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2024 UT App 28 – Smith v. Smith

2024 UT App 28 – Smith v. Smith

THE UTAH COURT OF APPEALS

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

Opinion

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

David Pedrazas, Attorney for Appellant

Deborah L. Bulkeley, Attorney for Appellee

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

OLIVER, Judge:

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

BACKGROUND

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

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

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

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

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

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

ISSUE AND STANDARD OF REVIEW

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

ANALYSIS

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

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

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

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

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

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

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

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

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

CONCLUSION

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

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


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

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

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

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In re G.H. – 2023 UT App 132 – juvenile court grandparent guardianship

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF G.H. AND R.H.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

L.G.,

Appellant,

v.

R.G. AND R.G.,

Appellees.

Opinion

No. 20220920-CA

Filed November 2, 2023

Seventh District Juvenile Court, Price Department

The Honorable Craig Bunnell

No. 1210014

Steve S. Christensen and Clinton Brimhall,

Attorneys for Appellant

Colleen K. Coebergh, Attorney for Appellees

Martha Pierce, Guardian ad Litem

JUDGE DAVID N. MORTENSEN authored this Opinion, in which

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

MORTENSEN, Judge:

¶1        The maternal grandparents of two children filed a petition for guardianship, alleging neglect by both parents and abuse at the hands of the children’s father. The guardianship was contested, and a trial was held. After trial, the juvenile court granted the petition, finding facts consistent with the allegations of the petition and determining that the guardianship was in the best interest of the children. Further, the juvenile court determined that the mother’s parent-time, if any, would take place at the unfettered discretion of the grandparents. The mother appeals, claiming the juvenile court erred in determining neglect, erred in failing to order parent-time, and wrongfully denied a motion to change venue as to one of the children. For the most part, we affirm. However, the juvenile court’s findings regarding the mother’s parent-time rights are inadequate, and we therefore remand this matter for the entry of further findings and conclusions as necessary.

BACKGROUND

¶2        AG (Mother) and JH (Father) are the natural parents of GH and RH (the Children).[1] In April 2022, Mother’s parents, RG and RG (Grandparents), petitioned for guardianship and custody of the Children, alleging that such a placement was in the best interest of the Children due to Father’s abuse and both parents’ neglect. A few days later, Grandparents filed an ex parte motion for temporary custody of the Children, and the juvenile court granted the request.

¶3        At a pre-trial hearing, Mother asked for an expedited evidentiary hearing regarding temporary custody. The court declined that request and instead held a combined adjudication and disposition hearing over two trial days in July and August 2022.

¶4        After that hearing, the court issued an order setting forth findings of fact and conclusions of law regarding adjudication and disposition. Because Mother does not dispute the findings of fact, we recite the facts directly from the juvenile court’s findings.[2]

¶5        The court took judicial notice of a 2019 order in which the same court terminated Mother’s parental rights to an older child, who was adopted by Grandparents shortly thereafter. Mother stated she had “no idea” why her maternal rights for the older child were terminated, but the record shows that it was primarily due to Mother’s neglect.

¶6        Mother moved in with Grandparents in Price, Utah, in July 2019 and lived with them through the first part of January 2022. From June through September 2021, Mother worked evenings (5:00 p.m. to 9:00 p.m.). She had surgery for “a minor thing” in September 2021. Mother was unemployed until she obtained full-time employment in December 2021. At this job, she worked ten-hour shifts (10:00 a.m. to 8:00 p.m.) four days per week.

¶7        While living with Grandparents, Mother “relied on [Grandparents] almost exclusively and for nearly everything for [the Children] . . . . [Grandparents] were the primary caretakers for [the Children’s] day-to-day physical, developmental, medical, and financial needs.”

¶8        With regard to the Children’s physical needs, Mother “did very little to make arrangements for [the Children], provide basic care, or assist with household duties,” even when asked to do so. She did not provide “day-to-day food or meals” for the Children, nor did she help with potty training GH.

¶9        Regarding developmental needs, Grandparents provided for “the vast majority of [the Children’s] indoor and outdoor activities, toys, and one-on-one parent-role interactions.” Mother “did very little to actually parent [the Children] or care for their needs,” and she did not assist with “mothering” the Children. When asked to care for the Children, other than watching the Children for about five hours some weekdays when Grandparents were both working, “Mother would often say she was too tired, too busy, be on her phone or smoking, or on her bed resting or lounging.”

¶10      Mother’s sister (Sister) would often visit Grandparents’ house (about two times each week when Grandparents were not there), and she observed Mother being “verbally abusive or terse with [the Children],” leaving them “unattended or unsupervised, not changing diapers as needed, or not caring for them.” The court also found, based on Sister’s testimony, that Mother would often “come to [Sister’s] house (at times unannounced) without child­care supplies or clothes,” asking for help with the Children because Mother was “tired, needed a break, going out with friends, or going to work (although, at times, she did not go to work, but went back to [Grandparents’] house to sleep or smoke).”

¶11 Financially, Mother sometimes shared her government food assistance card but relied on Grandparents for most of the Children’s financial needs. She also relied on Grandparents to provide birthday or Christmas gifts for the Children. She did, however, reimburse Grandparents a few hundred dollars and paid for some daycare.

¶12 Regarding medical needs, Mother took the Children for immunizations, but she did not take them to other types of medical appointments or help Grandparents when the Children were sick with ear infections, colds, or other maladies.

¶13 In January 2022, Mother moved in with another relative (Step-Grandmother) in Highland, Utah, which was twenty minutes from her newly acquired job. Grandparents continued as GH’s primary caretakers in Price, but RH moved to Step-Grandmother’s house with Mother.

¶14 During this time-period, RH received daily and weekly care in four different cities separated by nearly a hundred miles and by four different caregivers besides Mother, namely Step-Grandmother, Great-Grandmother, Father’s mother, and Grandparents. Essentially, Grandparents and Great-Grandmother would relieve Step-Grandmother when she was not available to watch RH. Sometimes Mother would be the one to take RH to Great-Grandmother’s house. Step-Grandmother, Grandparents, the maternal great-grandmother (Great-Grandmother), or Mother transported RH, and sometimes GH, from house to house on weekends. Mother’s mother handled most of the Children’s care coordination, “unless Mother needed to preplan to accommodate her own work schedule.” RH did not stay in “one consistent place or house” during this time-period; RH was at a “different house almost every day of the week, and each week was different than the last.”

¶15 Watching Mother with the Children “scared” Step-Grandmother, and she never saw Mother being “a mother” to the Children. Mother was “negative verbally” to the Children and “put her own wants and needs before RH’s needs.” Mother would get upset when Step-Grandmother wanted to go out, making it necessary for Mother to watch RH.

¶16 Mother provided very little assistance to Step-Grandmother with household duties, except for washing her and RH’s clothes, and “Mother’s bedroom was always cluttered (with RH’s clothes on the floor) and never cleaned.” Mother put RH to bed half the time, but Step-Grandmother noted that the time was never consistent, as Mother sometimes would come home as late as 10:30 p.m. On some Friday nights, Mother did not come home at all until later that weekend.

¶17 While living with Step-Grandmother, Mother changed RH’s diaper only about once per day; smoked cigarettes “all the time”; was “always on her phone”; did not give baby food or regular feeding; and did not read to, play with, sing to, or bathe RH.

¶18      In mid-March 2022, Mother moved into a rental house in Murray, Utah, with RH. Although Step-Grandmother no longer provided RH daily care after the move, Mother still used Grandparents, Great-Grandmother, and Father’s mother to care for RH. Mother’s work schedule changed to eight hours per day, five days per week (12:00 p.m. to 8:00 p.m. or 2:00 p.m. to 10:00 p.m.). Grandparents primarily watched RH on weekends. GH continued to live with Grandparents.

¶19 On April 5, 2022, Mother picked up Father from prison, and he lived with Mother from then until at least July 2022, when Mother learned—on the first day of trial through Father’s probation officer’s testimony—that Father had used drugs just a week before. Before hearing this testimony, “Mother did not believe he would use drugs.” Mother allowed Father to watch the Children unsupervised, and until trial, she had planned to continue living with him, despite knowing that Father was convicted of assaulting someone in prison two months prior to his release and despite complaining to Grandparents that Father was “controlling and threatening her, taking her phone and car, refusing to work, and taking advantage of her.” Father’s assault conviction “did not cause her any concern” about him being with her or the Children.[3] The court found that Mother’s reintroduction of Father into the Children’s lives “was an emphatic demonstration to the Court of Mother’s poor judgment and her continued inability (since having her parental rights terminated to an older child in 2019 and since [the Children] were born) to put [the Children’s] needs and welfare before her own.”

¶20 Mother made efforts to obtain a full-time job and to perform well at her job to provide for her and the Children.[4] But the court concluded that Mother “did not progress over the last three years as was necessary and appropriate for her to meet the daily needs” of the Children. Instead, Grandparents, Step-Grandmother, Great-Grandmother, and others provided “the crucial day-to-day parenting and caretaking that are necessary for [the Children] to thrive developmentally and otherwise.”

¶21 The court also found that the Children “thrived living together with [Grandparents] prior to Mother moving out of [Grandparents’] home in January 2022” and after being reunited in Grandparents’ home in April 2022. The court noted that Grandparents “demonstrated their reliability and consistent efforts to provide for all of [the Children’s] day-to-day physical, mental, emotional, developmental, medical, financial, and educational needs.” The court emphasized that the Children should be living together.

¶22      Based on these factual findings, the court concluded there was clear and convincing evidence that Mother neglected the Children. The court also concluded, based on clear and convincing evidence, that the Children’s best interests would be met by granting Grandparents permanent custody and guardianship. Additionally, the court ordered that Mother’s and Father’s parent-time with the Children “shall be at the discretion and under the control or management of [Grandparents].”

¶23 As relevant here, Mother moved the court to dismiss Grandparents’ petition for improper venue or to transfer venue, which the court denied. Mother now appeals.

ISSUES AND STANDARDS OF REVIEW

¶24 Mother argues that the juvenile court erred when it determined that the Children were neglected. Mother clarifies that she is not disputing the court’s findings of fact but the court’s application of these findings to the law; therefore, “we accept these findings as true in our analysis on appeal.” d’Elia v. Rice Dev., Inc., 2006 UT App 416, ¶ 24, 147 P.3d 515. “We view the question presented here as law-like because it concerns whether the facts as constituted meet the legal standard of the statute. . . .

Accordingly, we review the issue presented here giving no deference to the juvenile court.” In re A.B., 2021 UT App 91, ¶ 10, 498 P.3d 894, aff’d, 2022 UT 39, 523 P.3d 168.

¶25 Mother also argues that the juvenile court erred in not awarding her parent-time and thus failing to give due consideration to her residual parental rights. “We generally will not disturb the district court’s parent-time determination absent a showing that the court has abused its discretion. However, we review the district court’s interpretation of a statute for correctness. Likewise, we review the legal adequacy of findings of fact for correctness as a question of law.” Lay v. Lay, 2018 UT App 137, ¶ 4, 427 P.3d 1221 (cleaned up).

¶26 Finally, Mother argues that the juvenile court erred in denying her motion to dismiss or transfer based on venue. Venue “is a question committed to the district court’s discretion, which we review for an abuse of discretion.” Davis County v. Purdue Pharma, LP, 2020 UT 17, ¶ 7, 463 P.3d 619.

ANALYSIS
I. Neglect

¶27      “If, at the adjudication[5] hearing, the juvenile court finds, by clear and convincing evidence, that the allegations contained in the abuse, neglect, or dependency petition are true, the juvenile court shall conduct a dispositional hearing.” Utah Code § 80-3­402(1). “The dispositional hearing may be held on the same date as the adjudication hearing . . . .” Id. § 80-3-402(3). At the dispositional hearing, the juvenile court then “may vest custody of an abused, neglected, or dependent minor in the division or any other appropriate person.” Id. § 80-3-405(2)(a)(i). “If a minor has been placed with an individual or relative as a result of an adjudication . . . , the juvenile court may enter an order of permanent legal custody and guardianship with the individual or relative of the minor.” Id. § 80-3-405(2)(d)(i). “Clear and convincing evidence is an intermediate standard of proof that implies something more than the usual requirement of a preponderance of the evidence; and something less than proof beyond a reasonable doubt. Put differently, this standard requires the existence of facts that make a conclusion very highly probable.” In re K.K., 2023 UT App 13, ¶ 22, 525 P.3d 519 (cleaned up), cert. denied, 531 P.3d 731 (Utah 2023).

¶28      Neglect is statutorily defined, and can be proved in any one of several ways. See Utah Code § 80-1-102(58)(a)(i)–(vi).[6] While the juvenile court found neglect under several subsections, to affirm we need conclude only that neglect was established under one of the bases. See In re E.F., 2013 UT App 13, ¶ 3, 295 P.3d 1165 (per curiam) (upholding juvenile court’s conclusion that mother neglected child under the sole basis of lack of proper parental care by reason of parent’s faults or habits). Among other bases, the juvenile court found neglect under subsection (ii), which defines neglect as “action or inaction causing . . . lack of proper parental care of a child by reason of the fault or habits of the parent, guardian, or custodian.” Utah Code § 80-1-102(58)(a)(ii). We agree with the juvenile court that the evidence supported a finding that this basis for neglect had been proved.

¶29      First and foremost, the factual findings demonstrated that Mother did not attend to the Children’s basic health and welfare needs, such as feeding and bathing them, changing their diapers regularly, and obtaining medical care for them when they were sick. Mother also did not show any interest in potty training GH.

¶30      Moreover, Mother did not behave in a manner consistent with parenting a child. For example, Mother did not demonstrate a desire to play with the Children, read or sing to them, or buy them birthday and Christmas presents. And Grandparents were the ones to provide the Children’s indoor and outdoor activities and toys rather than Mother.

¶31      Similarly, the findings revealed that Mother lacked interest in being around the Children, and she would refuse to care for them when asked by the family members with whom she was living. Mother would complain that “she was too tired” or “too busy,” or she would prefer to “be on her phone or smoking, or on her bed resting or lounging.” Likewise, Mother would drop off the Children unannounced at Sister’s house—“without child-care supplies or clothes”—because Mother was “tired, needed a break, [or was] going out with friends, or going to work,” although, at times she went back to Grandparents’ house “to sleep or smoke” instead. Mother also would get upset when Step-Grandmother wanted to go out some evenings, thus leaving Mother to care for the Children. In addition, “Mother did not do household duties when asked to do so.”

¶32 Although the court did acknowledge Mother’s commendable efforts with her current job, it still found that Mother “did not progress over the last three years as was necessary and appropriate for her to meet the daily needs of each of [the Children].”

¶33 Furthermore, the findings demonstrate that Mother was not troubled by Father being with her or the Children. Even though Mother knew that Father was convicted of assaulting someone while in prison and said that he was “controlling and threatening her, taking her phone and car, refusing to work, and taking advantage of her,” Mother allowed Father to watch the Children unsupervised and, until learning of his continued drug use at trial, had planned to go on living with him. Additionally, despite Father’s history with drug use, Mother “did not believe he would use drugs.” Mother’s reintroduction of Father into the Children’s lives demonstrated to the court “emphatic[ally]” that Mother showed “poor judgment and [a] continued inability (since having her parental rights terminated to an older child in 2019 and since [the Children] were born) to put [the Children’s] needs and welfare before her own.”

¶34 The court also highlighted that during the time when Mother lived with Step-Grandmother, the Children were cared for by many different caregivers other than Mother. The court found that Grandparents were the main caregivers for GH, and the court emphasized that RH’s daily and weekly care was provided by five different caregivers located in four different cities. Mother argues that a “child is not without proper parental care solely because that care is not always at the hands of a parent” and that it is “not uncommon for parents, especially single working mothers, to place children in daycare or arrange for care with family.” In support of her argument, Mother cites In re A.B., 2021 UT App 91, 498 P.3d 894, aff’d, 2022 UT 39, 523 P.3d 168, where we held that a child is not neglected if the child receives proper parental care, “even if not always at [a mother’s] hand.” Id. ¶ 20.

¶35 We agree with Mother that it can be completely appropriate for parents to arrange for others to help them in caring for their children, and we empathize with single parents whose childcare arrangements may not always seem ideal to others of greater means and opportunity. But Mother’s behavior in this case is distinguishable from that in In re A.B. Here, the juvenile court found, and Mother does not dispute, that Mother did “very little to make arrangements” for the Children, would drop off the Children at Sister’s “at times unannounced,” would not come home when she was expected to, and would not take care of the Children when at home. In contrast, In re A.B. concerned a child who spent summers with “welcoming relatives[,] . . . and on agreement, summer turned into a whole year.” Id. ¶ 1 (emphases added). Moreover, that mother arranged the child’s care with the relatives, id. ¶¶ 2–3, and she never refused to take care of her child when she oversaw the child’s care, id. ¶ 19. Therefore, Mother’s reliance on In re A.B. misses the mark.

¶36 Based on the foregoing, we conclude that the juvenile court’s findings of fact meet the legal standard of neglect. See Utah Code § 80-1-102(58)(a)(ii). Therefore, we affirm its grant of permanent custody and guardianship to Grandparents. See id. § 80-3-405(2)(d)(i).[7]

II. Parent-Time

¶37      Mother next argues that the juvenile court erred by failing “to even consider providing Mother parent-time in the final analysis order.” While we don’t quite agree with Mother’s characterization of the order as a complete failure to consider Mother’s residual rights, we agree that remand on this issue is necessary.

¶38 When the juvenile court vests custody of a child in someone other than the child’s natural parent, the court “shall give primary consideration to the welfare of the minor.” Utah Code § 80-3-405(2)(a)(ii)(A). Here the court did so by awarding custody to Grandparents, whom the court found to “have demonstrated their reliability and consistent efforts to provide for all of [the Children’s] day-to-day physical, mental, emotional, developmental, medical, financial, and educational needs.”

¶39      But the court’s responsibilities when awarding custody do not end there. The court also “shall give due consideration to the rights of the parent or parents concerning the minor.” Id. § 80-3-405(2)(a)(ii)(B). This includes consideration of awarding reasonable parent-time. Specifically, the statute provides that “[a] parent of a minor for whom a guardian is appointed retains residual parental rights and duties.” Id. § 75-5-209(5). These residual parental rights include “the right to reasonable parent-time unless restricted by the court.” Id. § 80-1-102(70)(a)(iv). Thus, our legislature intended for juvenile courts to give careful thought to an award of parent-time when granting custody and guardianship to someone else. And we note that parent-time is significant because it offers “the parent the possibility of maintaining a meaningful relationship with the child despite lack of physical custody.” Moreno v. Board of Educ., 926 P.2d 886, 890 (Utah 1996).

¶40      Yet here, the juvenile court simply stated that Mother’s and Father’s parent-time with the Children “shall be at the discretion and under the control or management” of Grandparents, without making any findings regarding the amount of parent-time that would be reasonable. Instead, the court delegated that determination entirely to Grandparents. And this could lead to Grandparents denying Mother any parent-time[8] without the court making any findings of fact to justify such a denial.[9] Here, we find the court’s findings and conclusions regarding parent-time to be inadequate.

¶41      A juvenile court’s factual findings “must be sufficiently detailed and include enough subsidiary facts to clearly show the evidence upon which they are grounded.” In re S.T., 928 P.2d 393, 398 (Utah Ct. App. 1996); see also In re M.G., 2003 UT App 313U, para. 5 (holding that “a review of the court’s oral findings reveals the subsidiary facts and basis for the juvenile court’s written findings and demonstrates that the written and oral findings, taken together, are sufficiently detailed to permit appellate review”). “Put another way, findings are adequate when they contain sufficient detail to permit appellate review to ensure that the [juvenile] court’s discretionary determination was rationally based. Indeed, the [juvenile] court’s obligation to render adequate findings facilitates meaningful appellate review and ensures the parties are informed of the [juvenile] court’s reasoning.” Lay v. Lay, 2018 UT App 137, ¶ 19, 427 P.3d 1221 (cleaned up). “Unless the record clearly and [incontrovertibly] supports the [juvenile] court’s decision, the absence of adequate findings of fact ordinarily requires remand for more detailed findings by the [juvenile] court.” Woodward v. Fazzio, 823 P.2d 474, 478 (Utah Ct. App. 1991) (cleaned up).

¶42      We are unable to determine the court’s basis for leaving all parent-time decisions in the hands of Grandparents, a situation that potentially denies Mother any parent-time with the Children.

Accordingly, we vacate the juvenile court’s decision regarding parent-time and remand this matter for specific findings demonstrating what conditions of parent-time are reasonable. If the court determines that it is reasonable to award no parent-time to Mother, then the court must make specific findings to justify such a determination.

III. Venue

¶43 Mother brought a motion to dismiss or change venue on the morning of trial, asserting that the case had been brought in the wrong venue.[10] The juvenile court took the motion under advisement and delayed ruling on the motion until it could take evidence and determine facts relative to venue. In its dispositional order, the juvenile court determined that venue was correct in the Seventh District. Now on appeal, Mother challenges that conclusion only as to RH. Mother maintains that on the day the petition for guardianship was filed, RH was living with Mother in Salt Lake County. Even assuming, for purposes of the discussion, that venue was incorrectly determined to be in the Seventh District as to RH, we affirm the decision of the juvenile court because Mother has failed to show any harm.

¶44 The guardian ad litem’s briefing maintained that Mother needs to show harm to obtain reversal based on an erroneous denial of the motion to change venue as it pertains to RH. Mother does not quibble with this legal assertion but claims that she implicitly identified and showed harm in her principal brief. As both parties have proceeded under the assumption that an appellant must show harm, we will do likewise without deciding that discrete issue.[11] The sole harm Mother points to is that the case regarding RH would have been dismissed and that dismissal would have benefitted Mother. Mother is wrong on the first point and utterly fails to meet her burden of persuasion on the second.

¶45      First, as to automatic dismissal, this result was rejected several years ago by this court when In re adoption of B.N.A., 2018 UT App 224, 438 P.3d 10, explored the consequences of hearing a case in the wrong venue. Initially, we explained that under current precedent, subject-matter jurisdiction is not implicated when a case is filed in the wrong district. Id. ¶¶ 12–24. Then we concluded that the “consequence for filing in the wrong district is not automatic dismissal.” Id. ¶ 25. Instead, “any party, upon proper motion, may request that the case be transferred to the correct district.” Id. So, if the Mother’s motion had been granted, the case would have been transferred, not dismissed. Accordingly, the argument that harm resulted because the case would have been dismissed fails.

¶46 Second, Mother fails to identify any other harm. She merely concludes that “[d]ismissal would have benefitted Mother.” But as just explained, dismissal would not have occurred. And Mother presents no argument that she would have obtained a different result had the case been transferred. Importantly, where Mother does not challenge that the case involving GH would have remained in the Seventh District, we easily foresee that upon transfer, any other juvenile court would have likely transferred the RH case back to the Seventh District under its discretionary powers, and more particularly under rule 42 of the Utah Rules of Civil Procedure.[12] Further, Mother fails to show how the result rendered in a different venue would have been better for her. Thus, Mother fails to meet her burden of persuasion that she was harmed by the denial of her motion to change venue.

¶47      Accordingly, we see no basis to reverse the judgment of the juvenile court on the issue of venue.

CONCLUSION

¶48      We affirm the juvenile court’s determination that Mother neglected the Children and that venue was proper in the Seventh District with regard to RH. We also conclude that the juvenile court made inadequate findings regarding its parent-time award. Therefore, we vacate the court’s award of sole discretion over Mother’s parent-time to Grandparents and remand the matter for further proceedings consistent with this opinion to consider Mother’s residual parental rights when determining a reasonable award of parent-time.

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


[1] RH has a twin, who has lived with the maternal great-grandmother since April 2021 and is not involved in this case.

 

[2] Mother disputes the findings of fact only with regard to venue. But as our disposition makes clear, these factual disputes are immaterial.

[3] Although the court found that Father had “an extensive and violent criminal history, including convictions for interfering with arrests, assaults, disorderly conduct, and threats of violence,” it did not make a specific finding regarding Mother’s knowledge of his violent criminal history outside of the event in prison.

[4] When asked about how Mother was performing at work, her supervisor testified, “She is incredibly reliable. She’s one of my go-to staff . . . .”

[5] Adjudication “means a finding by the court . . . that the facts alleged in the petition have been proved.” Utah Code § 80-1­102(3)(a).

[6] Utah Code section 80-1-102(58)(a) defines “neglect” as follows:

[An] action or inaction causing: (i) abandonment of a child . . . ; (ii) lack of proper parental care of a child by reason of the fault or habits of the parent, guardian, or custodian; (iii) failure or refusal of a parent, guardian, or custodian to provide proper or necessary subsistence or medical care, or any other care necessary for the child’s health, safety, morals, or well-being; (iv) a child to be at risk of being neglected or abused because another child in the same home is neglected or abused; (v) abandonment of a child through an unregulated child custody transfer under Section 78B-24-203; or (vi) educational neglect.

[7] After a dispositional hearing, the juvenile court may award permanent custody and guardianship to a relative if it finds by clear and convincing evidence either abuse or neglect by the natural parent. See Utah Code §§ 80-3-402(1), -405. Mother made additional arguments that the court erred in determining that GH was abused by Father and that Mother had standing to appeal any determinations regarding Father that contributed to a finding that Mother neglected the Children. Because we affirm the juvenile court’s determination that Mother neglected the Children, we do not need to address these arguments.

[8] Mother alleges that when she has asked Grandparents for parent-time, they have refused and told her, “You have no rights.” Mother’s allegations are not part of our appellate record, however.

[9] It is possible for a juvenile court, in an appropriate case, to determine that a parent retaining residual rights is not entitled to any parent-time. But any such determination should be rare and should be supported with findings that demonstrate why it is not reasonable, for example, for the parent to have at least short periods of unsupervised or supervised parent-time.

[10] Utah law provides that “a proceeding for a minor’s case in the juvenile court shall be commenced in the court of the district in which . . . the minor is living or found.” Utah Code § 78A-6­350(1)(b).

[11] Some courts that have decided this issue have held that harm must be shown. See Lamb v. Javed, 692 S.E.2d 861, 864 (Ga. Ct. App. 2010); Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014). But we do not decide this issue and leave it for another day.

[12] Mother asserts that venue rights are so substantial that a denial of a motion to change venue can be grounds for an interlocutory appeal, citing Davis County v. Purdue Pharma, LP, 2020 UT 17, 463 P.3d 619. While this is true, Mother sought no interlocutory appeal here. And other courts have held that failure to immediately appeal a denial of a motion to change venue constitutes a waiver of the venue claim. See, e.g.Patterson v. Alexander & Hamilton, Inc., 844 So. 2d 412, 415 (La. Ct. App. 2003).

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

Clark v. Clark – 2023 UT App 111

THE UTAH COURT OF APPEALS

SUSAN JEANNE CLARK,

Appellee,

v.

RICHARD LEE CLARK,

Appellant.

Opinion

No. 20210713-CA

Filed September 28, 2023

Fourth District Court, Heber Department

The Honorable Jennifer A. Brown

No. 184500153

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

Julie J. Nelson, Attorney for Appellee

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

MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY

concurred.

OLIVER, Judge:

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

BACKGROUND

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ISSUES AND STANDARDS OF REVIEW

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

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

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

ANALYSIS

I. Pretrial Disclosures

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

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

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

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

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

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

II. Dissipation

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

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

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

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

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

III. Marital Property

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

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

A.        Mooring Drive

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

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

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

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

B.        The Harley-Davidson

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

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

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

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

C.        $30,000 Offset

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

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

. . . erred”).

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

CONCLUSION

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


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

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

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

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

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Noel v. James – 2022 UT App 33 – civil stalking injunction

Noel v. James – 2022 UT App 33

THE UTAH COURT OF APPEALS

MICHAEL EARL NOEL,

Appellee,

v.

WILLIAM THOMAS JAMES,

Appellant.

Opinion

No. 20200565-CA

Filed March 10, 2022

Sixth District Court, Kanab Department

The Honorable Marvin D. Bagley

No. 190600053

William Thomas James, Appellant Pro Se

Frank D. Mylar, Attorney for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which JUDGES JILL M. POHLMAN and RYAN D. TENNEY concurred.

HAGEN, Judge:

¶1        To obtain a civil stalking injunction, a petitioner must establish by a preponderance of the evidence that the alleged stalker’s “course of conduct . . . would cause a reasonable person: (a) to fear for the person’s own safety or the safety of a third person; or (b) to suffer other emotional distress.” Utah Code Ann. § 76-5-106.5(2) (LexisNexis Supp. 2021); see id. §§ 78B­7-102(21), -701(1), -701(5). In this case, the district court granted a stalking injunction against Appellant William James, but it made no finding as to whether James’s course of conduct would have caused a reasonable person in Appellee Michael Noel’s position to fear for his safety or suffer emotional distress. Because the basis for the injunction is not apparent in the record, we vacate the injunction and remand for additional proceedings consistent with this opinion.

BACKGROUND[1]

¶2        Noel sought a stalking injunction after he and James were kicked out of a Kanab City Council meeting. Noel is an experienced public official who previously served as a state legislator for sixteen years and now serves as the executive director of the Kane County Water Conservancy District. James is a member of a local conservancy group. Both had attended the meeting to give public comment on a controversial permitting issue.

¶3        Noel “got up and got in line” once the comment period opened. James then “got up from the corner” and joined Noel in line. As Noel later testified, “[James] came right at me in kind of a burly manner . . . requiring me to move over for him to get by in an intimidating way. . . . I’m not saying I was fearful, but he came at me and forced me” to move aside. “If I wouldn’t have moved, he would have banged into me.”

¶4        While waiting in line, Noel decided he wanted to be the last person to address the council. Accordingly, he left his place in line and moved to the back. James, however, “wanted to prevent [Noel] from having the last word on [him]”—so he, too, gave up his spot and moved to the back of the line. Noel eventually gave up waiting in line altogether. But when he turned to leave, James stood in his way “to stop [Noel] from getting behind” him once again. And so Noel and James “jockeyed” for a few moments, with Noel unable to get past James and James unwilling to let Noel through. Noel testified, I wanted him to get out of the way, and he was blocking me, and it did anger me to do that. But I was also wondering if there was going to be a confrontation here. I was actually fearful that he might, you know, . . . take a shot at me.

¶5        Noel called James “a worthless piece of garbage.” James, in turn, shouted to the audience, relaying what Noel had just called him. At this point, law enforcement intervened and asked both men to leave the meeting. Noel went home, and James was arrested after he refused to comply. At the encouragement of the chief of police, Noel later petitioned for a civil stalking injunction against James.

¶6        The district court held a full-day evidentiary hearing on the petition. At the hearing, James sought to admit videos of both the city council meeting and a chamber of commerce meeting earlier that day through a witness who had attended both meetings. The videos had not been previously disclosed.

¶7        When the issue first arose, the court and counsel for both parties were under the impression that there were only two videos—one of the chamber of commerce meeting recorded by the witness herself and one of the city council meeting recorded by a videographer hired by the conservancy group. Noel stipulated to the admission of the first video, but he objected to the second video because the videographer was not present to lay foundation. Specifically, Noel’s counsel explained, “If there’s a woman here [who] says she videoed this on her camera, and it accurately depicts what she videoed on her camera, and she was there at the meeting, and she’s subject to cross-examination, and she made the video, I think that that’s proper. But the other one I don’t.”

¶8        But when the witness was called to testify, she explained that there were actually three videos: one video from each of the two meetings that she recorded with her personal cell phone, and a third video from the city council meeting recorded by the videographer. At that point, Noel’s counsel objected to the admission of all three videos because they had not been disclosed and he was “surprised” that they were being offered as evidence. James’s counsel did not dispute that the videos had not been disclosed in advance but claimed that, when the matter was discussed earlier, Noel “had stipulated to anything that [the witness] had personally recorded.” In response, Noel’s counsel argued that he had merely stipulated to the chamber of commerce video: “That’s all we were discussing at the time.” The court agreed with Noel’s counsel that the stipulation was limited to the chamber of commerce video. And because Noel “didn’t make the objection before about not having [the chamber of commerce video] in advance,” the court held him to that stipulation. The court received the chamber of commerce video into evidence per the stipulation, but excluded the other two based on the objection.

¶9        At the conclusion of the hearing, the district court determined that James had engaged in a course of conduct directed at Noel, as required under the civil stalking statute. The court found that the course of conduct consisted of two component acts, each committed at the city council meeting: (1) when James approached Noel “in a kind of burly manner,” and (2) when James “blocked [Noel] from going back to his seat.” The court did not make an express finding that James’s conduct would cause a reasonable person in Noel’s circumstances to fear for his safety or suffer emotional distress. Nonetheless, the court granted the requested stalking injunction.

ISSUES AND STANDARDS OF REVIEW

¶10 James now appeals, contending that the district court erred in imposing a civil stalking injunction against him.[2] James primarily argues that his course of conduct would not have caused a reasonable person in Noel’s circumstances to fear for his safety or suffer emotional distress. Although the question of whether “a reasonable person would suffer fear or emotional distress” under the circumstances “is a question of fact that we review for clear error, we review the district court’s interpretation [and application] of the underlying legal standard for correctness.” Ragsdale v. Fishler, 2021 UT 29, ¶ 16, 491 P.3d 835; see also Baird v. Baird, 2014 UT 08, ¶ 16, 322 P.3d 728 (“The proper interpretation and application of a statute is a question of law which we review for correctness, affording no deference to the district court’s legal conclusion.” (cleaned up)).

¶11 James also challenges the district court’s decision to exclude video evidence of the city council meeting. Specifically, he contends that the “videos met the [parties’] stipulation for new video evidence” and that, therefore, the district court erred by excluding them. “The scope of a stipulation presents a question of fact, which we review for clear error.” Fuller v. Bohne, 2017 UT App 28, ¶ 9, 392 P.3d 898 (cleaned up).

ANALYSIS

I. Civil Stalking Injunction

¶12 To obtain a civil stalking injunction, the petitioner “must prove by a preponderance of the evidence that ‘an offense of stalking has occurred.’” Ragsdale v. Fishler, 2021 UT 29, ¶ 25, 491 P.3d 835 (quoting Utah Code Ann. § 77-3a-101(7) (LexisNexis 2017)).[3] “The crime of stalking consists of two elements. First, a person must ‘intentionally or knowingly engage in a course of conduct directed at a specific person.’” Id. (cleaned up) (quoting Utah Code Ann. § 76-5-106.5(2) (LexisNexis 2017)). By statute, a “‘[c]ourse of conduct’ means two or more acts directed at or toward a specific person.” Utah Code Ann. § 76-5-106.5(1)(a) (LexisNexis Supp. 2021) (listing several examples of qualifying acts). Second, the respondent “must ‘know or should know that the course of conduct would cause a reasonable person’ to ‘fear for the person’s own safety’ or ‘suffer other emotional distress.’” Ragsdale, 2021 UT 29, ¶ 25 (quoting Utah Code Ann. § 76-5­106.5(2)). A “reasonable person” is statutorily defined as “a reasonable person in the victim’s circumstances.” § 76-5­106.5(1)(d).

¶13      Although the district court recited both elements, it made findings on the first element only. It identified an intentional course of conduct consisting of two acts: approaching Noel in a “burly manner” and later blocking Noel from returning to his seat. But the court did not make a factual finding on the second element, that is, whether James knew or should have known that his course of conduct would have caused a reasonable person in Noel’s circumstances to fear for his safety or suffer emotional distress. “When confronted with questions of fact, this court will only rule as a matter of law if the evidence is so clear and persuasive that all reasonable minds would find one way.” See Baird v. Baird, 2014 UT 08, ¶ 29, 322 P.3d 728 (cleaned up). Otherwise, “remand is appropriate” to allow the district court to make that determination. See id.

¶14      Noel acknowledges that the district court never addressed the second element on the record, but he argues that James failed to preserve the issue for appeal. We disagree. To issue a stalking injunction, “the district court necessarily had to consider whether [Noel] had established each element of a stalking offense.” See id. ¶ 20. Thus, the court had an opportunity to rule on whether the statutory elements were met, and that issue is “adequately preserved” for appeal. See id. In any event, James specifically argued to the court that “[t]his [was] not a situation where a reasonable person . . . in [Noel’s] position” would have been “afraid of physical harm or . . . in emotional distress.” And he moved “essentially for a directed verdict” on that basis. Therefore, we are confident that James presented this issue “to the district court in such a way that the court ha[d] an opportunity to rule on it.” See State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443 (cleaned up).

¶15      Alternatively, Noel contends that we can affirm on appeal because the district court “had evidence to determine that James acted in a threatening manner that would have made a reasonable person fearful or suffer some emotional distress over the two encounters.” When the district court does “not explicitly make a necessary finding,” we may still affirm “if the evidence and statements contained in the record make the evidentiary basis for this finding sufficiently clear.” See Sheeran v. Thomas, 2014 UT App 285, ¶ 8, 340 P.3d 79 (cleaned up); see also State v. Bingham, 2015 UT App 103, ¶¶ 28–29, 348 P.3d 730 (explaining that a reviewing court may “assume that the [district] court found the facts in accord with its decision,” unless “the ambiguity of the facts makes this assumption unreasonable” (cleaned up)). But here, the evidentiary basis for finding that Noel satisfied the second element is not sufficiently clear from this record.

¶16 To determine whether the petitioner has met the second element required for a civil stalking injunction, we apply “an individualized objective standard.” Baird, 2014 UT 08, ¶ 26. Under this standard, the “subjective effect of the respondent’s conduct on the petitioner is irrelevant.” Ragsdale, 2021 UT 29, ¶ 45. Instead, the relevant question is whether the conduct would have caused fear or emotional distress to “a reasonable person in the petitioner’s circumstances.” Id. (quoting Baird, 2014 UT 08, ¶ 25). “In applying this standard, courts must consider the entire context surrounding a respondent’s conduct” and “must consider the conduct cumulatively, accounting for the facts and circumstances of the individual case.” Id. (cleaned up).

¶17      Our supreme court has suggested a non-exhaustive list of factors that may be relevant to this assessment. Those factors include “the victim’s background, the victim’s knowledge of and relationship with the defendant, any history of abuse between the parties, the location of the alleged stalking and its proximity to the victim’s children, if any, and the cumulative effect of defendant’s repetitive conduct.” Baird, 2014 UT 08, ¶ 27 (cleaned up). “Furthermore, under an individualized objective standard, a court may consider whether the defendant had knowledge of a particular vulnerability of the victim and then acted with full knowledge of the victim’s vulnerability.” Id. (cleaned up).

¶18 Under this standard, it is far from obvious that a reasonable person in Noel’s circumstances would have feared for his safety or suffered emotional distress, given the context in which James’s conduct took place. See Utah Code Ann. § 76-5-106.5(2)(a)–(b) (LexisNexis Supp. 2021). The encounter occurred in a public place—a city council meeting—and in full view of a room packed with witnesses. Law enforcement officers were stationed at the meeting and ready to intervene. And Noel is an experienced public official accustomed to dealing with members of the public. See Baird, 2014 UT 08, ¶ 27 (indicating that the individualized objective standard considers “the victim’s background”). Although Noel testified that James was “a loose cannon” and “a different guy than [Noel had] dealt with in [his] years of public service,” the district court made no finding that a reasonable person in Noel’s circumstances would have found James particularly threatening. And even though James was ultimately arrested, his arrest was based not on his conduct toward Noel, but on his refusal to comply when law enforcement ordered both men to leave the meeting.

¶19 Noel argues that a reasonable person would fear for his safety under these circumstances. He suggests that the district court’s finding that James approached in a burly manner “could mean that James was acting tough or flexing his muscles or puffing his chest in a manner that would suggest physical aggression.” Perhaps it could, but we have no findings to that effect. Nor do we have a finding that such a display would cause a reasonable person to fear for his safety in the context in which it occurred—a well-attended, public meeting, with law enforcement officers standing by.

¶20 Noel also argues that the evidence supported a finding that James’s conduct would have caused “some emotional distress,” but that is not the standard. The stalking statute defines “emotional distress” as “significant mental or psychological suffering, whether or not medical or other professional treatment or counseling is required.” See Utah Code Ann. § 76-5-106.5(1)(b) (emphasis added). Noel has pointed to no evidence in the record that would have clearly supported a finding that James knew or should have known that his course of conduct would cause a reasonable person in Noel’s circumstances to suffer “emotional distress,” as defined by statute.

¶21      If the district court applied the correct legal standard and implicitly found the second element satisfied, the evidentiary basis for that ruling is not clear on this record. Although the interaction that occurred at the city council meeting was certainly uncivil, it is not the type of conduct that would ordinarily cause a reasonable person to fear for his physical safety or experience “significant mental or psychological suffering”—at least not without other contextual facts not apparent from the record. See id.

¶22 Having heard the evidence firsthand, the district court is in an advantaged position to make factual findings as to whether Noel has proved the second element by a preponderance of the evidence. We ordinarily rely on the district court to make those kinds of assessments, because it has “personally observed the quality of the evidence, the tenor of the proceedings, and the demeanor of the parties.” Baird, 2014 UT 08, ¶ 30. “This is particularly true in a case like this one where the record consists almost entirely of evidence presented at an evidentiary hearing.” See id. Therefore, we vacate the injunction and remand for the district court to determine whether Noel has proved the second element under the legal standard explained in this opinion.

II. Scope of the Stipulation

¶23 Because we are remanding for further findings, we must also reach the question of whether the district court properly excluded video of the interaction between James and Noel at the city council meeting. James argues on appeal that the district court abused its discretion by excluding both videos of the city council meeting, because Noel had stipulated to the admission of late-disclosed videos so long as James laid sufficient foundation by calling the person who recorded each one.

¶24 But in excluding the videos of the city council meeting, the district court found that the parties’ stipulation was limited to the chamber of commerce video. James’s counsel asserted that Noel “had stipulated to anything that [the witness] had personally recorded,” but Noel’s counsel pointed out that, at the time of the stipulation, he was unaware of the existence of the third video and that the only thing counsel had discussed was the chamber of commerce video. The court agreed with Noel’s counsel, saying, “That’s the way I understood the stipulation.”

¶25 The district court’s finding that the stipulation was limited to the chamber of commerce video was not clearly erroneous. At the time of the stipulation, the parties were discussing only two videos. Noel stipulated to the admission of the chamber of commerce video taken by the witness and objected to the admission of the city council video taken by the videographer based on lack of foundation. His stipulation to the chamber of commerce video cannot fairly be read as a stipulation to a third video that he did not know existed.

¶26 James has not argued that the videos were timely disclosed, that the disclosure violation could be excused for good cause, or that the failure to disclose was harmless. See Utah R. Civ. P. 26(d)(4) (“If a party fails to disclose or to supplement timely a disclosure or response to discovery, that party may not use the undisclosed witness, document, or material at any hearing or trial unless the failure is harmless or the party shows good cause for the failure.”). Therefore, he has not established any basis on which to reverse the district court’s exclusion of the city council videos.

CONCLUSION

¶27 James has not established that the district court erred in excluding the late-disclosed videos of the city council meeting, but he has established that the injunction was entered without the necessary findings. Specifically, the district court made no express finding as to whether James knew or should have known that his course of conduct would have caused a reasonable person in Noel’s circumstances to fear for his safety or suffer emotional distress. Because the record does not provide a clear evidentiary basis for the court’s decision, we vacate the stalking injunction against James and remand for additional proceedings consistent with this opinion.


[1] “On appeal, when a trial court has made findings of fact to support a civil stalking injunction, we will recite the facts in a light most favorable to the trial court’s findings.” Sheeran v. Thomas, 2014 UT App 285, ¶ 2 n.1, 340 P.3d 797.

[2] James, a non-attorney, represents himself in this appeal. We hold him “to the same standard of knowledge and practice as any qualified member of the bar,” but accord him “every consideration that may reasonably be indulged.” See State v. Winfield, 2006 UT 4, ¶ 19, 128 P.3d 1171 (cleaned up).

[3] Although the 2018 amendment of the civil stalking statute governs this case, we cite the most recent version of the civil stalking statute for convenience—unless a prior version is quoted by a different source. Regardless of the version quoted throughout this opinion, the statutory language at issue is the same.


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

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

2021 UT App 130 

THE UTAH COURT OF APPEALS 

COLTEN JOHANSEN, 

Appellee, 

KATHY JOHANSEN, 

Appellant. 

Opinion 

No. 20200234-CA 

Filed November 26, 2021 

Second District Court, Ogden Department 

The Honorable Joseph M. Bean 

No. 114900531 

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

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

concurred. 

ORME, Judge: 

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

BACKGROUND13  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

¶10 Kathy appeals. 

ISSUE AND STANDARD OF REVIEW 

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

ANALYSIS 

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

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

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

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

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

  1. Kathy’s Testimony

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

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

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

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

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

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

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

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

  1. Remaining Evidence

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

  1. First Ground: Kathy’s Testimony

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

  1. Second Ground: Limits of Impeachment Exception

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

¶24 Rule 26 states that 

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

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

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

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

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

Utah R. Civ. P. 26(a)(1). 

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

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

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

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

  1. Documents and Tangible Things

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

  1. Witnesses

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

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

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

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

CONCLUSION 

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

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

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2019 UT App 204 – In re H.F. incorrect analysis terminating parental rights

2019 UT App 204 – THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF H.F., A PERSON UNDER EIGHTEEN YEARS OF AGE.
J.F., Appellant,
v.
E.F., Appellee.

Opinion
No. 20180348-CA
Filed December 12, 2019

Third District Juvenile Court, Salt Lake Department
The Honorable Julie V. Lund
No. 1100472

Scott L. Wiggins and Lisa Lokken, Attorneys for Appellant
Joshua P. Eldredge, Attorney for Appellee
Martha Pierce, Guardian ad Litem

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.

CHRISTIANSEN FORSTER, Judge:

¶1           J.F. (Mother) appeals from the juvenile court’s termination of her parental rights to H.F. (Child). We reverse and remand for further proceedings.

BACKGROUND

¶2           Child was born in December 2012. Soon after Child’s birth, Mother discovered that her husband, E.F. (Father), had been using drugs. Suffering from postpartum depression, Mother also began using drugs with Father as a means of self-medicating.

¶3           In March 2014, the Division of Child and Family Services (DCFS) removed Child from Mother and Father’s home as a result of their drug use. Upon removal, DCFS placed Child with Mother’s parents (Grandparents). During this time, Grandparents facilitated visitation between Child and Father, as well as Father’s extended family.

¶4           Soon after Child was removed from the parents’ home, Mother began a relationship with “a really bad guy.” She left Utah with him, and they began committing crimes together. Eventually, the pair were arrested, convicted of multiple crimes, and incarcerated.

¶5           Conversely, Father began participating in drug treatment in June 2014. After completing treatment, he became involved in various peer support groups to help others with drug addiction and even obtained a full-time job as a peer recovery coach for a nonprofit addiction-recovery agency. In March 2015, Father filed for divorce from Mother and was granted a default divorce awarding him full legal and physical custody of Child. In May 2015, upon the State’s motion, the juvenile court terminated its jurisdiction and DCFS involvement. After Father regained custody of Child, Grandparents continued to provide regular daycare for Child.

¶6           In July 2016, Father moved the juvenile court to terminate Mother’s parental rights. Father was engaged to be married, and his fiancée (Fiancée) wanted to adopt Child, but they had not yet set a wedding date and were not yet living together.[1] Grandparents “had a heated conversation with” Father about his termination petition, and subsequently, he put Child in full-time daycare and did not permit Grandparents to see Child as often.

¶7           At Mother’s termination trial in December 2017, her former criminal attorney expressed his belief that Mother’s criminal actions had been “very much influenced by” her co­defendant but that she “was a model defendant”; continually showed concern for her family and a desire to take care of her children;[2] had come to understand, through participation in counseling, her responsibilities and the detrimental effects of her co-dependent relationship with her co-defendant; and ultimately told the truth about the criminal incidents even though her co­defendant was damaged by her admissions. Mother was still incarcerated at the time of the termination trial but was due to be released in April 2019. She had been participating in a voluntary drug-treatment program. She testified that prior to Child’s removal, she was his “sole care provider.” She testified that she has a bond with Child, that she has had regular telephone and video calls with him since losing custody and sends him letters, that Child had expressed his desire to be reunited with Mother, and that she wants to have “visitation as much as possible” and to “be in [Child’s] life as much as [she] can.” She testified that she regrets her past decisions and their effect on her children, but she also could not rule out the possibility of a relationship with her co-defendant when he is released from prison in eight or nine years.

¶8        Father testified that he was willing to support a continuing relationship between Child and Mother following termination of her rights so long as it was “safe” for Child. Although Father did not discourage Child’s contact with Mother, he did not directly facilitate Mother and Child’s contact; rather, this contact took place when Child visited Grandparents. Both Father and Fiancée testified that Child has a very good relationship with Fiancée, that she treats him like her own child, and that Child sees her as his mom. Father testified that he believed Child’s relationship with Mother’s family was “beneficial.” He claimed that Child’s relationship with Mother’s family would not change if Mother’s rights were terminated. He admitted that he “could make a better effort in . . . communicating to set” up time between Child and Mother’s extended family but explained that he had felt a need to set “boundaries” because the termination petition had “put a strain” on his relationship with Mother’s family.

¶9        Grandparents expressed fear that termination would “have a very negative impact on [their] relationship with [Child]” and that Father “would move on” and “find a way to take [Child] away from” Grandparents. Mother’s brother, who also had a close relationship with Father, expressed his belief that Father had become uninterested in Mother’s side of the family and that Father would not let Mother’s family see Child anymore if Mother’s rights were terminated. Another of Mother’s brothers likewise testified that the family’s contact with Child had been less frequent during the preceding year and that he believed Father would cut off contact between Child and Mother’s family if the court terminated Mother’s rights.

¶10 Following trial, the juvenile court found two grounds for termination: (1) that Mother was an unfit parent because she was unable to care for Child as a result of her incarceration and (2) that she had neglected child through her habitual and excessive use of controlled substances. See Utah Code Ann. § 78A-6-507(1)(b), (c) (LexisNexis 2018); id. § 78A-6-508(2)(c), (e) (Supp. 2019). The court further found that termination was in Child’s best interest.

¶11 In reaching its conclusion regarding Child’s best interest, the juvenile court limited its analysis to three factors—Child’s “bond with his caregivers,” his “need for permanence and stability,” and “the potential risk of harm if returned to [Mother’s] care.” The court found that there was not an intact parental relationship between Mother and Child because she had not acted as his caregiver for an extended period of time. It observed that although Child recognizes that Mother is his mom, he has developed a mother–child bond with Fiancée as well. The court also found that Fiancée intended “to adopt [Child] should he be legally free.” The court concluded that “[t]hese facts support the need for permanence and stability and that [Child] does have a bond with his caregivers.” The court further found that there was “a potential risk of harm to” Child from Mother because she could not rule out the possibility of a future relationship with her co-defendant, who had been described as a “really bad guy.” Finally, the court found that termination of Mother’s rights was “strictly necessary for [Child] to achieve permanency and stability.” Based on these findings, the court determined that it was in Child’s best interest that Mother’s parental rights be terminated. Mother now appeals.

ISSUE AND STANDARD OF REVIEW

¶12 Mother argues that the juvenile court exceeded its discretion in terminating her parental rights. “The ultimate decision about whether to terminate a parent’s rights presents a mixed question of law and fact.” In re B.T.B., 2018 UT App 157, ¶ 8, 436 P.3d 206 (quotation simplified), cert. granted, 440 P.3d 692 (Utah 2019). We review the court’s factual findings for clear error and its legal conclusions for correctness, “affording the court some discretion in applying the law to the facts.” Id. (quotation simplified). Nevertheless, “the proper interpretation and application of a statute is a question of law which we review for correctness.” In re A.M., 2009 UT App 118, ¶ 6, 208 P.3d 1058 (quotation simplified).

ANALYSIS

¶13 In assessing whether termination of parental rights is appropriate, a court must employ a “two-part test.” In re B.T.B., 2018 UT App 157, ¶ 13, 436 P.3d 206, cert. granted, 440 P.3d 692 (Utah 2019). “First, a trial court must find that one or more of the statutory grounds for termination are present,” and second, “a trial court must find that termination of the parent’s rights is in the best interests of the child.” Id. (quotation simplified). Mother does not contest the juvenile court’s determination that grounds existed to support termination, but she maintains that termination was not in Child’s best interest and that the court did not adequately consider all factors relevant to that determination.

¶14 “The ‘best interest’ test is broad, and is intended as a holistic examination of all the relevant circumstances that might affect a child’s situation.” Id. ¶ 47; see also In re G.J.C, 2016 UT App 147, ¶ 24, 379 P.3d 58 (“Determining a child’s best interest in termination of parental rights proceedings is a subjective assessment based on the totality of the circumstances.”). Utah courts have identified numerous factors that may be relevant to this determination. For example, a court may consider “the physical, mental, or emotional condition and needs of the child”; “the effort the parent has made to adjust their circumstances, conduct, or conditions to make restoring the parent–child relationship in the child’s best interest”; “the child’s bond with caregivers”; the child’s “need for permanency and stability”; and “the potential risk of harm if returned to the parents’ care.” See In re G.J.C., 2016 UT App 147, ¶ 24 (quotation simplified). It may consider the parent’s “demeanor,” “attitude toward his or her child,” and “attitude in fulfilling parental obligations,” see In re T.E., 2011 UT 51, ¶ 44, 266 P.3d 739, and it may weigh the benefits of the child continuing a relationship with an unfit parent even where reunification is not an option, examine the child’s prospects for adoption, and even consider the child’s preferences in some circumstances, In re D.R.A., 2011 UT App 397, ¶¶ 19, 21, 266 P.3d 844; see also In re B.T.B., 2018 UT App 157, ¶ 56. Moreover, as part of the best interest analysis, Utah law requires courts to “analyze whether termination of a child’s parent’s rights is ‘strictly necessary,’” that is, the court must “explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights.” In re B.T.B., 2018 UT App 157, ¶¶ 50, 55; see also Utah Code Ann. § 78A-6-507(1) (LexisNexis 2018) (“Subject to the protections and requirements of Section 78A-6-503, and if the court finds strictly necessary, the court may terminate all parental rights with respect to a parent if the court finds any one of the following [statutory factors] . . . .” (emphasis added)).

¶15 In conducting its best interest analysis, the juvenile court did not take the holistic approach that has been prescribed by this court. Rather than examining the totality of all circumstances affecting Child’s best interest, the court erroneously interpreted In re G.J.C., 2016 UT App 147, 379 P.3d 58, as articulating a best interest test composed of only three specific factors: (1) “bond with caregivers,” (2) “need for permanence and stability,” and (3) “the potential risk of harm if returned to the parent’s care.” See id. ¶ 24. Further, the court’s finding that termination was “strictly necessary” was conclusory and did not include an examination of feasible alternatives to termination, as required by In re B.T.B., 2018 UT App 157, 436 P.3d 206.[3]

¶16 The court’s reliance on only the three specific factors gleaned from In re G.J.C. unduly narrowed the “broad,” “holistic” best interest test, see In re B.T.B., 2018 UT App 157, ¶ 47, and its order did not accurately represent the direction given by this court in In re G.J.C.[4] The three factors identified in In re G.J.C. were not given as a definitive list of factors; rather the court stated that those three factors were “proper” factors to consider “in the context of a best-interest determination.” 2016 UT App 147, ¶ 24. Indeed, the court explicitly instructed that a best interest determination must be “based on the totality of the circumstances.” Id. This court reaffirmed and elaborated on this “holistic” approach in In re B.T.B., when it instructed “courts to examine all of the relevant facts and circumstances surrounding the child’s situation” and, in particular, “to explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights,” in order to satisfy the legislature’s requirement that termination be limited to circumstances where it is “strictly necessary.” 2018 UT App 157, ¶¶ 47, 54–55.

¶17 Because of the court’s narrow focus on only three factors pertaining to the best interest analysis, its findings do not reveal whether the court considered a number of additional factors relevant to determining if termination of Mother’s rights was in Child’s best interest, including the fact that Child’s prospects for adoption by Fiancée were speculative, Child’s bond with Mother and any benefits of him continuing a relationship with Mother, and the effect of termination on Child’s relationship with his extended family, including his half-sister.[5] Further, while the court’s analysis emphasized Child’s need for stability, it is unclear how terminating Mother’s parental rights would achieve that goal. Child was not in DCFS custody or a short-term placement with a foster family with an unsettled future. Rather, Father had permanent sole legal and physical custody of Child. Child would continue to be raised primarily by Father and Fiancée, regardless of whether Mother’s parental rights were terminated. And while termination would free Child for adoption by Fiancée, Fiancée was not in an immediate position to adopt Child, and it was not certain that she would ever be in such a position, as she and Father were not actually married. Even the danger anticipated by the juvenile court if Mother eventually resumed her relationship with her co-defendant was mostly speculative, as the co-defendant would not be released from prison for many years. See In re D.R.A., 2011 UT App 397, ¶ 21 (determining that the State had failed to establish that termination was in a child’s best interest in part because “the benefits of severing” the parent–child relationship were “too speculative”). Finally, the court’s determination that termination was strictly necessary was not supported by an appropriate exploration of feasible alternatives to termination. See In re B.T.B., 2018 UT App 157, ¶ 55. Therefore, the juvenile court’s findings do not support its determination that termination was in Child’s best interest.

CONCLUSION

¶18 Because the juvenile court did not employ the correct holistic analysis in assessing whether termination of Mother’s parental rights was in Child’s best interest and its findings do not support such a determination, we vacate the court’s order terminating Mother’s parental rights and remand for further proceedings consistent with this opinion.[6]

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

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[1] Utah law requires a prospective adoptive stepparent to be married to the child’s custodial parent and to have lived with the custodial parent and the stepchild for at least one year prior to entry of the final decree of adoption. Utah Code Ann. § 78B-6¬ 117(2)(a) (LexisNexis Supp. 2019); id. § 78B-6-136.5(2)(a) (2018). Thus, as of the termination trial, Fiancée was at least one year away from being able to adopt Child.

[2] Mother has another child who was not included in the termination proceedings.

[3] Father argues that the juvenile court was not required to engage in the “strictly necessary” analysis prescribed by In re B.T.B. because that case was decided after the court issued its oral ruling in this case. However, Father makes no effort to explain why we should not apply this analysis. The “strictly necessary” language has been part of the statute since 2012, Act of March 7, 2012, ch. 281, § 6, 2012 Utah Laws 1331, 1334; In re B.T.B. merely interpreted that statutory language. And upon interpreting the language, the In re B.T.B. court sent that case back to the trial court for reconsideration: “Because we clarify and partially reformulate the test for termination of parental rights, we remand this case to the juvenile court for reconsideration in light of this opinion.” 2018 UT App 157, ¶ 2, 436 P.3d 206, cert. granted, 440 P.3d 692 (Utah 2019). Father also fails to acknowledge that the juvenile court’s final written order was actually signed one month after In re B.T.B. was issued. We therefore reject Father’s assertion that the court’s failure to engage in a more thorough “strictly necessary” analysis should be ignored on appeal.

[4] In re G.J.C. has limited utility in any event because it employed the now-disavowed principle that “where grounds for termination are established, the conclusion that termination will be in a child’s best interest follows almost automatically.” 2016 UT App 147, ¶ 25, 379 P.3d 58 (quotation simplified); see also In re B.T.B., 2018 UT App 157, ¶¶ 22–44 (disavowing the “almost automatically” line of cases).

[5] Our analysis should not be construed as prohibiting courts from focusing on those factors that it finds to be most probative in a particular case; not every factor will be relevant in every case, and even where evidence of a particular factor is present, a court may reasonably discount the factor and decline to discuss it in detail in its findings. The court’s ruling in this case is problematic not because it focused on limited relevant factors but because it misconstrued the best interest test as being limited to those factors and because it did not examine the feasibility of less-drastic alternatives to termination.

[6] Our decision should not be read as dictating any particular result on remand. Indeed, any number of circumstances may have changed since trial, and the court should take such changes into account in reconsidering its decision. On remand, the court should expand its analysis of best interest to consider the totality of the circumstances, examine the feasibility of alternatives to termination, supplement its findings, and assess whether termination is in Child’s best interest in light of any such supplemental findings.

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Burggraaf v. Burggraaf – 2019 UT App 195 – imputing income, vacating alimony

2019 UT App 195

THE UTAH COURT OF APPEALS

CAROL BURGGRAAF, Appellee,

v.

BRIAN JOSEPH BURGGRAAF, Appellant.

Opinion No. 20180405-CA

Filed November 29, 2019

Second District Court, Ogden Department

The Honorable Camille L. Neider

No. 154902227

Julie J. Nelson, Erin B. Hull, and Benjamin G. Larsen, Attorneys for Appellant

Suzanne Marelius, Attorney for Appellee

JUDGE KATE APPLEBY authored this Opinion, in which JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.

APPLEBY, Judge:

¶1 In April 2018, Brian Joseph Burggraaf and Carol Burggraaf divorced after nearly twenty-two years of marriage. Following a bench trial, the district court entered findings of fact and conclusions of law and granted a decree of divorce. Joseph[1] contends the court erred when it (1) imputed income to him for the purpose of calculating child support and alimony, (2) determined he owed unpaid child support, (3) found the majority of his student loans to be separate debt, and (4) set his budget for the purpose of calculating alimony. Joseph also contends the court’s overall property distribution was inequitable. We affirm in large part but vacate the modest alimony award.

BACKGROUND[2]

Education and Work History

¶2 Joseph and Carol married and had five children. A few years into the marriage, Joseph decided to pursue a medical degree and the family moved to Colorado for his studies. Joseph has a learning disability that hinders his ability to “process[] new information,” and as a result he struggled academically during medical school. With testing accommodations, he was able to pass the first two medical board exams, but only after attending a tutoring program in Illinois. The parties agree that it cost approximately $4,000 each time Joseph attended the program, but they disagree as to whether the medical school or Joseph’s student loans paid for it, though Joseph offered no evidence to show the medical school had paid for the program. Joseph graduated with a medical degree and approximately $260,000 in student loan debt.

¶3 After graduating from medical school, Joseph did not obtain a full-time residency but was able to secure a temporary position in the state of Washington. He was not offered a permanent position there and was unemployed for one year. Joseph returned to the Illinois tutoring program as a preemptive measure for the third and final board exam, passage of which is required to become a licensed practicing physician. Although he finished the tutoring program, Joseph did not immediately take the exam. Instead, he obtained another temporary residency in Georgia but was fired after thirteen months. Joseph then took the final board exam and failed. He returned to Illinois for the tutoring program but ultimately did not retake the exam because he decided he “would not likely pass.” After considering these facts, the district court determined Joseph “chose to abandon his pursuit of work in the medical field.”

¶4 During Joseph’s medical school and residency pursuits, Carol was “mostly a stay at home mother” who occasionally taught piano lessons to earn extra money. At trial she testified that the family’s frequent moves made it difficult for her to maintain a consistent client base for these lessons. While Joseph was in medical school and residency, the family received government and charitable assistance to make ends meet. At the time of trial, Carol earned approximately $1,100 per month.

¶5 Since deciding to forgo becoming a licensed physician, Joseph’s employment history was sporadic. He was a substitute teacher earning $82 per day for a short time before starting his own business funded by a $16,500 loan from his father. The business failed after a few months; Joseph recouped the investment, but he earned nothing more. He then took seasonal contracting work, earning between $1,863 and $2,900 per month for six months. After that, he sold insurance for a few months; in his “best month” he earned about $900. At the time of trial, Joseph was earning $1,200 per month at a river “tubing” business, working ten-to-twenty hours per week during the off-season and seventy-to-eighty hours per week in the summer. Joseph testified that he also was attending school in pursuit of a master’s degree, which put his student loans in deferment.

The Divorce

¶6 The parties separated following a domestic violence incident, and Carol was granted temporary custody of their five children. Joseph later pled no contest to the criminal charges and was convicted of a class B misdemeanor.[3] Approximately six months later, Joseph began paying Carol $200 per month for child support, which he calculated on his own without a court order.

¶7 The divorce was finalized three years after the date of separation following a four-day bench trial. After hearing evidence from both parties, the court determined Joseph was willfully underemployed and imputed his income for the purposes of calculating child support and alimony, granted Joseph and Carol joint physical and joint legal custody of the children, determined Joseph owed Carol unpaid child support, found the majority of Joseph’s student loans to be separate debt, and awarded Carol alimony. The court also distributed the marital property and debts, accounting for offsets and credits as necessary.

Income Imputation

¶8 Both parties asked the district court to impute the other’s income because each claimed the other was willfully underemployed and his or her claimed income did not reflect his or her employment potential.

¶9 The court determined Carol was not willfully underemployed and, using her previous three years’ tax returns, imputed to her a monthly salary of $1,750. But the court found Joseph was willfully underemployed and had “substantially undermined the financial stability” of the family. The court noted Joseph’s history of being secretive about his finances and said he had “lacked candor with [Carol] and the Court.” The court found it significant that Joseph did not “pursue[] employment associated with his medical degree” and that his “choices of employment [were] significantly different, without believable explanation, depending on if the parties were together or separated.” Further, Joseph did not provide the court with information about “all of his financial accounts” and “ha[d] been untruthful about the true nature of his income and assets.” Joseph also failed to provide evidence of “his current paycheck being deposited.”

¶10 Although Carol asked the court to impute a medical doctor’s salary to Joseph, the court declined to do so, as it was too speculative. Because neither party presented evidence to show what a person in Joseph’s situation—holding a medical degree but not being a licensed physician—could earn in the local area, the court was left to cobble together an average monthly income using Joseph’s earnings when he owned his business and did contracting work as “the most credible evidence of [his] potential income.” The court found it “equitable and just to impute” to Joseph a monthly income of $3,421.

Child Support and Child Custody

¶11 The district court granted Carol and Joseph joint physical and joint legal custody of their five children. In its order, the court gave the two eldest children “broad discretion to exercise parent time in whatever amount they fe[lt was] appropriate with either parent,” although they were “not obligated to exercise said parent time.” The court also recommended the three eldest children “participate in reunification therapy” with Joseph, which they “may attend if they so desire but will not be forced.” With regard to the three youngest children, the court gave Joseph overnight parent-time every other weekend and one weeknight every other week and, during the other weeks, one non-overnight midweek visit. Carol was given “all other regular parent time not awarded to” Joseph, with the parties sharing statutorily prescribed holiday time and summer vacation.

¶12 In determining Joseph’s child support obligation, the court acknowledged the parties stipulated to joint physical custody but noted Carol was in reality the “primary custodial parent” and thus “responsible for all of the day-to-day out-of-pocket expenses for the children while they are with [her].” Joseph also testified he never had more than every other weekend with the two eldest children and Carol testified their middle child “often chose[] to do other things” than stay with him. Although Joseph calculated his child support obligation on his own to arrive at his $200 monthly figure, he failed to take into account the fact that only the two youngest children were with him for 142 nights, or more than thirty percent of the year.[4] Because of this, the court used the sole custody worksheet to determine Joseph’s child support obligation.

¶13 The court gave Joseph credit for paying $200 per month (a total of $4,847.50) but, because it decided Joseph’s child support obligation was actually $1,138 per month during that period, he owed Carol more than $40,000 in unpaid child support.

Student Loans

¶14 At trial, Joseph argued his student loans, which were “in excess of $260,000,” should be considered a marital debt. He claimed only $59,551.34 of the money was used for medical school tuition and the rest was used for family expenses. He testified that the medical school paid for all books, laboratory coats, and equipment, such as stethoscopes. Carol denied this and testified that not only was the family using government assistance and charitable donations to pay their living expenses, but Joseph kept the money from his student loans in a separate account to which Carol had no access. Evidence also showed Joseph incurred “extra costs” such as “equipment, study aids, tutoring resources and [the Illinois] preparation course based on his perceived need due to his processing/learning disorder that were above and beyond the tuition expenses.” To dispute this, Joseph offered into evidence bank statements from two months showing a total of $3,308 in student loan money was deposited into the couple’s joint account, which was used for “living expenses, to pay the rent . . . utility bills . . . [and] kid expenses.”

¶15 The district court determined Joseph’s student loan debt was his separate obligation, with the exception of the $3,308 deposit into the joint checking account. In making this determination, the court found Joseph was not “credible in his representation that of $260,000 in student loans, only 25% was needed for actual school related costs.” The court noted Joseph “is the only one that may ever receive any benefit of his medical degree if he ever chooses to utilize it” and that he “solely decided to abandon his plans to be a licensed medical doctor.” Because of this, the court concluded “it would be unjust to require” Carol to share in the responsibility for the student loans.

Alimony

¶16 In preparation for trial, Carol and Joseph each submitted to the court estimated monthly budgets. Joseph’s total monthly budget was $4,706 and included a line item for “education (self)” of $1,500. Carol’s monthly budget was $5,476, including a line item for “extra-curricular activities (children)” of $850.

¶17 Each testified extensively about their monthly expenses. Joseph did not produce documentation to support his contention that he paid $1,500 per month for his current educational pursuits. But he testified that his medical school student loans were in deferment because he was attending school. The parties each testified that, during the marriage, they struggled financially. At one time, they lived with Joseph’s parents, and they often received institutional charity, government aid, and help from their families.

¶18 In its findings of fact and conclusions of law, the district court adjusted Carol’s budget and removed anything it found to be “discretionary and not reasonable necessary expenses,” including the children’s extra-curricular activities. The court determined Carol’s reasonable monthly budget to be $2,855, which, after calculating child support and her imputed income, left “her with a shortfall of $86 per month.”

¶19 The court declined to give Joseph a line item for his student loans because they were in deferment and he was not making payments on them. He also did not get a line item for his current educational expenses. The court said it omitted these items from Joseph’s submitted budget as discretionary and unnecessary “[b]ased on the testimony of the parties and the verifying documents presented at trial,” noting “none of [Joseph’s] documents reflect any student-aid, loans[,] or other assistance or expenses related to his current course of study” and Joseph “claimed to be paying approximately $1,500 per month in educational expenses for himself . . . with no documentation.”

¶20 In determining Joseph owed Carol alimony, the court considered:

[T]he financial condition and needs of [Carol], [her] earning capacity or ability to produce income, including the impact of diminished workplace experience resulting from primarily caring for the children, the length of the marriage, whether [she] has custody of the minor children requiring support, and whether [she] directly contributed to any increase in [Joseph’s] skill by enabling [him] to attend school during the marriage.

The court found each factor supported an award of alimony. The court also noted “there was credible evidence that [Joseph] knowingly and intentionally caused physical harm to [Carol] and [Joseph] substantially undermined the financial stability of” the family, which the court said further supported the alimony award. Because the court imputed a monthly income of $3,421 to Joseph, after subtracting what it deemed his reasonable monthly expenses, the court determined he had an excess of $446 per month.

¶21 Using the budgets the court set and the parties’ imputed income, the court determined Joseph had an unpaid alimony obligation of $5,580, to be deducted from his share of the proceeds generated from the sale of their house, a marital asset. The court also determined Joseph’s ongoing alimony obligation to Carol would be $86 per month to account for her shortfall.

Property Distribution

¶22 Joseph and Carol had a marital home that they sold before the divorce for $205,374.05, the proceeds of which were kept in a trust account. The district court began the property division by allocating half of the proceeds to each party. It then determined the value of certain items of disputed property and to whom the items should be awarded. As it did this, the court gave the non-receiving party an offset from the recipient’s house proceeds. For example, Carol was awarded a grand piano, valued at $11,907, and Joseph was thus awarded a $5,953.50 offset from Carol’s share of the house proceeds. The court used this same method to divide the marital debts and to reimburse Carol for half of the children’s medical, dental, and orthodontic bills she had incurred on her own. Because the court found Joseph owed Carol unpaid child support and unpaid alimony, those amounts also were deducted from his share of the house proceeds. In addition to his student loan debt, Joseph was deemed solely responsible for the $16,500 loan from his father and $4,000 he had charged on the joint credit card for attorney fees related to his criminal case. The court divided the remaining debts equally.

ISSUES AND STANDARDS OF REVIEW

¶23 Joseph raises five issues on appeal. First, he claims the district court’s imputation of his income to calculate his child support and alimony obligations was in error because the court failed to apply the statutory guidelines. “We review the [district] court’s interpretation of statutory requirements for correctness.” Busche v. Busche, 2012 UT App 16, ¶ 7, 272 P.3d 748. The court’s ultimate imputation of income is reviewed for abuse of discretion. Pulham v. Kirsling, 2019 UT 18, ¶ 41, 443 P.3d 1217.

¶24 Second, Joseph contends the district court erred when it calculated his child support obligation and found he owed unpaid child support. “Because [district] courts have broad discretion to award child support, we will not disturb such decisions absent an abuse of discretion.” Reller v. Argenziano, 2015 UT App 241, ¶ 15, 360 P.3d 768 (quotation simplified).

¶25 Third, Joseph contends the district court erred when it determined the majority of his student loan debt to be his separate obligation. “There is no fixed formula for determining the division of debts in a divorce action. We require only that the district court’s allocation of debt be based on adequate factual findings. And we will not disturb those findings absent an abuse of discretion.” Dahl v. Dahl, 2015 UT 79, ¶ 139 (quotation simplified).[5]

¶26 Fourth, Joseph alleges the district court erred when it set his budget for the alimony calculation. District “courts have considerable discretion in determining alimony and determinations of alimony will be upheld on appeal unless a clear and prejudicial abuse of discretion is demonstrated.” Osborne v. Osborne, 2016 UT App 29, ¶ 25, 367 P.3d 1036 (quotation simplified).

¶27 Finally, Joseph claims the district court’s overall distribution of property is inequitable. District courts have “considerable discretion” in this area as well, and we will uphold the district court’s decision concerning property distribution “unless a clear and prejudicial abuse of discretion is demonstrated.” Gerwe v. Gerwe, 2018 UT App 75, ¶ 8, 424 P.3d 1113 (quotation simplified).

ANALYSIS

I. Income Imputation

¶28 Joseph contends the district court erred when it imputed his income, alleging the court did not follow Utah Code section 78B-12-203 regarding (1) gross annual income, (2) self-employment income, and (3) the factors for imputing income. Income may be imputed to a party if, “in contested cases, a hearing is held and the judge . . . enters findings of fact as to the evidentiary basis for the imputation.” Utah Code Ann. § 78B-12-203(8)(a) (LexisNexis 2018).[6] Because the parties each wanted the other’s income imputed, the district court heard evidence related to their incomes.

A. Gross Annual Income

¶29 Utah Code section 78B-12-203 establishes the method by which district courts may impute gross income. Section 78B-12-203(5)(a) directs courts, “[w]hen possible,” to compute income “on an annual basis and then recalculate[] to determine the average gross monthly income.” As Joseph points out, “courts frequently average several years of income.” (Citing Taft v. Taft, 2016 UT App 135, ¶ 17, 379 P.3d 890; Tobler v. Tobler, 2014 UT App 239, ¶¶ 8, 28, 337 P.3d 296; Dobson v. Dobson, 2012 UT App 373, ¶ 2, 294 P.3d 591.) He claims the court erred because it took his “few highest earnings months out of the last several years and made that the imputation number.” (Quotation simplified.) But this does not necessarily constitute error. The statute says courts must compute an annual income “when possible.” Utah Code Ann. § 78B-12-203(5)(a) (emphasis added). Because Joseph had not held a consistent job and failed to provide “copies of all of his financial accounts,” proof of his current income being deposited, or his tax documents (even after the court requested them), it was well within the court’s discretion, under the circumstances, to impute Joseph’s income as it did, and doing so did not constitute a “misunderstanding or misapplication of the law.” Anderson v. Anderson, 2018 UT App 19, ¶ 19, 414 P.3d 1069 (quotation simplified); see also Dole v. Dole, 2018 UT App 195, ¶ 7, 437 P.3d 464 (upholding imputation when “the actual income of [a spouse] is impossible to determine due to [his or her] dishonesty to [the district court], to [his or her] unaccountable income, and to his [or her] failure and refusal to obtain traditional employment” (quotation simplified)). Thus, we do not disturb the court’s imputation of Joseph’s income by averaging his monthly income from owning his own business and performing contracting work.

B. Self-Employment Income

¶30 Joseph next argues the district court failed to follow statutory procedures for imputing income for a self-employed individual. If a party is self-employed or operates his or her own business, Utah law directs courts to “subtract[] necessary expenses required for self-employment or business operation from gross receipts.” Utah Code Ann. § 78B-12-203(4)(a). Joseph started his own business with a $16,500 loan and operated it for three months, during which time he recouped the investment but earned nothing more. When imputing his income, the district court divided $16,500 by three and determined Joseph was capable of earning $5,500 per month. Joseph argues this was in error because he “earned nothing” during that period after subtracting necessary business expenses, which he identified as a computer, scanner, insurance, and travel. But Joseph did not provide any evidence of business expenses, and the court recognized his history of being “secretive about his finances” and his lack of candor. The court merely used this figure as a “high water mark” as evidence of his “potential income.” In these circumstances, the court’s decision was not an abuse of discretion.

C. Statutory Factors

¶31 Finally, Joseph asserts the district court failed to follow the factors identified in Utah Code section 78B-12-203(8)(b). A court may not impute income to a party in contested cases unless “a hearing is held and the judge . . . enters findings of fact as to the evidentiary basis for the imputation.” Id. § 78B-12-203(8)(a). The court “shall” base the imputation on ten factors, “to the extent known.” Id. § 78B-12-203(8)(b). These factors are “(i) employment opportunities; (ii) work history; (iii) occupation qualifications; (iv) educational attainment; (v) literacy; (vi) age; (vii) health; (viii) criminal record; (ix) other employment barriers and background factors; and (x) prevailing earnings and job availability for persons of similar backgrounds in the community.” Id.

¶32 Joseph claims the district court “failed to acknowledge the factors that are most important here,” namely employment opportunities, work history, health, criminal record, other employment barriers and background factors, and prevailing earnings and job availability for persons of similar backgrounds in the community. But the record is clear that the court did consider these factors; the factors simply did not weigh in Joseph’s favor. For instance, Joseph argues the court should have considered his learning disability and criminal record, which it dId. The court found Joseph “still very employable even considering those obstacles” and pointed to Joseph’s own testimony, which “emphasized his ability to work hard, long hours and across many fields of employment.” Joseph did not provide support for his assertion that his class B misdemeanor was the reason he could not obtain more lucrative employment. The court also considered Joseph’s work history. It noted his “choices of employment have been significantly different, without believable explanation, depending on if the parties were together or separated” and found that “his current and historical income during the parties’ separation is a deliberate attempt to minimize his financial obligations.” It also found it incredible that Joseph—an individual with a medical degree—was earning “barely more than minimum wage.” Thus, the record shows the court considered the statutory factors, and the conclusions it drew from its consideration of them were therefore well within its broad discretion.

II. Child Support

¶33 Joseph next argues the district court erred when it (1) used the sole custody worksheet to calculate his child support obligation and (2) determined he owed Carol unpaid child support. For the reasons detailed below, these arguments fail.

A. Sole Custody Worksheet

¶34 In Utah, “child support obligations are generally calculated using a worksheet in cases of joint physical custody. Moreover, for purposes of calculating child support, the designation of ‘joint physical custody’ or ‘sole physical custody’ is not as important as whether the custody arrangement exceeds the statutory threshold for joint physical custody.” Stephens v. Stephens, 2018 UT App 196, ¶ 29, 437 P.3d 445 (quotation simplified). District courts are given broad discretion in decisions regarding child support. Anderson v. Anderson, 2018 UT App 19, ¶ 21, 414 P.3d 1069. If a court deviates from the statutory guidelines, it must make a finding that following them “would be unjust, inappropriate, or not in the best interest of a child.” Gore v. Grant, 2015 UT App 113, ¶ 13, 349 P.3d 779 (quotation simplified).

¶35 The district court noted Carol and Joseph had agreed upon joint physical custody, but it nevertheless used the sole custody worksheet to determine Joseph’s child support obligation. The court supported its determination by making findings that Carol actually had the three eldest children overnight at her house for more than 70% of the time. Joseph’s own testimony supports this determination: only the two youngest children spent a standard parent time schedule with him. Thus, Carol had sole physical custody—defined in terms of overnights, see Utah Code Ann. § 78B-12-102(15) (LexisNexis 2018)—of three of the children, and the parties shared joint physical custody of two of the children. Under these unique circumstances, we see no abuse of discretion in the district court’s decision to apply the sole custody worksheet.

B. Unpaid Child Support

¶36 Joseph also claims the district court erred when it found he owed thirty-six months’ worth of unpaid child support, based upon his imputed income, dating back to the filing of the divorce petition. He argues the court was without authority to ascribe unpaid support to him retroactively because Carol never asked the district court to enter a temporary order establishing the appropriate amount of child support to be paid during the pendency of the divorce case. But Joseph has not identified any statute or caselaw to support his position. See Osborne v. Osborne, 2016 UT App 29, ¶ 21, 367 P.3d 1036 (“Where the contentions on appeal are asserted without the support of legal reasoning or authority, this court will not assume the appellant’s burden of argument and research.” (quotation simplified)). Moreover, “child support is a basic and unalienable right vested in the minor,” Anderson, 2018 UT App 19, ¶ 39 (quotation simplified), and “[e]very child is presumed to be in need of the support of the child’s mother and father. Every mother and father shall support their children,” Utah Code Ann. § 78B-12-105(1) (LexisNexis 2018). Joseph was aware of his duty to support his children, as evidenced by his $200 monthly payments to Carol. Simply because he chose an arbitrary—and low—amount does not absolve him of the responsibility to fully support his five children.

¶37 Because Joseph failed to point us to statutory or other authority to instruct us otherwise, we decline to conclude that the district court abused its discretion in awarding Carol unpaid Burggraaf v. Burggraaf 20180405-CA 17 2019 UT App 195 child support, dating back to the date the divorce petition was filed, even in the absence of a temporary order.

III. Student Loans

¶38 Joseph challenges the district court’s determination that the majority of the student loan debt was his separate obligation. “Neither spouse is personally liable for the separate debts, obligations, or liabilities of the other . . . contracted or incurred during the marriage, except family expenses.” Utah Code Ann. § 30-2-5 (LexisNexis 2018). “There is no fixed formula for determining the division of debts in a divorce action. We require only that the district court’s allocation of debt be based on adequate factual findings. And we will not disturb those findings absent an abuse of discretion.” Dahl v. Dahl, 2015 UT 79, ¶ 139 (quotation simplified).

¶39 We see no abuse of discretion in the court’s finding that, in these unique circumstances, the majority of the student loan debt should be considered Joseph’s separate obligation. The court determined that Joseph alone had made the decision to “abandon his plans to be a licensed medical doctor” and that he should therefore be responsible for repaying the vast majority of the student loans associated with obtaining his medical degree. The court supported its conclusion by reviewing the parties’ testimonies about the loans and determining Carol to be the most credible. “Credibility determinations are within the province of the [district] judge, who is uniquely equipped to make factual findings based exclusively on oral testimony due to his or her opportunity to view the witnesses firsthand, to assess their demeanor and to reconsider their testimonies in the context of the proceeding as a whole.” Kidd v. Kidd, 2014 UT App 26, ¶ 34, 321 P.3d 200 (quotation simplified).

¶40 The court did not find Joseph’s testimony about using approximately $200,000 of his student loans for family expenses credible. Joseph provided no evidence to support his claim, other than two bank statements showing $3,308 was deposited into their joint account; the rest was kept in a separate account to which Carol had no access. Conversely, the court found Carol’s testimony “about the resources she utilized from teaching piano lessons, welfare from the parties’ church, family help and government assistance . . . credible and believable.” The court also noted Joseph’s testimony about “the extras that he needed in order to successfully complete medical school course work and the licensing tests,” but indicated Joseph “did not acknowledge any were above and beyond the tuition amount.” In these circumstances, the court’s findings were not an abuse of its broad discretion.

IV. Alimony

¶41 Joseph argues the budget the district court set for him in calculating his alimony was arbitrarily low, because it (1) failed to give him a line item for either his student loan debt or his current educational expenses, (2) failed to calculate his alimony obligation using the marital standard of living, and (3) supported its alimony award by finding Joseph at fault. District “courts have considerable discretion in determining alimony and determinations of alimony will be upheld on appeal unless a clear and prejudicial abuse of discretion is demonstrated.” Osborne v. Osborne, 2016 UT App 29, ¶ 25, 367 P.3d 1036 (quotation simplified). Because we agree with Joseph that the district court should have given him a line item in his budget for either his student loan debt or tuition payments to keep the loan in deferral, we do not address the marital standard of living or fault arguments.

¶42 When deciding whether to award alimony, a district court must consider seven statutory factors, including “the ability of the payor spouse to provide support.” Utah Code Ann. § 30-3-5(8)(a)(iii) (LexisNexis Supp. 2019). In determining Joseph’s alimony obligation, the court took each party’s proposed monthly budget and adjusted it to remove discretionary expenses. It did not include a line item for Joseph’s claimed $1,500 in educational expenses for himself. The court also declined to give him a line item for his student loan debt, because it was in deferment and he was not currently making payments on it. Although the court weighed statutory factors such as “the financial condition and needs of [Carol]; [her] earning capacity or ability to produce income, including the impact of diminished workplace experience resulting from primarily caring for the children, the length of the marriage, whether [Carol] ha[d] custody of the minor children requiring support, and whether [she] directly contributed to any increase in [Joseph’s] skill by enabling [him] to attend school during the marriage,” see Id. § 30-3-5(8)(i), (ii), (iv), (v), (vii), the court failed to consider an additional mandatory factor, namely Joseph’s ability to pay, Id. § 30-3-5(8)(iii).

¶43 We conclude the court’s failure to consider Joseph’s ability to pay alimony was a “clear and prejudicial abuse of discretion.” Osborne, 2016 UT App 29, ¶ 25 (quotation simplified). Because the district court found the majority of Joseph’s student loan debt to be his sole obligation, it should have included a line item in his budget either for his student loan payments or for tuition payments that would keep the loan repayment in deferral. We acknowledge Joseph is not currently making student loan payments, but because he was found solely responsible for the loan debt and his share of the house proceeds are insufficient to pay off that debt, we cannot see on this record how he would not be entitled to a line item in his budget to account for either student loan payments or tuition payments.[7]

Although Joseph has a $446 excess in his court-determined budget, a line item for even half of his requested educational expenses would eliminate said excess. This would certainly affect his ability to pay the most modest alimony award. We therefore vacate the award of alimony.

V. Property Distribution

¶44 Finally, Joseph argues the district court’s overall property distribution was inequitable. “Generally, district courts have considerable discretion concerning property distribution in a divorce proceeding and their determinations enjoy a presumption of validity. Thus, we will uphold the decision of the district court on appeal unless a clear and prejudicial abuse of discretion is demonstrated.” Dahl v. Dahl, 2015 UT 79, ¶ 119, (quotation simplified). Joseph contends he received “93% of the total debt [but only] 25% of the liquid assets.” But as he points out, we cannot “consider[] the property division in a vacuum.” (Quoting Newmeyer v. Newmeyer, 745 P.2d 1276, 1279 n.1 (Utah 1987).) Because the debt division Joseph cites includes both his student loan debt, the majority of which the court found was not marital debt, and the loan Joseph received from his father, which the court also found to be separate debt, the percentages he cites are artificially inflated. In reality, the court split the marital debts equally and did the same with the house proceeds. This does not constitute “a clear and prejudicial abuse of discretion.” Dahl, 2015 UT 79, ¶ 119 (quotation simplified).

CONCLUSION

¶45 Because the district court did not exceed its considerable discretion in imputing Joseph’s income, calculating child support, finding the student loans to be separate debt, and in its overall property distribution, we affirm its decisions on those points. But we vacate the modest alimony award because Joseph does not have the ability to pay it in light of his student loan debt.

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

[1] Because both parties share a last name, we use their given names “with no disrespect intended by the apparent informality.” Smith v. Smith, 2017 UT App 40, ¶ 2 n.1, 392 P.3d 985.

[2] “On appeal from a bench trial, we view the evidence in a light most favorable to the [district] court’s findings, and therefore recite the facts consistent with that standard” and “present conflicting evidence to the extent necessary to clarify the issues raised on appeal.” Kidd v. Kidd, 2014 UT App 26, n.1, 321 P.3d 200 (quotation simplified).

[3] Joseph denies the allegation and claims the conviction prevents him from obtaining meaningful employment.

[4] “‘Joint physical custody’ means the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support.” Utah Code Ann. § 78B-12-102(15) (LexisNexis 2018).

[5] Our practice is to provide a parallel citation to reported Utah appellate opinions. For reasons unknown, this opinion has not found its way into the Pacific Reporter, third series, in the four years since it was issued.

[6] Although this statute “addresses imputation for the purposes of child support, it is also relevant to imputation in the alimony context.” Fish v. Fish, 2010 UT App 292, ¶ 14 n.5, 242 P.3d 787. Because the material provisions cited have not changed, we cite the current version of the Utah Code.

[7] It is theoretically possible that Joseph could be the recipient of a scholarship or other financial aid that would allow him to attend school and thereby keep the student loan debt in deferment without actually making any out-of-pocket payment.

But there was no such evidence presented at trial, and the district court made no findings to this effect. Joseph’s testimony that he paid $1,500 per month to finance his current education stands unrefuted. And such a situation would in any event be relatively temporary; at some point in the near future, Joseph will be compelled to begin making payments on $260,000 of student loan debt that the district court assigned solely to him. Some provision must be made in Joseph’s budget to account for this expense.

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