEF JUSTICE DURRANT,
ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS, and JUSTICE PEARCE joined, and wrote separately in Part V in which ASSOCIATE CHIEF JUSTICE LEE joined.

CHIEF JUSTICE DURRANT filed an opinion concurring in part and concurring in the judgment, in which JUSTICE HIMONAS and JUSTICE PEARCE joined.

Opinion of the Court

JUSTICE PETERSEN, opinion of the Court:

INTRODUCTION

¶1 A jury convicted Lonnie Norton of breaking into the home where his estranged wife was staying, kidnapping her, assaulting her, and then raping her—all while she had a protective order against him. He appealed his convictions and the court of appeals affirmed. He petitions this court for a review of each claim he raised before the court of appeals. We affirm on all but one issue.

BACKGROUND[1]

¶2 Norton and H.N. had been married for twenty-one years when H.N. moved out of the marital home with their four children. She stayed in a domestic violence shelter, then moved into her parents’ home. She obtained a protective order against Norton, which prohibited him from contacting her except to discuss marriage counseling and their children. The protective order permitted Norton to visit his three younger children, but only if a supervisor was present.

¶3 One evening, H.N.’s three youngest children went to the marital home for a weekend visitation with Norton. The events of that night led to Norton’s arrest.

¶4 At the trial on the resulting charges, both H.N. and Norton testified. They gave vastly different accounts of what happened that night.

The Two Conflicting Accounts
H.N.’s Account

¶5    At trial, H.N. testified that before going to bed that night, she put chairs under the doorknobs of the front and back doors of her parents’ home, as she did each night. She had previously placed a dryer in front of the basement door, which remained there. After H.N. went to bed, she was awakened by a “loud bang.” She grabbed the phone and dialed 911 before noticing Norton standing at the end of her bed. He grabbed the phone and punched her in the face. Norton also wound duct tape around H.N.’s head, covering her mouth.

¶6 The next thing H.N. remembered was sitting in Norton’s car at an intersection. Although it was snowing, she did not have any shoes on. H.N. noticed that Norton had a gun in his lap, which he picked up and pointed at her. H.N. thought Norton was driving to his office at the University of Utah, but instead he drove to a building in Fort Douglas. When they arrived, Norton was still holding the gun and told H.N. that she “needed to be quiet or he would shoot [her].”

¶7 H.N. and Norton went into the building, up some stairs, and into a bathroom. Norton ripped the duct tape off H.N.’s head and talked to her about reconciling their marriage. After he finished talking, Norton told H.N. to take off her shirt. When H.N. said “no,” Norton pointed the gun at her and again told her to take off her shirt. She finally acquiesced, and Norton squeezed her breasts.

¶8 Next, Norton led H.N. into an office and told her to take off her pants. She again said “no,” and he again pointed the gun at her, forcing her to comply. While she did so, Norton undressed, removed the magazine from the gun, and put the magazine and gun in a filing cabinet. Then, he told H.N. that they were going to have sex. She said “no,” but Norton responded that “yes” they were. “So you’re going to rape me?” she asked. Norton replied, “You can’t rape somebody that you’re married to.”

¶9 He then lay on the ground and pulled H.N. on top of him. He grabbed H.N.’s hands, flipped her so that she was underneath him, and raped her. While Norton was on top of her, H.N. grabbed his penis as hard as she could, but was unsure how hard that was because she has rheumatoid arthritis. In response, Norton again grabbed her hands and held them over her head.

¶10 After raping H.N., Norton took her into the bathroom. He told her to rinse off, but she struggled because her hands were shaking. Norton complained that she “wasn’t doing a good enough job,” and inserted his fingers into H.N.’s vagina to try to “rinse himself out” of her. Afterwards, H.N. dried herself off with paper towels and dressed. She then noticed that Norton was dressed with the gun in his hand.

¶11 Back in the office, Norton set up two chairs so that they were facing each other and told H.N. to sit. She sat, and Norton put the gun to his head and threatened to kill himself. H.N. tried to dissuade him, but Norton pointed the gun at H.N. and threatened to shoot her, too. Eventually H.N. got mad and told Norton to “go ahead and shoot himself,” at which point he got up and took her back to the car.

¶12 Norton drove to the marital home. There, H.N. checked on the children and then convinced Norton to take her back to her parents’ home. When they arrived, Norton entered the house, leaving only after H.N. told him she would not tell anyone what had happened.

¶13 After Norton left, H.N. called one of Norton’s neighbors and asked the neighbor to get her children out of the marital home. H.N. also called 911, told a police officer what happened, and asked the officer to check on her children. The police arrived at H.N.’s parents’ home, spoke with her, and then drove her to the hospital.

Norton’s Account

¶14 Norton testified at trial and gave a very different version of these events. He claimed that H.N. told him to visit her over the weekend so they could discuss their marriage. After their children were asleep, Norton drove to H.N.’s parents’ house to see her. While driving over, he received a phone call from H.N., which he missed. He arrived at H.N.’s parents’ home and waited outside until she exited the house and got in the car. Norton said he could not remember whether H.N. was wearing shoes, but that “she might have come running out in stocking feet” and he thought he “gave her a pair of Reeboks to wear.”

¶15 H.N. suggested they go to Norton’s office to talk. While driving, Norton decided it would be better to go to a building in the Fort Douglas area.

¶16 After arriving at the building, Norton unlocked the door and proceeded upstairs with H.N. where they sat down and talked about reconciliation. H.N. said she needed time, and Norton started talking about when they first met and when they were first married. H.N. then came over, sat on Norton’s lap, put her arms around him, and the two started kissing. They moved to the floor where they continued to kiss and touch each other. They took off their clothes, continued to kiss, and then H.N. “climbed on top” of Norton and they began “to have sex.” Afterwards, they went into the bathroom where H.N. “rinsed” and “dried herself off.”

¶17 After dressing, Norton and H.N. sat down and continued to discuss reconciliation. H.N. told Norton she did not want to live with him anymore. He replied that if they were not going to reconcile he thought it “would be fair” if they had joint custody of their children. The two argued, and H.N. slapped Norton and then he backhanded her. H.N. tried to hit Norton more, but he grabbed her hands and the two “rastled.” H.N. went into the bathroom, shut the door, and stayed there for about ten minutes. When H.N. left the bathroom, they went back to the car and she told Norton she wanted to look in on their children.

¶18 Norton drove to the marital home and they checked on the children. He then took H.N. back to her parents’ home. When they got there, H.N. told Norton that the door was locked, so he pushed through a locked gate and went to one of the back doors and pushed it open. He went inside and opened a different door to let H.N. into the home. Then, he again brought up having joint custody of their children. This started another argument. H.N. then claimed that he had broken into her parents’ home and beaten her up, and she threatened to call the police. Norton got scared and left. Later that morning, the police came and arrested him.

District Court Proceedings

Jury Instructions

¶19 The State charged Norton with aggravated kidnapping, aggravated burglary, aggravated assault, violation of a protective order, damage to or interruption of a communication device, and three counts of aggravated sexual assault. The three aggravated sexual assault charges were based on Norton squeezing H.N.’s breasts, raping her, and inserting his fingers into her vagina, respectively. The case proceeded to trial. When it came time to instruct the jury, Norton asked the court for instructions on a number of lesser included offenses. The court agreed to some of these instructions but denied others.

Verdict

¶20 On the charge of violation of a protective order and the two charges of aggravated sexual assault relating to rape and digital penetration, the jury found Norton guilty as charged. On the aggravated kidnapping, aggravated burglary, and aggravated assault charges, the jury found Norton guilty of the lesser included offenses of kidnapping, burglary, and assault. The jury acquitted him of interruption of a communication device and aggravated sexual assault related to squeezing H.N.’s breasts.

Sentencing

¶21 At sentencing, the most serious punishment Norton faced was for his two convictions of aggravated sexual assault. He made two arguments to persuade the district court to reject the presumptive punishment tier of fifteen years to life in favor of a lower punishment tier.[2]

¶22 First, Norton argued that the district court should not apply the higher sentencing tier applicable to aggravated sexual assault based on rape and forcible sexual abuse because the jury had not been given a special verdict form to indicate the type of sexual assault upon which they relied. Norton observed that the court had instructed the jury that sexual assault could be based on rape, attempted rape, forcible sexual abuse, or attempted forcible sexual abuse. But the court did not provide the jury with a special verdict form to indicate which underlying sexual assault offense formed the basis of either conviction.

¶23 In light of this, Norton argued there was no evidence these convictions were based on anything more than the least serious offense of attempted forcible sexual abuse. So he reasoned the district court could sentence him only to six years to life, the sentencing range corresponding to aggravated sexual assault based on attempted forcible sexual abuse. UTAH CODE § 76-5-405(2)(c)(i). The court rejected this argument and concluded the presumptive range for the two counts of aggravated sexual assault should be fifteen years to life, the tier corresponding to aggravated sexual assault based on completed acts of rape and forcible sexual abuse. Id. §§ 76-5-405(2)(a)(i), -405(2)(b)(i).

¶24 Second, Norton argued that the district court should depart from the higher sentencing tier in the “interests of justice” due to his history, distressed state at the time of the crime, and commitment to improving. The State countered that fifteen years to life was an appropriate sentence because Norton committed “a terrible crime” and had never accepted responsibility for his actions. The court acknowledged that this was a “very difficult case” and that Norton had a “good past” and might be “entitled to some mercy.” However, the court noted Norton’s “inability and unwillingness to follow the truth” and that his actions were the “kind of conduct that simply cannot be accepted in our society.” The court sentenced Norton to fifteen years to life in prison on both counts of aggravated sexual assault, to run concurrently.

¶25 In total, the district court sentenced Norton to fifteen years to life in prison on both aggravated sexual assault convictions, one to fifteen years in prison for kidnapping, one to fifteen years in prison for burglary, 180 days for assault, and 365 days for violation of a protective order. The court ran each prison term concurrently.

Court of Appeals’ Decision

¶26 Norton appealed, making five claims. Two of Norton’s claims centered on the district court’s jury instructions. He argued that the instructions on aggravated sexual assault and the underlying offenses of rape and forcible sexual abuse misstated the law because they did not make clear that Norton had to act intentionally or knowingly with regard to H.N.’s nonconsent. State v. Norton, 2018 UT App 82, ¶¶ 25, 28, 427 P.3d 312. He also argued that the district court erred in rejecting some of his requests for instructions on lesser included offenses. Id. ¶ 26.

¶27 Norton also challenged his sentence. He argued that the district court’s decision to apply the fifteen-to-life sentencing tier for his aggravated sexual assault convictions “violated his rights to due process and a jury trial” because the jury had not been given a special verdict form to indicate the type of sexual assault forming the basis of these convictions. Id. ¶ 57. He reasoned that this “impermissibly increased the penalty he would have received had he been sentenced according to the facts that he claims were reflected in the jury’s verdict.” Id. ¶ 59. He also argued that the court abused its discretion when it failed to properly conduct the interests of justice analysis required by LeBeau v. State, 2014 UT 39, 337 P.3d 254. Norton, 2018 UT App 82, ¶ 67.

¶28 Finally, Norton argued that the court of appeals should reverse his convictions under the cumulative error doctrine. Id. ¶ 87.

¶29 The court of appeals rejected each argument. First, the court concluded that even if the jury instructions regarding aggravated sexual assault, rape, and forcible sexual abuse were erroneous as to the required mental state for H.N.’s nonconsent, any such error did not prejudice Norton. Id. ¶ 40. Second, the court of appeals determined that the district court did not err in refusing to give certain lesser included offense instructions that Norton had requested. Id. ¶¶ 49, 53, 56. It further concluded that at sentencing, the district court correctly determined the presumptive sentencing tier for the aggravated sexual assault convictions and properly considered all the evidence and argument presented by the parties. Id. ¶ 86. It also declined to reverse on cumulative error grounds. Id. ¶ 87.

¶30 We granted Norton’s petition for certiorari on each of these claims. We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(a).

STANDARD OF REVIEW

¶31 “On certiorari, we review for correctness the decision of the court of appeals . . . .” State v. Levin, 2006 UT 50, ¶ 15, 144 P.3d 1096.

ANALYSIS

¶32 We granted certiorari to consider whether the court of appeals erred in (1) concluding that any error in the jury instructions on aggravated sexual assault, rape, and forcible sexual abuse did not prejudice Norton; (2) affirming the district court’s refusal to instruct the jury on additional lesser included offenses of aggravated sexual assault, aggravated burglary, and aggravated kidnapping; (3) affirming the district court’s sentence of fifteen years to life on both convictions of aggravated sexual assault; (4) concluding that the district court conducted a proper interests of justice analysis at sentencing; and (5) rejecting Norton’s claim of cumulative error. We address each issue in turn.

I. JURY INSTRUCTIONS

¶33 Norton contends that the jury instructions on aggravated sexual assault and the underlying offenses of rape and forcible sexual abuse were incorrect. He argues that the instructions did not adequately explain that to convict, the jury must find that he acted knowingly and intentionally with regard to H.N.’s nonconsent. He further contends that if the jury had been properly instructed, there was a reasonable probability it would have acquitted him on these charges. Norton did not object to these instructions at trial, so he asks us to review this claim for plain error,[3] manifest injustice,[4] and ineffective assistance of counsel.

¶34 The court of appeals assumed without deciding that the jury instructions were incorrect, and it disposed of this issue based on lack of prejudice. State v. Norton, 2018 UT App 82, ¶¶ 30– 40, 427 P.3d 312. We agree with the court of appeals that even assuming Norton’s criticism of these instructions is right, he has not shown prejudice.

¶35 To show plain error or ineffective assistance of counsel, Norton must prove he was prejudiced by the alleged error. See State v. Jimenez, 2012 UT 41, ¶ 20, 284 P.3d 640. The prejudice standards for plain error and ineffective assistance are the same. State v. McNeil, 2016 UT 3, ¶ 29, 365 P.3d 699. Prejudicial error occurs when “there is a reasonable probability” that but for the alleged errors, “the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984).

¶36 Norton argues that the jury instructions did not clearly explain the requisite mens rea regarding H.N.’s nonconsent. At trial, the district court instructed the jury that the State had to “prove a mental state as to each of the . . . counts charged.” It then defined the mental states “intentionally”[5] and “knowingly.”[6]

Opinion of the Court

¶37 Regarding aggravated sexual assault, the district court instructed the jury that it could find Norton guilty if it found beyond a reasonable doubt that:

1. [Norton] raped or attempted to rape or committed forcible sexual abuse or attempted forcible sexual abuse against [H.N.]; and

2. That in the course of that rape or attempted rape or forcible sexual abuse or attempted forcible sexual abuse [Norton]

a) used or threatened [H.N.] with the use of a dangerous weapon; or

b) compelled, or attempted to compel, [H.N.] to submit to rape or forcible sexual abuse by threat of kidnap[p]ing, death, or serious bodily injury to be inflicted imminently; and

3. That [Norton] did such acts knowingly or intentionally.

¶38 The district court then instructed the jury on rape and forcible sexual abuse. Regarding rape, it instructed the jury that it could convict Norton if it found beyond a reasonable doubt that:

1. [Norton] had sexual intercourse with [H.N.]; and

2. That such conduct was without the consent of [H.N.]; and

3. That said conduct was done intentionally or knowingly.

¶39 With regard to forcible sexual abuse, the district court instructed the jury that it could convict Norton if it found beyond a reasonable doubt that:

1. [Norton] touched the anus, buttocks, breasts, or any part of the genitals of H.N.; and

2. That such conduct was done with the intent to either

a) cause substantial emotional or bodily pain to [H.N.], or

b) arouse or gratify the sexual desires of any person; and without the consent of [H.N.]; and

3. That said conduct was done intentionally or knowingly.

¶40 Norton relies on State v. Barela to argue that the rape and forcible sexual abuse instructions are incorrect because they “implied that the mens rea requirement . . . applied only to the act of sexual intercourse and not to the alleged victim’s nonconsent.” 2015 UT 22, ¶ 26, 349 P.3d 676. If these instructions are incorrect, so too is the aggravated sexual assault instruction because it incorporates the instructions for these associated offenses.

¶41 The court of appeals declined to decide whether these instructions were erroneous, instead holding that even if they were, it was not prejudicial error. To determine whether the omission of an element from a jury instruction is prejudicial, we analyze “whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.” Neder v. United States, 527 U.S. 1, 19 (1999). Here, we ask specifically whether a reasonable jury could have found, based on the “totality of the evidence in the record,” that the defendant did not have the required mental state as to the victim’s nonconsent. Barela, 2015 UT 22, ¶ 31.

¶42 We agree with the court of appeals that a reasonable jury could not have found that Norton mistook H.N.’s conduct for consent based on the totality of the evidence. Norton, 2018 UT App 82, ¶¶ 37–40. Because the jury acquitted Norton of the charge of aggravated sexual assault related to squeezing H.N.’s breasts, only the counts based on the nonconsensual intercourse (rape) and digital penetration (forcible sexual abuse) are at issue.

¶43 The trial evidence with respect to these two incidents could not support a finding that Norton may have mistakenly interpreted H.N.’s behavior to indicate consent. With regard to the intercourse, Norton’s testimony did not describe ambiguous behavior that he could have believed was consent. Rather, he testified that H.N. initiated sexual activity by sitting on his lap and later climbing on top of him. And in his version of events, the digital penetration never happened. He claimed she fabricated her claims against him. Specifically, he testified that after he returned her to her parents’ home he again tried to discuss custody of the children and she threatened to call the police and accuse him of breaking into the house and beating her up.

¶44 And H.N.’s testimony similarly left no room for a finding that Norton mistook her conduct for consent. H.N. had a protective order against Norton. She testified that she had pulled a dryer in front of the basement door when she first moved into her parents’ home. And each night she secured the front and back doors by positioning chairs under the doorknobs. Despite her efforts to create a barricade, H.N. testified that Norton broke into the house, punched her in the face, wrapped duct tape around her head and over her mouth, took her into the snowy night with no shoes on, took her to an empty building, and forced her inside at gun point. Once inside, he commanded her to undress at gun point and then raped her. He then tried to get rid of the evidence by directing her to clean up and inserting his fingers into her vagina to ”rinse himself out.” H.N. testified that she told him “no” multiple times.

¶45 Other evidence corroborated her version of events. The police found strands of hair that resembled H.N.’s in a bathtub in the Fort Douglas building they searched, a wad of duct tape with hair in it in the dumpster behind the building, a mark on H.N.’s lower back, swelling and the beginning of bruising on H.N.’s face, and bruising on her inner thighs and labia.

¶46 Norton points to H.N.’s testimony that she squeezed his penis as evidence that could have persuaded a jury that Norton believed she was consenting. But this incident was characterized by both sides as an act of protest. H.N. testified that in response, Norton grabbed both her hands and pinned them above her head. And Norton did not say in his testimony that he believed the squeeze indicated participation. Rather, he did not mention it. And Norton’s counsel argued during closing that the squeeze refuted H.N.’s claim that she was “totally terrified of him” and indicated she was “not afraid to use force” and “not afraid to be confrontational.” And even if somehow a reasonable jury could have seen H.N.’s isolated act of squeezing Norton’s penis as ambiguous, any ambiguity vanishes when this act is viewed along with the rest of the trial evidence.

¶47 A comparison with the facts in Barela helps demonstrate why the jury instructions here were not prejudicial. In Barela, a woman claimed her massage therapist raped her. 2015 UT 22, ¶ 6. The therapist claimed the sex was consensual. Id. ¶ 5. After a jury convicted the therapist of rape, he challenged on appeal a jury instruction that did not clearly state the required mens rea for the victim’s nonconsent. Id. ¶¶ 15–16. We agreed and reversed the defendant’s convictions. Id. ¶ 32.

¶48 This court found that the evidence was such that a jury could have “thought that the truth fell somewhere in between the two accounts.” Id. ¶ 30. While the victim in that case said the defendant had suddenly instigated and perpetrated the intercourse without her consent, she testified that she “froze,” “neither actively participating in sex nor speaking any words,” and otherwise expressed no reaction. Id. ¶ 29. This court concluded that a jury could have believed that although the victim did not consent, the defendant may have mistakenly thought she did. See id. ¶¶ 30–32. Accordingly, we held that it was “reasonably likely” that a proper jury instruction regarding the requisite mental state as to the victim’s nonconsent could have affected the outcome of the trial. Id. ¶¶ 31–32.

¶49 In contrast, a reasonable jury could not look at the totality of the trial evidence here and find that, under either version of events, Norton may have mistaken H.N.’s conduct for consent. Norton claims H.N. initiated the sexual activity and then manufactured and exaggerated her claims against him. H.N. claims Norton kidnapped her and then raped her at gunpoint. This case does not involve behavior that the jury could have viewed as a close call in either direction.

¶50 Accordingly, this case does not turn on whether Norton may have mistaken H.N.’s conduct for consent. Rather, H.N.’s and Norton’s versions of the events in question were mutually exclusive, and the jury had to decide who to believe. We agree with the court of appeals that even assuming the jury instructions were erroneous, it was not reasonably likely that absent the errors the outcome of the trial would have been different.

¶51 While the jury instruction here could have been clearer, see State v. Newton, 2020 UT 24, ¶ 29, — P.3d — (identifying Model Utah Jury Instruction CR1605 as an example of a clear jury instruction for the offense of rape), we conclude that Norton did not show he was prejudiced by the instruction, and consequently that he failed to establish manifest injustice, plain error, or ineffective assistance of counsel.

II. LESSER INCLUDED OFFENSES

¶52 Norton argues that the court of appeals erred in affirming the district court’s refusal to instruct on additional lesser included offenses of aggravated kidnapping, aggravated burglary, and two of the counts of aggravated sexual assault.

¶53 Relevant here, an offense constitutes a lesser included offense when it is “established by proof of the same or less than all the facts required to establish the commission of the offense charged” or is “specifically designated by a statute as a lesser included offense.” UTAH CODE § 76-1-402(3)(a), (c).

¶54 When a defendant requests an instruction on a lesser included offense, we use the evidence-based standard codified in Utah Code section 76-1-402(4) to determine whether such an instruction is required. See State v. Powell, 2007 UT 9, ¶ 24, 154 P.3d 788. We first ask whether the charged offense and the lesser included offense have “some overlap in the statutory elements.” State v. Baker, 671 P.2d 152, 159 (Utah 1983). We then inquire whether the trial evidence “provides a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.” Id. at 159 (citation omitted) (internal quotation marks omitted); see also Powell, 2007 UT 9, ¶ 24; UTAH CODE § 76-1-402(4). We must determine whether there is “a sufficient quantum of evidence presented to justify sending the question to the jury.” Baker, 671 P.2d at 159. And we view the evidence “in the light most favorable to the defendant requesting the instruction.” Powell, 2007 UT 9, ¶ 27.

¶55 The court of appeals carefully analyzed each of Norton’s claims of entitlement to an instruction on a lesser included offense. We affirm the court of appeals’ decision with regard to all but one of those claims.

A. Aggravated Kidnapping

¶56 Norton argues that the court of appeals erred in affirming the district court’s refusal to instruct on unlawful detention as a lesser included offense of aggravated kidnapping. We agree with the court of appeals’ decision.

¶57 At trial, both parties requested an instruction on kidnapping as a lesser included offense of aggravated kidnapping. Additionally, Norton requested an instruction on unlawful detention. The district court instructed the jury on kidnapping but not unlawful detention. Ultimately, the jury acquitted Norton of aggravated kidnapping but convicted him of kidnapping.

¶58 The State’s aggravated kidnapping charge was based on Norton abducting H.N. from the home, duct-taping her head and mouth, and taking her to Fort Douglas where he sexually assaulted her and periodically held her at gunpoint. In contrast, Norton testified that H.N. willingly left her home and accompanied him to the Fort Douglas building. However, he claimed that when they arrived at the empty building they argued, H.N. hit Norton, and he responded by backhanding her. He then restrained H.N.’s hands to prevent her from hitting him again. On appeal, Norton identifies his testimony that he temporarily restrained H.N.’s hands as being sufficient to require the district court to instruct on unlawful detention.

¶59 Unlawful detention is statutorily defined as a lesser included offense of aggravated kidnapping.[7] UTAH CODE § 76-5-306(2); see also id. § 76-1-402(3). But the conduct identified by Norton is a separate act that is not included within the conduct that constituted the greater offense of aggravated kidnapping here. “Even if there is overlap in the statutory elements, if the convictions rely on materially different acts, then one crime will not be a lesser included offense of another.” State v. Garrido, 2013 UT App 245, ¶ 31, 314 P.3d 1014 (internal quotation marks omitted).

¶60 Norton’s testimony that he restrained H.N.’s hands at Fort Douglas is separate, uncharged conduct. As to the conduct that is the basis for the aggravated kidnapping charge—abducting H.N. from the home, taking her to the Fort Douglas building, periodically holding her at gunpoint, and sexually assaulting her—Norton claims it was all voluntary and consensual. Based on the trial evidence, the choice for the jury was to either convict him of aggravated kidnapping or kidnapping based on H.N.’s testimony, or acquit him based on his testimony. If the jury believed Norton’s version of events, it could not convict him of restraining H.N.’s hands—a separate act for which he was not charged.

¶61 We also note that Norton’s testimony does not appear to even establish the offense of unlawful detention. Unlawful detention requires restraint or detention “without authority of law.” UTAH CODE § 76-5-304(1) (2012). But Norton claimed he restrained H.N.’s hands in self-defense to stop her from hitting him, and we must look at the evidence in the light most favorable to him without weighing credibility. See Powell, 2007 UT 9, ¶ 27. Restraining another’s hands in self-defense is not unlawful. See UTAH CODE § 76-2-402(1)(a) (2012) (providing that a “person is justified in threatening or using force against another when and to the extent that the person reasonably believes that force or a threat of force is necessary to defend the person or a third person against another person’s imminent use of unlawful force”). So Norton’s evidence does not amount to unlawful detention.

¶62 Fundamentally, the evidence before the jury provided no rational basis for a verdict acquitting Norton of aggravated kidnapping and instead convicting him of unlawful detention. See id. § 76-1-402(4). Accordingly, we agree with the court of appeals that the district court was not obligated to instruct the jury on unlawful detention.[8]

B. Aggravated Burglary

¶63 Norton argues that he was entitled to instructions on aggravated assault, assault, and criminal trespass as lesser included offenses of aggravated burglary. We agree with the court of appeals that these “are not lesser included offenses of aggravated burglary under the facts of this case.” Norton, 2018 UT App 82, ¶ 55.

¶64 At trial, the district court instructed on burglary as a lesser included offense of aggravated burglary. But the court did not instruct on aggravated assault, assault, or criminal trespass.

¶65 Aggravated burglary, aggravated assault, and assault do have overlapping statutory elements.[9] But again, Norton relies on evidence of a materially separate, uncharged act to argue that the district court should have instructed on these offenses.

¶66 The State’s aggravated burglary charge was based on the events surrounding Norton breaking into H.N.’s parents’ home at the beginning of the night in question. These events included H.N. waking to a “loud bang”—presumably caused by one of the objects she had used to barricade the doors—and finding Norton standing at the end of her bed. He then punched her in the face.

¶67 At trial, Norton denied all of this. He claimed that he did not break into H.N.’s parents’ home at the beginning of the night, but that he waited in his car outside of the home for her to willingly join him. However, he points to his testimony that he backhanded H.N. and injured her face at Fort Douglas as supporting instructions on aggravated assault and assault as lesser included offenses of aggravated burglary.

¶68 This is an uncharged act that is separate from the conduct forming the basis of the aggravated burglary charge—Norton breaking into H.N.’s parents’ home and punching her in the face. As the court of appeals aptly concluded, “Because the facts and evidence developed to establish the greater offense of aggravated burglary were different from the facts and evidence relied upon by Norton to claim entitlement to the lesser included offense instructions of aggravated assault and assault, those lesser offenses were not included within the greater offenses.” Id. ¶ 56.

¶69 Norton’s testimony about this uncharged conduct provides a basis for an additional offense but not a lesser offense included within the conduct for which he was actually charged. Accordingly, the evidence at trial did not provide a rational basis for a verdict acquitting Norton of aggravated burglary or burglary and instead convicting him of aggravated assault or assault. So the district court was not required to give the lesser included offense instructions he requested.

¶70 Norton also argued to the court of appeals that he was entitled to an instruction on criminal trespass because he went to H.N.’s residence at the end of the night, which the protective order prohibited. See id. ¶ 56 n.13. Because Norton’s trial counsel did not request a criminal trespass instruction, Norton raises this argument based on ineffective assistance of counsel. See id.

¶71 The court of appeals concluded again that because of the different underlying conduct that Norton relied on to make his argument, “criminal trespass was not an included offense of aggravated burglary under the circumstances of this case, and Norton’s counsel was therefore not ineffective for failing to request criminal trespass as a lesser included instruction.” Id.

¶72 The court of appeals was correct. Norton’s testimony about going to H.N.’s parents’ home at the end of the night is separate from his breaking into the house at the beginning of the night. It is uncharged conduct. If it did support a conviction for criminal trespass, that conviction would not be in lieu of burglary but in addition to it. Accordingly, the district court was not required to instruct on criminal trespass and Norton’s counsel was not ineffective for not requesting such an instruction.

C. Aggravated Sexual Assault Based on Rape

¶73 Norton argues that the district court erred in declining to instruct the jury on sexual battery as a lesser included offense of aggravated sexual assault based on rape. But we agree with the court of appeals that the district court did not err in refusing to give such an instruction.

¶74 At trial, Norton and the State requested instructions on rape, forcible sexual abuse, and sexual battery as lesser included offenses of aggravated sexual assault based on rape. The district court did instruct the jury on rape and forcible sexual abuse, but not on sexual battery. Although the jury was instructed on two lesser included offenses, it convicted Norton of aggravated sexual assault as charged.

¶75 The offenses of aggravated sexual assault based on the underlying offense of rape and sexual battery have overlapping elements.[10] Norton argues that he was entitled to a sexual battery instruction because the jury could have disbelieved H.N. or found that she exaggerated her allegations to gain an advantage in the custody battle. Norton also asserts that her testimony about the rape was ambiguous because she did not struggle after he initiated sex, except to squeeze his penis. And he argues that in light of his testimony that the sex was consensual, the jury could have found that no rape occurred, but when Norton held her hands above her head, that particular sexual position might have caused her momentary affront or alarm.

¶76 This is pure speculation. Norton has not identified a quantum of evidence presented at trial that would support instructing the jury on sexual battery. Norton testified that the sexual intercourse was entirely consensual and that H.N. was an active participant. The only testimony about him pinning H.N.’s hands above her head came from her. And she testified that she did not consent to any sexual activity, and that when he held her hands above her head it was in response to her squeezing his penis. There was no evidence to support a finding that the intercourse was consensual, but Norton should have known that H.N. intermittently experienced affront or alarm. Accordingly, the evidence did not provide a rational basis to acquit Norton of rape and instead convict him of sexual battery. See UTAH CODE § 76-1­402(4). So no such instruction was required.

D. Aggravated Sexual Assault Based on Forcible Sexual Abuse

¶77 Norton also argues that the court of appeals erred in affirming the district court’s refusal to instruct on sexual battery as a lesser included offense of aggravated sexual assault based on forcible sexual abuse. We agree with Norton that an instruction on sexual battery was required.

¶78 First, aggravated sexual assault based on forcible sexual abuse and sexual battery have “some overlap in the statutory elements.” Baker, 671 P.2d at 159. Both offenses require that the actor touches the anus, buttocks, or any part of the genitals of another. See UTAH CODE §§ 76-5-404(1), 76-5-405(1), and 76-9­702.1(1) (2012). But they have different requisite mental states. Forcible sexual abuse requires that the defendant act with the intent to cause substantial emotional or bodily pain or to gratify the sexual desire of any person. Id. § 76-5-404(1) (2012). But sexual battery requires only that the defendant’s conduct be under circumstances that the defendant knows or should know would cause affront or alarm to the person touched. Id. § 76-9-702.1(1).

¶79 Second, we conclude that “the evidence offered provides a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.” Baker, 671 P.2d at 159 (citation omitted) (internal quotation marks omitted); see also UTAH CODE § 76-1-402(4). Here, both the State and Norton rely on H.N.’s testimony that Norton inserted his finger into her vagina to wipe away his DNA. Norton’s testimony was that this touch did not happen. But relying on H.N.’s testimony that the touch occurred, Norton argues that the evidence, if believed, would support a finding that Norton “touched [H.N.] under circumstances he knew or should have known would likely cause affront or alarm” (the mental state required for sexual battery), rather than with intent to cause substantial emotional or bodily pain or to gratify his sexual desire (the mental state required for forcible sexual abuse).

¶80 We agree. H.N.’s testimony indicates Norton was attempting to conceal his crime. While a jury could infer that in doing so he also intended to gratify his sexual desire or cause H.N. emotional or bodily pain, a jury could also infer from the same evidence that Norton touched H.N.’s vagina only under circumstances he knew or should have known would likely cause her affront or alarm. The trial evidence therefore provides a rational basis for a verdict acquitting Norton of aggravated sexual assault based on forcible sexual abuse and convicting him of sexual battery.

¶81 We must now determine whether this error prejudiced Norton. An error is prejudicial if there is a “reasonable likelihood that the error affected the outcome of the proceedings.” State v. Reece, 2015 UT 45, ¶ 33, 349 P.3d 712 (citation omitted).

¶82 We conclude this error did prejudice Norton because had the jury been instructed on sexual battery, the evidence supported a conviction on the less serious charge and an acquittal on both aggravated sexual assault and the lesser included offense on which the district court instructed—forcible sexual abuse. Here, although the district court instructed on the lesser included offense of forcible sexual abuse, the jury convicted Norton on aggravated sexual abuse as charged. Generally,

[w]here a jury is instructed on, and has the opportunity to convict a defendant of, a lesser included offense, but refuses to do so and instead convicts the defendant of a greater offense, failure to instruct the jury on another lesser included offense, particularly an offense that constitutes a lesser included offense of the lesser included offense that the jury was instructed on, is harmless error.

State v. Daniels, 2002 UT 2, ¶ 28, 40 P.3d 611.

¶83 However, this is a distinct situation and causes us to depart from our more general precedent. If the jury were to infer from H.N.’s testimony that Norton acted under circumstances that he knew would cause her affront or alarm, but did not intend to gratify his sexual desire or cause her emotional or physical pain, that would lead to acquittal of both aggravated sexual assault and forcible sexual abuse and conviction of sexual battery. Thus, there is a reasonable likelihood that the error affected the outcome of the proceedings. Accordingly, we conclude that the district court’s error prejudiced Norton and reverse the court of appeals’ affirmance of Norton’s conviction of aggravated sexual assault based on digital penetration.

III. SENTENCING

¶84 The longest potential terms of imprisonment Norton faced at sentencing were for his two aggravated sexual assault convictions. The district court sentenced him to fifteen years to life in prison on both of them. He argues that this was error and that the court of appeals should have reversed for two reasons.[11]

A. Special Verdict Form

¶85 Norton argues that the district court should not have applied the sentencing tier applicable to aggravated assault based on a completed act of rape because the jury was not given a special verdict form to indicate which underlying sexual assault offense formed the basis of the conviction. In light of this, Norton argues the district court should have sentenced him to the lowest term of six years to life—the sentencing range corresponding to an aggravated sexual assault conviction based on attempted forcible sexual abuse. UTAH CODE § 76-5-405(2)(c)(i).

¶86 The court of appeals held that the district court did not err because there was no factual basis “to support a conclusion that the jury could have determined that the sexual acts underlying [the charge] constituted only attempted forcible sexual abuse.” State v. Norton, 2018 UT App 82, ¶ 61, 427 P.3d 312.

¶87 While we affirm the court of appeals’ conclusion that the district court applied the correct sentencing tier, we do so on an alternative basis. We conclude that Norton did not preserve this issue in the district court.

¶88 At trial, the district court instructed the jury that aggravated sexual assault occurs when a person commits a sexual assault such as rape, forcible sexual abuse, attempted rape, or attempted forcible sexual abuse, and does so under certain aggravating circumstances. UTAH CODE § 76-5-405(1). The presumptive sentence for aggravated sexual assault varies based on the underlying offense from which it arises. Id. § 76-5-405(2). If the underlying offense is rape or forcible sexual abuse, the presumptive sentence is fifteen years to life. Id. § 76-5-405(2)(a)(i). If the underlying offense is attempted rape, the presumptive sentence is ten years to life. Id. § 76-5-405(2)(b)(i). And if the underlying offense is attempted forcible sexual abuse, the presumptive sentence is six years to life. Id. § 76-5-405(2)(c)(i). A court may impose a lesser term if it finds that doing so is in the interests of justice and states the reasons for that finding on the record. Id. § 76-5-405(3)(a), (4)(a), (5)(a).

¶89 At trial, defense counsel and the State reviewed the jury instructions and neither requested a special verdict form. So when the jury rendered its verdict, it did not identify the offense underlying the aggravated sexual assault conviction.

¶90 At sentencing, Norton argued that without a special verdict form there was no indication the jury found him guilty of aggravated sexual assault based on anything but the least serious offense of attempted forcible sexual abuse. He asserted that consequently he should be sentenced only under the corresponding sentencing tier of six years to life.

¶91 In response, the State argued that all evidence presented at trial was of completed, not attempted, sexual assaults. So Norton should be sentenced in accordance with the tier corresponding to aggravated sexual assault based on a completed act of rape. The district court agreed that fifteen years to life was the presumptive punishment tier, given the evidence presented at trial.

¶92 Norton argues that this deprived him of the due process guarantee of “the right to a jury trial on every element of the offense.” But Norton did not raise this argument until sentencing, and that was too late.

¶93 “As a general rule, claims not raised before the trial court may not be raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346. During trial, the parties met with the district court to finalize the jury instructions. This was the appropriate time for Norton to request that a special verdict form be included. But he made no mention of a special verdict form. Rather, Norton raised the issue at sentencing when it was too late for the district court to remedy the issue.

¶94 This conclusion is contrary to that of our court of appeals, which held the issue was preserved because Norton “made these same arguments to the court below.” Norton, 2018 UT App 82, ¶ 59 n.15. It is correct that Norton made this argument at sentencing. However, our preservation rules ensure that issues are addressed and, if appropriate, corrected when they arise. Holgate, 2000 UT 74, ¶ 11. Had Norton requested a special verdict form at trial, the district court could have included a form or denied his request. But at sentencing, it was too late for the district court to do either. Accordingly, Norton’s claim is unpreserved. See State v. Cram, 2002 UT 37, ¶ 11, 46 P.3d 230 (concluding that an objection was not preserved because it could have been raised at trial but was instead raised at a scheduling conference where the error could no longer be corrected). Because Norton has not argued any exception to the preservation requirement here, his claim fails.[12]

B. Interests of Justice

¶95 Norton also argues that the district court erred in not sentencing him to a lesser sentence “in the interests of justice.” UTAH CODE § 76-5-405(3)(a). Specifically, Norton claims that in sentencing him to the presumptive sentence of fifteen years to life on his aggravated assault sexual conviction, see id. § 76-5-405(2)(a)(i), the district court did not conduct the interests of justice analysis or make the explicit findings required by LeBeau v. State, 2014 UT 39, 337 P.3d 254. He argues this was an abuse of discretion.

¶96 “We traditionally afford the trial court wide latitude and discretion in sentencing.” State v. Woodland, 945 P.2d 665, 671 (Utah 1997). We will not set aside a sentence unless the district court abused its discretion by “fail[ing] to consider all legally relevant factors or if the sentence imposed is clearly excessive.” State v. McCovey, 803 P.2d 1234, 1235 (Utah 1990) (abrogated on other grounds by State v. Smith, 2005 UT 57, 122 P.3d 615) (footnote omitted) (internal quotation marks omitted).

¶97 But relying on our holding in LeBeau, Norton argues the district court should have sua sponte analyzed the proportionality of his sentence and his potential for rehabilitation. In determining proportionality, Norton argues that the court should have considered both the gravity of his conduct in relation to the severity of the sentence imposed on him, and the severity of his sentence relative to sentences imposed for other crimes in Utah. And he argues that in analyzing his rehabilitative potential, the district court should have considered the Board of Pardons’ role in monitoring his behavior and progress toward rehabilitation, his age, any ties between the crime and alcohol or drug addiction and his treatment prospects, the existence of a criminal history of violence, and the “Sentencing Commission’s guidelines.” (Citing LeBeau, 2014 UT 39, ¶¶ 52, 54.)

¶98 However, as we made clear in State v. Martin, the district court does not have an obligation to consider anything the defendant does not raise. 2017 UT 63, ¶ 62, 423 P.3d 1254 (“[W]hen a sentencing court commits an error that was not objected to below, an appellant must . . . show the existence of plain error or exceptional circumstances that would justify the exercise of our review.”). Rather, the district court need only consider the arguments and issues the defendant raises at sentencing.

¶99 And as the court of appeals correctly observed, the district court considered all of the evidence and arguments Norton presented at sentencing. The district court acknowledged letters describing Norton as a good person, as well as letters describing Norton as a violent person. The court also acknowledged Norton was going through a devastating divorce but determined Norton’s behavior was still “way, way, way over the line.” Further, the court noted that a factor of the sentence was Norton’s “inability and unwillingness to follow the truth.” Ultimately, the district court decided Norton was “entitled to some mercy, but not what [his] lawyer [was] asking for.”

¶100 But Norton argues that the district court failed to consider whether his sentence was proportional to sentences for other similar crimes. And he contends that he raised this at sentencing when he argued his conduct did not “rise to the level of the kinds of egregious cases where we have individuals who suffered significant loss of life or impairment.” But this is not enough. In Martin, we held a similar sentencing issue was unpreserved because counsel did not object to the analysis the district court used or identify the other offenses the court should take into consideration. Id. ¶¶ 64–66. Comparing sentences is “daunting” and “certainly not a task that we can require our district courts to perform without prompting or guidance from counsel.” Id. ¶ 66. Norton did not ask the district court to compare his sentence to sentences imposed for other offenses or identify what those other offenses might be. Accordingly, this issue is unpreserved.

¶101 The district court adequately addressed the arguments Norton raised at sentencing. We affirm the court of appeals’ decision that the district court did not abuse its discretion by declining to reduce the presumptive sentence on the basis of the “interests of justice.”

IV. CUMULATIVE ERROR

¶102 Norton argues that the court of appeals erroneously rejected his cumulative error argument. An appellate court will reverse if “the cumulative effect of the several errors undermines [the court’s] confidence . . . that a fair trial was had.” State v. Kohl, 2000 UT 35, ¶ 25, 999 P.2d 7 (second alteration in original) (citation omitted). However, we have identified only one error in Norton’s trial. A “single accumulable error cannot warrant reversal under the cumulative error doctrine.” State v. Martinez-Castellanos, 2018 UT 46, ¶ 48, 428 P.3d 1038. We thus reject his cumulative error argument.

V. LEBEAU SHOULD BE OVERRULED

¶103 Although LeBeau v. State, 2014 UT 39, 337 P.3d 254 does not determine the outcome in this case, I write this section separately because I conclude LeBeau should be explicitly overturned. The holding in LeBeau contradicts the applicable statute’s plain language. And in so doing it takes the legislature’s policy choice to give judges discretion to sentence below the presumptive statutory tier and replaces it with a rigid, mandatory framework that applies even when a judge imposes the presumptive sentence.

¶104 I agree with Justice Lee’s dissent in LeBeau, but I will not duplicate his analysis here. Instead, I add my own observations and apply the law outlined in Eldridge v. Johndrow, 2015 UT 21, 345 P.3d 553, to argue that LeBeau should be overruled.

¶105 When considering whether precedent should be overturned, we evaluate: “(1) the persuasiveness of the authority and reasoning on which the precedent was originally based, and (2) how firmly the precedent has become established in the law since it was handed down.” Id. ¶ 22.

¶106 The first consideration—the persuasiveness of the authority and reasoning on which LeBeau is based—counsels in favor of overturning it. The opinion did not derive from prior authority. It was a fresh interpretation of a provision of Utah’s aggravated kidnapping statute, which I conclude is incorrect. Lebeau, 2014 UT 39, ¶ 25.

¶107 The LeBeau court interpreted the sentencing scheme within the aggravated kidnapping statute.[13] Id. ¶¶ 20–22; see also UTAH CODE § 76-5-302(3), (4) (2014). Subsection 302(3) of the statute establishes presumptive sentencing tiers for variations of aggravated kidnapping. Subsection 302(4) then states in relevant part,

If, when imposing a sentence under Subsection (3)(a) or (b), a court finds that a lesser term than the term described in Subsection (3)(a) or (b) is in the interests of justice and states the reasons for this finding on the record, the court may impose a [lesser] term of imprisonment . . . .

UTAH CODE § 76-5-302(4) (2014).

¶108 Reading subsections 302(3) and (4) together, the LeBeau court held that the district court was required to conduct “the interests-of-justice analysis laid out in subsection (4).”[14] Lebeau, 2014 UT 39, ¶ 21. And the LeBeau court defined the phrase “interests of justice” by looking to Eighth Amendment jurisprudence, see id. ¶¶ 38–41, and another provision of the criminal code setting forth “general goals of Utah’s criminal code.” Id. ¶ 34 (quoting UTAH CODE § 76-1-104 (2014)). These sources led the court to conclude that an “interests-of-justice analysis” required the sentencing court to consider a checklist of particulars: (1) proportionality, including “the gravity of the offense and the harshness of the penalty,” and “the sentence being imposed [compared to] sentences imposed for other crimes in Utah” and (2) the defendant’s capacity for rehabilitation, including deference to the role of the Board of Pardons and Parole, the defendant’s age at the time of the crime, the extent that alcohol or drug addiction caused the offense, the presence of violence in the defendant’s criminal history, relevant Sentencing Commission guidelines, and “all relevant factors” to the defendant’s rehabilitative potential. Id. ¶¶ 42–55.

¶109 But I find it unnecessary to go beyond the language of the statute to determine its meaning. Subsection 302(4) is straightforward. It directs that if the sentencing court finds it is “in the interests of justice” to sentence a defendant to a “lesser term” rather than the presumptive term, the court may do so if it states the reasons for this finding on the record.

¶110 Two things seem clear from the plain language of this statute. First, it applies only if “a court finds that a lesser term” is in the interests of justice. Where, as here and in LeBeau, a judge sentences a defendant to the presumptive term, subsection 302(4) should not come into play.

¶111 And second, this provision is permissive, not mandatory, and it does not require judges to consider a list of particulars. It states that judges “may” sentence below the presumptive sentencing tier if they determine it is in the “interests of justice.” The sole intent is to give judges discretion to impose a lesser term of imprisonment rather than making the presumptive tier mandatory.

¶112 “May” is, of course, a permissive term. In this context it means to “be permitted to” or to “be a possibility.” May, BLACK’S LAW DICTIONARY (11th ed. 2019).

¶113 And the phrase “interests of justice” is merely a “general placeholder for a principle of broad judicial discretion.” LeBeau, 2014 UT 39, ¶ 87 (Lee, J., dissenting). The LeBeau majority observed the many times that the phrase “interests of justice” can be found in the civil code, criminal code, rules of evidence, and rules of procedure. Id. ¶ 28. This reinforces my point. Various statutes and rules invoke the “interests of justice” to signal that judges have the discretion to consider whatever information is before them and do what is fair, proper, or just under the circumstances. See id. ¶ 90 (Lee, J., dissenting); see, e.g., UTAH CODE § 75-7-204(2)(b) (providing that a court “may entertain a proceeding regarding any matter involving a trust if . . . the interests of justice would be seriously impaired”); id. § 77-8a-1(2)(d) (“When two or more defendants are jointly charged with any offense, they shall be tried jointly unless the court in its discretion on motion or otherwise orders separate trials consistent with the interests of justice.”); id. § 78B-1-136 (“It is the right of a witness to be protected from irrelevant, improper or insulting questions, and from harsh or insulting demeanor, to be detained only so long as the interests of justice require it . . . .”).

¶114 However, LeBeau turns this statutory language on its head. It transforms the grant of discretion inherent in the phrase “interests of justice” into a prescribed analysis that judges must undertake. And it requires judges to perform this analysis even when they have applied the presumptive sentence. LeBeau, 2014 UT 39, ¶ 55. These mandates are not found in the statute’s language.

¶115 In determining whether precedent should be overturned, we also ask how firmly the precedent has become established in the law since it was handed down. To do so, we look to both the age of the precedent and the “extent to which people’s reliance on the precedent would create injustice or hardship if it were overturned.” Eldridge, 2015 UT 21, ¶¶ 22, 35. Other relevant considerations are how well the precedent has worked in practice and “whether the precedent has become inconsistent with other principles of law.” Id. ¶ 40.

¶116 LeBeau was decided in 2014 and was not based on “any significant precursors in Utah law.” Id. ¶ 34. Since that time, it “has not been necessary to the outcome of many cases.” Id. ¶ 36. In its six years of existence, LeBeau has been cited approximately twenty-five times by this court, the court of appeals, and Utah’s federal courts.

¶117 Prior to this case, this court has conducted a LeBeau interests of justice analysis only one time in State v. Martin, 2017 UT 63, 423 P.3d 1254. There, we declined to reverse a district court that had not undertaken a formal proportionality analysis on the record as required by LeBeau. Id. ¶ 66. We recognized the “daunting task” involved in undertaking a proportionality analysis: “[I]t is certainly not a task that we can require our district courts to perform without prompting or guidance from counsel.” Id.

¶118 Our court of appeals has handled most of the cases involving a LeBeau claim. Eighteen court of appeals opinions cite LeBeau. One is this case, and nine others cite LeBeau for other propositions—not the interests of justice analysis. That means there have been eight court of appeals cases involving a LeBeau interests of justice claim. The court of appeals has only once concluded that LeBeau warranted a holding that a district court abused its discretion. See State v. Jaramillo, 2016 UT App 70, ¶ 44, 372 P.3d 34. In every other case, the court of appeals either declined to conduct the LeBeau interests of justice analysis or decided there was no abuse of discretion. See, e.g., State v. Alvarez, 2017 UT App 145, ¶ 4, 402 P.3d 191 (assuming “that the sentencing court duly considered the proportionality of [the defendant’s] sentence” because the defendant did not demonstrate “that [the court’s] presumption of appropriate sentencing consideration is inapplicable”); State v. Scott, 2017 UT App 103, ¶ 13, 400 P.3d 1172 (presuming “that the court fully considered all the information presented to it” and took into account “the relevant factors in determining [the defendant’s] sentence”); State v. Beagles, 2017 UT App 95, ¶ 9, 400 P.3d 1096 (holding that the district court “balanced the aggravating and mitigating factors” and that its sentencing decision was within its discretion).

¶119 And the court of appeals has sharply criticized LeBeau. In State v. Coombs, where a defendant raised an ineffective assistance of counsel claim because his counsel had not argued at sentencing that the district court should conduct the interests of justice analysis required by LeBeau, the court critiqued LeBeau: “In our view, LeBeau constitutes blatant policy-based ad hoc review of legislative action not typically undertaken by the judicial branch. We would hope that, given the appropriate opportunity, our supreme court will revisit whether LeBeau’s approach should continue.” 2019 UT App 7, ¶ 22 n.4, 438 P.3d 967 (citation omitted). The court of appeals concluded, “We cannot read LeBeau and Martin as removing from defense counsel the discretion not to make certain arguments at sentencing. Every case is different and defense counsel must retain wide discretion in determining what arguments will best benefit a client under the totality of the circumstances.” Id. ¶ 21 n.3 (citation omitted).

¶120 It appears that in the time since LeBeau was decided, appellate courts have responded to it by applying it narrowly. This suggests LeBeau’s mandates are not workable as written.[15]

¶121 On balance, the trouble with LeBeau is not so much its mandate that judges consider the interests of justice before imposing a sentence. After all, this is what judges already do. They receive and consider any testimony, evidence, or information that either party desires to present. UTAH CODE § 77-18-1(7). They give the defendant an opportunity to make a statement and present any mitigating information. And they give the prosecution a similar opportunity to present any information “material to the imposition of sentence.” UTAH R. CRIM. P. 22(a). They receive information about any victims of the offense. See UTAH CODE § 77-38-4(1); see also id. § 77-18-1(5)(b)(i). They read any materials that have been submitted, such as a presentence report or letters. Id. § 77-18-1(5)(a)–(b). And defense counsel and the prosecutor use their professional judgment to choose which arguments to make and which information to highlight in support of their respective sentencing positions. Judges consider all of this, along with any applicable statutes and the sentencing guidelines, and impose the sentence they deem to be just under all the circumstances. State v. Russell, 791 P.2d 188, 192 (Utah 1990).

¶122 Rather, the more serious problem with LeBeau is that instead of reading the “interests of justice” as a grant of discretion, the LeBeau court concluded this phrase requires judges to go through a prescribed checklist of factors at sentencing, and that judges must do so whether they impose a sentence less than the presumptive range or within it.

¶123 This transforms a particular legislative policy decision into something else entirely. Here and in similarly worded statutes, the legislature has determined that Utah judges should have the discretion to sentence below the presumptive statutory term when they determine it is in the interests of justice—in other words, fair and just—to do so. This is a significant policy choice, which stands in contrast to other jurisdictions that have chosen to enact statutory mandatory minimum sentencing schemes that are binding upon judges in all but narrow circumstances. See, e.g., 18 U.S.C. § 3553(e) (granting federal sentencing court authority to impose sentence below the statutory minimum only upon a government motion stating that the defendant gave “substantial assistance” in the investigation or prosecution of another person who has committed an offense); id. § 3553(f) (requiring a court to sentence without regard to a statutory minimum sentence when a defendant meets specific criteria). Instead of observing this fundamental aspect of the sentencing scheme enacted by the legislature, LeBeau transforms this general grant of discretion into something detailed and specific, which is not found in the text of the relevant statutes.

¶124 Because I advocate for LeBeau to be overturned even though it does not determine the result in this case, the concurrence asserts that my analysis is an “act of judicial overreach.” See infra ¶ 130. I agree with the concurrence that the doctrine of stare decisis is deeply rooted in our law. We should be extremely reluctant to overturn precedent. And generally, that means we will not revisit precedent when it does not dictate our holding in a particular case.

¶125 But I conclude that the fact that LeBeau does not govern here—indeed, the fact that it “has not been necessary to the outcome of many cases,” Eldridge, 2015 UT 21, ¶ 36—indicates that it has not become firmly “established in the law since it was handed down,” id. ¶ 22. This, along with the court of appeals’ criticism of LeBeau and explicit request that this court “revisit whether LeBeau’s approach should continue,” Coombs, 2019 UT App 7, ¶ 22 n.4, suggests that LeBeau has not been workable in practice and weighs in favor of overruling it.

¶126 For these reasons, I am persuaded that this is one of the rare occasions when we should overturn precedent.

CONCLUSION

¶127 We affirm all but one of the court of appeals’ determinations in this case. We conclude that any error in the jury instructions for aggravated sexual assault and the underlying offenses of rape and forcible sexual abuse did not prejudice Norton. Further, the district court was not required to instruct on any of the lesser included offenses Norton requested, except for sexual battery. And we determine that at sentencing, the district court did not err in imposing a punishment of fifteen years to life for aggravated sexual assault and properly considered all of the arguments and evidence before it.

¶128 With regard to our holding that the district court erred in not instructing the jury on sexual battery as a lesser included offense of the aggravated sexual assault charge based on forcible sexual abuse, we reverse the conviction and remand to the district court for a new trial.

CHIEF JUSTICE DURRANT, concurring in part and concurring in the judgment:

¶129 Writing for the majority, Justice Petersen does an able and thorough job of addressing each of Mr. Norton’s challenges to his conviction. And she appropriately dismisses his LeBeau challenge to his sentence as unpreserved. So far so good. We are therefore pleased to concur in the analysis and conclusions she sets forth in parts I through IV of her opinion. But then, she takes a surprising step. She goes on to address the question of whether the rule established in LeBeau[16]should be overturned. This, despite the fact that the resolution of this question makes not one wit of difference to Mr. Norton’s case. Justice Petersen explicitly acknowledges as much, writing that LeBeau “does not determine the outcome in this case.”[17] But the fact that this is done in plain sight makes it no less an act of judicial overreach.

¶130 And Justice Petersen further flouts judicial restraint by not just reaching the issue unnecessarily, but then advocating to overturn LeBeau, a significant case that, whether right or wrong, is established precedent.[18] The doctrine of stare decisis is deeply rooted in our law. There are reasons why we respect precedent. There are reasons why we are circumspect in overturning it. Precedent promotes predictability and stability in the incremental development of the law. It promotes faith in our judicial system. It underpins and informs virtually every decision we make as judges. This is not to say it is wholly inviolate. We, of course, do on occasion overturn a case. But we do not do it lightly. We do it reluctantly, cautiously, and with compelling reasons. And we should never do it gratuitously as Justice Petersen suggests we do here. For these reasons, we decline to join in part V of Justice Petersen’s opinion.

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

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[1] “On appeal, we review the record facts in a light most favorable to the jury’s verdict and recite the facts accordingly.” State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (citation omitted). “We present conflicting evidence only as necessary to understand issues raised on appeal.” Id.

[2] The statutory sentencing range for aggravated sexual assault varies based on the type of sexual assault involved in the offense. If the underlying offense is rape or forcible sexual abuse, the presumptive sentence is fifteen years to life. UTAH CODE § 76-5-405(2)(a)(i). If the underlying offense is attempted rape, the presumptive sentence is ten years to life. Id. § 76-5-405(2)(b)(i). And if the underlying offense is attempted forcible sexual abuse, the presumptive sentence is six years to life. Id. § 76-5-405(2)(c)(i).

[3] The State argues that we should not conduct a plain error review because Norton invited any error in these instructions. At trial, the district court told counsel that if they did not object to an instruction, the court would assume they approved of it. Norton’s counsel did not object to these instructions, and the State argues this is tantamount to invited error. We decline to address the State’s argument because we must still analyze prejudice to determine Norton’s ineffective assistance of counsel claim. And because we agree with the court of appeals that, even assuming these jury instructions were erroneous, they did not prejudice Norton, his claim fails whether we review it for ineffective assistance, manifest injustice, or plain error.

[4] Our precedent holds that in many instances “’manifest injustice’ and ‘plain error’ are operationally synonymous.” State v. Bullock, 791 P.2d 155, 159 (Utah 1989); see also State v. Johnson, 2017 UT 76, ¶ 57 n.16, 416 P.3d 443; State v. Maestas, 2012 UT 46, ¶ 37, 299 P.3d 892. Norton has not argued otherwise; therefore, we review his argument under the plain error standard.

[5] The district court instructed the jury that a “person acts intentionally . . . when his conscious objective is to cause a certain result or to engage in certain conduct.” See UTAH CODE § 76-2­103(1).

[6] The district court instructed the jury that a “person acts knowingly . . . when the person is aware of the nature of his conduct or is aware of the particular circumstances surrounding his conduct,” and when the person is “aware that his conduct is reasonably certain to cause the result.” See id. § 76-2-103(2).

[7] To prove aggravated kidnapping, the State must show in relevant part that “in the course of committing unlawful detention or kidnapping,” a person “(a) possesses, uses, or threatens to use a dangerous weapon,” or (b) acts with intent “(vi) to commit a sexual offense.” UTAH CODE § 76-5-302(1)(a), (1)(b)(vi) (2012). (We cite to the version of the statute in effect at the time of the events in question for this and other statutory provisions that have been substantively amended since that time.) To prove unlawful detention, the State must prove only that an actor “intentionally or knowingly, without authority of law, and against the will of the victim, detains or restrains the victim under circumstances not constituting a violation of: (a) kidnapping . . . or (c) aggravated kidnapping.” Id. § 76-5-304(1) (2012).

[8] The State agrees with the court of appeals that an instruction on unlawful detention was not required here but disagrees with that court’s analysis. The State reasons that because the kidnapping was an ongoing crime that continued at Fort Douglas, the evidence of Norton restraining H.N.’s hands was not a separate act. We appreciate the State’s point, but we ultimately agree with the court of appeals’ analysis for the reasons explained above, supra ¶¶ 56–62. The evidence Norton identifies provides a rational basis for a verdict acquitting him of aggravated kidnapping, but not for one convicting him of unlawful detention because the restraint was a separate uncharged act. See UTAH CODE § 76-1-402(4).

[9] At the time of the conduct at issue, aggravated burglary occurred when a person “in attempting, committing, or fleeing from a burglary . . . (a) cause[d] bodily injury to any person who [was] not a participant in the crime; (b) use[d] or threaten[ed] the immediate use of a dangerous weapon against any person who [was] not a participant in the crime; or (c) possesse[d] or attempt[ed] to use any explosive or dangerous weapon.” Id. § 76- 6-203(1).

An aggravated assault occurred if a person “commit[ed] assault” and used “(a) a dangerous weapon . . . or (b) other means or force likely to produce death or serious bodily injury.” Id. § 76- 5-103(1).

And an assault was “(a) an attempt, with unlawful force or violence, to do bodily injury to another; (b) a threat, accompanied by a show of immediate force or violence, to do bodily injury to another; or (c) an act, committed with unlawful force or violence, that cause[d] bodily injury to another or create[d] a substantial risk of bodily injury to another.” Id. § 76-5-102(1) (2012).

[10] The relevant statutory language provides, “A person commits aggravated sexual assault if: (a) in the course of a rape . . . or forcible sexual abuse, the actor: (i) uses, or threatens the victim with the use of, a dangerous weapon” or “(ii) compels, or attempts to compel, the victim to submit to rape . . . or forcible sexual abuse[] by threat of kidnap[p]ing, death, or serious bodily injury to be inflicted imminently on any person.” UTAH CODE § 76-5-405(1).

“A person commits rape when the actor has sexual intercourse with another person without the victim’s consent.” Id. § 76-5­402(1).

“A person is guilty of sexual battery if the person, under circumstances not amounting to” rape, forcible sexual abuse, attempted rape, or attempted forcible sexual abuse, “intentionally touches, whether or not through clothing, the anus, buttocks, or any part of the genitals of another person, or the breast of a female person, and the actor’s conduct is under circumstances the actor knows or should know will likely cause affront or alarm to the person touched.” Id. § 76-9-702.1(1).

[11] As we have reversed the conviction for aggravated sexual assault based on forcible sexual abuse, only the conviction for aggravated sexual assault based on rape remains. Consequently, we analyze Norton’s argument only with respect to the remaining count.

[12] In any event, Norton’s argument does not persuade us that the absence of a special verdict form was plain error. Norton relies on Apprendi v. New Jersey, 530 U.S. 466 (2000) and Alleyne v. United States, 570 U.S. 99 (2013) to argue that in the instance of a tiered sentencing structure, where the jury is instructed on versions of the offense that qualify for more than one tier, a special verdict form is required. But this is an extension of Apprendi and Alleyne. In Apprendi, the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490 (emphasis added). In Alleyne, the Supreme Court extended the same holding to any fact that increases the mandatory minimum sentence. 570 U.S. at 108. And Norton does not explain why Apprendi and Alleyne require a special verdict form under the circumstances here.

[13] To be consistent with LeBeau v. State, 2014 UT 39, 337 P.3d 254, I cite the 2014 version of the statute.

[14] The LeBeau court reasoned that because the provisions within subsection 302(3) (establishing the presumptive sentencing tiers for aggravated kidnapping) state that they are to be imposed “except as provided in Subsection . . . (4)” (the “interests of justice” provision), then courts must always conduct an interests of justice analysis to determine whether subsection (4) applies. LeBeau, 2014 UT 39, ¶ 21. And the court concluded that an “interests of justice analysis” required a judge to consider specific factors as described above, supra ¶ 97.

[15] Without published opinions, it is more difficult to determine how district courts have responded to its requirements.

[16] LeBeau v. State, 2014 UT 39, 337 P.3d 254.

[17] Supra ¶ 105.

[18] See State v. Rowan, 2017 UT 88, ¶ 24, 416 P.3d 566 (Himonas, J., concurring) (explaining, in a concurrence joined by a majority of the court, that “our court declines to revisit established precedent unnecessarily”).

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COVID-19 just created a buyer’s market, if you need an attorney

COVID-19 just created a buyer’s market, if you need an attorney.

The Utah legal market for lawyers of every kind will soon be a big-time buyer’s market. Why? The Utah Supreme Court issued an order April 21, 2020 “that the Bar Examination passage requirement be modified on an emergency basis for certain eligible Qualified Candidates” in consideration of the fact that administering the July 2020 bar exam would be effectively impossible due to the public health worries surrounding the coronavirus (COVID-19). The Utah Supreme Court order provides that “Qualified Candidates who meet all the requirements of subsection II(b) by no later than December 31, 2020, shall be admitted to the Utah Bar without passing the Utah Bar Examination. This admission will be effected as soon as practically possible.”

This is great news if you want to hire a lawyer at prices you’d never have seen before. Buyer beware, of course.

While I really do hope that this brings about more competition, more competence, lower prices (not lower quality), fosters more innovative improvements to the profession, and results in more overall value for the client’s dollar, I won’t be holding my breath. Prove me wrong, 2020 graduates, please, please prove me wrong.

https://www.abajournal.com/news/article/utah-first-state-to-grant-diploma-privilege-during-the-coronavirus-pandemic

https://www.abajournal.com/files/Signed_2020.04.21_Bar_Waiver_Order_.pdf

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

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2019 UT 73 – Olguin v. Anderton – UUPA standing

This opinion is subject to revision before final publication in the Pacific Reporter

2019 UT 73 UTAH SUPREME COURT

JIMMY OLGUIN, Appellee,
v.
MARIE ANDERTON and CHRISTOPHER ANDERTON,Appellants.

No. 20180098
Heard February 22, 2019
Filed December 19, 2019
On Certification from the Court of Appeals

Eighth District, Duchesne
The Honorable Samuel P. Chiara
No. 164000077

Attorneys:[1]

Michael D. Harrington, Jarell A. Dillman, Vernal, Troy L. Booher, Julie J. Nelson, Salt Lake City, for appellee
John D. Hancock, Roosevelt, for appellants

JUSTICE PETERSEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PEARCE joined.

JUSTICE PETERSEN, opinion of the Court:

INTRODUCTION

¶1 Jimmy Olguin conceived a child with Marie Anderton (Mother) while she was married to Christopher Anderton (Husband), who is presumed to be the child’s father under Utah law. Olguin filed a petition in the district court to adjudicate his paternity of the child. Mother filed a motion to dismiss, arguing that Olguin lacked standing under the Utah Uniform Parentage Act (UUPA) because the child was born within a marriage. The district court noted that the court of appeals has interpreted the UUPA to deny standing to an alleged father[2] in Olguin’s circumstances, but it observed that the court of appeals has not yet addressed the constitutional implications of its holding. Ultimately, the district court denied the motion to dismiss, concluding that to deny Olguin standing would violate his right to procedural due process under the federal constitution. In pretrial briefing, the parties again raised the issue of standing. The district court reaffirmed its procedural due process ruling but declined to conclude that Olguin had a substantive due process right at stake.

¶2 The court of appeals certified this case to us to address the constitutional issues raised by the parties and ruled upon by the district court. However, in a companion case that also issues today, we hold that the UUPA does grant standing to an alleged father, even when the child was conceived or born during a marriage with a presumed father. See Castro v. Lemus, 2019 UT 71, ¶¶ 3, 12, 51, 61, — P.3d —. Accordingly, Olguin’s constitutional claims are moot.

¶3 We affirm the denial of the motion to dismiss on alternative grounds and remand to the district court.

BACKGROUND

¶4 Mother has been married to Husband since 2010.[3] Over the course of their marriage, Mother and Husband have separated several times. On one such occasion, Mother had a romantic relationship with Jimmy Olguin, and they conceived a child.

¶5 Mother and Husband subsequently reconciled, and the child was born in September 2012. Husband was listed as the child’s father on the birth certificate. Despite this, Mother contacted Olguin that December to tell him that she believed he was the child’s biological father. Subsequent genetic testing established a 99.99 percent probability that Olguin was indeed the biological father.

¶6 From December 2012 until March 2016, Mother and Husband allowed Olguin to have parent-time with the child. But Mother terminated contact between the two after the child was injured during a visit with Olguin.

¶7 Soon after, Olguin filed a petition to formally adjudicate the child’s paternity. Mother moved to dismiss that petition, contending that subsection 78B-15-607(1) of the UUPA denied standing to Olguin in this situation. In support, Mother cited to the court of appeals’ decision in R.P. v. K.S.W., which held that subsection 607(1) limits standing to rebut the presumption of paternity to only the mother and the presumed father when the child is born during their marriage.[4] 2014 UT App 38, ¶¶ 26, 44, 320 P.3d 1084.

¶8 In his opposition to the motion to dismiss, Olguin conceded the correctness of the statutory interpretation based on the court of appeals’ decision in R.P. But he argued that subsection 607(1) of the UUPA violates his constitutional right to procedural due process.

¶9 The district court denied Mother’s motion to dismiss in an order dated December 16, 2016. The district court reasoned that because R.P. was resolved on statutory grounds, it had no bearing on Olguin’s constitutional claims. The court then concluded that dismissing Olguin’s paternity petition for lack of standing under subsection 607(1) would violate Olguin’s right to procedural due process under the Fourteenth Amendment to the United States Constitution.

¶10 In preparation for trial, Mother and Olguin submitted trial briefs. In her brief, Mother reasserted that Olguin lacked standing to challenge the presumption of paternity under the court of appeals’ decision in R.P. She also argued that the constitutional issues presented in this case had already been decided by the United States Supreme Court. See generally Michael H. v. Gerald D., 491 U.S. 110 (1989) (plurality opinion) (addressing both procedural and substantive due process issues in the context of a California statute denying standing to natural fathers to rebut the presumption of paternity under certain circumstances).

¶11 In an order dated August 24, 2017, the district court recognized the “unusual procedural posture” of this case, noting that it had previously ruled on the standing and procedural due process issues. Nevertheless, because the parties had not previously briefed Michael H., the district court reconsidered its prior ruling. The court acknowledged that it may have misdirected the parties when, in the December 16, 2016 order, it relied on substantive due process case law for the proposition that parents have a fundamental liberty interest in rearing their children. The court thus addressed the parties’ new substantive due process arguments, ultimately declining to conclude that Olguin has a substantive due process right at issue in this matter.

¶12 The district court reaffirmed its previous denial of Mother’s motion to dismiss on procedural due process grounds. The court concluded that under the facts of this case, Olguin has a protectable liberty interest in rearing the child. Accordingly, the court determined that interpreting subsection 607(1) to bar Olguin from challenging Husband’s presumed paternity would deny Olguin the procedural safeguards of notice and a meaningful opportunity to be heard.[5]

¶13 The parties later stipulated that the case presented significant constitutional questions that should be resolved before trial. In a January 12, 2018 order, the district court certified that order and its December 16, 2016 and August 24, 2017 orders for appeal pursuant to rule 54(b) of the Utah Rules of Civil Procedure. Mother and Husband appealed.

¶14 The court of appeals determined that the district court erred in certifying the case under rule 54(b). But it acknowledged that rule 5(a) of the Utah Rules of Appellate Procedure allows appellate courts to treat a timely filed notice of appeal from an order improperly certified under rule 54(b) as a petition for interlocutory appeal. It therefore construed the notice of appeal as a petition for interlocutory appeal and granted that petition.

¶15 The court of appeals then certified the interlocutory appeal to us for original review, reasoning that the appeal presents important questions of constitutional law that have yet to be decided.

¶16 We exercise jurisdiction pursuant to Utah Code section 78A-3-102(3)(b).

STANDARD OF REVIEW

¶17 “The interpretation and constitutionality of a statute are questions of law that we review for correctness.” Waite v. Utah Labor Comm’n, 2017 UT 86, ¶ 5, 416 P.3d 635.

ANALYSIS

¶18 The court of appeals certified this case to us to determine “whether Utah Code section 78B-15-607(1) violates the procedural due process requirements of the Fourteenth Amendment of the United States Constitution insofar as the statute limits standing to challenge the paternity of a child born during a marriage to the presumed father and mother of the child.” We note that Olguin also raises a substantive due process claim. And alleged fathers in companion cases, in which we also issue opinions today, raise these due process and equal protection challenges to subsection 607(1). See Castro v. Lemus, 2019 UT 71, ¶¶ 53, 57, — P.3d — (arguing the UUPA violates alleged fathers’ state and federal procedural and substantive due process rights as well as principles of equal protection); Mackley v. Openshaw, 2019 UT 74, ¶ 2 n.2, — P.3d — (same); Hinkle v. Jacobsen, 2019 UT 72, ¶ 19, — P.3d — (arguing the UUPA violates the due process and equal protection clauses of the federal constitution).

¶19 However, we hold in one companion case, Castro, that the UUPA does grant standing to an alleged father under subsection 602(3), and subsection 607(1) does not alter this when the child was conceived or born during a marriage with a presumed father. 2019 UT 71, ¶¶ 3, 12, 51, 61. Therefore, we need not consider whether the contrary interpretation of subsection 607(1) would be unconstitutional. Accordingly, we affirm the district court’s denial of the motion to dismiss on alternative grounds. Specifically, we affirm the district court’s ruling that Olguin has standing to rebut the presumption of paternity.

¶20 It is within our discretion “to affirm [a] judgment on an alternative ground if it is apparent in the record.” Madsen v. Wash. Mut. Bank fsb, 2008 UT 69, ¶ 26, 199 P.3d 898; see also Bailey v. Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158 (“[A]n appellate court may affirm the judgment appealed from ‘if it is sustainable on any legal ground or theory apparent on the record, even though such ground or theory differs from that stated by the trial court to be the basis of its ruling or action, and this is true even though such ground or theory is not urged or argued on appeal by appellee, was not raised in the lower court, and was not considered or passed on by the lower court.’” (citation omitted)). For a legal theory “[t]o be ‘apparent on the record,’ ‘[t]he record must contain sufficient and uncontroverted evidence supporting the ground or theory to place a person of ordinary intelligence on notice that the prevailing party may rely thereon on appeal.’” Francis v. State, Utah Div. of Wildlife Res., 2010 UT 62, ¶ 10, 248 P.3d 44 (second alteration in original) (citation omitted). When the record contains this evidence, we may affirm on alternative grounds. We opt to do so here.

¶21 Mother and Husband have raised two additional arguments in this interlocutory appeal that we briefly address. First, they argue that granting Olguin standing to rebut Husband’s presumption of paternity in effect terminates Husband’s parental rights and violates his fundamental liberty interests in his marriage and rearing children born into that marriage.

¶22 We note that our decision today holds only that the UUPA grants standing to Olguin; it should not be construed to hold that Olguin has rebutted Husband’s presumed paternity. And this opinion does not impact the district court’s ability to make any other determinations it deems relevant under the UUPA. Accordingly, any argument that Husband’s parental rights have been terminated is premature.

¶23 Second, Mother and Husband argue that the district court erred in limiting which issues would be considered at trial on remand. They reference a paragraph of the January 12, 2018 order. But the record and briefing before us is inadequate to review pretrial evidentiary rulings made by the district court. Additionally, that is not the type of issue this court would generally address before trial in an interlocutory proceeding. See UTAH R. APP. P. 5(g) (“An appeal from an interlocutory order may be granted only if it appears that the order involves substantial rights and may materially affect the final decision or that a determination of the correctness of the order before final judgment will better serve the administration and interests of justice.”). Accordingly, we decline to address the district court’s pretrial evidentiary decisions.

CONCLUSION

¶24 We conclude that the UUPA grants standing to Olguin to adjudicate his paternity of the child. Accordingly, we affirm the district court’s denial of Mother’s motion to dismiss. And we remand to the district court for further proceedings consistent with this opinion and our holding in Castro v. Lemus, 2019 UT 71, — P.3d —.

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

[1] Amicus Curiae attorneys are:

Sean D. Reyes, Att’y Gen., Tyler R. Green, Solic. Gen., Andrew Dymek, Asst. Att’y Gen., Stanford E. Purser, Deputy Solic. Gen., Salt Lake City, for State of Utah.

[2] The UUPA defines “[a]lleged father” as “a man who alleges himself to be, or is alleged to be, the genetic father or a possible genetic father of a child, but whose paternity has not been determined.” UTAH CODE § 78B-15-102(2).

[3] “When reviewing a rule 12(b)(6) motion to dismiss, we accept the factual allegations in the complaint as true and interpret those facts, and all reasonable inferences drawn therefrom, in a light most favorable to the plaintiff as the nonmoving party.” Russell Packard Dev., Inc. v. Carson, 2005 UT 14, ¶ 34, 108 P.3d 741. We recite the facts accordingly.

[4] In 2017, after R.P. v. K.S.W., 2014 UT App 38, 320 P.3d 1084, issued, the Utah Legislature amended Utah Code section 78B-15-607 to also include “a support enforcement agency” as one of the parties allowed to challenge a child’s paternity “at any time before filing an action for divorce or in the pleadings at the time of the divorce of the parents.” See 2017 Utah Laws 632. So in 2014, the court of appeals’ interpretation of subsection 607(1) limited standing to only the mother and the presumed father. Now, Mother’s similar interpretation of subsection 607(1) limits standing to only the mother, the presumed father, and a support enforcement agency.

[5] At this time, the district court also granted Olguin’s motion to join Husband as a necessary party.

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2019 UT 72 – Utah Supreme Court – Hinkle v. Jacobsen – standing to establish paternity

This opinion is subject to revision before final publication in the Pacific Reporter
2019 UT 72 – Utah Supreme Court – Hinkle v. Jacobsen
THERESA I. HINKLE, Appellee,
v.
KOREY D. JACOBSEN, Appellee,
and
JODY RHORER, Intervenor and Appellant.

No. 20180124
Heard February 22, 2019
Filed December 19, 2019

On Certification from the Court of Appeals

Third District, Salt Lake
The Honorable Andrew H. Stone
No. 124906297

Attorneys:
Theresa I. Hinkle, Salt Lake City, pro se
Colleen K. Coebergh, Salt Lake City, for appellee Korey D. Jacobsen
David Pedrazas, Wade Taylor, Salt Lake City,
for intervenor and appellant

JUSTICE PETERSEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PEARCE joined.

JUSTICE PETERSEN, opinion of the Court:

INTRODUCTION

¶1 Jody Rhorer appeals the district court’s determination that he does not have standing to establish paternity of his biological daughter under the Utah Uniform Parentage Act (UUPA). But the district court also concluded that Rhorer had abandoned his paternity claim entirely, and Rhorer did not challenge this ruling in his opening brief. He has consequently waived the issue, and we dismiss his appeal.

BACKGROUND

¶2 Theresa Hinkle (Mother) and Korey Jacobsen (Husband) married in 2002 and then separated in 2005. In 2005, Mother and Rhorer engaged in a relationship during which a child was conceived and born. Because Mother and Husband were still married at the time the child was born, Husband is the child’s presumed father under the UUPA. See UTAH CODE § 78B-15-204(1)(a).

¶3 Mother and Husband began divorce proceedings in 2012. Rhorer intervened in the divorce proceedings, alleging that he is the biological father of the child. He filed multiple motions including one to establish himself as the child’s biological father and another for a determination of parentage. He asserted that he could establish his paternity with genetic test results.

¶4 After briefing and proceedings before the commissioner, the commissioner concluded that under the court of appeals’ interpretation of the UUPA in R.P. v. K.S.W., 2014 UT App 38, 320 P.3d 1084, Rhorer did not have statutory standing to assert his paternity because the child had a presumed father—Husband—and, under such a circumstance, only the mother and presumed father had standing to challenge paternity under the UUPA.

¶5 However, the commissioner noted the court of appeals’ statement in R.P. that

[a]lthough constitutional considerations might require further analysis in cases such as this—where the alleged father has an established relationship with the child—R.P. has not raised a constitutional challenge in the district court or on appeal. Accordingly, we leave for another day the issue of the constitutional implications of the UUPA’s standing limitations where the alleged father has an established relationship with the child.

Id. ¶ 7. In light of this language, the commissioner gave Rhorer the opportunity through a custody evaluation to develop facts relevant to whether the UUPA was unconstitutional as applied to him. The district court adopted the recommendation as a court order. The court order provided that Rhorer had no statutory standing to assert his paternity. Therefore, unless he could show “constitutional standing,” he could not move forward with his petition.

¶6 Rhorer proceeded with the custody evaluation in an attempt to establish “constitutional standing.” However, he never analyzed the results of the evaluation to make a legal argument that the UUPA was unconstitutional as applied to him. Rather, he filed a motion in which he asked the court to grant him “standing to pursue a claim for time-sharing with the minor child at time of trial.”

¶7 At a hearing before the commissioner on the custody evaluation and Rhorer’s motion, the commissioner directly requested briefing from Rhorer on any constitutional issues he sought to assert. The commissioner stated, “[I]t’s already the law of this case . . . that [Rhorer] wouldn’t have standing under the statute were it not for concerns about . . . protecting his constitutional rights, and so I’d like to have something that actually states the parties’ positions in writing . . . referring to any facts that are in the file.”

¶8 But Rhorer did not do this. Instead, he filed a reply brief in which he asserted he had already addressed the constitutional issues in other pleadings. But while Rhorer did make reference to the due process clause in some of his pleadings, he did not provide any analysis or argument as to why it required he have standing here.

¶9 The commissioner ultimately concluded that

[i]nasmuch as the issue before the Court . . . is whether the strict application of the [UUPA] is unconstitutional as applied to the facts of this case . . . the Commissioner cannot conclude that there exists a compelling reason to grant standing to [Rhorer] to assert his claim of parentage contrary to the provisions of Utah Code Ann. § 78B-15-607.

¶10 In light of the commissioner’s recommendation, in a December 21, 2016 order, the district court concluded that Rhorer “lacks standing to assert his parentage claim.”

¶11 Rhorer filed a belated objection to the commissioner’s recommendation and also moved to set aside the December 21, 2016 order. At a hearing on the objection before the district court, Rhorer’s counsel stated that Rhorer was not trying to take “this little girl away from [Husband],” but that he was “asking this Court to give him a relationship with the child.” Counsel added, “I’m asking this Court to admittedly break new ground . . . to say ‘[N]o, why can’t you have two fathers?’”

¶12 In a June 1, 2017 memorandum decision denying the motion to set aside, the district court found that Rhorer “asked th[e] Court to craft a remedy whereby he is ultimately granted limited parent-time with [the child], while not actually seeking custody of the child or challenging [Husband’s] status as [the child]’s presumed father.” The district court explained,

Ultimately, while Mr. Rhorer may have had a right at the time the biological mother and [Husband] sought a divorce to assert standing to challenge the child’s paternity and to rebut [Husband’s] paternity (assuming that Mr. Rhorer could mount a constitutional challenge to [Utah Code section 78B-15-607] as applied to him), he has plainly abandoned such a claim at this point.

The court noted that Rhorer had failed to “brief his theories of why Section 607 is unconstitutional as applied to him with adequate specificity to permit intelligent analysis.” Finally, the court concluded that Rhorer had not met his burden to demonstrate the statute’s unconstitutionality and that Rhorer “[did] not seek to rebut [Husband’s] paternity and [did] not seek to establish himself as the legal father” of the child, so he had no standing to challenge Husband’s status as presumed father.

¶13 Rhorer responded to the June 1, 2017 memorandum decision by filing a motion for amended findings and a new trial. At a hearing on the motion, Rhorer’s counsel walked back the request for dual fatherhood and explained that Rhorer still sought to establish paternity and rebut Husband’s status as the child’s presumed father.

¶14 The district court denied the motion in a November 14, 2017 memorandum decision. The court outlined the procedural history of the case and explained that “the only issue” was the “conclusion regarding the constitutional implications of the UUPA’s standing limitations.” The court noted again that “neither Mr. Rhorer’s written briefing nor his counsel’s oral argument focused on th[e] constitutional challenge” and that Rhorer’s counsel at the time “did not mount a constitutional challenge.” The district court then concluded that Rhorer had “accepted [Husband’s] parental rights” and “was merely asking this Court to take judicial notice of the bond he had formed with [the child] and find it sufficient to enter into a ‘multiple relationship’ of fathering.”

¶15 Rhorer then moved to set aside the November 14, 2017 memorandum decision under rule 60(b) of the Utah Rules of Civil Procedure. In this motion, for the first time, he briefed a constitutional argument asserting that section 78B-15-607 of the UUPA violates the Equal Protection Clause of the United States Constitution.

¶16 In a January 25, 2018 minute entry, the district court denied Rhorer’s motion. The district court reasoned that it seemed as if “Rhorer [wa]s seeking Rule 60(b)(6) relief simply to advance an entirely new legal argument, one that could have been raised and preserved during the multiple instances when this Court and the Commissioners considered the issue of who has standing to challenge a presumed father’s paternity under the [UUPA].”

¶17 Rhorer appeals these four district court orders.[1] We exercise jurisdiction pursuant to Utah Code section 78A-3-102(3)(j).

STANDARD OF REVIEW

¶18 Standing is generally a mixed question of fact and law “because it involves the application of a legal standard to a particularized set of facts.” Alpine Homes, Inc. v. City of West Jordan, 2017 UT 45, ¶ 10, 424 P.3d 95 (citation omitted). However, “the question of whether a given individual or association has standing to request a particular relief is primarily a question of law.” Kearns— Tribune Corp. v. Wilkinson, 946 P.2d 372, 373 (Utah 1997). We review the district court’s “factual determinations” with deference. Id. at 373–74. But we give “minimal discretion” to the district court on “determinations of whether a given set of facts fits the legal requirements for standing.” Id. at 374.

ANALYSIS

¶19 Rhorer’s primary argument on appeal is that the UUPA is unconstitutional under the Equal Protection and Due Process Clauses of the United States Constitution. Husband argues that Rhorer did not preserve these arguments in the district court. As the procedural history above makes clear, Husband is correct.

¶20 But in a companion case issued today, Castro v. Lemus, we interpret the UUPA to grant standing to “a man whose paternity of the child is to be adjudicated.” 2019 UT 71, ¶ 51, — P.3d —. This statutory interpretation does not implicate Rhorer’s equal protection or due process concerns. Accordingly, Rhorer’s failure to preserve his constitutional arguments is moot because the constitutionality of the UUPA is no longer at issue.

¶21 However, we do need to determine whether Rhorer can benefit from any favorable change in the law as articulated in Castro. This hinges upon whether he waived any challenge to the district court’s determination that he abandoned his paternity claim.

¶22 In its June 1, 2017 memorandum decision, the district court noted that Rhorer had asked it “to craft a remedy whereby he is ultimately granted limited parent-time with [the child], while not actually seeking custody of the child or challenging [Husband’s] status as [the child’s] presumed father.” The court concluded that the “law clearly does not recognize the hybrid role proposed by Mr. Rhorer,” and determined that Rhorer no longer sought to rebut Husband’s paternity or to establish himself as the child’s legal father.

¶23 Further, in its November 14, 2017 memorandum decision, the district court concluded that Rhorer had “accepted [Husband’s] parental rights” and “was merely asking [the] Court to take judicial notice of the bond he had formed with [the child] and find it sufficient to enter into a ‘multiple relationship’ of fathering.”

¶24 In these rulings, the district court concluded that Rhorer had abandoned his pursuit of his constitutional standing argument by never briefing it. Further, the court found that Rhorer had abandoned his paternity claim altogether by instead pursuing dual fatherhood and shared parent-time and stating that he did not want to disrupt the relationship between the child and Husband.

¶25 Rhorer does not address these rulings in his briefing to us, other than making a conclusory statement that he did not abandon his paternity claim.[2] He did respond to [Husband’s] argument regarding waiver in his reply brief. But that is insufficient. “When a party . . . raises [an issue] for the first time in a reply brief, that issue is waived and will typically not be addressed by the appellate court.” State v. Johnson, 2017 UT 76, ¶ 16, 416 P.3d 443; see also Allen v. Friel, 2008 UT 56, ¶ 7, 194 P.3d 903 (“If an appellant fails to allege specific errors of the lower court, the appellate court will not seek out errors in the lower court’s decision.”); Webster v. JP Morgan Chase Bank, NA, 2012 UT App 321, ¶ 21, 290 P.3d 930 (“The reply brief, however, is reserved for ‘answering any new matter set forth in the opposing brief,’ not for making an argument in the first instance.”).

¶26 Accordingly, we can only hold that Rhorer waived any challenge to the district court’s conclusion that he had abandoned his paternity petition.

CONCLUSION

¶27 The district court found that Rhorer abandoned his paternity claim, and Rhorer did not challenge that finding on appeal. We therefore conclude that Rhorer waived any claim to challenge Husband’s presumed paternity. Accordingly, we dismiss his appeal.

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

[1] Specifically, Rhorer challenges (1) the December 21, 2016 order; (2) the June 1, 2017 memorandum decision; (3) the November 14, 2017 memorandum decision; and (4) the January 25, 2018 minute entry.

[2] Specifically, Rhorer stated in his opening brief that he “never abandoned his claim to rebut [Husband’s] paternity in this matter and to seek custody of the minor child.” But this conclusory statement does not constitute a challenge to the district court’s repeated, specific conclusion that he had abandoned his paternity claim.

Rhorer did “technically appeal[]” the orders containing the district court’s conclusions about abandonment, but “technical compliance is not enough.” Utah Physicians for a Healthy Env’t v. Exec. Dir. of the Utah Dep’t of Envtl. Quality, 2016 UT 49, ¶ 18, 391 P.3d 148.

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Scott v. Scott – 2017 UT 66 – Utah Supreme Court – September 21, 2017 – termination of alimony for cohabitation

This opinion is subject to revision before final publication in the Pacific Reporter

2017 UT 66

IN THE SUPREME COURT OF THE STATE OF UTAH

JILLIAN SCOTT, Petitioner,

v.

BRADLEY SCOTT, Respondent.

No. 20160299

Filed September 21, 2017

On Certiorari to the Utah Court of Appeals

Third District, Salt Lake

The Honorable Judge Robert P. Faust

No. 124903563

Attorneys:

Michael D. Zimmerman, Bart J. Johnsen, Troy L. Booher,  Julie J. Nelson, Salt Lake City, for petitioner

Karra J. Porter, Kristen C. Kiburtz, Salt Lake City, for respondent

JUSTICE PEARCE authored the opinion of the Court in which CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE, JUSTICE DURHAM and JUDGE BROWN joined.

Having been recused, JUSTICE HIMONAS does not participate herein; DISTRICT COURT JUDGE JENNIFER A. BROWN sat.

JUSTICE PEARCE, opinion of the Court:

INTRODUCTION

¶1 Jillian Scott petitions this court to overturn the Utah Court of Appeals’ order affirming the district court’s conclusion that she cohabited with her now ex-boyfriend and, therefore, her alimony payments terminated under Utah Code section 30-3-5(10). This requires us to revisit a question that captured the nation’s attention in 1999 because the meaning of section 30-3-5(10) “depends upon what the meaning of the word ‘is’ is.” We conclude that the legislature intended that is should mean is and not was or has been.

We reverse.

BACKGROUND

¶2 Jillian Scott (Wife) and Bradley Scott (Husband) divorced in 2006. Under the terms of their divorce settlement and decree, Wife would collect $6,000 a month in alimony from Husband for the number of years they had been married: twenty-five. The divorce decree provided, “Alimony shall terminate upon the remarriage or cohabitation of [Wife].”

¶3 In October 2011, Husband moved to terminate alimony, claiming that Wife had cohabited with J.O., her ex-boyfriend. Husband argued that Wife had begun “cohabit[ing] with an adult male . . . on or about February 2011,” that Wife had a relationship with her cohabitant “akin to that generally existing between husband and wife,” and that she and cohabitant “shared a common residence for a significant period of time.” Wife and J.O. had broken up months before Husband filed his motion. The statutory language[1] governing termination of alimony provides that alimony “terminates upon establishment by the party paying alimony that the former

spouse is cohabitating with another person.” UTAH CODE § 30-3-5(10).[2]

[1] The court of appeals’ opinion correctly noted:

The parties’ decree of divorce differs from the language contained in Utah Code section 30-3-5(10). . . . However, the parties have presented this case as though the statutory language governs the result, and for purposes of this analysis we assume that the parties’ decree is substantively identical to the statute on the issue of cohabitation.

Scott v. Scott, 2016 UT App 31, ¶ 9 n.2, 368 P.3d 133, cert. granted, 379 P.3d 1183 (Utah 2016). On certiorari, neither party contends that the language of the decree controls or that under the decree this court should reach a different result. We thus limit our analysis to the parties’ arguments and do not consider the decree’s language.

[2] The Utah statute employs the verb cohabitate. See UTAH CODE § 30-3-5(10). We, however, use the more common term cohabit throughout this opinion when not quoting the statute. See Cohabit, GARNER’S MODERN AMERICAN USAGE (4th ed. 2016) (“Cohabitate is a misbegotten BACK-FORMATION that has never seriously competed with cohabit in print sources. . . . Current ratio (cohabiting vs. cohabitating): 8:1.”).

¶4 The district court found that Wife and J.O. had cohabited and that their cohabitation terminated Husband’s obligation to pay Wife alimony. The court stated that “[Wife] and [J.O.] lived their lives in multiple homes and had extensive and constant travel, which does not lend itself to a traditional analysis of a couple, who without those resources, cohabitate in a single home.” The court found it significant that Wife and J.O. had been “together or staying in one of [J.O]’s homes approximately 87% of the time from December 2010 onward.” Thus, considering the details of the couple’s intimate and exclusive 30–31-month relationship ending sometime before April 2011, the district court found that the evidence before it established “cohabitation and a relationship akin to a husband and wife.” The court ordered Wife to return to Husband “any alimony paid to her from December 22, 2010 to the present.”[3]

[3] We omit the details of Wife and J.O.’s time spent together at their various homes and vacation destinations, recounted at length in the court of appeals’ opinion, Scott, 2016 UT App 31.

¶5 Wife appealed and argued to the Utah Court of Appeals that the district court’s interpretation of the statute failed to account for the present tense of the to be verb “is” in the statute. See UTAH CODE § 30-3-5(10) (alimony should dissolve upon establishment that “the former spouse is cohabitating”). Under Wife’s reading, Husband could not establish that Wife is cohabiting, since she and J.O. had broken up months before Husband filed his motion. She argued that in order to terminate Husband’s obligation under the plain language of the statute, Husband had to show that she was cohabiting at the time he filed his motion to terminate alimony.

¶6 Husband contended to the court of appeals that Wife’s statutory interpretation argument was not preserved in the district court. The court of appeals responded, however, “that resolution of the question of whether Wife and J.O. cohabited requires us to interpret the Cohabitation Provision . . .” Scott v. Scott, 2016 UT App 31, ¶ 27 n.8, 368 P.3d 133. It thus chose to reach Wife’s statutory interpretation argument “regardless of whether it was properly preserved.” Id.

¶7 The court of appeals disagreed with Wife’s plain language argument. The court explained that “[t]he language of the Cohabitation Provision has never been parsed in this way, and our case law has not squarely addressed the issue. Accordingly, we utilize applicable canons of construction to ascertain the meaning of the statute.” Id. ¶ 28. The court of appeals then reasoned that, under a plain language reading, “when the present-tense [to be] verb is read within the context of the [statute] as a whole, the argument that its use demands that cohabitation be ongoing at the time of determination seems less persuasive.” Id. ¶ 32 (internal citation omitted). It reasoned that to read the statute in a way that gives independent meaning to the word is would undermine the final effect the statute requires: that alimony “terminates upon establishment” of cohabitation. Id. (emphasis added); UTAH CODE § 30-3-5(10). The court of appeals determined that, because the statute lacks a provision allowing for “alimony reinstatement once cohabitation ends” or a provision explaining “that alimony is only suspended during cohabitation,” “the word ‘is’ cannot bear the burden of an interpretation that requires such a complex approach, and there is no other language in the statute to justify encumbering it with such a burden.” Scott, 2016 UT App 31, ¶ 32.

¶8 The court of appeals also reasoned that the legislature “could not have intended” the result Wife’s briefing described. Id. ¶ 33 (citation omitted). The court acknowledged “that requiring termination of alimony in [Wife’s] circumstances does not entirely align with the general economic policies underlying alimony.” Id. ¶ 35. “[C]ohabitation is qualitatively different from remarriage. Remarriage provides a legally binding substitute for alimony; cohabitation does not.” Id. But the court explained that

interpreting the [statute] to terminate alimony only during periods of active cohabitation could create an incentive for persons receiving alimony to simply cohabit rather than marry, so that if the new relationship does not endure, the alimony from the former spouse would resume. This could result in something of a statutory preference for cohabitation over marriage, which seems unlikely to have been the legislature’s intent.

Id. ¶ 33. Relying on its conclusion that Wife and J.O. had shared “a common abode” that was also their “principal domicile” for “more than a temporary or brief period of time,” the court rejected Wife’s argument and upheld the district court’s conclusion that Wife and J.O. had cohabited. Id. ¶¶ 16–26.

¶9 Although the court of appeals agreed that Wife and J.O. had cohabited, it disagreed with the district court’s timeframe. Id. ¶ 26. Instead of finding that Wife and J.O. began to cohabit on December 22, 2010, the court of appeals found that Wife and J.O. began to cohabit on February 17, 2011, “because their vacations together before they moved to [California] still retained a temporary quality.” Id. The court of appeals therefore remanded the case to the district court for the limited purpose of adjusting Wife’s payment to Husband to reflect the dates it found significant. Id. ¶ 38.

¶10 We disagree with the court of appeals’ reading of the cohabitation statute. We instead conclude that the plain language of Utah Code section 30-3-5(10) requires the paying spouse to establish that the former spouse is cohabiting at the time the paying spouse files the motion to terminate alimony.[4]

[4] Because we conclude that Husband did not establish that Wife cohabited within the meaning of the statute, we do not reach the merits of Wife’s other contentions arguing that the court of appeals erred in its application of the law.

We also clarify an appellee’s burden of persuasion on certiorari when the court of appeals addresses an issue that the appellee claims was unpreserved.

¶11 We have jurisdiction under Utah Code section 78A-3-102(3)(a).

STANDARD OF REVIEW

¶12 On certioriari, we review decisions of the Utah Court of Appeals for correctness. Nichols v. Jacobsen Constr. Co., 2016 UT 19, ¶ 13, 374 P.3d 3. “We also review questions of statutory interpretation . . . for correctness.” Id.

ANALYSIS

I. The Court of Appeals Erred when It Found That Wife and J.O. Cohabited

¶13 Before we reach the merits of the court of appeals’ conclusion that Wife cohabited with J.O., we must address Husband’s argument that Wife failed to preserve the statutory construction issue. Husband argued to the court of appeals that it should not address the meaning of the statute because Wife had not presented that question to the district court. The court of appeals declined to resolve whether the issue had been preserved and instead addressed what it believed to be the proper construction of the statute. The court explained that, “[b]ecause we believe that resolution of the question of whether Wife and J.O. cohabited requires us to interpret the Cohabitation Provision, we address this argument regardless of whether it was properly preserved.” Scott v. Scott, 2016 UT App 31, ¶ 27 n.8, 368 P.3d 133.

¶14 The court of appeals appears to have believed that it was trekking down a path we marked in Patterson v. Patterson, 2011 UT 68, ¶ 20, 266 P.3d 828. In Patterson, we considered the application of a statute even though the parties had not preserved the issue before the district court. We recognized that “our decision to reach [the] argument may undermine some of the policies underlying the preservation requirement.” Id. ¶ 19. But we concluded that

consideration of the [statute] is necessary to a proper decision. As the state’s highest court, we have a responsibility to maintain a sound and uniform body of precedent and must apply the statutes duly enacted into law. Refusing to consider [appellant’s] statutory argument in this case would cause us to issue an opinion in contravention of a duly enacted controlling statute. This we will not do.

Id. ¶ 20. And the court of appeals believed that it was following this path when it reached the statutory interpretation question.

¶15 Our preservation requirement promotes a number of important policies. It encourages orderly proceedings by requiring a party to advise a trial court of potential errors so the trial court has the opportunity to correct them before they blossom into appellate issues. It also discourages a party from strategically ignoring errors in hopes of enhancing her chances of prevailing on appeal. Thus, we require a party to present an issue “in such a way that the [district] court has an opportunity to rule on [it].” Id. ¶ 12 (second alteration in original) (citation omitted). We “exercise wide discretion when deciding whether to entertain or reject matters that are first raised on appeal.” Id. ¶ 13. And we have used that discretion to carve out a few exceptions to the preservation requirement. For example, “we have reached matters not raised below under ‘exceptional circumstances’ or when ‘plain error’ has occurred.” Id. Stated differently, absent some exception, we do not normally address unpreserved issues.

¶16 This case does not present the normal situation. We are not asked to address an issue that a party is raising for the first time on appeal. Rather, we are asked to address an issue that the court of appeals determined it needed to resolve, even if it were unpreserved.

¶17 Husband all but ignores the court of appeals’ decision to reach the statutory construction issue. He asserts simply that “[Wife] failed to preserve this argument in the trial court. See Record, passim. Therefore it should not have been considered by the court of appeals.” In essence, Husband invites us to look past the court of appeals’ actual decision and affirm on the alternative ground that the court of appeals should not have touched the unpreserved issue in the first place.

¶18 We have the ability to affirm a decision on any ground apparent on the record. “[I]t is well established that an appellate court may affirm” a judgment “if it is sustainable on any legal ground or theory apparent on the record, even though such ground or theory differs from that stated by the trial court to be the basis of its ruling or action.” First Equity Fed., Inc. v. Phillips Dev., L.C., 2002 UT 56, ¶ 11, 52 P.3d 1137 (quoting Dipoma v. McPhie, 2001 UT 61, ¶ 18, 29 P.3d 1225). Thus, we could, in an appropriate case, affirm a court of appeals ruling where that court erroneously addressed an unpreserved issue.

¶19 That is not to say, however, that an appellee may simply flag the preservation problem and expect that we will exercise our discretion to ignore the court of appeals’ decision and affirm for a lack of preservation. Indeed, when the court of appeals decides to reach an unpreserved issue, and we hear a petition for certiorari in the matter, an appellee would be well advised to do more than just point out that the issue was unpreserved in the district court. Sometimes we may need to be convinced that the court of appeals erred in tackling the unpreserved issue and that the error is “apparent on the record.” This is especially important in a case like this where the court of appeals explained its rationale for reaching the arguably unpreserved issue. In this circumstance, the party may want to argue that the unpreserved issue did not implicate plain error, did not present any exceptional circumstance, or that it was not necessary for the court of appeals to address the issue to reach a proper conclusion. Husband did none of these.

¶20 Here, it is not apparent on the record that the court of appeals should not have reached the question of how the Cohabitation Provision should be interpreted. The court of appeals believed that even if the statutory argument was not preserved, it needed to construe the statute to properly resolve the matter. We can see arguments going both ways on whether this case presented the court of appeals with the same choice we were presented in Patterson. But in the absence of parties willing to develop those arguments, we are reluctant to wade in on our own. Simply stated, the decision to affirm on other grounds lies in this Court’s discretion and Husband has provided us little reason to exercise that discretion on the record before us.

¶21 As we previously stated, the resolution of this case turns on what the definition of is is. Utah Code section 30-3-5(10) provides that

alimony to a former spouse terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.

(Emphasis added). Wife argues—both to us now and previously to the court of appeals—that the statute’s use of “is” requires that cohabitation be ongoing to terminate alimony under the plain language of the rule.[5]

[5] We note that the language of the divorce decree may point to a different result. See supra ¶ 3 n.1. That language provides that “[a]limony shall terminate upon the remarriage or cohabitation of [Wife].” We again note that, while the court of appeals drew this to the parties’ attention, see Scott, 2016 UT App 31, ¶ 9 n.2, neither party argues on certiorari that we should decide this case under the language of the divorce decree or that the decree’s language demands a different result.

She contends that the court of appeals erred when it interpreted is to mean was. The court of appeals understood Utah Code section 30-3-5(10) to permit a showing that the spouse collecting alimony was or had been cohabiting at some previous date, regardless of whether the spouse was actually cohabiting at the time of filing. Scott, 2016 UT App 31, ¶¶ 27–37. Employing a plain language analysis that considered the cohabitation provision both “as a whole” and “in harmony with” the other provisions of the statute, id. ¶ 28 (citation omitted), the court of appeals determined that Wife’s “present cohabitation” reading was erroneous regardless of the legislature’s “use of the present-tense ‘is,’” id. ¶¶ 32–33. First, the court believed the statute’s later use of the verb terminates “precludes an interpretation that alimony might then be reinstated should the cohabitation . . . end.” Id. ¶ 32. Next, it believed Wife’s interpretation “could lead to results that the legislature ‘could not have intended.’” Id. ¶ 33 (citation omitted). And, finally, it complained that Wife “offered no guidance on how to feasibly implement” a present-tense reading. Id. ¶ 34. Wife contends that the most reasonable interpretation of the statute is hers: that the plain language of the statute “requires that cohabitation be ongoing to terminate alimony.”

¶22 When we interpret statutes, “our primary objective is to ascertain the intent of the legislature.” Penunuri v. Sundance Partners, Ltd., 2013 UT 22, ¶ 15, 301 P.3d 984 (citation omitted).

Since “‘[t]he best evidence of the legislature’s intent is the plain language of the statute itself,’ we look first to the plain language of the statute.” In so doing, “[w]e presume that the legislature used each word advisedly.” . . . When we can ascertain the intent of the legislature from the statutory terms alone, ”no other interpretive tools are needed,” and our task of statutory construction is typically at an end.

Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000 (alterations in original) (citations omitted). We review questions of statutory interpretation for correctness affording the court of appeals’ opinion no deference. Nichols v. Jacobsen Constr. Co., 2016 UT 19, ¶ 13, 374 P.3d 3.

¶23 We believe the court of appeals erred in reading less into the word is than the word demands. As the court of appeals noted, “[i]nstead of ‘is,’ the legislature certainly could have used the present perfect tense—‘has cohabited’—which would have ‘denote[d] an act, state, or condition that is now completed or continues up to the present.’” Scott, 2016 UT App 31, ¶ 32 (second alteration in original) (citation omitted); see also Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 57 (1987) (“Congress could have phrased its requirement in language that looked to the past . . . , but it did not choose this readily available option.”). And the court of appeals admitted that

the strongest statutory support for Wife’s interpretation of the [statute] is the use of the presenttense “is.”

Scott, 2016 UT App 31, ¶ 32. We agree: the strongest support for Wife’s interpretation of the statute is, indeed, the language itself. The language of the statute provides that alimony terminates upon establishment “that the former spouse is cohabitating with another person.” UTAH CODE § 30-3-5 (10) (emphasis added). “Is cohabiting” is a verb phrase comprised of two verbs: the present tense auxiliary “is” and the present participle “cohabiting.” Be, cohabit, -ing, OXFORDDICTIONARY OF ENGLISH IPHONE APP VERSION 9.0.2 (2017). The present participle of any verb—like cohabiting—paired with is creates a “continuous tense[].” Be, OXFORD DICTIONARY OF ENGLISH IPHONE APP VERSION 9.0.2 (2017). And continuing means ongoing, or “still in progress.” Continue, ongoing, OXFORD DICTIONARY OF ENGLISH IPHONE APP VERSION 9.0.2 (2017). In light of the statute’s plain language, we cannot see how a showing of anything less than present or ongoing cohabitation meets the statute’s terms head-on.

¶24 A statutory reading that credits a verb’s tense is not uncommon. Our own court of appeals relied on similar reasoning in Prows v. Labor Commission: “Typically, we understand ‘is’ as a present-tense form of the verb ‘to be.’ Accordingly, we assume that the legislature used ‘is’ here as a present-tense verb.” 2014 UT App 196, ¶ 11, 333 P.3d 1261 (citation omitted). We have done likewise. See Richards v. Brown, 2012 UT 14, ¶ 27, 274 P.3d 911 (interpreting a statute according to the “present perfect tense”). And Utah is in good company. See, e.g., Sherley v. Sebelius, 644 F.3d 388, 394 (D.C. Cir. 2011) (“The use of the present tense in a statute strongly suggests it does not extend to past actions. The Dictionary Act provides ‘unless the context indicates otherwise . . . words used in the present tense include the future as well as the present.’” (omission in original) (quoting 1 U.S.C. § 1); United States v. Williams, 462 F. Supp. 2d 342, 344 (E.D.N.Y. 2006) (“In short, ‘is’ means ‘is,’ not ‘is or was’ or ‘is, depending on the chronology of events.’”), aff’d sub nom. United States v. Darden, 539 F.3d 116 (2d Cir. 2008); see also AK Steel Corp. v. Commonwealth, 87 S.W.3d 15, 18 n.7 (Ky. Ct. App. 2002) (citations omitted) (“This is not the first time a judicial body has been presented with the surprisingly difficult task of discerning the meaning of a monosyllabic word of repeated, everyday usage.”). Not for nothing, the Supreme Court of the United States has likewise indicated that, “[c]onsistent with normal usage, we have frequently looked to Congress’ choice of verb tense to ascertain a statute’s temporal reach.” Carr v. United States, 560 U.S. 438, 448 (2010); see, e.g., United States v. Wilson, 503 U.S. 329, 333 (1992) (“Congress’ use of a verb tense is significant in construing statutes.”).

¶25 The court of appeals reached a contrary conclusion reasoning that the Cohabitation Provision immediately follows the Remarriage Provision and that “[i]t appears that the legislature had the same purpose in enacting each provision: to terminate alimony when a new relationship ‘legally or functionally replaces the need for financial support.’” Scott, 2016 UT App 31, ¶ 29 (citation omitted). Viewing the statute through the prism of the statute’s purported purpose, the court of appeals concluded that its reading would allow the “alimony consequences [to] take effect as of the date cohabitation began, just as in the case of a remarriage.” Id. ¶ 31.

¶26 The court of appeals noted that the only significant difference between Utah Code section 30-3-5(9), the Death or Remarriage Provision, and section 30-3-5(10), the Cohabitation

Provision, is “the means by which termination [of alimony] occurs.” Id. ¶ 29. The language of the Death or Remarriage Provision provides that alimony terminates automatically “upon the remarriage or death” of the former spouse; however, the Cohabitation Provision provides that alimony terminates “upon establishment . . . that the former spouse is cohabitating.” UTAH CODE § 30-3-5(9), (10) (emphases added).[6]

[6] Husband cites Black v. Black for the proposition that cohabitation need not be ongoing: “the order imposing alimony terminate[s] automatically upon the establishment of cohabitation.” 2008 UT App 465, ¶ 8, 199 P.3d 371. This passage is court of appeals dicta and does not bind us. Moreover, in light of our decision today, it misstates the law.

But because the court of appeals posited that the legislature must have wanted both provisions to operate in a similar fashion, it looked to harmonize the statutes in a fashion that would permit the “alimony consequences” to “take effect as of the date cohabitation began,” and consequently minimized the differences in the statutory language. Scott, 2016 UT App 31, ¶ 31. But if we start from the premise that we should discern what the legislature intended from the plain language of the text unencumbered by notions of what we think the legislature must have wanted the language to accomplish, the difference in the language assumes greater importance. See, e.g., Penunuri, 2013 UT 22, ¶ 15 (“Because ‘[t]he best evidence of the legislature’s intent is the plain language of the statute itself,’ we look first to the plain language of the statute.” (alteration in original) (citation omitted)); Ivory Homes, Ltd. v. Utah State Tax Comm’n, 2011 UT 54, ¶ 21, 266 P.3d 751 (“To discern legislative intent, we first look to the plain language of the statute.”); K & T, Inc. v. Koroulis, 888 P.2d 623, 627 (Utah 1994) (“When faced with a question of statutory construction, we look first to the plain language of the statute.”). Starting with the plain language, we can infer that the legislature intended that alimony cease upon remarriage or death, but that, in the case of cohabitation, it would terminate upon establishment of present cohabitation— even if that meant that the provisions would operate differently.[7]

[7] The court of appeals also resisted this conclusion because it might allow for “alimony reinstatement once cohabitation ends.” Scott, 2016 UT App 31, ¶ 32. The court of appeals opined that if the legislature wanted this result, it could have said so explicitly, perhaps by including a provision that stated “that alimony is only suspended during cohabitation.” Id. We see two issues with this conclusion. First, as written, the statute does not suspend alimony during cohabitation. The statute’s plain language does not require the resumption of alimony payments after the paying spouse establishes cohabitation, even if the cohabiting later ends. The seemingly anomalous result the court of appeals assails will occur only when the cohabitation begins and ends before the paying spouse can file a termination petition. Second, although we wholeheartedly agree with the court of appeals that the legislature could have been clearer, we are not justified from departing from the plain language of the statute just because we can envision a manner in which the legislature could have expressed its intent more clearly.

¶27 We understand the court of appeals’ instinct to push against the result the plain language yields, and we understand the temptation to read the statute in a fashion that treats cohabitation identically to remarriage. It may seem incongruous that a marriage lasting forty-eight hours will terminate alimony but that a cohabiting relationship lasting years may not if that relationship ends before the paying spouse files to terminate alimony. But we do not believe, as the court of appeals did, that this is a result that the legislature “could not have intended.” Scott, 2016 UT App 31, ¶ 33 (quoting Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 26, 267 P.3d 863 (invoking “absurdity” doctrine)).

¶28 Both Husband and the court of appeals invoke the absurdity doctrine without calling it by name. The absurdity doctrine permits us to reform unambiguous statutory language where the language would lead to an absurd result. Bagley, 2016 UT 48, ¶ 27.

[T]his court will not apply the absurdity doctrine unless “the operation of the plain language . . . [is] so overwhelmingly absurd that no rational legislator could have intended the statute to operate in such a manner.” This standard is satisfied only if the legislature could not reasonably have intended the result.

Id. ¶ 28 (second alteration in original) (omission in original) (citations omitted). We concede that the legislature could have intended a different result—in fact, it could have intended the result the court of appeals envisioned, one where the Remarriage and Cohabitation Provisions yield the same outcome—but we do not believe that the result the plain language dictates is absurd, let alone “so overwhelmingly absurd that no rational legislator could have intended the statute to operate in such a manner.” Id. (citations omitted). As such, it is our obligation to take the plain language at face value and trust the legislature to amend the statute if it intended a different result.[8]

[8] Of course, parties unhappy with this statutory default may choose instead to agree to a divorce decree that terminates alimony upon cohabitation.

¶29 The court of appeals also sought to avoid the decision we reach because it believed that “there is the potential that the couple will simply cease cohabitation in advance of that date to avoid the consequence if the Cohabitation Provision were to require that the recipient spouse ‘is cohabitating’ at the time of hearing or trial.” Scott, 2016 UT App 31, ¶ 34.

¶30 As an initial matter, the relevant date is not the hearing or trial, but the date of filing. The present tense is demands the condition to be present at the time the paying spouse declares before the court that a former spouse is cohabiting. That declaration takes place on the date of filing. Cf. Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 570–71 (2004) (“‘[J]urisdiction of the court depends upon the state of things at time of the action brought.’ . . . [The timeof-filing rule] measures all challenges to subject-matter jurisdiction premised upon diversity of citizenship against the state of facts that existed at the time of filing.”) (citations omitted); Int’l Trading Corp. v. Edison, 109 F.2d 825, 826 (D.C. Cir. 1939) (requiring a “duty [to] exist at the time of filing a petition for mandamus”); Spectra-Physics, Inc. v. Coherent, Inc., 827 F.2d 1524, 1535 (Fed. Cir. 1987) (requiring “knowledge of facts within the possession of the inventor at the time of filing” in the patent context); Craig v. Beto, 458 F.2d 1131, 1134 (5th Cir. 1972) (requiring a prisoner to be serving “a sentence . . . at the time of filing” in the habeas context); Koch v. Carmona, 643 N.E.2d 1376, 1381 (Ill. App. Ct. 1994) (evaluating an attorney’s conduct “under the circumstances existing at the time of the filing” in the attorney discipline context); W. VA. CODE § 49-4-601(i) (requiring findings to be “based upon conditions existing at the time of the filing” in child abuse and neglect context); 38 U.S.C. § 109 (1991) (providing that no benefit “shall be extended to any person who is not a resident of the United States at the time of filing [a] claim”).

¶31 We recognize that this does not entirely ameliorate the problem the court of appeals recognized, i.e., that a couple might cease cohabiting to avoid forfeiting alimony. It is true that a couple who has been warned a paying spouse is planning to move to terminate alimony could choose to stop cohabiting to avoid the termination. And, if that occurs, the continued payment of alimony would square with the policy behind alimony. See Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985) (recognizing that the “most important function of alimony is to provide support for the [receiving spouse] as nearly as possible at the standard of living [he or] she enjoyed during marriage, and to prevent the [receiving spouse] from becoming a public charge” (citation omitted)); Myers v. Myers, 2010 UT App 74, ¶ 12, 231 P.3d 815 (stating that “the principal purpose of alimony is economic”). To the extent that a cohabitant might engage in subterfuge to create the appearance that the cohabiting has terminated when it has not, we trust our district courts and the adversarial system to do their best to detect efforts to manipulate the outcome. See generally Pendleton v. Pendleton, 918 P.2d 159 (Utah Ct. App. 1996) (finding that boyfriend and former spouse resided together under Utah Code section 30-3-5(6) (1989) although boyfriend maintained a separate apartment, among other things).

II. Wife Is Not Entitled to Attorney Fees in Defending Husband’s Petition to Terminate Alimony

¶32 Wife also asks this court to remand to the district court for the purpose of awarding Wife attorney fees both at trial and on appeal under Utah Code section 30-3-3. The statute provides for an award of attorney fees “in any action to establish . . . alimony” or “[i]n any action to enforce an order of . . . alimony”; it does not provide for attorney fees to defend an action to terminate alimony. UTAH CODE § 30-3-3(1), (2) (emphases added). Here, there is no allegation that Husband failed to continue to pay alimony. This is not a situation where the paying spouse stops paying and the receiving spouse must petition the district court to intervene and enforce its order. Thus, Wife’s efforts to resist Husband’s motion to terminate alimony are not compensable under Utah Code section 30-3-3’s plain language.

CONCLUSION

¶33 We conclude that Utah Code section 30-3-5(10) requires the paying spouse to establish that the former spouse is cohabiting at the time the paying spouse files the motion to terminate alimony. We clarify that an appellee wishing to contest our review of an arguably unpreserved issue already reached by the court of appeals has an obligation to explain how the court of appeals erred in reaching the unpreserved issue. Finally, defending a motion to terminate alimony does not entitle the defending spouse to an award of attorney fees under Utah Code section 30-3-3.

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