Taylor v. Taylor, 2022 UT 35
Supreme Court of Utah
Attorneys: Julie J. Nelson, Erin B. Hull, Martin N. Olsen, Beau J. Olsen
District Court: 3rd District, Honorable Teresa Welch
Summary: The parties engaged in mediation and at the end decided to sign a contract to allow the mediator to make final determinations in their case as an arbitrator. The district court held that the arbitration was valid and upheld the award from the arbitration. The Supreme Court of Utah affirmed.
Holding (Invalidating Arbitration Agreement/Award): U.C.A. § 78B-11-107 of the Utah Uniform Arbitration Act (“UUAA”) states “An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract.” UTAH CODE § 78B-11-107(1). “UUAA section 78B-11-123, for instance, explains that a court must confirm an arbitration award ‘unless the award is modified or corrected ... or is vacated’ pursuant to the grounds set forth in section 78B-11-124. One of those grounds permits a court to vacate an arbitration award ‘if[ ] ... there was no agreement to arbitrate, unless the person [contesting the award] participated in the arbitration proceeding without raising an objection [as to lack or insufficiency of notice] not later than the beginning of the arbitration hearing.’” UTAH CODE § 78B-11-124(1)(e) (emphasis added). “if a party participates in arbitration without proper objection, she is unable to challenge the resulting arbitration award for want of a valid arbitration agreement. Section 78B-11-107 is simply not a mechanism that allows a party to see what result she gets in arbitration before deciding to contest the validity of the arbitration agreement.”
Holding (Arbitration in Alimony and Family Law Property Disputes): “Divorce cases are arbitrable.” “ The UUAA “applies to any agreement to arbitrate made on or after May 6, 2002.” UTAH CODE § 78B-11-104(1). “nothing in the Utah family code prevents parties from agreeing to arbitrate their alimony and property disputes under the UUAA. Nor does any provision of the family code conflict with allowing the parties to agree to limit judicial review of the resulting award to those grounds given in section 78B-11-124 of the UUAA.” See UTAH CODE § 78B-11-124(1).
Holding (Arbitration in Child Support and Custody): In Utah, parents may arbitrate child-centered issues, but the court retains jurisdiction to ensure that the best interest were reached. “By statute, these issues are determined by the best interest of the child. See UTAH CODE § 30-3-5(5)(a) (2018), amended by and renumbered as UTAH CODE § 30-3-5(7)(a) (2022); id. § 78B-12-210(3). We have stated that parties may not agree to divest a district court of its responsibility to ensure that decisions concerning child support and custody are in the best interests of the child.” Also, parents cannot bargain away a child’s right to be heard by the court. “Harmonizing the statutory schemes and recognizing the strong policies underlying the protection of children and the UUAA leads us to a decision like that reached in Pennsylvania and New Jersey—agreements to arbitrate child support and custody are not contrary to public policy. But any award that flows from these agreements must be in the best interests of the child. A district court retains the authority to ensure that an arbitration award addressing child support or custody satisfies the best-interests standard and may hear a challenge to the arbitration award on that basis.”
Holding (Modification Following Arbitration): The court forever retains continuing jurisdiction to modify an arbitration award in a divorce case pursuant to U.C.A. § 30-3-5 either as a reasonable and necessary, based on change in circumstances, or when best interests of the child so require.
Holding (Stipulations v. Arbitration): Although Utah Courts are not bound by divorcing parties’ stipulation, the court is more strongly bound by an arbitration award because it is driven and directly by the UUAA and only adjusted as specifically required by Utah family law statutes.
Holding (Uniform Laws): The court nudges the legislature to adopt the Uniform Family Law Arbitration Act (UFLAA) to clarify any incongruities between the UUAA and Utah family law.
Holding (Manifest Disregard for Law): The arbitrator did not manifestly disregard the law. “ ‘[M]anifest disregard’ is an extremely deferential standard.” Westgate Resorts, 2016 UT 24, ¶ 11, 378 P.3d 93. “To meet this standard, a party must prove three elements: First, the [arbitrator]’s decision must actually be in error. Second, the error ‘must have been obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator.’ Third, the [arbitrator] must have ‘appreciate[d] the existence of a clearly governing legal principle but decide[d] to ignore or pay no attention to it.’” Manifest disregard is different than manifest disagreement.
Parent-Time and Custody
Lamb v. Lamb, 2024 UT App 16
Utah Court of Appeals
Attorneys: Mary Deiss Brown, Gregory G. Skordas, Gabriela Mena, Allison R. Librett
3rd District Court, Honorable Judge Robert P. Faust
Summary: Wife appeals the district court award of custody to Father as well as the award of the business and division manner the court used to determine equity in the marital home.
Holding (Custody): The Mother had been the primary custodian of the children, but shortly before the hearing on temporary orders she had been arrested on drug issues and had vacated the home. Mother contended that Father also had drug issues and that she was now sober and attending meetings. At trial, the custody evaluator could not complete and evaluation because Mother was not having even minimum time because reunification had not been successful because of acrimonious relationships. The district court ordered sole physical custody to Father and joint legal, with supervised restricted parent-time for the youngest child. The court also noted that Mother’s cannabis use needed to be verified because it presented a contributing factor that brought on her mental health episodes. The court raised concerns about the youngest child becoming parentified. Regarding the Father’s alleged drug use, there was only one instance where Mother asserted to the trial court about Father’s “cocaine habit.”
Holding (Inadequate Briefing): The court renders a long admonishment about inadequate briefing throughout its opinion. It says that while some issues may have some validity, they cannot be properly considered because of inadequate briefing. This issue also appears in the fact that certain issues were inadequately preserved at the trial level.
Blake v. Smith, 2023 UT App 78
Utah Court of Appeals
Attorneys: Julie J. Nelson
3rd District Court, Honorable Judge Su Chon
Summary: The parties had a child together after Father repeatedly asked Mother to have an abortion. Father rarely saw or spoke with the child and did not participate in any child rearing activities, such as doctor appointments. On two of the occasions when he tried to participate, it ended with verbal altercations between the parents. The appellate court found it an error to award Mother sole legal and physical custody but still require joint decision making. The issue was vacated and remanded. In addition, the child support was also remanded.
Holding (Custody): It was error in this case to award sole legal and physical custody to Mother but still require joint decision making. “As an initial matter, the Utah Code does not define “sole physical custody” or “sole legal custody.” “But in Hansen v. Hansen, 2012 UT 9, 270 P.3d 531, our supreme court provided guidance as to the meaning of those terms.” ““[T]he legal duty of control or supervision [is] the essential hallmark of custody.” Id. ¶ 18 (quotation simplified). “Legal custody encompasses the ability to make major decisions in a child's life, while physical custody encompasses the ability to make day-to-day decisions in a child's life.” The court goes into great detail discussing and defining different custody terms. “[W]hen the district court awarded sole legal and physical custody to Smith, it also awarded her alone the ‘rights and obligations to [Child's] possession, care, and control,’ see Hansen, 2012 UT 9, ¶ 16, 270 P.3d 531 “including the sole authority to ‘make the most significant decisions about [Child's] life and welfare, [legal custody] see id. ¶ 17 (quotation simplified), and the “authority to make necessary day-to-day decisions concerning [Child's] welfare,” [physical custody] see id. (quotation simplified). It therefore was inconsistent to simultaneously order a joint decision-making arrangement.” The award of joint decision making was not only inconsistent with the legal custody awards but also inconsistent with the evidence given the parents’ inability to cooperate to make decisions.
John v. John, 2023 UT App 103
Utah Court of Appeals
Attorneys: Benjamin K. Lusty, Gregory K. Orme, Ryan D. Tenney
3rd District Court, Honorable Judge Su Chon
Summary: Mother used drugs throughout the case history. She also moved for several years, having very little contact with the child. Husband was awarded sole physical and sole legal custody. Mother was awarded supervised parent-time. Mother appeals arguing that the court did not make adequate statutory findings to grant less than minimum time and did not make an adequate plan for her to get back to minimum. The appellate court disagrees and affirms.
Holding (Less than Minimum Findings): That statute states that “[w]hen necessary to protect a child and no less restrictive means is reasonably available ... , a court may order supervised parent-time if the court finds evidence that the child would be subject to physical or emotional harm or child abuse, as described in Sections 76-5-109, 76-5-109.2, 76-5-109.3, and 76-5-114, from the noncustodial parent if left unsupervised with the noncustodial parent. Utah Code § 30-3-34.5(1). The court clarifies that it must be a current risk of harm rather than only historical or past risk of harm. There must be evidence that harm or abuse could occur in the future. Historical harm and abuse is still relevant to this inquiry though because it could show that the risk has been recuring and has not substantially abated. “a court need not find that the child definitely would be subjected to harm or abuse if left unsupervised with the noncustodial parent. Rather, a court is required to find only “evidence that the child would be subject to ... harm or ... abuse” if left alone with the noncustodial parent.” An existing threat or risk of harm or abuse is sufficient. Here, the court’s findings were adequate to show the required risk of harm.
Holding (Specific Goals and Expectations): “When a court orders supervised parent-time, it must ‘provide specific goals and expectations for the noncustodial parent to accomplish before unsupervised parent-time may be granted.’” Utah Code § 30-3-34.5(5). The court here ordered that Mother have a clean drug test and get a reunification therapist on board before her parent-time could be reviewed. The court ordered her to complete reunification therapy as directed by the therapist and gave specific goals for the reunification therapist to meet.
Twitchell v. Twitchell, 2022 UT App 49
Court of Appeals for Utah
Attorneys: Ryan L. Holdaway, Diane Pitcher, Robert L. Neeley
District Court: 1st District, Honorable Judge Brian G. Cannell
Summary: The parties divorce contained several errors on various issues that the appellate court overturned.
Holding (Custody): Despite several instances of domestic violence, the district court granted Mother custody under a modified U.C.A. § 30-3-35. The court did not adequately address the factors of domestic violence, neglectful behavior, or moral character from Mother. Although the court said it was concerned about these factors, it did not explain how it weighed or analyzed them. The court also errored in awarding less than minimum parent-time without adequate reasoning.
Kingston v. Kingston, 2022 UT 43
Supreme Court of Utah
Attorneys: Steve Christensen, Clinton Brimhall, Benjamin Lusty, Lisa Watts Baskin, Jaryl Rencher
District Court: 3rd District, Honorable Andrew H. Stone
Summary: The District Court granted Mother sole legal custody finding that she was the primary caregiver and issues with the Father’s membership in The Order, which groomed young girls to be child brides and shunned those that left the church, such as Mother. The court awarded dad 30-3-35.1 (60/40). The Court also ordered that the children should not be encouraged to adopt the teachings of any religion or be baptized into any religion without the consent of the legal guardian. Father argued that the last provision violated his fundament right to encourage the children to practice his religion. The Supreme Court held that awarding Mother legal custody was valid and only allowed mother the authority to make major decision for the children. However, the restriction on Father encouraging the children from any religion was not narrowly tailored to address the potential harms identified by the court.
Holding (Fundamental Right to Parent): The court found that the other rights asserted were inadequately briefed, and therefore not addressed. “parents have a fundamental right to encourage their children in the practice of religion under the Due Process Clause of the Fourteenth Amendment.” The grant of sole custody did not impede this right, but going further and not allowing the encouragement of a religion did. Although the court was right in finding a compelling governmental interest for that restriction, it did not narrowly tailor the restriction enough. For example, it prevents small things, such as grace at dinner, just as well as concerning things, such as grooming or alienating the children. The case is remanded for a more narrowly tailored restriction.
“parents have a fundamental right to encourage their children in the practice of religion. And while an award of legal custody to one parent in a divorce limits the other parent's ability to make major decisions for the children, it does not eliminate this fundamental right. So, any state interference with parents' right to encourage their children in the practice of religion, including the district court's prohibition here, is subject to strict scrutiny.”
This case gives a great analysis of the fundamental right to parent as well as what is necessary to restrict the right to teach children a religion. The court in Prince held that ““neither rights of religion nor rights of parenthood are beyond limitation” in addressing child employment laws.
Hinds v. Hinds-Holm, 2022 UT App 13
Court of Appeals of Utah
Attorneys: Theodore R. Weckel, Jonathan G. Winn
District Court: 3rd District Court, Honorable James T. Blanch
Summary: Mother and father raised the child for a short time together. Father was in military and lived out of state. Mother moved to Utah to live closer to her mother. Mother then became extremely difficult and did not facilitate father’s parent-time in many ways. She was held in contempt for this issue several times and warned to fix her behavior, but she did not. Mother had four (4) attorneys before trial, all of whom left the case with notes in their withdrawals about mother’s problematic behavior. At trial, mother asked for another continuance to find counsel, which was denied. She was required to go to trial pro se. The custody evaluator found that father should have sole physical and legal custody, at least partially because of mother’s inability to facilitate the other parent’s relationship with the child. The district court analyzed all custody factors and agreed. The appellate court affirmed.
Holding (Best Interest): The court clearly analyzed the custody factors and made a proper determination on custody. The court found it very persuasive that rather than facilitate father’s relationship with the child, mother had gone out of her way to hinder that relationship. There were many examples of her behavior this way, but some of those behaviors were: violating multiple court orders to facilitate his parent-time, not sharing information required by joint legal, calling father by his first name with the child, and mother believed her responses were appropriate without remorse. In contrast, the court found no similar behaviors from the father. There was also previous domestic violence that mother and grandmother had perpetrated against father. In this case, the court found that it was choosing between two good parents, but that the mother’s behavior tipped the scales toward father being the best to act in the child’s best interest.
Nakkina v. Mahanthi, 496 P.3d 1173 (2021)
Utah Court of Appeals
Attorneys: Eric K. Johnson, Kelli J. Larson
District Court: 3rd District, Honorable Barry Lawrence
Summary: The parties were from India, but father lived primarily in the United States when the children were born. When the children were born, the mother lived mostly in India for more than two years, and then moved back with husband in Utah for several years before the divorce. During the case, father had time under 30-3-35. Mother claimed that Mahanthi was an absent father. Father denied the allegations. He claimed that his new job did not interfere as much with parenting. At trial, the court awarded joint physical with a schedule close to equal parent-time (6/14 schedule).
Holding (Parent-time): The appellate court changed the schedule to 50/50. When determining what is in the children's best interest regarding parent-time, the decision “turns on numerous factors, each of which may vary in importance according to the facts in the particular case.” See Sanderson v. Tryon, 739 P.2d 623, 627 (Utah 1987). Generally, parent-time should be awarded “at a level consistent with all parties’ interests.” Utah Code Ann. § 30-3-32(1) (LexisNexis 2019). “Absent a showing by a preponderance of evidence of real harm or substantiated potential harm to the child,” it is in the children's best interest “to have frequent, meaningful, and continuing” time with each parent. Id. § 30-3-32(2)(b)(i). In addition, each parent is entitled to “frequent, meaningful, and continuing access” with the children. Id. § 30-3-32(2)(b)(ii). The court analyzed the parent-time factors and weighed most of them in favor of equal parent-time but ultimately determined slightly less than equal parent-time on the premise that father would have more demands from his career. This was not sufficient because for various reasons (very fact specific) the court found that the facts did not support this presumption. The court’s rational that husband needed to work more was not firmly supported by the evidence. the trial court “cannot act arbitrarily, or on supposition or conjecture as to facts upon which to justify its [parent-time] order.” See Iverson v. Iverson, 526 P.2d 1126, 1127 (Utah 1974). The appellate court reversed with instructions to enter 50/50.
Relocation
Martinez v. Sanchez-Garcia, 2023 UT App 60
Utah Court of Appeals
Attorneys: Ashley E. Bown, Wayne K. Caldwell
1st District Court, Honorable Judge Brian G. Cannell
Summary: Through stipulation, the parties agreed that the parties would have joint physical and legal custody and Mother would have primary physical custody. Two years later, Mother gave notice that she was moving to Colorado to pursue a nursing degree. Mother filed a petition to modify asking for sole custody and Father filed a counter petition. The district court, following the recommendation of the custody evaluator, found that custody would switch to Father if Mother moved to Colorado. Mother decided to not move to Colorado, but then without giving notice, moved to Layton instead, sixty (60) miles away. The court held a one day trial. Father had explained that he was taking approximately, or less than, statutory minimum parent-time and that his work would get in the way of taking more of facilitating soccer. The district court granted Father custody unless and until Mother moved back to Cache County. The court did not address whether there had been a substantial change in circumstances. It also did not discuss most of the factors in the custody statutes. The appellate court vacated and remanded.
Holding (Substantial and Material Change Findings): “Under Utah law, petitions to modify custody orders are governed by a two-part test: ‘A court order modifying ... an existing joint legal custody or joint physical custody order shall contain written findings that: (i) a material and substantial change of circumstance has occurred; and (ii) a modification ... would be an improvement for and in the best interest of the child.’” Peeples v. Peeples, 2019 UT App 207, ¶ 13, 456 P.3d 1159 (emphasis added) (quoting Utah Code § 30-3-10.4(2)(b)). Here the court did not make any findings “whether changes in the circumstances upon which the previous award was based have occurred that are sufficiently substantial and material to justify reopening the question of custody.” (The court notes that it is actually required to be written findings, but that is dicta because this court did neither oral or written findings). It is not clear that such a change occurred here. The mere fact that child have moved across county lines or changed schools does not necessarily mean that a substantial and material change has occurred. It depends on the facts of the case. The district court must put clear findings in writing on this issue. Although Mother’s initial petition had asserted a substantial and material change, that petition was in regard to her move to Colorado. This Petition was effectively withdrawn when she decided to not move to Colorado. In responding about Layton, Mother had denied that moving to Layton was a substantial and material change. The court vacates and remands to handle this analysis.
Holding (Custody Factors): The court would also vacate and remand on this issue as well because the factors were not analyzed thoroughly. The court is required to analyze the factors in U.C.A. 30-3-10 and 10.2(2) to determine if the change in location is in the children’s best interest. There are seventeen (17) factors to analyze before the court looks at “any other factor the court finds relevant” plus and additional eight (8) factors if the court determines joint custody is best. Id. “Thus, courts in this situation are statutorily required to ‘consider,’ at least in some form, twenty-five enumerated factors, as well as “any other” relevant factor.” The factors may have different weights in different cases and some may not be relevant at all. District courts do not need to render a “global accounting of all evidence presented or to discuss all aspects of a case that might support a contrary ruling.” But, where significant evidence is presented on a major factor, it must be analyzed. The district court here discussed only three (3) of the twenty-five (25) custody factors.
Holding (Primary Caregiver in Relocations): The court discusses and gives many cases that show that the primary caregiver factor in a relocation case is very important.
Parentage and Paternity
Scott v. Benson, 529 P.3d 319
Supreme Court of Utah
Attorneys: G. Clayton Randle, Benjamin Lusty, Julie Nelson, Alexandra Mareschal, Jeremy Jones, and Jeffrey Jensen
District Court: 3rd District, Honorable Richard McKelvie
Summary: The appellate court affirmed the district court in finding that a non-biological parent did have parental rights despite a fraudulent voluntary declaration of paternity even though the parties were not married at the time of birth. The Supreme Court of Utah affirmed in part, vacated in part, and remanded. Benson was already pregnant when she began dating Scott, and he knew that fact. The parties became engaged and Scott attended the delivery, helped care for Benson and child at the hospital. The biological father passed away shortly after the child’s birth. Scott assumed a paternal role thereafter in many meaningful ways, at least for the first few years of the child’s life. The parties then had a second child, then split up. The parties entered into a stipulated custody arrangement for joint custody of the sibling but both children went on parent-time pursuant to that agreement. After Bensen received a DUI, she had Scott take primary custody of both children for several months. Bensen was having depression and suicidal thoughts and both parties signed a voluntary declaration of paternity for child in case she were no longer around. Scott continued to have joint custody of both children for another year. But, then Benson remarried and wanted her new spouse to adopt child.
Holding (Disregarding DNA Results): The Court of Appeals Correctly Upheld the District Court's Decision to Apply Section 608 in disregarding DNA results. Section 307 provides: After the period for rescission ... has expired, a signatory of a declaration of paternity or denial of paternity, or a support-enforcement agency, may commence a proceeding to challenge the declaration or denial only on the basis of fraud, duress, or material mistake of fact. § 78B-15-307(1). A challenge based on fraud or duress can be brought at any time. Id. § 78B-15-307(3). A challenge based on material mistake of fact can only be brought within four years after the declaration is filed. Id. § 78B-15-307(4). The Act also contemplates that, in some situations, a court can ignore genetic test results when determining paternity. Id. § 78B-15-608. Section 608 permits the district court to do this when “the conduct of the mother or the presumed or declarant father estops that party from denying parentage” and “it would be inequitable to disrupt the father-child relationship between the child and the presumed or declarant father.” Id. § 78B-15-608(1). Section 2 gives factors for this test. These factors include how long a presumed or declarant father acted as a child's father, the nature of the relationship between the child and potential father, and harm to the child if the relationship between the child and potential father is disrupted. Mother argued that moving to this step was wrong because the court already set aside the VDP under fraud. The court discusses the process to read sections 308 and 6 together to determine paternity.
This reading does not create a conflict with the other parts of the statute. The court goes through a deep analysis, which is better read directly from the opinion. The statute provides for what should be done with a man who is properly identified as the father, as well as what should be done for a man who is excluded as the biological father. Therefore, if he is not identified as the biological father, it was proper to move to the next steps.
Offering a non-biological parent access to paternity is not a violation of the mother’s constitutional rights in this case.
Also, the act as applied to the facts of this case do no lead to an absurd result.
Adoption
Matter of Adoption of J.E., 2024 UT App 34
Utah Court of Appeals
Attorneys: Julie J. Nelson, Alexandra Mareschal, Bradley A. Schmidt
3rd District Court, Honorable Judge Matthew Bates
Summary: Mother sought to terminate Father’s rights and have Stepfather adopt the children. The district court found that Father had abandoned the children and granted Stepfather’s adoption. Father had been incarcerated much of the time of the children’s lives. When he was not incarcerated, he visited the children sporadically but did try and communicate with them from time to time. Mother made that difficult but imposing rigid restrictions (such as texting before having a visit), changing phone numbers, and eventually moving without telling Father where they went. The appellate court found that the district court relied impermissibly on generalized concerns of minor child’s need for permanence and reversed.
Holding (Termination): “The right of parents to raise their children is one of the most important rights any person enjoys.” In re D.S., 2023 UT App 98, ¶ 16, 535 P.3d 843. “Before terminating parental rights, a district court must find that (1) ‘one or more of the statutory grounds for termination are present’ and (2) ‘termination of the parent's rights is in the best interests of the child.’” In re L.L.B., 2023 UT App 66, ¶ 17, 532 P.3d 592 (cleaned up). The part at issue in this case is best interest. The best interest analysis must be holistic, and fromt eh child’s perspective, and must consider “the child's physical, intellectual, social, moral, and educational training and general welfare and happiness.” In re L.L.B., 2023 UT App 66, ¶ 21, 532 P.3d 592 (cleaned up). In regard to permanency findings, “categorical concerns about the lack of permanence of an option other than adoption are not enough, otherwise termination and adoption would be strictly necessary across the board.” In re L.L.B., 2023 UT App 66, ¶ 23, 532 P.3d 592 (cleaned up). There was no evidence on the record that stepfather’s love and attachment of the children would change if there were not an adoption. The court does mention, but essentially ignore, the fact that if Mother dies, Stepfather would have an extremely difficult time staying in the children’s lives without the adoption. The court simply directs the Legislature to create a statute like there is for grandparents. The court ignores the fact that no such statute provides that needed protection for the children yet. The court found that the Father’s presence in their life and his attempts to be in their life was not harming the children. He did not pose a threat and was not dangerous to the children.
In re M.A., 2024 UT 6
Supreme Court of Utah
3rd District Court, Honorable Judge Laura Scott
Attorneys: David Pedrazas
Summary: Petitioner wanted to see her adoption records. The district court denied the request. The Supreme Court of Utah remanded to reassess the request.
Holding (Sealed Adoption Records): “An adoption document and any other documents filed in connection with a petition for adoption are sealed” and closed from public view for a century following the adoption. UTAH CODE § 78B-6-141(2), (3)(e). The Legislature has also decided that those sealed adoption records can be inspected or copied when a petitioner has shown “good cause.” See id. § 78B-6-141(3)(c). The Legislature has not, however, defined good cause. This court has implemented the Legislature's “good cause” directive through Utah Rule of Civil Procedure 107(d). That rule instructs a court to determine “whether the petitioner has shown good cause and whether the reasons for disclosure outweigh the reasons for non-disclosure.” UTAH R. CIV. P. 107(d). To clarify, it is the good cause standard that governs this question, not the best interest of the child. The legislature simply said for good cause, it did not dive deeper than that and the court should not infer a deeper more stringent meaning. The district court focused too much on the birth mother’s privacy rights and should weigh the rights of the adoptee as well. In the end, the court does not say one way or another if a general request to see medical history is enough to open the documents. It remands for the analysis.
Third Party Rights
State in Interest of J.J.W., 520 P.3d 38
Court of Appeals of Utah
8th District Court
Summary: The district court terminated father’s rights and granted adoption petition of the maternal grandparents. The appellate court vacated and remanded because of inadequate findings that the termination was strictly necessary and did not consider other possible options short of termination. Mother and father had problems with drug use. They would use, get sober, and then relapse again. Off and on, they sent the children to live with the mom’s mother and her husband. Father was then incarcerated on drug charges. When father got out, he made significant steps in his sobriety and recovery work. But, he did not reach out to the child for a long time. After a time of strong sobriety and recovery work, he started trying to become more involved in the child’s life, but the grandparents would not allow it. The grandparents then filed a petition to terminate his rights. The district court found that at least two statutory basis existed for termination, abandonment and neglect.
Holding (Best Interest/Strictly Necessary): “Before terminating a parent's rights, a court must be satisfied that both parts of a two-part test are met. First, the court must find that one or more statutory grounds for termination are present. See Utah Code Ann. § 80-4-301 (LexisNexis Supp. 2022).” Next, the court must determine if termination is in the child’s best interest. See In re B.T.B., 2020 UT 60, ¶¶ 19–20, 472 P.3d 827. The legislature has guided that it prefers families to stay together, see Utah Code Ann. § 80-4-104(8), also that the termination must be strictly necessary. See id. § 80-4-301(1). “when examining the necessity of termination, to consider whether “sufficient efforts were dedicated to reunification” of the family, and whether “the efforts to place the child with kin who have, or are willing to come forward to care for the child, were given due weight.” See Utah Code Ann. § 80-4-104(12)(b)(i)–(ii). And our supreme court, interpreting this requirement, has made clear that
this part of the inquiry also requires courts to explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent's rights. In some cases, alternatives will be few and unsatisfactory, and termination of the parent's rights will be the option that is in the child's best interest. But in other cases, courts should consider whether other less-permanent arrangements might serve the child's needs just as well. In re B.T.B., 2020 UT 60, ¶ 67, 472 P.3d 827
The could needed to consider more options than simply returning the child to the father’s care. The court should assess a parent’s efforts to improve. There may have been reasons to terminate, but the court needed to focus more on the father’s current situation rather than only past actions. Also, other options the court could have considered were permanent custody and guardianship for grandparents.
“Our supreme court has recently clarified that the mere fact that adoptions—as a category—provide more permanency and stability than guardianships do is not enough to satisfy the statutory “strictly necessary” standard.” See In re J.A.L., 2022 UT 12, ¶ 24, 506 P.3d 606.
“In order to adequately assess strict necessity in these circumstances, the district court must directly confront this question: why does adoption and termination of Father's parental rights better further Child's best interest than a permanent guardianship option? In particular, before it may terminate Father's rights, the court must adequately explain why it is better for Child to have Father cut out of his life forever than to have Father remain involved in his life, perhaps with limited parent-time, pursuant to a guardianship arrangement.5 And the court should approach these questions “from the child's point of view,” rather than from Grandparents’ or Father's point of view.” See In re B.T.B., 2020 UT 60, ¶ 64, 472 P.3d 827.
Stalking and Protective Orders
Anderson v. Deem, 2023 UT App 48
Utah Court of Appeals
Attorneys: Jason B. Fida, Patricia Abbott Lammi, Emily Adams, Freyja Johnson
4th District Court, Honorable Judge Robert A. Lund
Summary: The parties were school-age colleagues. Deem started by posting on social media a suicide threat. Over the next three years, there was the following course of conduct: Deem allegedly posted a “hit list” with Anderson on it, he messaged her directly saying “die bitch,” he sent an apology followed by three hate-filled messages. Anderson asked him to please stop harassing her. He responded with “I’ll be waiting for you in hell” and “F*** Y**” with 529 exclamation points. The temporary stalking injunction entered. However, after Deem objected, it was dismissed. The appellate court reversed and reinstated the injection with directions for the court to reassess it under the proper standard.
Holding (Stalking): “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. Second, that person 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. A district court may enjoin an alleged stalker only if both elements are met.” Ragsdale v. Fishler, 2021 UT 29, ¶ 25, 491 P.3d 835 (cleaned up); see also Utah Code § 76-5-106.5(2)(a).
Holding (Course of Conduct): “a course of conduct does not necessarily involve threatening behavior—as it appears the district court seemed to require in its approach to this case. Rather, a course of conduct merely requires ‘two or more acts directed at or toward a specific individual.’ See Utah Code § 76-5-106.5(1)(a)(i). These acts might well be threatening, but they don't have to be. Instead, they can include ‘acts in which the actor ... communicates to or about an individual,” directly or indirectly and by any means.’” See id. § 76-5-106.5(1)(a)(i)(A). “[E]stablishing a course of conduct is the first step in the stalking analysis. See Ragsdale v. Fishler, 2021 UT 29, ¶ 25, 491 P.3d 835. This step should not be conflated or combined with the second part of the analysis, which involves a determination as to whether the course of conduct would cause a reasonable person fear or emotional distress.” See id. “the district court's consideration of whether fear or emotional distress was associated with each communication was an erroneous distraction in this part of the statutory analysis.”
Holding (Emotional Distress and Fear for Safety): The district court errored when it considered each communication in isolation and found that only one would cause a reasonable person to fear for their safety. Considering the communications in isolation at this step was in error. The district court should have considered the course of conduct cumulatively. “’[A] petitioner must meet an objective—not subjective—standard.’ Baird v. Baird, 2014 UT 08, ¶ 24, 322 P.3d 728. Under this ‘solely objective standard, the subjective effect of the respondent's conduct on the petitioner is irrelevant. Rather, the petitioner must establish only that the respondent's conduct would cause emotional distress to a reasonable person in the petitioner's circumstances.’ Id. ¶ 25. But by ‘including ‘in the victim's circumstances’ as part of the ‘reasonable person’ definition,” the statute “provides for an individualized objective standard,’ meaning that ‘a court must consider the entire context surrounding [the] defendant's conduct.’ Id. ¶ 26; see also State v. Miller, 2023 UT 3, ¶¶ 82, 91, 527 P.3d 1087 (reciting the same standard); Utah Code § 76-5-106.5(1)(a)(v) (defining a reasonable person as “a reasonable person in the victim's circumstances”). Thus, ‘acts that seem perfectly innocent or even well intentioned may constitute stalking. For example, conduct such as sending the victim a dozen roses may seem benign and loving to the casual observer, but could mean a very different thing when understood in the context of the victim's experience.’ Baird, 2014 UT 08, ¶ 26, 322 P.3d 728 (cleaned up). ‘Courts applying this individualized objective standard have considered such factors as the victim's background, the victim's knowledge of and relationship with the defendant, any history of abuse between the parties, ... and the cumulative effect of defendant's repetitive conduct.’” Id. ¶ 27 (cleaned up) (emphasis added); see also Miller, 2023 UT 3, ¶¶ 83–86, 527 P.3d 1087. The district court was flawed because it used an insular rather than wholistic framework.
Miller v. Dasilva, 2022 UT App 15
Court of Appeals of Utah
Attorneys: Steve S. Christensen, Clinton Brimhall, Amy Elizabeth Dasilva (pro se)
District Court: Honorable Judge Robert P. Faust
Summary: The commissioner dismissed a protective order and the petitioner objected. The judge denied the objection without a hearing. The appellate court vacated and remanded stating that “A final judgment on a petition for a cohabitant abuse protective order cannot be entered based on a commissioner's recommendation until the parties are afforded their statutory right to object. If a timely objection is filed, the objecting party is entitled to a hearing before the district court.”
Holding (Right to Hearing w/ Judge): “A commissioner may conduct the required hearing in cohabitant abuse cases and “[m]ake recommendations to the court.” Utah R. Jud. Admin. 6-401(1)–(2)(D).” Either party may object to the commissioner’s recommendation and the assigned judge shall hold a hearing within 20 days after the day on which the objection is filed. Utah Code Ann. § 78B-7-604(1)(f). The judge was incorrect that the commissioner’s recommendation was a final ruling. “[C]ommissioners are prohibited from making ‘final adjudications’” Utah R. Jud. Admin. 6-401(4)(A). “[T]he rule expressly provides that ‘[a] judge's counter-signature on the commissioner's recommendation does not affect the review of an objection.’” Utah R. Civ. P. 108(a).
Noel v. James, 2022 UT App 33
Utah Court of Appeals
Attorneys: Frank Mylar
District Court: Sixth District, the Honorable Marvin D. Bagley
Summary: The court granted a stalking injunction but made no specific findings that James’s course of conduct would have caused a reasonable person in appellee’s position to fear for his safety or suffer emotional distress. Therefore, the injunction was vacated and remanded.
Holding (Stalking Law): “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)
Grounds for Divorce
Nix v. Nix, 2022 UT App 83
Utah Court of Appeals
Attorneys: Seth Needs, D. Grant Dickinson
District Court: Fourth District, the Honorable Darold J. McDade
Summary: Jill’s attorney asked Roland in his deposition if he had extramarital sexual relations “since the marriage.” He refused to answer. The court considered his refusal to answer as an adverse admission. However, the appellate court found that this failure to respond did not give way to sufficient evidence to based the grounds on infidelity.
Holding (Admissibility): “[O]ur supreme court has held that evidence of adultery “subsequent to the filing of a divorce complaint is inadmissible for the purpose of establishing grounds for divorce,” though it can be “admissible as lending weight to and corroborating testimony as to prior acts of infidelity.” Vrontikis v. Vrontikis, 11 Utah 2d 305, 358 P.2d 632, 632 (1961).
Holding (Adultery as Ground for Divorce): The court was required to find some evidence that Roland had committed adultery before Jill filed her divorce. Even if the court adopted and adverse inference from the disposition, it still did not establish when the sexual relationship happened. Therefore, it was not enough to show that it was the reason for the divorce.
Child’s Last Name
Bowers v. Burkart, 2022 UT App 132
Utah Court of Appeals
Attorneys: Emily Adams, Sara Pfrommer, Julie Nelson, Taylor Webb, Melissa Patton Greene
District Court: Fourth District, the Honorable Robert A. Lund
Summary: The parties divorced before the child was born and mom put her name on the birth certificate. Father moved out of state and was not present for the child’s birth. He had never met the child, blaming the mother for lack of communication. In the divorce, mother was awarded sole custody and father was awarded supervised visits. Father moved the court to change it to his last name and the district court. The district court did change the child’s name to the father’s last name. The appellate court reversed because the decision was based on speculative facts.
Holding (Child’s Last Name): The controlling case is Hamby v. Jacobson, 769 P.2d 273 (Utah Cr. App. 1989). Under that case, “a court may consider (1) “the child's preference in light of the child's age and experience”; (2) “the effect of a name change on the development and preservation of the child's relationship with each parent”; (3) “the length of time a child has used a name”; (4) “the difficulties, harassment or embarrassment a child may experience from bearing the present or proposed name”; and (5) “the possibility that a different name may cause insecurity and lack of identity.” The court holds that these factors provide direction, but the ultimate inquiry is whether the change is in the child’s best interest, which may require the court to address other factors. “the Hamby factors should be considered when relevant, ignored when not, and given appropriate weight according to the circumstances.”
Holding (Custodial Presumption): It was error for the court to presume that holding the father’s name was in the child’s best interest because the father is the non-custodial parent and therefore their relationship would gain a boost from such change. This is wrong. There is no presumption based on custody for name change. “[T]he development of a bond between father and daughter will depend on the love and devotion that father exhibits toward his daughter, not on whether the child bears his name.” Doherty v. Wizner, 210 Or.App. 315, 150 P.3d 456, 465 (2006).
Holding (Norms and Customs): The district court based its decision at least partly on the norms of taking a father’s last name. The court has some doubts about using the claim of illegitimacy as a best interest factor in name changes. The “best interests of the child should not be used as a subterfuge to nevertheless perpetuate the paternal preference.” Citing to Hamby.
Holding (Parents’ Motives): Facts of a parent spending time with the child, paying support, or otherwise being engaged can be used to show a parent’s motive in a name change position. They cannot be used as incentive for a name change, but motive is fine.
Holding (Burden in Name Change Case): Because of the need for stability, the parent seeking to change the child’s name shall have the burden of proof in a name change case.
Holding (History of Cases): This case gives several helpful cases that involve child name changes.
Dicta (Unsigned “Affidavit”): The court calls into question a motion that is titled as “authenticated” and has an electronic /s/ signature, but does not have an actual signature and does not separate the legal arguments from the declaration/affidavit facts. There is question about whether these facts can be taken as truth since they are not properly separated from the legal arguments and are not signed under oath. Nonetheless, the appellate court finds that even taking all of the purported facts to be true, the decision should still be reversed.
Property Division
McFarland v. McFarland, 2024 UT App 31 (2nd appeal on this case)
Utah Court of Appeals
Attorneys: Angilee K. Dakic, Jacob K. Cowdin
2nd District Court, Honorable Judge David J. Williams
Summary: In the parties’ divorce settlement, Wife was awarded the home but was to make the payments on it. She was also required to pay Husband $12,034 if one of several things occurred (including abandoning the home). Several of the triggering factors had long since occurred. Wife did not pay the bills on the house and she had abandoned the house. But, she never paid Husband his lump sum amount. Husband moved back into the home. For seven years, Husband lived in the home and paid all of the bills Wife was supposed to pay on it. He also stopped paying alimony. Neither seemed bothered by this arrangement. Husband finally filed a petition to modify. Wife responded with a motion to hold him in contempt for various things stemming from their arrangement. The court did order Husband to pay Wife alimony arrearages, but did not hold him in contempt. The court agreed in the Husband’s equitable remedy arguments of waiver and laches and found that there was a change in circumstances and then awarded the home to Husband. The court granted Husband attorney fees under the bad faith statute U.C.A. § 78B-5-825. The appellate court affirmed the changed award of the home, but reversed on attorney fees.
Holding (Laches): “Laches” is an equitable doctrine “founded upon considerations of time and injury.” Insight Assets, Inc. v. Farias, 2013 UT 47, ¶ 17, 321 P.3d 1021 (quotation simplified). The thing that the doctrine is concerned about “is not mere delay, but delay that works a disadvantage to another.” Id. (quotation simplified). “In Utah, laches traditionally has two elements.” Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne, 2012 UT 66, ¶ 29, 289 P.3d 502. First, the party claiming laches must demonstrate that the other party “unreasonably delayed in bringing” a claim. See Veysey v. Nelson, 2017 UT App 77, ¶ 8, 397 P.3d 846 (quotation simplified), cert. denied, 400 P.3d 1046 (Utah 2017). Second, the party claiming laches must demonstrate that it “was prejudiced by that delay.” Id. (quotation simplified); see also Laches, Black's Law Dictionary (11th ed. 2019) (defining “laches” as “[t]he equitable doctrine by which a court denies relief to a claimant who has unreasonably delayed in asserting the claim, when that delay has prejudiced the party against whom relief is sought”). Here, wife concedes the first element. So the court only analyzes whether the delay caused prejudice to Husband. In this case, the court found that both parties delayed litigating the issue. However, it was only Wife’s delay that caused any harm. And, it did cause harm because Husband had spent years putting money into the house during the delay. The court agrees that the court could have also gone the other way on the determination, but just because it chose one way over the other does not rise to the level of abuse of discretion.
Holding (Unclean Hands): Wife claims unclean hands because Husband was not paying alimony. However, she never raised this below so it is waived.
Lamb v. Lamb, 2024 UT App 16
Utah Court of Appeals
Attorneys: Mary Deiss Brown, Gregory G. Skordas, Gabriela Mena, Allison R. Librett
3rd District Court, Honorable Judge Robert P. Faust
Summary: Wife appeals the district court award of custody to Father as well as the award of the business and division manner the court used to determine equity in the marital home.
Holding (Home Division-Debts): The parties purchased the home from a friend of a friend and they knew when they purchased it that the home had certain unspecified tax debts on it. They agreed to assume those tax debts of the previous owners when they bought the home. The court deducted those tax debts, along with the other debts on the home, from the equity before awarding it to Husband. This was not in error. “In divorce actions, a district court is permitted considerable discretion in adjusting the financial and property interests of the parties, and its actions are entitled to a presumption of validity.” Gardner v. Gardner, 2019 UT 61, ¶ 18, 452 P.3d 1134 (cleaned up).
Holding (Separation vs. Decree Timing): The court based the mortgage on what it was at the time of separation, rather than the time of trial, apparently because of Husband’s extra-ordinary efforts to pay down the house during separation. “Generally, the marital estate is valued at the time of the divorce decree or trial. However, in the exercise of its equitable powers, a trial court has broad discretion to use a different date, such as the date of separation, when circumstances warrant. If the trial court uses a date other than the date of the divorce decree, it must support its decision with sufficiently detailed findings of fact explaining its deviation from the general rule.” Rothwell v. Rothwell, 2023 UT App 50, ¶ 39, 531 P.3d 225. Here, the court’s findings on this matter were adequate.
Holding (Zillow Estimate): Wife complains that the Court based its value of the home on a Zillow Estimate. However, it was her own counsel who suggested using Zillow in open court to look up the value. There was nothing else provided at trial on which to value the home.
Cox v. Cox, 2023 UT App 62
Utah Court of Appeals
Attorneys: Brett D. Cragun, Jarrod H. Jennings
4th District Court, Honorable Judge Lynn W. Davis
Summary: This is a mess of a case with very complicated facts and inconsistent and underdeveloped findings and holdings. The appellate court goes through many issues of property and support and directs the district court to fix many issues. In short, the parties were married for over twenty (20) years. They had ten (10) children, five (5) of whom were still minors.
Holding (Property Findings): The court discussed at length why it could not make determination, such as how much marital value actually existed in a Trust that held the parties’ first home, which Husband built before the marriage. The court errored in awarding random values to Wife for this property. It is required that it show the steps it took in rendering such an award. On the other properties in the case, many had to be disposed of in short sales. Wife argued that this was due to Husband’s unwillingness to manage them, such as rent them out. The court had difficulty valuing the properties due to inadequate appraisals and the court also seemed to mix, without analysis, Wife’s dissipation claims in to the divisions. The divisions, therefore, were fairly random without demonstration of how the court arrived at the values. The appellate court remands for adequate findings.
Clark v. Clark, 2023 UT App 111
Utah Court of Appeals
Attorneys: Karra J. Porter, Kristen C. Kiburtz, Julie J. Nelson
4th District Court, Honorable Judge Jennifer A. Brown (now Mabey)
Summary: Parties were divorcing. Husband appeals the district court’s exclusion of evidence based on his failure to provide timely pretrial disclosures. The appellate court affirms in part and reverses in part.
Holding (Dissipation): Husband claims that Wife dissipated hundreds of thousands of from his retirement savings while he was working as a contractor in Afghanistan. The court disagreed and the court of appeals affirmed. “’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). “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. Only after presenting the trial court with evidence tending to show that Wife had dissipated marital assets does the burden shift to Wife to show that the funds were not dissipated, but were used for some legitimate marital purpose. Husband only testified in conclusory and cryptic terms about what he felt was dissipation years before the separation. All of his evidence that he felt demonstrated his point had been excluded for failure to propertly disclose it (only 11 days before trial). This is not enough to meet the initial threshold to shift the burden to Wife.
Holding (Property Purchased During Separation): Husband failed to meet his burden regarding the Harley Davidson he purchased during separation, arguing that it was separate property. The general rule is that the marital property acquired during the pendency of the divorce is still marital. Husband did not meet his burden to show that he used separate property to acquire the Harley.
Holding (Funds Withdrawn During Case): Husband withdrew $30,000 from a marital account during the case. The court found that this was marital and awarded Wife her share. The is remanded for further findings because there is not enough evidence to know if that money was spent on marital expenses (and therefore legitimately already distributed to Wife) or spent on separate expenses, such as travel or the Harley, in which case, Wife needs to be compensated.
Knight v. Knight, 2023 UT App 86
Utah Court of Appeals
Attorneys: Julie J. Nelson, Taylor Webb, Stephen C. Clark, Bart J. Johnsen, Alan S. Mouritsen
3rd District Court, Honorable Judge Robert P. Faust
Summary: This case involves issues of a trust in a divorce case and several alimony issues.
Holding (Inheritance/Trust): Husband’s father created an irrevocable trust before the marriage with the Husband as the sole beneficiary. The parties were then married. The parties then signed a property agreement that combined all of their property into marital assets, excluding inheritance later received. The trust was decanted and adjusted so that Husband could make withdrawals. Wife argued that Husband already owed the trust and therefore it was marital. Husband argued under Arizona law (law of the trust) that he did not yet have the trust property because it has not yet disbursed anything to him when they made the agreement. The trial court held that the Husband did not yet have the assets in the trust when the parties entered into the property agreement, and therefore, the trust was not subject to marital division. The appellate court affirmed.
Knowlton v. Knowlton, 2023 Ut App 16
Utah Court of Appeals
Attorneys: Julie J. Nelson, Troy L. Booher, Alexandra Mareschal, Jon M. Memmott, Shaun L. Peck, Shawn P. Bailey
2nd District Court, Honorable Judge David M. Connors
Summary: This is a divorce case with many business and property distribution issues that are addressed in turn.
Holding (Premature Partial Distributions): During the case, the parties entered into a stipulated temporary order that gave both “premature partial distributions” from their property. Wife bought two homes with her funds. Husband claimed at trial he was entitled to appreciation on those homes. The court disagreed because their agreement was that the distributions would be treated as separate property. The appellate court affirmed.
Oldroyd v. Oldroyd, 2022 UT App 145 (this is the third time this has come before the court)
Appellate Court of Utah
Attorneys: Brent D. Wride, Brian E. Arnold
District Court: 2nd District, Honorable Judge Noel S. Hyde
Summary: The parties built a home on Wife’s premarital land with Wife’s separate funds for the materials and contractors. Husband contributed his skills and labor to the home. The district court awarded Husband marital share in the premarital equity in the home on the grounds of the contribution and extraordinary situation exceptions. The appellate court reversed and remanded with instructions that the premarital property be awarded solely to Wife.
Holding (Contribution Exception): “Under the contribution exception, a spouse's separate property may be subject to equitable distribution [upon divorce] when the other spouse has by his or her efforts or expense contributed to the enhancement, maintenance, or protection of that property, thereby acquiring an equitable interest in it.” Lindsey v. Lindsey, 2017 UT App 38, ¶ 35, 392 P.3d 968 (quotation simplified). The case gives common examples such as working for the other spouse without salary, using marital funds to make improvements or to pay a mortgage. But, the court had never before taken up the issue of premarital contributions. This case presents that opportunity and finds that it does not apply in this context. Husband had several legal avenues to protect his interest that he chose not to take advantage of such as a contract or prenuptial agreement. Or, he could have filed a lawsuit alleging unjust enrichment, to obtain compensation for his services.
Holding (Extraordinary Situation Exception): “The bar for establishing an extraordinary situation is high, traditionally requiring that invasion of a spouse's separate property is the only way to achieve equity.” Lindsey v. Lindsey, 2017 UT App 38, ¶ 46, 392 P.3d 968 (quotation simplified). “A quintessential extraordinary situation arises when a spouse owns separate property but lacks income to provide alimony.” Id. In that circumstance, “an equitable distribution of the [separate property] would be well within the trial court's discretion.” Kunzler v. Kunzler, 2008 UT App 263, ¶ 37, 190 P.3d 497. “The doctrine has also been applied in situations where a person did not contribute directly to their spouse's premarital asset but their contributions to the marital estate allowed their spouse to enhance their own separate assets rather than the marital estate.” See Henshaw v. Henshaw, 2012 UT App 56, ¶ 20 & n.7, 271 P.3d 837. Where a spouse focuses solely on enhancing their separate property rather than focusing time on enhancing marital property, this exception may apply, the case gives various examples. Again, Husband had other avenues to seek redress that he did not employ. So, the Extraordinary Situation Exception does not apply here.
Note: Wife has never disputed that Husband should get ½ of the equity gained through the home’s appreciation during the marriage.
Previous Remands: The district court originally held that the premarital property was marital because husband’s contributions were roughly equal to wife’s monetary contributions. It was remanded because there was no legal theory to support this ruling. On remand, the court held that it fit under unjust enrichment. This was again remanded because husband never claimed unjust enrichment. It is now before the court on the theories of the contribution and extraordinary situation exceptions. The appellate court here finds that the situation does not meet those standards and again remands.
Holt v. Holt, 2024 UT App 6
Utah Court of Appeals
Attorneys: Ben W. Lieberman, Matthew A. Steward, Katherine E. Pepin
District Court: 3rd District, Honorable Andrew H. Stone
Summary: The parties entered into a stipulated divorce in 2004. Wife was awarded commercial property where she ran a salon and Husband was awarded an equity interest in the property redeemable “when the property is sold.” However, there was no timeframe for selling the property. Husband brought a petition to modify, which was dismissed for lack of change of circumstances. He then brought a motion to enforce the decree under a reasonableness standard for the time period.
Holding (Undefined Sale Date): Under Utah law, a reasonable time for performance will be implied if a contract fails to include a specific time for performance. In this case, the Appellate Court found that a reasonable time for sale of the property extends to the time when Wife ceases to operate a salon on the property.
“A stipulated divorce decree represents an enforceable contract between divorcing spouses, and so “we interpret the parties’ decree according to established rules of contract interpretation.” Thayer v. Thayer, 2016 UT App 146, ¶ 17, 378 P.3d 1232 (quotation simplified). Of course, “the cardinal rule in contract interpretation is to give effect to the intentions of the parties as they are expressed in the plain language of the contract itself,” and “we construe a contract to give effect to the object and purpose of the parties in making the agreement.” New York Avenue LLC v. Harrison, 2016 UT App 240, ¶ 21, 391 P.3d 268 (quotation simplified)” “our principles of contract interpretation further provide “that if a contract fails to specify a time of performance the law implies that it shall be done within a reasonable time under the circumstances,” id. ¶ 32 (quotation simplified), which analysis entails a question of fact, see iDrive Logistics LLC v. IntegraCore LLC, 2018 UT App 40, ¶ 55, 424 P.3d 970, cert. denied, 425 P.3d 803 (Utah 2018).” In New York Avenue, if a contract fails to specify a time of performance the law implies that it shall be done within a reasonable time under the circumstances.
The reasonableness of the timeframe will be determined by the facts and relevant circumstances in the case. But, the appeals court did not have the benefit of the transcripts, so it had very few facts. The court found it important that neither party was awarded alimony and that must have been based on Wife’s ability to run her business from the property.
Mintz v. Mintz, 2023 UT App 17
Utah Court of Appeals
Attorneys: Julie J. Nelson; Alexandra Mareschal; Thomas J. Burns; Aaron R. Harris
District Court: Silver Summit, the Honorable Kent R. Holmberg
Summary: Deals with a twenty year high income marriage. The case deals with alimony, property division, and dissipation.
Holding (Dissipation/Waste): The district court found that Husband had dissipated $75,000 on his affair but did not award wife half of that amount. The issue is remanded to properly distribute half of the dissipation back to wife.
Holding (Appreciation Since Decree): The property was not distributed quickly after the divorce and wife wants to be awarded the appreciation on her amounts. The motion to enforce was substantively a motion to amend the decree. The district court was correct that it lost jurisdiction over such a motion when the appeal was taken.
Nakkina v. Mahanthi, 496 P.3d 1173 (2021)
Utah Court of Appeals
Attorneys: Eric K. Johnson, Kelli J. Larson
District Court: 3rd District, Honorable Barry Lawrence
Summary: Wife testified about gifts husband gave her during the marriage including diamond necklace, earrings, other jewelry with an estimated combined value of between $15,000 and $18,000. The court awarded the jewelry to wife without giving a credit to father because they were gifts during the marriage.
Holding (Personal Property/Gifts): In distributing property in a divorce proceeding, “[t]he presumption is that marital property will be divided equally while separate property will not be divided at all.” Lindsey v. Lindsey, 2017 UT App 38, ¶ 32, 392 P.3d 968. Citing Burke v. Burke, 733 P.2d 133 (Utah 1987), the trial court concluded that “gifts given during the marriage are not marital property and need not be divided in the event of divorce.” But Burke involved an inheritance received by one spouse during the marriage, not a gift from one spouse to the other purchased with marital funds. As a general rule, courts “award property acquired by one spouse by gift and inheritance during the marriage (or property acquired in exchange thereof) to that spouse, together with any appreciation or enhancement of its value,” unless the property has been commingled or the other spouse has acquired an equitable interest in the property by contributing to its enhanced value. Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988). Gifts and inheritance to an individual spouse are treated as separate property because they are “not acquired through the joint efforts of the parties.” See Preston v. Preston, 646 P.2d 705, 706 (Utah 1982) (cleaned up); see also Mortensen, 760 P.2d at 307 (explaining that “property which comes to either party by avenues other than as a consequence of their mutual efforts owes nothing to the marriage and is not intended to be shared” (cleaned up)).
But this rule applies only to gifts received during the marriage from an outside source. It does not apply when one spouse uses marital funds to purchase property, regardless of whether those purchases are designated as a “gift” from one spouse to another. See Morris v. Morris, 2005 UT App 435U, para. 3, 2005 WL 2596456 (holding that the district court acted within its discretion in valuing “gifts” from one spouse to another as marital property when one spouse “purchased the gifts during their marriage, using marital funds to do so”). In such circumstances, both the gifting and receiving spouse have a pre-existing right of ownership in the marital assets used to acquire the property. A purchase financed with marital funds already belonging to both spouses is not a “gift” in the sense used in our case law.
Martin v. Kristensen, 2021 UT 17
Supreme Court of Utah
Attorneys: Karthik Nadesan; R. Stephen Marshall; Kevin M. Paulsen
District Court: 3rd District, Honorable Todd Shaughnessy
Summary: The parties filed a petition for divorce. Wife was awarded temporary possession of the home, but husband asserted that the home belonged to his father and filed an unlawful detainer action against wife. In the property case, the court entered a substantial award to husband’s father for unlawful detainer. The appellate court and supreme court upheld the award.
Holding (Unlawful Detainer): Neither the divorce court nor the unlawful detainer court had any greater authority than the other. But, the unlawful detainer court was not bound by the divorce court and have every right to enter orders pursuant to that law. Wife did not avail herself of the expedited process for the property case that helps tenants avoid treble damages. Instead, she drug the property case out. The case then goes on to explain the property law on the matter.
Wadsworth v. Wadsworth, 2022 UT App 5
Utah Court of Appeals
Attorneys: Michael Zimmerman, Troy Booher, Julie Nelson, Clark Sessions, T. Mickell Jimenez, Marcy Glenn, and Kristina van Bockern
District Court: 3rd District, Honorable Judge Su Chon
Summary: The parties were married in 1979 and husband started a construction business in 1991. The parties owned various businesses including a hotel and two restaurants. The various appeals deal with the issues raised in the cases.
Holding (Delaying Payout to Wife): The Husband had 5 years to pay wife out of the bulk of her share of the estate while he received his share immediately. “When the district court assigns a value to an item of marital property, the court must equitably distribute it with a view toward allowing each party to go forward with his or her separate life.” Marroquin v. Marroquin, 2019 UT App 38, ¶ 27, 440 P.3d 757 (quotation simplified). In situations where the marital estate consists primarily of a single large asset, such as a business or stock, a common acceptable approach for the court to take is to award the asset to one party and make a cash award to the other party. See Taft v. Taft, 2016 UT App 135, ¶ 56, 379 P.3d 890; Argyle v. Argyle, 688 P.2d 468, 471 (Utah 1984). This avoids the necessity for the parties “to be in a close economic relationship which has every potential for further contention, friction, and litigation.” Argyle, 688 P.2d at 471 (quotation simplified). In fashioning this type of marital property division, “a court has the ability to make equitable provisions for deferred compensation”—the keyword being “equitable.” Taft, 2016 UT App 135, ¶ 60, 379 P.3d 890. One way to assess the equitability of the provisions is to examine whether the award affords one party “significantly more latitude to go forward with his [or her] separate life” than the other. Id. ¶ 61 (quotation simplified). It is also relevant whether the party required to pay the deferred compensation will be able to use the property to their unfair advantage at the expense of the person to whom the compensation is owed. Id. ¶¶ 59–60. The district court was within its discretion to create a delayed reward here, so long as adequate security for the unpaid equalization payments is included. Wadsworth is different from Taft because in Taft Husband could pay next to nothing until the balloon payment. In Wadsworth, the husband was required to pay $30,000 a month plus $500,000 a year until the balloon payment in addition to an up front amount of $4.7 million. This was not so inequitable to fall outside of the court’s discretion.
Holding (Interest): In Taft, the interest of 2.13% was so low that it incentivized husband not to pay wife her share. In Wadsworth, the court used 5% interest rate, which was higher than the statutory post judgment rate, which was an acceptable incentive. In response to Husband’s request, the court was not bound by the postjudgment rate established by U.C.A. § 15-1-4. That code does apply to divorce cases. Marchant v. Marchant, 743 P.2d 199. However, that code only provides the “minimum” allowed. It can be more when reasonable and equitable. Stroud v. Stroud, 738 P.2d 649. In fact, using the minimum may be an abuse of discretion if it creates an unequitable award as in Taft (where the low interest rate created a disincentive for the Husband to pay the Wife her share of the estate). Wife, on the other hand, wanted the Court to use the 10% rate for forbearances from U.C.A. § 15-1-1(2). The district court was within its discretion to not use that rate either.
Holding (Security): The only way the delayed payout is viable is if it comes with security. It was error for the court to not secure Candi’s assets until she is fully paid out. regardless of Guy's history, character, or intentions, she should not be required to rely solely on Guy's continued health and goodwill to ensure her ability to collect what she is owed. “Whether Candi's mistrust of Guy is warranted or not, it was unreasonable for the court not to grant her any type of security in her half of the marital estate.”
Holding (Transaction Costs): The court was affirmed in not awarding Husband transaction costs of paying out Wife because such costs were speculative. Alexander v. Alexander, 737 P.2d 221. Moreover, the delay allowed was exactly the remedy meant to help diminish transaction costs, giving Husband time to find the best way to unwind Wife’s share.
Labon v. Labon, 2022 UT App 103
Utah Court of Appeals
Attorneys: Julie Nelson, Alexandra Mareschal, Jaclyn Jane Robertson, Karra Porter, and Kristen Kiburtz
District Court: 3rd District, Kent Holmberg
Summary: In a divorce, the appellate court found it equitable to award wife significant cash resources and award husband significant whole life policy resources. The reason was because husband was using the whole like insurance policies as leverage to borrow money and make more money. This is how he made money during the marriage and how he planned to continue to make money to provide support.
Holding (equitable division process): “In making this division, the “court should engage in a four-step process”: (1) “distinguish between separate and marital property,” (2) “consider whether there are exceptional circumstances that overcome the general presumption that marital property should be divided equally between the parties,” (3) “assign values to each item of marital property,” and (4) ‘distribute the property in a manner consistent with its findings and with a view toward allowing each party to go forward with his or her separate life.’” Taft v. Taft, 2016 UT App 135, ¶ 33, 379 P.3d 890 (cleaned up). in making the equitable distribution, the court should “generally” consider “the amount and kind of property to be divided.” Burke v. Burke, 733 P.2d 133, 135 (Utah 1987). As concerns the type of property, “[i]n situations where the marital estate consists primarily of a single large asset, such as a business or stock, a common acceptable approach for the court to take is to award the asset to one party and make a cash award to the other party.” Wadsworth v. Wadsworth, 2022 UT App 28, ¶ 79, 507 P.3d 385, petition for cert. filed, May 6, 2022 (No. 20220412). Doing so avoids the obviously undesirable situation that forces former spouses “to be in a close economic relationship which has every potential for further contention, friction, and litigation, especially when third parties having nothing to do with the divorce will also necessarily be involved.” Argyle v. Argyle, 688 P.2d 468, 471 (Utah 1984) (cleaned up). Moreover, a court should consider the “tax consequences” associated with the division of marital property if one of the parties “will be required to liquidate assets to pay marital debts.” Morgan v. Morgan, 795 P.2d 684, 690 (Utah Ct. App. 1990). But the court is under “no obligation to speculate about hypothetical future tax consequences.” Id. (cleaned up). Thus, “[w]hen settling property matters, the trial court may decline to consider the speculative future effect of tax consequences associated with sale, transfer, or disbursement of marital property.” Id. at 689. In other words, “[t]here is no abuse of discretion if a court refuses to speculate about hypothetical future tax consequences of a property division made pursuant to a divorce.” Howell v. Howell, 806 P.2d 1209, 1213–14 (Utah Ct. App. 1991); see also Alexander v. Alexander, 737 P.2d 221, 224 (Utah 1987)
Holding (Life Insurance as Asset): The Court found that awarding Peter the whole life insurance policy while giving the wife cash was an equitable division because Peter had been using the whole life insurance policy as leverage to take loans and make money on it. This was how he earned a living and he testified that he planned to earn a living the same way as he did before. It was reasonable for the court to find that he needed the life insurance account to continue to do what he had previously done with it. Not enough evidence was presented at trial to require the court to consider the tax consequences of such an award and it need not speculate about such tax consequences, especially when he was not ordered to liquidate the asset and had used it before to make money without tax consequences.
Holding (Business Loan not Substantiated): Peter claimed that his mother’s $500,000 contribution to his hedge fund was a loan that he had to pay back. The district court did not find any evidence of this and refused to rely on Peter’s testimony alone about this. The court found that the $500,000 belonged to the parties’ hedge fund and awarded the business to Peter (without giving him credit for a loan to his mother). The court did this because there was no evidence documentary evidence of the transaction, mother had not testified about it, investment in Peter’s name, mother’s name not anywhere on the investment, no tracing of the receipt of the money into the hedge fund.
Life Insurance Description: “Generally speaking, there are two categories of life insurance: whole life insurance and term life insurance. Term life insurance protects the policyholder for a specified period of time. Whole life policies, by contrast, remain in existence throughout the life of an insured. In general, premiums on term insurance policies pay only for the cost of providing the insurance, while at least some whole life policies have some type of participatory investment or savings feature.” U.S. Bank Nat'l Ass'n v. PHL Variable Ins. Co., Nos. 12 Civ. 6811(CM)(JCF), 13 Civ. 1580(CM)(JCF), 2014 WL 2199428, at *1 (S.D.N.Y. May 23, 2014); see also Life insurance, Black's Law Dictionary (11th ed. 2019) (defining whole life insurance as “[l]ife insurance that covers an insured for life, during which the insured pays fixed premiums, accumulates savings from an invested portion of the premiums, and receives a guaranteed benefit upon death, to be paid to a named beneficiary” and stating “[s]uch a policy may provide that at a stated time, premiums will end or benefits will increase”). Labon v. Labon, 2022 UT App 103, 517 P.3d 407, 409.
Debt
Cox v. Cox, 2023 UT App 62
Utah Court of Appeals
Attorneys: Brett D. Cragun, Jarrod H. Jennings
4th District Court, Honorable Judge Lynn W. Davis
Summary: This is a mess of a case with very complicated facts and inconsistent and underdeveloped findings and holdings. The appellate court goes through many issues of property and support and directs the district court to fix many issues. In short, the parties were married for over twenty (20) years. They had ten (10) children, five (5) of whom were still minors.
Holding (Debts): “In issuing a divorce decree, a trial court must include an order specifying which party is responsible for the payment of joint debts, obligations, or liabilities of the parties contracted or incurred during marriage.” Fox v. Fox, 2022 UT App 88, ¶ 32, 515 P.3d 481 (quotation simplified), cert. denied, 525 P.3d 1263 (Utah 2022); see also Utah Code § 30-3-5(3)(c)(i). Utah law “requires only a fair and equitable, not an equal, division of the marital debts.” Fox, 2022 UT App 88, ¶ 32, 515 P.3d 481 (quotation simplified). A district court is in the “best position to weigh the evidence, determine credibility and arrive at factual conclusions”; as a result, a district court's division of marital debts is “entitled to a presumption of validity.” Mullins v. Mullins, 2016 UT App 77, ¶ 20, 370 P.3d 1283 (quotation simplified). But, again, the district court must enter findings of fact that are “sufficiently detailed to disclose the steps by which [it] reached its ultimate conclusion on each issue.” Oldroyd, 2017 UT App 45, ¶ 5, 397 P.3d 645. Here, the court did not make adequate findings to show how it came to the division of debt awards in this case. It is remanded for additional findings.
Fox v. Fox, 2022 UT App 88
Utah Court of Appeals
Attorneys: Lincoln Harris, Kari Dickinson, Adam Caldwell, Chantelle Petersen
District Court: 5th Circuit, Matthew Bell
Summary: Husband was a neurosurgeon earning $110,000 a month in Utah working 80-100 hour work weeks. He moved to Florida during the case and his salary went down to $80,000 a month. The court found that he was not underemployed. Wife appealed on various issues and the court affirmed on all issues.
Holding (debt): The court was affirmed in awarding Wife $181,000 in debt to her father and then balancing that out with a line item payment for the servicing of the debt in her alimony calculation. The counter balance was that the court awarded Husband $145,000 in debt on his medical school debt and giving her other balancing awards.
Marital Waste/Dissipation
Erickson v. Erickson, 2022 UT App 27
Utah Court of Appeals
Attorneys: Albert Pranno, Jordan Putnam
District Court: Third District, the Honorable Todd Shaughnessy
Summary: Couple married for 34 years and in anticipation of the divorce, wife engaged in scheme to dissipate assets and devalue the marital estate. By engaging in fraudulent and fake business relationship with one of her friends, wife dissipated $2,247,274. The District Court sanctioned her in various ways. She appeals.
Holding (Late Expert Disclosure): Wife did not disclose her valuation expert witness until the day before Thanksgiving, less than 5 days before trial and did not give the report to the other side. The court heard the witness’s testimony but ultimately excluded it under Utah R. Civ. P. 26(d)(4). The decision to exclude the late expert was proper and affirmed.
Holding (Goodwill – Personal or Institutional): The district court did not include wife’s goodwill in its value of the company. Wife was a pharmacist and manager of the parties’ veterinary medicine company. “When valuing a business in marriage dissolution cases, district courts must consider whether goodwill is institutional or personal to one spouse.” See *829 Marroquin v. Marroquin, 2019 UT App 38, ¶ 15, 440 P.3d 757. Goodwill is personal when the business “is dependent for its existence upon the individual who conducts the enterprise and would vanish were the individual to die, retire or quit work.” Stevens v. Stevens, 754 P.2d 952, 956 (Utah Ct. App. 1988). Personal goodwill is based on an individual's “reputation for competency.” Marroquin, 2019 UT App 38, ¶ 15, 440 P.3d 757. And unlike institutional goodwill, personal goodwill is not subject to distribution in the marital estate.” Id. The district court rightly concluded that there was not any personal goodwill in the company. The court rightly rejected the claim that the company was essentially a sole proprietorship given the many employees and extent of operations (national medication sales).
Holding (Sanctions): The district court assigned the receiver’s fees as well as husband’s attorney fees to wife as sanctions for her fraudulent dissipation of the estate. “[W]hen a court imposes an award of fees or costs as a sanction, its award must be limited to the amount actually incurred by the other party” as a result of the sanctionable conduct. Goggin v. Goggin, 2013 UT 16, ¶ 36, 299 P.3d 1079. The court was not allowed to award attorney fees that exceeded those caused by the sanctionable conduct. Because all of the attorney fees were awarded, the matter is remanded to determine which of the attorney fees were a result of the sanctionable conduct.
Fox v. Fox, 2022 UT App 88
Utah Court of Appeals
Attorneys: Lincoln Harris, Kari Dickinson, Adam Caldwell, Chantelle Petersen
District Court: 5th Circuit, Matthew Bell
Summary: Husband was a neurosurgeon earning $110,000 a month in Utah working 80-100 hour work weeks. He moved to Florida during the case and his salary went down to $80,000 a month. The court found that he was not underemployed. Wife appealed on various issues and the court affirmed on all issues.
Holding (dissipation of marital assets): The court awarded wife $10,000 extra for any disapation of marital assets from the Husband.
Wadsworth v. Wadsworth, 2022 UT App 5
Utah Court of Appeals
Attorneys: Michael Zimmerman, Troy Booher, Julie Nelson, Clark Sessions, T. Mickell Jimenez, Marcy Glenn, and Kristina van Bockern
District Court: 3rd District, Judge Su Chon
Summary: The parties were married in 1979 and husband started a construction business in 1991. The parties owned various businesses including a hotel and two restaurants. The various appeals deal with the issues raised in the cases.
Holding (Dissipation): “Where one party has dissipated an asset, hidden its value or otherwise acted obstructively, the trial court may, in the exercise of its equitable powers, value a marital asset at some time other than the time the decree is entered ....” Goggin v. Goggin, 2013 UT 16, ¶ 49, 299 P.3d 1079 (quotation simplified). In other words, “when a court finds that a spouse has dissipated marital assets, the court should calculate the value of the marital property as though the assets remained” and give “the other spouse ... a credit for his or her share of the assets that were dissipated.” Id. A number of factors may be relevant to this inquiry, including
(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. Marroquin v. Marroquin, 2019 UT App 38, ¶ 33, 440 P.3d 757 (quotation simplified).
Holding (Dissipation – Buying a Depreciating Asset): The court was within its discretion to not consider the purchase of the yacht dissipation. The debt was assigned solely to husband. But the fact that that boat depreciated wildly since it was purchased during the divorce, this type of purchase was not out of the ordinary for Husband. Not included as dissipation.
Holding (FDFM): Husband bought a company during the divorce and Wife thought it should be valued for what he paid $1,129,000 not the $734,000 it was worth at the time of divorce. However, the court found that the mere fact that Husband failed to disclose it was not an obstructive act. Husband never consulted with Wife on any business decisions. Even where a party has acted obstructively, it is within the district court’s discretion how to value that obstruction in regard to the asset.
Dissipation (Trust Transfers): Husband transferred $4 million in to the children’s trusts during the parties’ reconciliation, before he confessed the affairs. The appellate court held that the court could have compensated her for those transfers had it found dissipation. But, the court was not required to do so.
Holding (Dissipation – Expenses Spent on Girl Friend): The trial court correctly credited wife with $814,000 that husband spent on his girlfriend during the pendency of the case. There is very little commentary or an appellate analysis of this. The district court just did it and it is mentioned on appeal.
Modification
Lobendahn v. Lobendahn, 2023 UT App 137
Utah Court of Appeals
Attorneys: Luke A. Shaw, Jill Coil, Julie Nelson, Daniel Ybarrra, Alexandra Mareschal
4th District Court, Honorable Judge Thomas Low
Summary: The parties had two children. They historically had made large moves, including when they lived in New Jersey at the time they decided to divorce and Husband told Mother to move back to Utah to do the divorce (away from him). When Father joined the family in Utah, he moved to a different county with provisions for when he lived closer. Mother was the primary caregiver for the children. Mother eventually decided to move to Washington. The court did not prevent such a move at the relocation hearing. Father then filed a petition to modify to have the children come back to Utah. The custody evaluator agreed the children should come back. The judge, however, disagreed. The appellate court found that the district court properly analyzed all of the factors and affirmed the ruling. In addition, the district court did not grant mother’s attorney fees because it found that Father’s petition to modify was not frivolous. This was also affirmed.
Holding (Evidence on Appeal): The district court made very detailed written findings that show that most of the custody factors favored Mother. The appellate court will not reweigh the evidence given that the district court is in the best position to make credibility and factual findings.
Holding (Relocation Evidence): The district court found the following findings persuasive in its review of the relocation: father’s historical lackadaisical attitude toward himself living in proximity to the children, likewise, the families’ historical ability to manage the distance, father’s conflict regarding the baptism (not taking child’s perspective into consideration and causing conflict with the Bishop at the event), father delaying passport cooperation causing Mother and children to miss grandfather before he passed, children had already built strong relationships in Washington by the time of trial, Father’s obstruction of ASD testing for child, Father’s propensity to litigate to harass Mother, Mother respects Father’s role more than visa versa, Mother historically primary caregiver. The court also found it very persuasive that the evidence was essentially unanimous that at the time of trial, the children were happy, well-adjusted, and thriving and therefore continuity was very important here.
Holding (Final Decision Maker): The court was affirmed in modifying Mother to be the final decision maker. This is because of Father’s conflict during the baptism, his lack of cooperation in obtaining passports, and his obstruction of having the child tested for ASD. The district court persuasively found that “Father exhibited an ‘injudicious use of his veto power over decisions relating to the children's health’ and had ‘evidenced [a] tendency to act contrary to the children's interests and to use those interests as leverage against Mother.’”
Holding (Rejecting Custody Evaluation Recommendations): The court did not abuse its power in rejecting the custody evaluator’s recommendations. The evaluator’s recommendations were stale by trial, having not spoken with the children for over a year by then. “[A] district court is not bound to accept a custody evaluator's recommendation, but if a court chooses to reject the evaluator's opinion, it is expected to articulate some reason for doing so. See R.B. v. L.B., 2014 UT App 270, ¶ 18, 339 P.3d 137. Here, the court gave very detailed findings of the decision to not go with the recommendations, which is what is required.
Spencer v. Spencer, 2023 UT App 1
Utah Court of Appeals
Attorneys: Lillian Reedy, Steven Wall
District Court: Third District, the Honorable William K. Kendall
Summary: Parents were granted joint custody in their divorce. During the case, dad has asked for drug and alcohol restraints in his motion for temporary orders, but the issue was not addressed in the decree of divorce. Dad later petitioned to modify alleging that mom was working late, had too many people at the house who were doing drugs, and she was drinking too much. During the modification, the parties agreed to alcohol restrictions. Dad later filed a MTE on violating those restrictions. The court later granted a TRO based on the fact of mom’s escalating alcohol issues that led to DCFS supporting a finding that mother had endangered the children. The TRO gave dad custody and mom supervised parent-time. Mom later argued successfully that the evidence of her drinking was based only on empty cans in her car from a camping trip before and that DCFS actually did not find risk. The district court lifted her supervised parent-time, but ordered her to participate in random alcohol testing. At trial, the court noted mom’s 75 clean alcohol tests in 6 months, no positives, and a few missed tests. The court found that dad’s evidence was exaggerated to support his narrative. Affirmed.
Holding (Standard Modification Law): Modification of a joint custody order is appropriate when the court finds that “(i) a material and substantial change of circumstance has occurred; and (ii) a modification of the terms and conditions of the order would be an improvement for and in the best interest of the child.” Utah Code Ann. § 30-3-10.4(2)(b) (LexisNexis 2019). Thus, “generally, the trial court need not consider evidence of the child's best interests until it finds changed circumstances.” Taylor v. Elison, 2011 UT App 272, ¶ 12, 263 P.3d 448 (quotation simplified). This requirement serves two policies: First, to “protect[ ] children from the deleterious effects of ‘ping-pong’ custody awards” and, second, “to prevent the undue burdening of the courts and the harassing of parties by repetitive actions.”
Holding (Low Ebb): “[T]he second of these considerations “is at a particularly low ebb” when a custody decree was not litigated in the first instance but was simply an agreement of the parties.” However, in this case where it was hotly litigated with various motions and a custody evaluation, the court has faith that the ultimate stipulation was based on the child’s actual best interest. Therefore, there was no error in the court not applying a lesser standard based on it being a stipulated decree.
Holding (Sufficiency of Evidence): The district court was not wrong to find that dad lacked credibility, raised his claims only after mom ended their sexual relationship, exaggerated claims, failed to produce evidence about easily corroborated information, had agreed to 50/50 just months before, etc. In fact, much of the evidence was in mom’s favor included extremely active alcohol testing (a test every other day for six months on average).
Holding (attorney fees): The district court awarded mom her attorney fees for substantially prevailing on the petition to modify.
Thayne v. Thayne, 2022 UT App 122
Utah Court of Appeals
Attorneys: David C. Blum
District Court: 2nd District, Ernest W. Jones
Summary: Parties entered into divorce agreement while they lived in California and in anticipation of them both moving to Utah. The agreement (and subsequent Decree) explained that it was anticipated that husband’s income would go down, that wife would start working, and that the parties would move. The parties immediately moved and husband immediately filed for a petition to modify when his income did go down and wife started working.
Holding: The district court correctly dismissed the petition to modify for lack of a substantial change in circumstances. The changes husband brought were not unforeseen. “A party may seek changes to an award of spousal or child support when there has been a substantial change of circumstances not addressed in the divorce decree. See Utah Code Ann. § 30-3-5(11)(a) (LexisNexis Supp. 2022) (“The court has continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantial material change in circumstances not expressly stated in the divorce decree or in the findings that the court entered at the time of the divorce decree.”); id. § 78B-12-210(9)(a) (“A parent, legal guardian, or the office may at any time petition the court to adjust the amount of a child support order if there has been a substantial change in circumstances.”). But the changes in circumstances that Devin raises in his petition that have occurred since the stipulation was drafted in December 2019—namely, his decreased income and Stephanie's availability for employment—were foreseen and addressed in that stipulation. Furthermore, these changes in circumstances that Devin raises had already occurred by the time the Judgment incorporating that stipulation was eventually entered in February 2020.” Thayne v. Thayne, 2022 UT App 122, ¶ 9
Support
Smith v. Smith, 2024 UT App 28
Utah Court of Appeals
Attorneys: David Pedrazas, Deborah L. Bulkeley
3rd District Court, Honorable Judge Robert P. Faust
Summary: In this case, the district court analyzed alimony incorrectly and the appellate court remands.
Holding (Alimony): “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.” Here, the district court entered an award of alimony that was double the receiving spouses demonstrated need because it analyzed the standard of living at the time of marriage at the end of the analysis.” The court adjusted the needs to make them more equivalent to one another, then simply took the left over amount of Husband’s income and split it between the parties. This caused an award to Wife that exceeded her demonstrated need. This is not allowed. “There are three steps to ‘the established process to be followed by courts considering an award of alimony.’ Fox, 2022 UT App 88, ¶ 20, 515 P.3d 481 (cleaned up); see also Rule, 2017 UT App 137, ¶ 19, 402 P.3d 153. First, a court must ‘assess the needs of the parties, in light of their marital standard of living.’ Fox, 2022 UT App 88, ¶ 20, 515 P.3d 481 (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).Vacated and remanded.
Clarke v. Clarke, 2023 UT App 160
Utah Court of Appeals
Attorneys: Cassie Medura, Jarrod Jennings, Julie Nelson, Rebecca Ross
3rd District Court, Honorable Judge Teresa Welch
Summary: This case is a caution of not being properly prepared for trial. The parties were married for twenty (20) years. Husband was an airline pilot. Mother had been self-employed as a clothing salesperson. The parties filed updated financial declarations before trial. Wife only filled out the “current amount” column on her expense sheet. She left the “marital expenses” blank. Husband filled out both columns and in his marital expenses column he entered $17,007 per month. The parties called no financial experts at trial. At trial, Husband provided extensive proof of his income and his need analysis. He testified at length about these issues as well, providing extensive explanation and proof. Wife, to the contrary, gave very little testimony about her expenses and income at trial. The Court averaged three typical work years to determine Husband’s income (excluding years that were impacted by Covid). The court calculated Husband’s reasonable need to be $10,249 based on the evidence before it. The court declined to award Wife credit for business expenses because she did not properly prove them as required. The court disregarded an early financial declaration of Wife where her expenses were more than the parties’ joint incomes. The court had very little to rely on for Wife’s expenses and so it relied on the most recent Financial Declaration with some reasonable adjustments based on the evidence. The court granted Wife a need of $6,218 per month. The court ordered $3,193 per month in alimony plus half of any profit sharing. This award is affirmed.
Holding (Alimony-Averaging Years for Income): The court was within its discretion to average three typical years of income where the most recent years for the pilot were during Covid and not helpful at determining future income. “The pill that is hard for many appellants to swallow is that if there is evidence supporting a finding, absent a legal problem—a ‘fatal flaw’—with that evidence, the finding will stand, even though there is ample record evidence that would have supported contrary findings. After all, it is the trial court's singularly important mission to consider and weigh all the conflicting evidence and find the facts.” Kimball v. Kimball, 2009 UT App 233, ¶ 20 n.5, 217 P.3d 733. In regard to not automatically including estimated income from profit sharing, the court affirmed stating “[w]hile trial courts must ‘consider all sources of income when determining alimony,’ Utah law ‘does not dictate that all sources of income be counted as income received by a spouse for that purpose.’ Eberhard v. Eberhard, 2019 UT App 114, ¶ 21, 449 P.3d 202. Instead, our case law ‘preserv[es] a [trial] court's broad discretion to treat sources of income as the court sees fit under the circumstances.’” Id.
Holding (Income Evidence During Trial): The court was within its discretion to not consider newly disclosed W2s that came forward the forth day of trial (which was several weeks after the first three days). Wife did not give sufficient evidence to show that this was withheld information that took place prior to trial, rather than simply new evidence subsequent to trial. A new trial “may be granted to any party on any issue” for any one of several enumerated reasons. See Utah R. Civ. P. 59(a). Those reasons include “irregularity in the proceedings of the court, ... or any order of the court, or abuse of discretion by which a party was prevented from having a fair trial,” id. R. 59(a)(1); “newly discovered material evidence that could not, with reasonable diligence, have been discovered and produced at the trial,” id. R. 59(a)(4); “insufficiency of the evidence to justify the verdict or other decision,” id. R. 59(a)(6); and “the verdict or decision [being] contrary to law or based on an error in law.” All of these were raised here, none were persuasive. First, it was not error for Husband to not update his financial declarations before the 4th day of trial, which was several months after the first three (3). The pretrial order did not require that and there was not subsequent order requiring that. In fact, Wife also did not provide her end-of-year financials or otherwise update before the forth day. There is no rule to continue to update after final pretrial disclosures dates are set. Instead, such dates are set to create order and finality. In family law, there exists a remedy for this, modification under Rule 106, Utah Code §§ 30-3-5(11)(a), and 78B-12-210(8). Wife’s next reason, newly discovered evidence, is not persuasive. “[A] motion for a new trial or amended judgment cannot be based on facts occurring subsequent to trial.” In re C.L., 2007 UT 51, ¶ 14, 166 P.3d 608. In order to present newly discovered evidence, the movant must show that the evidence could not, by due diligence, have been discovered and produced at trial.” Ed was not asked any questions at trial about his income for the years in question.
Holding (Business Expenses): Wife was not granted credit for business expenses that were not properly demonstrated. This was affirmed. “when a court is assessing a self-employed person's gross income, the court shall ‘subtract[ ] necessary expenses required for self-employment or business operation from gross receipts.’ Utah Code § 78B-12-203(4)(a). However, ‘[o]nly those expenses necessary to allow the business to operate at a reasonable level may be deducted from gross receipts.’ Id. ‘The person claiming business expenses’ bears the burden of proving that the claimed ‘expenses are necessary to allow the business to operate at a reasonable level.’ See Ouk v. Ouk, 2015 UT App 104, ¶ 4, 348 P.3d 751. Wife did not meet her burden.
Holding (Income Determination): The court was within its discretion to use different methodologies to determine the parties’ net incomes. Husband gave ample evidence of how his income could be best determined. Wife gave next to none. The court rightfully used the evidence before it and showed its math of how it arrived at a reasonable net income for Wife.
Holding (Standard of Living at Time of Marriage): The court need not calculate the standard of living at the time of marriage, but instead must insure the new calculations are consistent with the standard at the time of marriage. Here, the court went to the trouble of calculating the standard at the time of marriage, but it was under no obligation to use that number in any of the alimony calculations. Instead, the court rightfully looked to the evidence of need that Wife provided, which was simply her “current” need column. The court gave Wife everything she asked for, to the dollar, and even gave her more than what she asked for in that column.
Wadman v. Wadman, 2023 UT App 69
Utah Court of Appeals
Attorneys: Jill L. Coil, Stephen J. Oliphant, Gabrielle G. Jones, Daniel S. Drage
2nd District Court, Honorable Judge Reuben J. Renstrom
Summary: The parties have a son in his 30s who Mother claims is incapacitated. Mother filed a petition to modify to continue support. The judge made an error in dismissing the petition.
Holding (Incapacitated Child): “Under Utah law, parents are obligated to provide financial support for their children. Our legislature has mandated that ‘[e]very child is presumed to be in need of the support of the child's mother and father,’ and that ‘[e]very mother and father shall support their children.’ Utah Code § 78B-12-105(1). And our supreme court has stated that all parents have ‘the duty to support the children [they have] brought into the world, and this duty is inalienable.’ State, Dep't of Human Services ex rel. Parker v. Irizarry, 945 P.2d 676, 679 (Utah 1997) (quotation simplified). The decree did not mention the child’s disability, even though both parents admit they knew about it then. It also did not give a termination date for child support. The central question is whether the parties’ son qualifies as a “child” under the Act. Utah Code § 78B-12-102(7)(c) defines “child,” for child support purposes, to include “a son or daughter of any age who is incapacitated from earning a living and ... is not able to support self by own means.” The court gives many examples of cases where a parent is ordered to support a child at any age. The automatic termination clause of the statute does not automatically terminate when the child is incapacitated because a child that is incapacitated remains a “child” under the statute at any age. It is of no consequence that the original decree did not mention the child’s disability. “Utah courts have long held that the right to receive child support is an unalienable right, belonging to the child, and cannot be bartered away by the child's parent or parents.” Fauver, 803 P.2d at 1278–79. Because the right to future support payments belongs to Son, his parents are not legally permitted to bargain away his right to child support at some point in the future. See State ex rel. Utah State Dep't of Social Services v. Sucec, 924 P.2d 882, 885–86 (Utah 1996) (“A child's right to support is not subject to being bartered away, extinguished, estopped or in any way defeated by the agreement or conduct of the parents.” (quotation simplified)).
Holding (Retroactivity of Award): “[A]ny changes ‘may date back only to ‘the month following service’ of the petition to modify ‘on the parent whose support is affected.’ ” See McFarland v. McFarland, 2021 UT App 58, ¶ 26, 493 P.3d 1146 (quoting Utah Code § 78B-12-112(4)).
Blake v. Smith, 2023 UT App 78
Utah Court of Appeals
Attorneys: Julie J. Nelson
3rd District Court, Honorable Judge Su Chon
Summary: The parties had a child together after Father repeatedly asked Mother to have an abortion. Father rarely saw or spoke with the child and did not participate in any child rearing activities, such as doctor appointments. On two of the occasions when he tried to participate, it ended with verbal altercations between the parents. The appellate court found it an error to award Mother sole legal and physical custody but still require joint decision making. The issue was vacated and remanded. In addition, the child support was also remanded.
Holding (Child Support): Father filed three (3) different financial declarations, all of which were inconsistent with one another and the bank statements. His amounts of income, debt, and expenses varied wildly from one statement to the next. He asserted, and the court held that he could earn very little money, ultimately minimum wage was ordered. However, bank statements showed more than $400,000 in deposits and over $50,000 being spent on his mother, other people, and luxury items (Father was a manager of boxers in Las Vegas). U.C.A. § § 78B-12-202 outlines calculating child support, which starts with figuring gross income. Gross income includes “prospective income from any source, including earned and nonearned income sources which may include salaries, wages, commissions, royalties, bonuses, rents, gifts from anyone, prizes, dividends, severance pay, pensions, interest, trust income, alimony from previous marriages, annuities, capital gains, Social Security benefits, workers’ compensation benefits, unemployment compensation, income replacement disability insurance benefits, and payments from ‘nonmeans-tested’ government programs.” Id. When a parent is self-employed “[g]ross income from self-employment or operation of a business shall be calculated by subtracting necessary expenses required for self-employment or business operation from gross receipts. ... Gross income ... may differ from the amount of business income determined for tax purposes.” Id. § 78B-12-203(4). Here, the court made a mathematical error in calculating income. But, more importantly, the court did not consider all of the evidence of Father’s finances when calculating his income. “[W]hen imputing income, ‘the income shall be based upon employment potential and probable earnings considering,’ among other things, ‘employment opportunities,’ ‘work history,’ and ‘occupation qualifications.’” Utah Code § 78B-12-203(8)(b).
Cox v. Cox, 2023 UT App 62
Utah Court of Appeals
Attorneys: Brett D. Cragun, Jarrod H. Jennings
4th District Court, Honorable Judge Lynn W. Davis
Summary: This is a mess of a case with very complicated facts and inconsistent and underdeveloped findings and holdings. The appellate court goes through many issues of property and support and directs the district court to fix many issues. In short, the parties were married for over twenty (20) years. They had ten (10) children, five (5) of whom were still minors.
Holding (Income Imputation): The trial court made contradictory findings on Wife’s earning capacity and ability to produce income, both stating that she had worked as an experienced and sophisticated bookkeeper and also did rideshare work. The court arbitrarily decided that she could not make more than minimum wage (and put in two different figures for minimum wage throughout the opinion). This is not sufficient. The court must adequately analyze and show the findings and steps reached to come to Wife’s income.
Holding (Needs Analysis): The court took note of Wife’s stated need and then essentially simply stated they were “overstated.” The court did not determine what her needs actually were. More detailed findings are necessary to calculate alimony.
Knight v. Knight, 2023 UT App 86
Utah Court of Appeals
Attorneys: Julie J. Nelson, Taylor Webb, Stephen C. Clark, Bart J. Johnsen, Alan S. Mouritsen
3rd District Court, Honorable Judge Robert P. Faust
Summary: This case involves issues of a trust in a divorce case and several alimony issues.
Holding (Alimony in General): Under Utah law, courts must consider in alimony determinations the factors listed in Utah Code section 30-3-5, including “(i) the financial condition and needs of the recipient spouse; (ii) the recipient's earning capacity or ability to produce income, including the impact of diminished workplace experience resulting from primarily caring for a child of the payor spouse; [and] (iii) the ability of the payor spouse to provide support.” Utah Code § 30-3-5(10)(a); see also Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985); English v. English, 565 P.2d 409, 411–12 (Utah 1977). “An alimony award should also advance, as much as possible, the primary purposes of alimony.” Rule v. Rule, 2017 UT App 137, ¶ 14, 402 P.3d 153 (cleaned up). Alimony is intended “(1) to get the parties as close as possible to the same standard of living that existed during the marriage; (2) to equalize the standards of living of each party; and (3) to prevent the recipient spouse from becoming a public charge.” Jensen v. Jensen, 2008 UT App 392, ¶ 9, 197 P.3d 117 (cleaned up). Alimony is not limited to providing for only basic needs but should be fashioned in consideration of the recipient spouse's station in life in light of the parties’ customary or proper status or circumstances, with the goal being an alimony award calculated to approximate the parties’ standard of living during the marriage as closely as possible. Rule, 2017 UT App 137, ¶ 14, 402 P.3d 153 (cleaned up); see also Davis v. Davis, 749 P.2d 647, 649 (Utah 1988) (“The ultimate test of the propriety of an alimony award is whether, given all of these factors, the party receiving alimony will be able to support him- or herself as nearly as possible at the standard of living enjoyed during marriage.” (cleaned up)); Savage v. Savage, 658 P.2d 1201, 1205 (Utah 1983) (“One of the chief functions of an alimony award is to permit the parties to maintain as much as possible the same standards after the dissolution of the marriage as those enjoyed during the *613 marriage.”). And “in terms of alimony, the marital standard of living analysis is about whether the parties’ proposed points of calculation are consistent with the parties’ manner of living and financial decisions (i.e., the historical allocation of their resources).” Mintz v. Mintz, 2023 UT App 17, ¶ 24, 525 P.3d 534, cert. denied, 531 P.3d 730 (Utah 2023).
Holding (Adjustments): The court in this case made many adjustments to Wife’s need analysis. Each are dealt with as follows:
Home Maintenance: Wife added snow removal, pool and spa maintenance, and landscaping to her need, although they did not have this cost during the marriage. She claimed that Husband did it, so she was accustomed to someone doing it. The court disagreed and removed these expenses. This was affirmed. The court was right to look at the standard of living during the marriage, not during the separation. This is especially true where the expenses were not incurred at all during the marriage. The court is not going to allow a party to charge the other for tasks they did during the marriage. This would become absurd if done against a stay-at-home parent. However, the court should have parsed out landscaping items that were actually incurred during the marriage such as bark replacement and aeration. These should have been left in Wife’s budget.
Health Insurance: Wife put the cost of a plan with no deductible, even though the parties had an $8,000 deductible during the marriage. However, Wife “is not entitled to a health insurance plan better than the one the parties had during the marriage.”
Gifts from Family as Part of Standard of Living: Husband’s family gave the parties significant funds and gifts uplifting their standard of living at the time of marriage. The trial court rightfully excluded those benefits in calculating the standard of living. “[T]he gifts from Jared's family, despite being a regular feature of the marriage, may not be properly considered in calculating Rebecca's needs or Jared's ability to pay alimony. See Utah Code § 30-3-5(10)(a). The alimony factors refer only to the finances of the spouses, not those of outside parties. Id.; see also Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985). Additionally, we have enunciated previously that past gifts are not to be considered in the alimony calculus: ‘[T]he court could not base its prospective order on past gifts that have no assurance of being continued because [a donor] has no legal obligation to continue providing the monetary support that she has in the past.’” Issertell v. Issertell, 2020 UT App 62, ¶ 26, 463 P.3d 698.
Personal Grooming: The court arbitrarily lowered Wife’s expenses on personal grooming by simply saying that it was too high and Husband was not asking for that. These are not grounds to lower the costs. If the court had found that Wife had not demonstrated that she did historically spend that much, that would be valid. But, it cannot just make arbitrary adjustments downward. Husband’s counsel’s “thoughts on what makes ‘quiet a nice budget’ are irrelevant when presented with no evidence. The inquiry must be rooted in the historical spending evidence. “A court's inquiry into the marital standard of living must evaluate the specific circumstances of that couple, and expenses that are unreasonable in light of one couple's marital standard of living may be reasonable in light of another couple's marital standard of living. ‘Indeed, we have explained that alimony is not limited to providing for only basic needs but should be fashioned in consideration of the recipient spouse's station in life in light of the parties’ customary or proper status or circumstances.’” Rule v. Rule, 2017 UT App 137, ¶ 14, 402 P.3d 153 (cleaned up).
Disparate Expense Lists: It was also improper for the court to base its deduction on the fact that Husband did not ask for these expenses. There is no reason to limit one party’s expenses to the expenses the other requested. “On this front, we clarify that a couple's marital standard of living may include disparate spending by the parties on various categories during the marriage. Throughout the marriage, one spouse may spend more—even significantly more—than the other on personal grooming, entertainment, travel, or any number of other expense categories. A partner may embrace the age-old adage's modernized mantra of ‘happy spouse, happy house,’ may derive independent pleasure from a spouse's purchases, or may observe a spouse's spending habits—whether for monthly follicle support treatments or Jazz tickets only one spouse actually uses—through gritted teeth. But for the sake of calculating alimony, we assume that the parties agreed on their household expenditures such that whatever was historically spent by the parties during the marriage constitutes the couple's marital standard of living, even if the spending was lopsided—or, indeed, one-sided—within a given expense category.” See Davis, 749 P.2d at 649; Rule, 2017 UT App 137, ¶ 14, 402 P.3d 153.
Savings: Yes, regular savings during the marriage should be reflected in the alimony calculation. The law on this issue is best read from the opinion. In addition, “an event must certainly be recurring but need not be uniformly systematic to be considered ‘regular.’ Indeed, something can be done ‘regularly’ if done whenever the opportunity arises, though the actual time sequence may be sporadic.” The court here remands for clarified findings on this issue.
Retirement/Capital Investment : The district court was right to not include retirement in Wife’s budget. The parties did not regularly save for retirement and Wife’s assertion that she needs to start now in order to live somewhat close to the way Husband lives under the millions he gets from his family is not persuasive.
Twitchell v. Twitchell, 2022 UT App 49
Court of Appeals for Utah
Attorneys: Ryan L. Holdaway, Diane Pitcher, Robert L. Neeley
District Court: 1st District, Honorable Judge Brian G. Cannell
Summary: The parties divorce contained several errors on various issues that the appellate court overturned.
Holding (Child Support): The facts about Mother’s income were confusing and contradictory at trial. How the court reached it’s final amount for her income was not adequately explained in the findings. Each parent's “gross income” for purposes of child support “includes prospective income from any source, including earned and non-earned income sources which may include salaries, wages, ... [and] rents.” Utah Code Ann. § 78B-12-203(1) (LexisNexis 2018). “Income from earned income sources is limited to the equivalent of one full-time 40-hour job.” Id. § 78B-12-203(2). “[C]hild support is appropriately calculated based on earnings at the time of trial,” but district courts also “have broad discretion to select an appropriate method” of calculating each parent's income. Griffith v. Griffith, 959 P.2d 1015, 1019 (Utah Ct. App. 1998). The court has discretion to determine the final number by a number of different manners, so long as it makes sense and is well supported by the facts on the record. Here, there is no explanation of how the court reached its amount.
Mintz v. Mintz, 2023 UT App 17
Utah Court of Appeals
Attorneys: Julie J. Nelson; Alexandra Mareschal; Thomas J. Burns; Aaron R. Harris
District Court: Silver Summit, the Honorable Kent R. Holmberg
Summary: Deals with a twenty year high income marriage. The case deals with alimony, property division, and dissipation.
Holding (Alimony – Investment and Savings Expenses): The parties regularly deposited any extra funds they had into investment accounts. The district court errored in not adding investment deposits to wife’s alimony need. In Bakanowski v. Bakanowski, 2003 UT App 357, 80 P.3d 153, the court indicated that “while the recipient spouse's need to fund post-divorce savings, investment, or retirement accounts may not ordinarily be factored into an alimony determination, we cannot say that the ability to fund such post-divorce accounts may never be taken into account as part of” that analysis. Id. ¶ 16. Rather, “[t]he critical question is whether funds for post-divorce savings, investment, and retirement accounts are necessary because contributing to such accounts was standard practice during the marriage and helped to form the couple's marital standard of living.” “An event must certainly be recurring but need not be uniformly systematic to be considered “regular.” See id. at para. 3. Indeed, “something can be done ‘regularly’ if done whenever the opportunity arises, though the actual time sequence may be sporadic.” Youth Tennis Found. v. Tax Comm'n, 554 P.2d 220, 223 (Utah 1976); see also Allen Distrib., Inc. v. Industrial Comm'n, 604 P.2d 938, 940 (Utah 1979). The evidence showed that for the ten years proceeding the divorce, the parties set aside a substantial amount of money for investments at least annually. The district court applied too narrow a definition of standard practice in rejecting this evidence in calculating wife’s need. “Second, to justify an alimony award that includes an amount for investment, the parties’ acts of investing must also contribute to the “marital standard of living.” Id. “Standard of living is defined as a minimum of necessities, comforts, or luxuries that is essential to maintaining a person in customary or proper status or circumstances.”” Howell v. Howell, 806 P.2d 1209. “In other words, in the alimony context, the marital standard of living is all that the parties enjoyed during the marriage—including luxuries and customary allocations—by virtue of their financial position.” See id.; see also Rule v. Rule, 2017 UT App 137, ¶ 15, 402 P.3d 153. The parties need not spend their savings on the marital standard of living in order for it to be included as an expense in the marital standard of living.
Holding (Alimony – Entertainment Budget): Wife had a history of taking friends on globe trotting trips and to the theater. Husband had a history of spending large sums of money on an extra-marital affair. The court split her expenses by ¼ because she is no longer including adult children in them. This allocation was not supported by the evidence. Wife testified that although the amounts listed were for when two minors lived at home, they were her expenses alone. The ledger that showed these expenses had various notations and they do not support the court’s finding that her amount should be divided by four.
Holding (Alimony – Investment Income): Husband appeals the district court’s deciiosn to not include 6% interest income on investment properties to wife. “The district court acknowledged Glen's argument that Rayna would receive an investable property distribution that could provide “at least” a six percent return. While Utah “caselaw directs district courts to consider all sources of income when determining alimony, it does not dictate that all sources of income be counted as income received”—instead district courts have “broad discretion to treat sources of income as the court sees fit under the circumstances.”” Eberhard v. Eberhard, 2019 UT App 114, ¶ 21, 449 P.3d 202. “In determining whether a spouse should receive alimony, the general rule is that a court should first take care of property distribution. See Batty v. Batty, 2006 UT App 506, ¶ 5, 153 P.3d 827 (“[An alimony] evaluation properly takes into account the result of the property division, particularly any income-generating property [the receiving spouse] is awarded, but alimony is not meant to offset an uneven property award. Rather, as a matter of routine, an equitable property division must be accomplished prior to undertaking the alimony determination.”). Then, depending on how the property distribution works out—especially considering income-generating property—the court considers whether alimony will be necessary for a spouse to meet demonstrated needs.” See Burt v. Burt, 799 P.2d 1166, 1170 (Utah Ct. App. 1990). “[W]hile the district court must consider all potential sources of income, it is not required to count those sources of income.” Here, the district court did consider the issue of interest and gave several very specific reasons why it was not including it as income for wife.
Wellman v. Kawasaki, 2023 UT App 11
Utah Court of Appeals
Attorneys: Mary Deiss Brown; Eric Swinyard; Keith Johnson
District Court: 4th District Court; Honorable Christine Johnson
Appellate Court: Honorable Ryan Harris
Summary: Wife appeals district court’s decision to not award her alimony. For most of the marriage, she was a stay at home mom, but at the time of trial she was working full-time as a receptionist. Wife had failed to provide the required proof of expenses for trial. The court refused to allow wife to read a copy of her undisclosed bank records onto the record. The court allowed wife to use her old outdated financial declaration that was filed early in the case, but wife did not testify about it and provided no specifics on her expenses in her testimony. Wife’s counsel tried to draw on husband’s needs to impute them to wife. However, wife’s counsel did not question husband about his line item expenses and did not submit his declarations for consideration. Husband did testify that wife could live on about $1,000 to $1,500 a month.
Holding (Alimony – Lack of Evidence): The court was within its discretion in this case to deny alimony because of the complete dearth of evidence to support it at all. There was no testimony about a financial declaration, no updated declaration, no bank statements, and no testimony about any specific line items of need. The court goes through the balancing act that must be done when a court uses its discretion in this manner. Here the denial of alimony was upheld.
Myers v. Myers, 2023 UT App 20
Utah Court of Appeals
Attorneys : Benjamin Wilson ; Douglas Neeley
District Court: 6th District; Honorable Brody L. Keisel
Summary: Parties were married for decades. They stipulated to support. Less than two years after stipulation, husband filed petition to modify support because both of their incomes changed. In the stipulation, the husband’s income was $8,233 per month and hers was $250 per month. The stipulation was silent as to how alimony was calculated or as to wife’s reasonable monthly expenses. Husband claimed that he was no longer working in the oil fields because the schedule was negatively affecting him, that he was going back to school, and that he was no longer working. Wife admitted at trial that she was earning $4,350 per month and she asserted that her need was only 4,795. During the pendency of the petition to modify, wife filed a MTE to command husband to pay his support obligations. The court found that husband had voluntarily quit his employment in the oil fields and found him in contempt. Ultimately, the district court found that husband voluntarily quit his job, imputed him to his previous wage then found that wife, despite actually earning more, did not have higher qualifications and imputed her to the wage at the time of the stipulation. District court held trial and denied modification requests. The appeals court reversed and remanded.
Holding (Income Changes): If the court finds that there was a substantial and material change in circumstances regarding income, it must conduct a complete analysis regarding whether the alimony remains appropriate. The court cites to all of the standard caselaw and statutory references on how to do an alimony analysis. Also, regardless of the payor’s spouse’s ability to pay more, the recipient spouse’s demonstrated need must constitute the maximum permissible award. The court is required to make specific findings about how it arrives at its orders. The court here failed to follow the proper analysis of the alimony.
Holding (Income Changes): The court explains that it is an important distinction in cases where someone’s income goes down rather than up because income going down may not indicate that the person’s ability to earn has also gone down. The court gives many examples of cases where someone’s income went down but the court imputed them to a higher wage. The fact that someone’s income has gone up is very strong evidence that their ability to earn has gone up. Although dicta, the court seemed to agree with imputing husband’s wages back to his former wages before he voluntarily left his job, but that is not the end of the alimony analysis.
Knowles v. Knowles, 2022 UT App 47
Utah Court of Appeals
Attorneys: Julie J. Nelson; Alexandra Mareschal ; Emily Adams; Sara Pfrommer
District Court: 2nd District Court, David R. Hamilton
Summary: This is a 30 year marriage with an optometrist and stay at home mother. The court gives very pointed direction on alimony and some property issues.
Holding (Alimony – Wide Discretion): “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.” Burggraaf v. Burggraaf, 2019 UT App 195, ¶ 26, 455 P.3d 1071 (quotation simplified).
Holding (Retroactive Adjustments to Temporary Alimony): The court was wrong to summarily deny the request to retroactively correct alimony based on the court’s findings at trial. The court should have determined if the corrected imputed income to wife would have also been possible during the separation. The court could have found that her needs or ability to work had changed during the trial, but it made no such finding here. “Because of their nature, temporary awards are often based on limited evidence. Typically recommended by a domestic relations commissioner after a brief proffer hearing based largely on the financial declarations submitted by the parties, see Utah R. Jud. Admin. 6-401(2)(H), such temporary orders may result in awards that are not supported by the more substantial evidence presented at a later trial. For this reason, district courts have the authority to revisit temporary orders and, if warranted, retroactively modify them in the final divorce decree.” See Utah Code Ann. § 30-3-3(4); id. § 30-3-5(4); id. § 78B-12-112(4) (2018); Miner v. Miner, 2021 UT App 77, ¶ 101, 496 P.3d 242; McPherson v. McPherson, 2011 UT App 382, ¶¶ 12, 17, 23, 265 P.3d 839 (The district court found at temp orders that husband voluntarily lost his job when fired. But, at trial, found that he was not voluntarily under employed. The court reduced alimony going forward but refused to do that retroactively. The appellate court reversed finding that there was “no justification for the higher award” and that it should have been retroactively lowered given the new finding that husband was not voluntarily underemployed. “[e]ven if the commissioner's recommendations seemed well founded at the time of the hearings, once the premise of that decision was proved inaccurate, there was no reasoned basis to impose temporary support obligations that were mathematically impossible for [h]usband to pay.”)
Holding (True-Up Request Procedure): “If a true-up is timely requested, the court should first make factual findings relevant to the temporary award to determine whether it was supported by the evidence. If the court finds, after hearing all the evidence presented at trial, that the temporary order was inappropriate, then the court should proceed to the second step: determining whether a true-up is warranted in the case at hand. In many cases, a party who has demonstrated that a temporary order was inappropriate and unsupported by the more comprehensive evidence presented at trial will be entitled to a retroactive modification of that order. See McPherson v. McPherson, 2011 UT App 382, ¶¶ 21–24, 265 P.3d 839. But in some cases, a court may find that such retroactive modification is inappropriate or inequitable, notwithstanding an inaccuracy or error in the temporary order. In making the determination whether to order a true-up, a court should identify the considerations bearing on its decision and should enter careful findings explaining the basis for that determination.”
Holding (Alimony - Tithing): The court was wrong to simply eliminate both parties’ tithing expenses without proper analysis. “the court must assess the needs of the parties not by applying its own sense of which expenses are truly necessary but, instead, by examining whether their claimed expenses are consistent with the standard of living the *279 parties established during the marriage.” Rule v. Rule, 2017 UT App 137, ¶ 22, 402 P.3d 153. The court can infer that expenses are reasonable when both have the same amounts on their fin decs. “[A]s long as a party's claimed expenses are consistent with the marital standard of living, are based on sufficient factual findings, and advance, as much as possible, the purposes of alimony, such expenses should be included in the “needs” calculation.” The court should have determined if there was a factual basis to see that tithing was part of the marital standard of living, and if so, include it in the need. Then, “[i]f inclusion of tithing in the *280 calculation results in a shortfall, the shortfall should be equitably allocated between the parties.”
Holding (Alimony – Tax Status Change): The court should have considered the fact that husband’s tax status would be changing after the divorce and therefore would be paying higher taxes.
Holding (Separate Alimony from Children’s Needs): As part of its analysis, the district court should evaluate whether the expenses for the medical care of the parties’ minor children are more appropriately addressed as alimony or child support. See Dobson v. Dobson, 2012 UT App 373, ¶ 11, 294 P.3d 591 (indicating the preference for separating child-related expenses from recipient-related expenses).
Holding (Temporary Alimony): Utah Code section 30-3-3(3) authorizes an award of temporary alimony “to provide money, during the pendency of the action, for the separate support and maintenance of the other party and of any children in the custody of the other party.” Utah Code Ann. § 30-3-3(3) (LexisNexis Supp. 2021). Although orders providing for temporary support are operative during the pendency of the divorce proceeding, they are not final orders from which an appeal of right may be taken. Rather, as interlocutory orders, they are subject to continuing review and modification by the district court until the issuance of a final judgment. See IHC Health Services, Inc. v. D & K Mgmt., Inc., 2008 UT 73, ¶ 27, 196 P.3d 588 (recognizing the broad discretion of district courts to reconsider and modify interlocutory rulings before final judgment).
McQuarrie v. McQuarrie, 2021 UT 22
Supreme Court of Utah
Attorneys: Julie Nelson, Erin Hall, James McIntyre, Richard Golden, David Arrington, Douglas Thayer, Melinda Birrell
District Court: Honorable Robert P. Faust
Summary: The alimony provisions did not specifically state that alimony terminates at the time of remarriage. Other areas of the decree refer or imply her remarriage, but not the alimony portion. The district court held that alimony continued after her marriage because the decree did not specify remarriage as a terminating factor. The court of appeals affirmed.
Holding (Alimony Termination): U.C.A. § 30-3-5(9) provides for statutory terms that terminate alimony, which includes remarriage. The statutory terms of terminating alimony will apply in the absence of a specific provision in the decree specifically stating that a term does not apply. The parties’ intent or simple omission of one of the terms is not enough to waive that statutory provision. This is because the specific statute requires this specific omission. “Unless a decree of divorce specifically provides otherwise, any order of the court that a party pay alimony to a former spouse automatically terminates upon the remarriage or death of that former spouse.” Id. Therefore, “[i]f a divorce decree calls for payment of alimony, the payment is presumed to terminate upon remarriage of the receiving spouse, and the presumption is rebutted only if the divorce decree “specifically provides otherwise.” UTAH CODE § 30-3-5(9) (2015).” “[t]he divorce decree at issue included provisions that, taken as a whole, could be interpreted to suggest that the parties contemplated that alimony would continue upon remarriage. But that is insufficient. Under the above-quoted statute as interpreted in our case law, the presumption that alimony terminates upon remarriage is rebutted only by a “specific[ ]” alimony provision that expressly “provides otherwise.” There was no such specific, express provision in the decree at issue here.” This similar logic was also upheld in Lord v. Shaw, 682 P.2d 853, 855 (Utah 1984).
McFarland v. McFarland, 2021 UT App 58 (later appealed again on different issues)
Utah Court of Appeals
Attorneys : Jacob K. Cowdin, A. Douglas Anderson, Angilee K. Dakic, Ryan C. Gregerson
2nd District Court, Honorable David Williams
Summary : This case was a mess. The parties originally divorced by stipulation but nothing in the stipulation matched what they were doing. For example, father had about 24 overnights a month (mother took the kids during the days and back to his house for overnights), but they said they had joint custody. However, they also used the sole custody worksheet but put father as the obligor parent. He was to pay mother alimony and support and she was to live in the home and pay the mortgage. However, they started cohabitating again and father stopped paying her support and instead started paying the mortgage. Then, mother moved out, joined the military and was very rarely in the children’s lives. Dad then has sole custody and was paying the mortgage but not the court ordered support from the decree. They brought all sorts of filings to sort it out.
Holding (Alimony): Because the statute at the time in question only allowed someone to bring a cohabitation argument if the person was still cohabitating, and Husband brought the claim years after he and Wife stopped cohabitating, his claim was not viable. Note: This would likely be different under the new statute.
Holding (Child Support): The district court held that Husband did not owe Wife retroactive child support essentially because child support follows the child and he had them the entire time. The Court of appeals disagrees. The Husband needed to file his petition to modify sooner rather than ask it to be retroactive. The legal analysis on this is very complicated and best read directly from the written opinion.
Holding (Timing on Laws): The timing on the issue of cohabitating is very complicated because of the Scott case and the changing legislature on that word during this time. “[T]he principle that statutes operate only prospectively, while judicial decisions operate retrospectively, is familiar to every law student”
Holding (equitability): The court should look to equitability in family law cases, however, equitability may not overcome statutory requirements. However, there are some doctrines of equitability that could apply in a case like this: doctrine of laches, equitable estoppel. The court does not address these in this case though because they were not raised.
Miner v. Miner, 2021 UT App 77
Utah Court of Appeals
Attorneys : Troy Booher ; Julie J. Nelson; Rodney Parker; Adam Caldwell
District Court: 5th District, Jeffrey C. Wilcox
Summary: Parties were married while husband was in medical school. He made $1 million a year at end of relationship. They have four children. Parties owned a 20 acres of land with a large home and horse property. The family are also avid tennis players and enjoyed other very expensive hobbies and travel. The court reviews several issues of alimony and attorney fees.
Holding (High Standard of Living): “Alimony is not limited to providing for only basic needs but should be fashioned in consideration of the recipient spouse's station in life in light of the parties’ customary or proper status or circumstances, with the goal being an alimony award calculated to approximate the parties’ standard of living during the marriage as closely as possible.” See Rule v. Rule, 2017 UT App 137, ¶ 14, 402 P.3d 153.
Holding (Standard at Trial or Separation): It is right to use the standard of living at the time of marriage, rather than the time of trial because of the hardships that the separation may cause on the receiving spouse. But in its equitable powers, the court may also base certain line items on the time of trial and others on the time of separation.
Holding (Certain Expenses): $1,000 a month was reasonable to award to wife for tennis, even though the court also ordered father to pay the majority of the children’s tennis expenses. This line item would allow her to enroll the children in camps without running it through the husband first and also allow her to participate in the tennis activities. $200 a month for accounting a legal services going forward was reasonable where the forensic accountant supported this with past statements showing consistency with the parties’ history. The court was affirmed in allocating monthly expense for wife’s student loan payment, even though it would be ending in four years. The court was affirmed in awarding $5,000 a month for horse activities.
Holding (Parenting Expenses in Alimony): Her expenses were higher, presumably, because she will have the children more than him. So, for example, her clothing and food expenses seemed higher for that reason. Neither wife nor the court grappled with this argument and they were both required to do so. The matter was remanded for further argument and analysis.
Holding (Retroactivity of Award): The court was affirmed in entering additional alimony retroactively on both a stipulation on alimony and a later adjustment of temporary alimony by the court. At trial, the court was able to see through evidence that the temporary awards were not adequate and that additional support was reasonable. In addition, the court is directed to apply any adjustments due to the appeal both forward looking and retroactively.
Holding (Rehabilitative Length): The court entered alimony for 20 years. The husband argued it should have been less under a rehabilitative theory. This court disagreed and found that the parties had been married a long time at 20 years, in their late 40s, wife had never worked in her area of degrees. Husband argued that it wasn’t fair to require him to work at a breakneck pace for 20 more years. But, even if wife did start working, she would never be able to accomplish the high level of income that they had earned during the marriage. The court did not abuse its discretion in awarding 20 years of alimony. “Our legislature has set an outer boundary on the length of alimony awards, mandating that, in the absence of “extenuating circumstances,” “[a]limony may not be ordered for a duration longer than the number of years that the marriage existed.” See Utah Code Ann. § 30-3-5(8)(j) (LexisNexis 2019). But there is no inner boundary on the length of an alimony award: a trial court may, in appropriate cases, order that alimony be paid for a shorter period, or may order that alimony payments taper off gradually. See Gardner v. Gardner, 2019 UT 61, ¶ 80, 452 P.3d 1134; Boyer v. Boyer, 2011 UT App 141, ¶ 14, 259 P.3d 1063 (stating that, “in the case of rehabilitative alimony, a gradually decreasing award may be appropriate”). Courts have ordered rehabilitative alimony, within their discretion, in cases where marriages are not extremely long in duration, and where the recipient spouse is of an age and in possession of employment skills that make self-sufficiency likely. Id. ¶ 17; see also Jensen v. Jensen, 2008 UT App 392, ¶¶ 17–19, 197 P.3d 117. Rehabilitative alimony can also further important societal goals; for instance, it discourages a recipient spouse's dependency on alimony payments, and encourages self-sufficiency and independence. See Boyer, 2011 UT App 141, ¶¶ 4, 16–17, 259 P.3d 1063. But courts risk abusing their discretion when ordering rehabilitative alimony in cases that involve long marriages and older parties. See, e.g., Mark v. Mark, 2009 UT App 374, ¶ 15, 223 P.3d 476 (concluding that a court abused its discretion by ordering rehabilitative alimony where the parties had been married for twenty-five years and the recipient spouse was fifty-two years old with “limited marketable skills and employment prospects”); Rasband v. Rasband, 752 P.2d 1331, 1333–35 (Utah Ct. App. 1988) (concluding that a court abused its discretion by ordering rehabilitative alimony where the parties had been married for thirty years).
Holding (Imputation of Income): The court gives all of the standard analysis and citations. The court wrongly failed to look at other sources of potential work for the wife, who had a decree but had never used the decree. But, she nonetheless could have worked outside of the decree field, for example as a customer service representative. Here, where the child care labors are essentially equal at 60/40, the court should not impute one parent to full-time and not the other (the court may do so in other cases where the child care duties are not equal). Also, where the parties were ordered to sell the farm, the court should not have added the farm income to husband’s income.
Holding (Self Employed Income): It was right to divide certain expenses in half such as cell phone and car because those were also used for personal reason. This is also true for trips that were work and personal related. The court errored in not deducting other necessary business expenses such as malpractice insurance.
Holding (More than Full-Time): Husband contends that he cannot continue to earn at historical levels and have the children 6 out of 14 overnights. He historically worked 60 plus hours a week.
Husband had a history of voluntarily working these consistent long shifts. Under Utah law, “[i]ncome from earned income sources” is typically “limited to the equivalent of one full-time 40-hour job.” See Utah Code Ann. § 78B-12-203(2) (LexisNexis 2018).9 However, “if during the time before the original support order, the parent normally and consistently worked more than 40 hours at the parent's job, the court may consider this extra time as a pattern in calculating the parent's ability” to earn income. See id. Where, as here, there is evidence suggesting a long-term pattern of a parent (or spouse) working extended hours, a trial court does not abuse its discretion by concluding that the parent's (or spouse's) income, for purposes of child support and alimony, should be calculated with the historically longer workweek in mind. See Tobler v. Tobler, 2014 UT App 239, ¶¶ 27–28, 337 P.3d 296 (affirming a trial court's finding, based on evidence that the husband “normally and consistently worked” overtime hours, that the husband's income should be calculated based on the longer hours). In this case, husband asserted at temporary orders that he could make more parent-time work and now, later in the case, the kids are older and need less care.
Wadsworth v. Wadsworth, 2022 UT App 5
Utah Court of Appeals
Attorneys: Michael Zimmerman, Troy Booher, Julie Nelson, Clark Sessions, T. Mickell Jimenez, Marcy Glenn, and Kristina van Bockern
District Court: 3rd District, Judge Su Chon
Summary: The parties were married in 1979 and husband started a construction business in 1991. The parties owned various businesses including a hotel and two restaurants. The various appeals deal with the issues raised in the cases.
Holding (Temporary Support): “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, 459 P.3d 276; accord Brown v. Brown, 2020 UT App 146, ¶ 23, 476 P.3d 554. “For this reason, it is improper to allow one spouse access to marital funds to pay for reasonable and ordinary living expenses while the divorce is pending, while denying the other spouse the same access.” Dahl, 2015 UT 79, ¶ 126, 459 P.3d 276. But this principle does not require that the parties account for every dollar spent out of the marital funds and reimburse one another for any disparity. Rather, it requires that each party have equal access to use marital funds and assets “to pay for reasonable and ordinary living expenses while the divorce is pending.” Id. For this reason, Dahl and Brown are distinguishable from the case at hand. In this case, the Court said wife could spend more, but she chose not to to avoid dealing with reimbursements from him.
There is a difference between unequal access and unequal use. Here, she had access to more funds and chose to not access it.
Holding (access or use of tangible assets during case): This is the same. She had access to the assets but did not use them. She could have used the planes and yacht and other things. It may have been more difficult for her to do than it was for him, but she could have done it but chose not to.
Holding (Proof of Need): Under the Dahl case, the Court can fashion an award of alimony from any evidence there is of Wife’s need, it does not require that it be filed by her only. Here, there was evidence from before the divorce and from Husband’s need that the court could impute a figure for her need (it is not required to make that imputation under Dahl, but it could do so).
Holding (Income Generating Property Awards): In Dahl the large property division made the lack of alimony more equitable and palatable. This is especially true where the payee spouse receives income generating property. But, the court is not required to forgo alimony where there is a large property settlement and was within its discretion to award alimony in this case. In this case, it was too speculative about how much income, if any, she would be receiving once her equity in the estate was paid out. Once it is paid out and income is shown, a modification may be warranted.
Holding (Taxes): Because of the rushed Decree, Candi will be taxed on her alimony. It was error for the district court to not include this expense in her alimony award. “In calculating both a payor spouse's ability to pay and a payee spouse's needs, courts are generally expected to consider the person's tax liability. See McPherson v. McPherson, 2011 UT App 382, ¶ 14, 265 P.3d 839; Andrus v. Andrus, 2007 UT App 291, ¶¶ 17–18, 169 P.3d 754. In particular, it is plain error for a court to consider the tax consequences for one party in assessing their income and expenses but not for the other party. Vanderzon v. Vanderzon, 2017 UT App 150, ¶¶ 45, 58, 402 P.3d 219.” The court here errored in using Husband’s net and Wife’s gross, even though wife failed to provide any evidence at all of her tax burden because, “it is certain that she will incur some tax burden.”
Holding (Life Insurance): Whether or not to require life insurance for child support and alimony is within the court’s discretion. In this case, it wasn’t clear if the court did or did not require it, so it was remanded.
Fox v. Fox, 2022 UT App 88
Utah Court of Appeals
Attorneys: Lincoln Harris, Kari Dickinson, Adam Caldwell, Chantelle Petersen
District Court: 5th Circuit, Matthew Bell
Summary: Husband was a neurosurgeon earning $110,000 a month in Utah working 80-100 hour work weeks. He moved to Florida during the case and his salary went down to $80,000 a month. The court found that he was not underemployed. Wife appealed on various issues and the court affirmed on all issues.
Holding (Marital Standard of Living): Wife was awarded $15,000 a month for two years and almost $13,000 a month for 22 years. Wife argued that the court errored in failing to start the analysis at the parties’ standard of living. Her expert said the parties spend over $70,000 a month. It was fine for the Court to assess the parties’ needs in light of the marital standard of living, rather than simply cutting what she says they spent per month in half. In no case may the court award more than the demonstrated need. There is usually no need for the court to make a separate finding as to the overall marital standard of living as measured by the total amount of money spent each month when they were together. The court recites the steps in calculating alimony. Wife does not challenge any of the line item adjustments the court made to her need. The court did the proper calculations and adjustments to her need and found that husband could meet her entire need, even with his Florida income.
Holding (Extracurriculars for Children): The court did not error in including the children’s extracurricular activities in the Wife’s need analysis and then holding that she should pay for all of them. “Child-rearing expenses that are not statutorily distinguished from regular child support [health care and day care] should be considered part and parcel of the child support award.” Specifically, school fees and extracurriculars are included in child support. Davis v. Davis, 2011 UT App 311. The court, therefore, would have been well reasoned to exclude Wife’s line item “need” for $855 in her budget for extracurricular expenses in determining her alimony award, but it did not. The court could have deviated from the child support guidelines and made a separate order for the extracurricular expenses if it gave a good reason. Id. But, it instead included the amount in the alimony award. Neither were required and it is unclear why Wife “looks this gift horse in the mouth.”
Holding (Voluntary Underemployment): The court affirmed that the Husband was not voluntarily underemployed where he moved to Florida and his income went from $110,000 a month to $80,000 a month where he was working 80-100 hours a week in Utah and about 60 hours a week in Florida. First, the issue is irrelevant to alimony, because Wife’s need was met in full. “A court may impute income to an underemployed spouse.” Rayner v. Rayner, 2013 UT App 269, ¶ 7, 316 P.3d 455 (quotation simplified). In order to do so, however, the court must determine that the spouse “is voluntarily ... underemployed.” Id. (quotation simplified). The determination of underemployment requires examination of all of the relevant circumstances, and not just that a salary has decreased. The mere fact that income has fallen does not answer the entire question. Even in Florida, he made a lot of money and was still in the 90th percentile for neurosurgeons in the country. The court also was within its discretion to take into account Husband’s testimony that the work schedule was not sustainable and that he was overworked and burned out. Even in Florida, he was still working 50-60 hours a week. Under these facts, the court was within its discretion to find that he was not underemployed.
Kristina Pankhurst v. Grant Pankhurst, 2022 UT App 36
Utah Court of Appeals
Attorneys: Steven Wall, Justin Berube
District Court: 2nd District, Ernest W. Jones
Summary: The parties divorced and husband appeals the support awards of the district court. The husband failed to provide the necessary documents to show his actual income. He only provided one pay stub and one W2. The amounts were significantly lower than the previous years taxes. He said it was because of the pandemic. Wife had a neighbor testify that husband had said that his boss could artificially lower his income while the case was pending. Either way, the court found that it didn’t have enough evidence to show the lower income range since husband failed to provide it and that any lower income was temporary in nature. The appellate court affirmed the awards.
Holding (Imputing Income): “The current version of the Utah Code requires only that the judge ‘enter []findings of fact as to the evidentiary basis for the imputation.’” And that a findng that the party is involuntarily unemployed or underemployed is not necessarily required under the new statute. UCA § 78B-12-203(8)(a). Therefore, while under or non-employment may be relevant, it is not a required finding to impute. Here there was ample evidence that his income was generally higher and that any change was temporary. Husband provided no proof to the contrary. Also, it was Grant’s fault for not following the pre-trial order in providing all of the documents necessary to prove his income and that is why the Court could not actually figure his current income. Husband failed to challenge the Court’s determination that the district court was right to sanction him under Utah R. Civ. P. 37(b) for his failures to disclose his income records.
Holding (Alimony): Husband asserted that the $1,500 award exceeded wife’s need. However, husband failed to take into consideration wife’s tax consequences, which should be considered in meeting her need.
Holding (Child Support): The parties agreed that dad could have up to 10 overnights a month, even though mom lived in Alaska and dad in Utah. However, mom showed at trial that dad was not taking any of his overnights at all. Joint custody means that “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.” UCA § 78B-12-102(15). While the parties’ agreement allowed for a maximum option of 10 overnights a month, Grant had not chosen to exercise even one overnight in five (5) months, let along 30% of the overnights in the five (5) months before trial. He also showed no evidence that he had otherwise contributed to the kids expenses outside of child support. Therefore, the court was within its discretion to utilize the sole custody worksheet here. While some courts have looked to the award of overnights, that is not necessarily always dispositive of the fact of whether there is actually joint or sole custody.
Procedure
Clark v. Clark, 2023 UT App 111
Utah Court of Appeals
Attorneys: Karra J. Porter, Kristen C. Kiburtz, Julie J. Nelson
4th District Court, Honorable Judge Jennifer A. Brown (now Mabey)
Summary: Parties were divorcing. Husband appeals the district court’s exclusion of evidence based on his failure to provide timely pretrial disclosures. The appellate court affirms in part and reverses in part.
Holding (Pretrial Disclosures): There were many continuances in this case. Husband, representing himself (he was a former attorney) failed to make pretrial disclosures for the first scheduled trial. The trial was continued. He failed again to timely disclose and only did his disclosures eleven (11) days before trial. At trial he claimed it was harmless because he had previously disclosed the hundreds of pages of financial records during discovery. However, he never filed a certificate of service and Wife could not confirm if she ever received them. “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.’” 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. Further, it was Husband’s burden to prove he had disclosed the documents during discovery, not Wife’s. ““[T]he 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. “[E]xpecting 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.”
John v. John, 2023 UT App 103
Utah Court of Appeals
Attorneys: Benjamin K. Lusty, Gregory K. Orme, Ryan D. Tenney
3rd District Court, Honorable Judge Su Chon
Summary: Mother used drugs throughout the case history. She also moved for several years, having very little contact with the child. Husband was awarded sole physical and sole legal custody. Mother was awarded supervised parent-time. Mother appeals arguing that the court did not make adequate statutory findings to grant less than minimum time and did not make an adequate plan for her to get back to minimum. The appellate court disagrees and affirms.
Holding (Failure to Preserve – Specific Goal): Mother argues that the court did not provide a set of comprehensive expectations for Mother to meet before she could request to lift her parent-time restrictions. However, this claim was not properly preserved. When the court was ruling on the expectations, her attorney asked many clarifying questions and repeatedly received the same plan for lifting restrictions. In the end the attorney never objected to this plan. Therefore, the issue was not preserved for appeal. In order to preserve the issue for appeal, the attorney must “raise the objection to a level of consciousness in the mind of the court such that the court could consider it.”
Holding (Failure to Preserve – Delegated Authority): Likewise, Mother failed to properly preserve her objection on the issue of whether the court delegated too much of its authority to the reunification therapist. She did not raise the objection to the court below.
Mower v. Mower, 2023 UT App 10
Utah Court of Appeals
Attorneys: Cassie J. Medura, Jarrod H. Jennings, Douglas B. Thayer, Mark R. Nelson
4th District Court, Honorable Judge Roger W. Giffin
Summary: The court bifurcated the divorce case, granting the divorce early, reserving remaining issues for litigation. The court held a trial, but before it made its ruling, Thomas died. The district court dismissed the case finding that it no longer had jurisdiction. The appellate court held that in this particular case, dismissal was not appropriate, reversed and remanded.
Holding (Death During Divorce): “Porenta provides three major takeaways. First, if a spouse dies prior to entry of a final divorce decree, the marriage no longer requires dissolution because death already ‘terminated that personal relationship.’ Id. ¶ 20 (quotation simplified). See 27A C.J.S. Divorce § 194 (2022) (“A cause of action for divorce is purely personal, ends on the death of either spouse, and does not survive for the benefit of a third party.”); 24 Am. Jur. 2d Divorce and Separation § 118 (2022) (“[A] divorce suit abates when one party dies while the suit is pending and before a decree on the merits, because the death terminates the marriage, thus rendering the divorce suit moot as it relates to the parties’ marital status.”). Second, court orders entered prior to the final divorce decree determining the property rights of the parties do not abate on the spouse's death. See Porenta, 2017 UT 78, ¶ 20, 416 P.3d 487. However, any ‘interlocutory orders that are effective only during litigation abate upon the dismissal of a divorce case.’ Id. ¶ 27. See id. ¶ 27 n.13 (“This is not unique to the area of divorce law. Interlocutory orders that expressly expire at the end of litigation do just that, regardless of the type of case or how the litigation finally ends.”). And third, certain unresolved claims or rights arising from a divorce action may still be pursued following the spouse's death.” See id. ¶ 36. See also 24 Am. Jur. 2d Divorce and Separation § 118 (“[G]iven the circumstances presented, a portion of the dissolution action may survive an abatement of the rest of the action.”).
This case is different than Porenta because the parties had already been divorced (via bifurcation) when Thomas died. Indeed, here, both parties had already remarried. Therefore, Thomas’ death had no effect on the ongoing issues in the case because the marriage had already ended and therefore his death did not end the marriage.
“In cases such as this, in which ‘a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties.’” Utah R. Civ. P. 25(a)(1). However, “the district court ‘has inherent discretionary authority to abstain from exercising jurisdiction where another court has concurrent jurisdiction.’” See Kish v. Wright, 562 P.2d 625, 628 (Utah 1977)
Nelson v. Nelson, 2023 UT App 38
Court of Appeals of Utah
Attorneys: Sara Pfrommer, Ronald D. Wilkinson, Nathan S. Shill, Jacob A. Watterson, James C. Jenkins
District Court: 1st District Court, Honorable Judge Brian G. Cannell
Summary: Father brough a petition to modify to increase parent-time and decrease child support. Mother countered with claim for unpaid child support. The parties mediated and agreed to increase Father’s parent-time and decrease his child support. That was finalized. Then, Mother a motion for order to show cause (Motion to Enforce) for the unpaid child support. The district court awarded the judgment for unpaid child support. Father asked for a trial and the court denied the request. The appellate court affirmed both decisions.
Holding (Res Judicata – Claim Preclusion): “Both res judicata and the law of the case doctrine can operate to give an earlier decision on a particular claim or issue preclusive effect when the same claim or issue is raised again. See Utah State Bar v. Rasmussen (In re Discipline of Rasmussen), 2013 UT 14, ¶¶ 17–18, 299 P.3d 1050. A key difference between the two doctrines, however, is that generally “[r]es judicata applies as between multiple cases while the law of the case doctrine applies to successive proceedings within one case.” State v. Waterfield, 2014 UT App 67, ¶ 39 n.12, 322 P.3d 1194, cert. denied, 333 P.3d 365 (Utah 2014).” However, res judicata in divorce proceedings may occur between the original decree and subsequent modifications, the original proceeding and separate modifications are treated as separate “cases.” In contrast, motions to enforce a previous order are treated as the same as that “case” and therefore, the “law of the case” doctrine is applied there. In this case, the motion to enforce is relevant to the decree, not the modification, so they are separate “cases” for this analysis, and the res judicata doctrine is applied between them.
“The doctrine of res judicata embraces two distinct branches: claim preclusion and issue preclusion.” Macris & Assocs., Inc. v. Neways, Inc., 2000 UT 93, ¶ 19, 16 P.3d 1214. “[C]laim preclusion corresponds to causes of action[;] issue preclusion corresponds to the facts and issues underlying causes of action.” Oman v. Davis School Dist., 2008 UT 70, ¶ 31, 194 P.3d 956.
“Whether a claim is precluded from relitigation depends on a three-part test.” Mack v. Utah State Dep't of Com., 2009 UT 47, ¶ 29, 221 P.3d 194.
First, both cases must involve the same parties or their privies. Second, the claim that is alleged to be barred must have been presented in the first suit or be one that could and should have been raised in the first action. Third, the first suit must have resulted in a final judgment on the merits.
Id. (cleaned up).
Mother’s simple answer to Father’s Petition to Modify alleging he was behind on child support was not enough to “present the claim.” It did not allege how much he owed or make a demand for relief. It was simply an affirmative defense, not a claim for res judicata purposes.
Holding (Ambiguous Stipulation): Even if a claim is not presented, it may still be settled and subject to res judicata. However, in this case, the settlement never mentions child support arrears. It simply refers to “child related financial matters” of which there were several. Therefore, the stipulation was ambiguous. To resolve the ambiguity, the court ordinarily considers extrinsic evidence. The court looked to the statements that were made regarding the stipulation at the time it was put on the record. Nothing there supported that the arrearage claim was waived. The arrearages were not mentioned at all at the settlement conference. In fact, the parties stated that any previous orders not modified here would remain in effect.
Holding (Claim Preclusion-Requirement to Present): There was no requirement that Mother bring her claim for arrearages in the modification case because Father’s claims in the modification were unrelated to in origin to Mother’s claim for unpaid child support. “A subsequent claim could and should have been brought in an earlier action ‘if [both claims] arise from the same operative facts, or in other words from the same transaction.’ Id. ¶ 30. To determine if two claims arise from the same transaction, a court may consider ‘whether the facts [of each] are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations.’ Gillmor v. Family Link, LLC, 2012 UT 38, ¶ 14, 284 P.3d 622 (cleaned up). But ‘no single factor is determinative.’ Id. (cleaned up). ‘Therefore, every consideration need not be addressed or considered in every case.’” Id. One can look to see if there is a significant evidentiary overlap between the claims to make this determination. Also, the procedures for the parties claims were totally different, one being a petition to modify and the other being a motion to enforce.
Hinds v. Hinds-Holm, 2022 UT App 13
Court of Appeals of Utah
Attorneys: Theodore R. Weckel, Jonathan G. Winn
District Court: 3rd District Court, Honorable James T. Blanch
Summary: Mother and father raised the child for a short time together. Father was in military and lived out of state. Mother moved to Utah to live closer to her mother. Mother then became extremely difficult and did not facilitate father’s parent-time in many ways. She was held in contempt for this issue several times and warned to fix her behavior, but she did not. Mother had four (4) attorneys before trial, all of whom left the case with notes in their withdrawals about mother’s problematic behavior. At trial, mother asked for another continuance to find counsel, which was denied. She was required to go to trial pro se. The custody evaluator found that father should have sole physical and legal custody, at least partially because of mother’s inability to facilitate the other parent’s relationship with the child. The district court analyzed all custody factors and agreed. The appellate court affirmed.
Holding (Continuance): The court affirmed the trial court’s decision to proceed with trial even though mother requested time to find counsel. She was forced to appear at trial pro se because of her own behavior. “In Layton City v. Longcrier, 943 P.2d 655 (Utah Ct. App. 1997), this court adopted a five-prong test to determine whether a district court acted reasonably in denying a motion to continue: (1) ‘whether other continuances have been requested and granted’; (2) ‘the balanced convenience or inconvenience to the litigants, witnesses, counsel, and the court’; (3) ‘whether the requested delay is for legitimate reasons, or whether it is dilatory, purposeful, or contrived’; (4) ‘whether the [requesting party] contributed to the circumstance which gives rise to the request for a continuance’; and (5) ‘whether denying the continuance will result in identifiable prejudice to [the requesting party's] case, and if so, whether this prejudice is of a material or substantial nature.’”
Sara Ward v. Meredith McGarry, 2021 UT App 51
Utah Court of Appeals
Attorneys: Angilee K. Dakic; Martin N. Olsen; Beau J. Olsen
District Court: Richard D. McKelvie
Opinion: Michele Christiansen Forster
Summary: Sara and Meredith had one child together. But, they disputed McGarry’s monthly income for child support in their paternity case. Meredith is employed and has ownership in at least one business. Sara has had a hard time getting information about the business. At a motion hearing that was not meant to be about the substative issues in the case, the Commissioner made recommendations based on Meredith’s Rule 68 offer to impute himself at $30,000 per month. The commissioner recommended that he be imputed to that and then entered a recommendation on arrearages. No evidence was taken at the hearing. The order was captioned “Final Order Re Child Support.” Ward objected to the commissioner’s recommendation but the judge denied the objection and signed the commissioner’s recommendation.
Holding (adequate findings): Reversed and remanded because the judge did not make any independent findings of fact or conclusions of law. “In all actions tried upon the facts without a jury…, the court must find the facts specially and state separately its conclusions of law. The findings and conclusions must be made part of the record and may be stated in writing or orally following the close of evidence.” Utah R. Civ. P. 52(a)(1). “Moreover, when a party objects to a commissioner’s recommendation, the judge must ‘make independent findings of fact and conclusions of law based on the evidence.” Id. R. 108(f); see also Day v. Barnes, 2018 UT App 143, ¶ 16 (Rule 108 is explicit that the district court’s review is independent on both the evidence and the law). “A court’s findings must ‘contain sufficient detail to permit appellate review to ensure that the district court’s discretionary determination was rationally based.” Fish v. Fish, 2016 UT App 125, ¶ 22. Unless a matter can be addressed summarily, such as a rule 56 matter, “parties have a right to their day in court.”
Note: If the commissioner had taken evidence and the judge made specific analysis of such evidence and reference and adoption thereof, then it could be handled summarily, but that did not happen. In this case, no judicial officer ever took evidence, which is the primary problem.
Attorney Fees
McFarland v. McFarland, 2024 UT App 31 (2nd appeal on this case)
Utah Court of Appeals
Attorneys: Angilee K. Dakic, Jacob K. Cowdin
2nd District Court, Honorable Judge David J. Williams
Summary: In the parties’ divorce settlement, Wife was awarded the home but was to make the payments on it. She was also required to pay Husband $12,034 if one of several things occurred (including abandoning the home). Several of the triggering factors had long since occurred. Wife did not pay the bills on the house and she had abandoned the house. But, she never paid Husband his lump sum amount. Husband moved back into the home. For seven years, Husband lived in the home and paid all of the bills Wife was supposed to pay on it. He also stopped paying alimony. Neither seemed bothered by this arrangement. Husband finally filed a petition to modify. Wife responded with a motion to hold him in contempt for various things stemming from their arrangement. The court did order Husband to pay Wife alimony arrearages, but did not hold him in contempt. The court agreed in the Husband’s equitable remedy arguments of waiver and laches and found that there was a change in circumstances and then awarded the home to Husband. The court granted Husband attorney fees under the bad faith statute U.C.A. § 78B-5-825. The appellate court affirmed the changed award of the home, but reversed on attorney fees.
Holding (Bad Faith Attorney Fees): Courts may “award reasonable attorney fees to a prevailing party if the court determines that the action or defense to the action was without merit and not brought or asserted in good faith.” See Utah Code § 78B-5-825(1). “Before awarding fees under this section, a district court—in addition to determining that the requesting party is the ‘prevailing party’—must make specific findings that the opposing party's claim is (1) ‘without merit’ and (2) ‘not brought or asserted in good faith.’ Rocky Ford Irrigation Co. v. Kents Lake Reservoir Co., 2020 UT 47, ¶ 76, 469 P.3d 1003 (quotation simplified). These two findings ‘must be made independently’ from one another.” Still Standing Stable, LLC v. Allen, 2005 UT 46, ¶ 12, 122 P.3d 556. The court did not make adequate required findings on these points. The court did find that her case was brought on a retaliatory basis, but did not make findings that her claims were without merit. “Without merit” in this context means something worse than just having a losing claim. Indeed, our supreme court has stated that the term “without merit,” as used in the bad-faith statute, “implies bordering on frivolity,” with the term “frivolous” meaning “of little weight or importance having no basis in law or fact.” Cady v. Johnson, 671 P.2d 149, 151 (Utah 1983). The attorney fees for bad faith were therefore reversed.
Lobendahn v. Lobendahn, 2023 UT App 137
Utah Court of Appeals
Attorneys: Luke A. Shaw, Jill Coil, Julie Nelson, Daniel Ybarrra, Alexandra Mareschal
4th District Court, Honorable Judge Thomas Low
Summary: The parties had two children. They historically had made large moves, including when they lived in New Jersey at the time they decided to divorce and Husband told Mother to move back to Utah to do the divorce (away from him). When Father joined the family in Utah, he moved to a different county with provisions for when he lived closer. Mother was the primary caregiver for the children. Mother eventually decided to move to Washington. The court did not prevent such a move at the relocation hearing. Father then filed a petition to modify to have the children come back to Utah. The custody evaluator agreed the children should come back. The judge, however, disagreed. The appellate court found that the district court properly analyzed all of the factors and affirmed the ruling. In addition, the district court did not grant mother’s attorney fees because it found that Father’s petition to modify was not frivolous. This was also affirmed.
Holding (Attorney Fees for Petition to Modify): The court was affirmed in denying Mother’s attorney fees finding that she has ability to pay and that Father’s petition was not frivolous under Utah Code § 30-3-10.4(5). Where mother’s only evidence of need was a reference to incomes from the divorce years early and the custody evaluator’s mention of incomes in the reports, the district court is not required to comb through evidence to find the evidence that supports Mother’s claim for need for fees.
Knowlton v. Knowlton, 2023 Ut App 16
Utah Court of Appeals
Attorneys: Julie J. Nelson, Troy L. Booher, Alexandra Mareschal, Jon M. Memmott, Shaun L. Peck, Shawn P. Bailey
2nd District Court, Honorable Judge David M. Connors
Summary: This is a divorce case with many business and property distribution issues that are addressed in turn.
Holding (Dissipation): Husband used $564,100 from the marital estate to pay his legal fees. He did not make similar funds available to Wife to pay her fees. The court counted Husband’s legal fees against property he received at trial.
Nakkina v. Mahanthi, 496 P.3d 1173 (2021)
Utah Court of Appeals
Attorneys: Eric K. Johnson, Kelli J. Larson
District Court: 3rd District, Honorable Barry Lawrence
Summary: Wife alleged that she borrowed abut $61,000 for attorney fees and although there was no formal agreement around this debt, the lenders still expected to be paid back. She included $1,000 a month in her financial declaration to repay these amounts. The court awarded wife $40,600 for her attorney fees and rejected wife’s monthly expense of $1,000 to not double count it because there was not sufficient evidence about the debt in terms of a debt that needed to be paid back.
Holding (Debt/Attorney Fees): Under Utah Code Ann. § 30-3-3(1), a person seeking attorney fees must show that they have a need for them. “Utah courts have recognized that “[p]arties to a divorce action often incur debt to retain counsel,” id., and that “the very existence of indebtedness to fund legal services may tend to show need,” Kimball v. Kimball, 2009 UT App 233, ¶ 46, 217 P.3d 733. Indebtedness to friends and family, while not determinative, may tend to demonstrate a need sufficient to satisfy section 30-3-3(1). See id. (holding that it is the existence of indebtedness to fund legal services that tends to show need regardless of whether the debt is owed to an attorney, a bank, family, or a friend). This is true “especially if [the spouse] is expected to repay his [or her] family in due course, even if the family members are disinclined to commence a collection action to enforce such repayment.” Id. ¶ 48. However, in this case, the court’s findings were vacated and remanded to better develop findings around wife’s need in relation to her having to borrow the funds.
Miner v. Miner, 2021 UT App 77
Utah Court of Appeals
Attorneys : Troy Booher ; Julie J. Nelson; Rodney Parker; Adam Caldwell
District Court: 5th District, Jeffrey C. Wilcox
Summary: Parties were married while husband was in medical school. He made $1 million a year at end of relationship. They have four children. Parties owned a 20 acres of land with a large home and horse property. The family are also avid tennis players and enjoyed other very expensive hobbies and travel. The court reviews several issues of alimony and attorney fees.
Holding (Attorney Fees): Wife charged $80,000 to a credit card and husband charged $40,000 for fees before temp orders, when they both agreed to stop doing that. Husband had to pay all of this off during the case with a 401k loan. The court was wrong to not consider this when it said each would pay their own fees. Either the court needed to award wife her attorney fees under the proper analysis of 30-3-1 or say each pay their own and award husband credit for what he had already paid for wife.
Wadsworth v. Wadsworth, 2022 UT App 5
Utah Court of Appeals
Attorneys: Michael Zimmerman, Troy Booher, Julie Nelson, Clark Sessions, T. Mickell Jimenez, Marcy Glenn, and Kristina van Bockern
District Court: 3rd District, Judge Su Chon
Summary: The parties were married in 1979 and husband started a construction business in 1991. The parties owned various businesses including a hotel and two restaurants. The various appeals deal with the issues raised in the cases.
Holding (Snap Shot): The district court was fine to calculate attorney fees that he took from the estate as of right before trial because that is what everything was calculated upon a “snap shot in time.” Marroquin v. Marroquin, 2019 UT App 38.
Holding (equalizing fees): The appellate court does not analyze this issue, but the district court did equalize the parties’ attorney fees and costs out of the marital estate. This was apparently right as neither party disputed it.
Imputed Income
Sara Ward v. Meredith McGarry, 2021 UT App 51
Utah Court of Appeals
Attorneys: Angilee K. Dakic; Martin N. Olsen; Beau J. Olsen
District Court: Richard D. McKelvie
Opinion: Michele Christiansen Forster
Summary: Sara and Meredith had one child together. But, they disputed McGarry’s monthly income for child support in their paternity case. Meredith is employed and has ownership in at least one business. Sara has had a hard time getting information about the business. At a motion hearing that was not meant to be about the substantive issues in the case, the Commissioner made recommendations based on Meredith’s Rule 68 offer to impute himself at $30,000 per month. The commissioner recommended that he be imputed to that and then entered a recommendation on arrearages. No evidence was taken at the hearing. The order was captioned “Final Order Re Child Support.” Ward objected to the commissioner’s recommendation but the judge denied the objection and signed the commissioner’s recommendation.
Holding (imputed income): The court adopted the $30,000 that was in McGarry’s rule 68 settlement letter; however Ward never agreed to that amount. “Income may not be imputed to a parent unless the parent stipulates to the amount imputed, the parent defaults, or, in contested cases, a hearing is held and the judge…enters findings of fact as the evidentiary basis for the imputation.” UCA 78B-12-203(8)(a).
Business Division
Lamb v. Lamb, 2024 UT App 16
Utah Court of Appeals
Attorneys: Mary Deiss Brown, Gregory G. Skordas, Gabriela Mena, Allison R. Librett
3rd District Court, Honorable Judge Robert P. Faust
Summary: Wife appeals the district court award of custody to Father as well as the award of the business and division manner the court used to determine equity in the marital home.
Holding (Business Division): The parties supplied gas stations with supplies. This was Husband’s father’s business, but Wife asserted that they had signed a document that transferred the business to the parties. However, she was unable to produce that document at trial. The court was affirmed in awarding the business interest (if any) to Father. Mother’s briefing on this matter is inadqueate but essentially amounts to the district court believing Husband over her. The district court is in the best position to make decisions of credibility and fact. The court does not overturn the decision.
Knowlton v. Knowlton, 2023 Ut App 16
Utah Court of Appeals
Attorneys: Julie J. Nelson, Troy L. Booher, Alexandra Mareschal, Jon M. Memmott, Shaun L. Peck, Shawn P. Bailey
2nd District Court, Honorable Judge David M. Connors
Summary: This is a divorce case with many business and property distribution issues that are addressed in turn.
Holding (Stipulated Valuation): The parties owned a construction company. During litigation, they jointly hired a forensic accountant and then both agreed to the value of the company and that it should be awarded to husband. However, throughout the trial process, Wife first asked the court to adjust the value alleging a flaw in the calculation. Next, Husband asked to adjust the valuation because he was being sued in a separate case. The court held the parties to the value that they agreed upon. The appellate court affirmed. “Parties are generally free to agree upon facts subject to judicial application of the law…so long as they are negotiated in good faith and do not unreasonably constrain the divorce court’s equitable and statutory duties.” The trial court can set stipulations aside when they become inequitable or stale. However, in this case, the parties agreed to use that amount right at the beginning of trial. The court was within its discretion to hold the parties to that value.
Holding (Competing Valuations): The parties had a separate asset in the way of a Tax Increment Funds (TIF) that Ogden City owed to the parties. Husband’s experts valued the TIF at their face value of $1.7 million. Wife’s expert broke the amount into two parts and offered discounts for the fact that they would not be paid for many years and because they carried some risk of not being paid. The court found both experts qualified but ultimately went with Wife’s expert because it agreed with the discounts and management of the different funds, timing of payment, and risks associated therewith. "When considering testimony regarding valuation of property, the trial court is entitled to give conflicting opinions whatever weight it deems appropriate, and a trial court's valuation will be upheld if it is within the range of values established by all the evidence." DeAvila v. DeAvila, 2017 UT App 146, ¶ 22, 402 P.3d 184 (quotation simplified). See Morgan v. Morgan, 854 P.2d 559, 563 (Utah Ct. App. 1993) ("[E]valuation of the weight and credibility of testimony and evidence is a matter for the trier of fact."). Accordingly, merely "failing to accept one party's proposed valuations does not constitute an abuse of discretion." Taft v. Taft, 2016 UT App 135, ¶ 33, 379 P.3d 890 (quotation simplified). Here, Husband’s expert provided no competing discount analysis and the court was within its discretion to accept wife’s expert’s analysis.
Holding (Division of Litigation Potential): The parties owned another company, but the only asset therein was a pending lawsuit against West Valley City. Husband had great faith in the lawsuit and Wife had very little. She wanted to negotiate out her 50% share directly with West Valley. The court awarded the company/lawsuit to Husband because he felt strongly about litigating it fully and Wife did not. The Court valued it at a nominal amount of $100 because of the costs necessary to litigate and unknown value. The appellate court affirmed. The facts and valuations of this item were speculative at best. The court gave a rational decision that balanced the debts already incurred in the lawsuit with the necessary ongoing expense and difficulty of litigation with the potential upside to the lawsuit.
Holding (Reimbursement for Distributions): Each party was receiving $15,000 per month for their own spending during the case. In addition, Husband was paying the bills and running the parties’ businesses and holdings. During the case, husband received an additional $3 million from the parties’ businesses, on top of his $15,000 a month. The court did not give Wife half of those funds because the court found that those funds were used to maintain the marital property that was then split at trial. To give her the property and the cash would be double dipping. The appellate court affirmed.
Mintz v. Mintz, 2023 UT App 17
Utah Court of Appeals
Attorneys: Julie J. Nelson; Alexandra Mareschal; Thomas J. Burns; Aaron R. Harris
District Court: Silver Summit, the Honorable Kent R. Holmberg
Summary: Deals with a twenty year high income marriage. The case deals with alimony, property division, and dissipation.
Holding (Diving Book of Business): The District Court did not divide an alleged “book of business.” This was upheld. Glen did not own a book of business, but rather the alleged book of business was owned by his employer.
Wadsworth v. Wadsworth, 2022 UT App
Utah Court of Appeals
Attorneys: Michael Zimmerman, Troy Booher, Julie Nelson, Clark Sessions, T. Mickell Jimenez, Marcy Glenn, and Kristina van Bockern
District Court: 3rd District, Judge Su Chon
Summary: The parties were married in 1979 and husband started a construction business in 1991. The parties owned various businesses including a hotel and two restaurants. The various appeals deal with the issues raised in the cases.
Holding (Notes Receivable): The District Court properly deducted amounts owed to the company from its valuation but then failed to properly add those amounts back in as assets owed back to the company. The notes that were owing to the business were assets of the marriage that should have been divided equitably.
Holding (Backlog of Contracts): The construction company had approximately $4 million in pending contracts. Husband’s expert testified that the $4 million in contracts would be just enough to cover administrative costs and equipment for the shortfalls they were expecting. Wife’s expert did not address this point to show that the $4 million was indeed pure profit, to which she would be entitled. The trial court was within its discretion to address the witnesses’ credibility and make this determination.
Holding (Heavy Equipment Valuation): The court was within its discretion to allow the heavy equipment to be valued based on estimated values at auction and the appraiser was not required to rely on the USPAP because although USPAP provides a standard for valuation, it is not the only or required method of valuation. The court gives many other case examples where the district court did many different methods in accepting or dividing different valuations for things. Generally, we will uphold a district court's valuation of marital assets as long as the value is “within the range of values established by all the testimony,” and as long as the court's findings are “sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.” Morgan v. Morgan, 795 P.2d 684, 691–92 (Utah Ct. App. 1990) (quotation simplified); see also Weston v. Weston, 773 P.2d 408, 410 (Utah Ct. App. 1989) (upholding a court's election not to apply a marketability discount to the value of stock in a closely held corporation, despite several experts recommending that such a discount be applied, because the value the court found was “within the range of values established by all the testimony”).
Holding (Don’t be Paternalistic – She can Run the Business Too): The district court was ultimately within it’s discretion in not awarding Wife the smaller businesses, like the restaurants. However, in footnote 12 (11 on paper), the appellate court gives a strong admonition against perpetuating paternalistic views of a spouse who “can or cannot run a business” just because of historical practices of the parties. “We are troubled by the district court's adoption of the paternalistic argument that merely because Candi had little business experience, she was not capable and should not be awarded any of the business assets. Not every business owner has extensive business experience, and even inexperienced business owners can succeed, often by hiring experienced managers to help run the business. Indeed, courts should be cautious about perpetuating inequalities established in the course of a marriage—perhaps due to an imbalance of power in the parties’ relationship—as the parties move forward with their separate lives simply because such inequality had been established as the status quo. For example, in this case, it appears that Candi's inability to present evidence about what she “could or couldn't do with respect to employment” was based on the parties’ practices while they were married. Candi testified that it was Guy who wanted her to be a stay-at-home mom and that he “insisted on taking care of all the finances.” Although Candi wanted to be more involved in financial decisions, “it just wasn't worth the fight.” While we understand the court's desire not to penalize Guy for continuing to act in a manner consistent with the parties’ historic practices, see supra Part III.D; infra Part VI, we caution against perpetuating apparent inequalities in marital relationships by relying on parties’ historic practices to divide and distribute the marital estate. Nevertheless, we are ultimately unpersuaded that the estate division structure chosen by the district court in this case was outside its wide discretion in such matters, as long as sufficient security for the unpaid portion is provided.”
Holding (Contempt): There was a temporary order that prevented certain transactions. Husband did all sorts of transactions during the case but the Court found that they were not contempt because they were similar to what he did as a businessman before the case and the language was not clear enough for him to knowingly be violating the temporary orders.
Retirement
Knowles v. Knowles, 2022 UT App 47
Utah Court of Appeals
Attorneys: Julie J. Nelson; Alexandra Mareschal ; Emily Adams; Sara Pfrommer
District Court: 2nd District Court, David R. Hamilton
Summary: This is a 30 year marriage with an optometrist and stay at home mother. The court gives very pointed direction on alimony and some property issues.
Holding (timing for division of retirement): The court divided the retirement accounts two years after the separation but not on the exact date of the trial, instead a few months later when it gave its oral ruling. This was affirmed. “Generally, the marital estate is valued at the time of the divorce decree or trial.” Jacobsen v. Jacobsen, 2011 UT App 161, ¶ 39, 257 P.3d 478 (quotation simplified). However, “a court has broad discretion to value the parties’ marital assets at a different time, such as that of separation, if it determines that the circumstances so warrant.” Petrzelka v. Goodwin, 2020 UT App 34, ¶ 47, 461 P.3d 1134. “[A]ny deviation from the general rule must be supported by sufficiently detailed findings of fact that explain the [district] court's basis for such deviation.” Rappleye v. Rappleye, 855 P.2d 260, 262 (Utah Ct. App. 1993).
Procedure
Sanders v. Sanders, 2021 UT App 122
Utah Court of Appeals
Attorneys: S. Grace Acosta, Steven M. Rogers, Nic R. Russell, Kelly Baldwin, Wylie Thomas
District Court: 3rd District Court, Honorable Todd M. Shaughnessy
Summary: This case involves a wife’s attempts to renew a judgement and husband’s attempts to move to void the judgment. The court held that the husband’s second motion was invalid because he should have brought his argument in his first Rule 60 motion. This is reversed.
Holding (Rule 60 and Subject Matter Jurisdiction): Husband’s argument was valid that the court lacked subject matter jurisdiction given the terms of the Renewal of Judgment Act. His motion should not have been denied. Husband’s second motion was not the same as his first, and therefore not prohibited by Utah R. Civ. P. 12(h).
Holding (Timeliness): “ Rule 60(c) requires that motions to set aside a judgment pursuant to rules 60(b)(1), (2), and (3) must be filed within ninety days “after entry of the judgment or order.” Utah R. Civ. P. 60(c). The rule also prescribes that motions filed pursuant to 60(b)(4), while not subject to the ninety-day rule, “must be filed within a reasonable time.” Id. See In re Estate of Willey, 2016 UT 53, ¶¶ 7, 12, 16, 391 P.3d 171. Thus, because Travis premised his second motion on the ground that the judgment was void under 60(b)(4), it was not subject to the ninety-day limit. But due to the somewhat inconsistent nature of the applicable caselaw on this issue, it is not entirely clear whether even the “reasonable time” limit applies to motions brought under 60(b)(4).” The court goes through the case law on this issue, which is better read directly from the opinion.
Johansen v. Johansen, 2021 UT App 130
Court of Appeals of Utah
Attorneys: Charles R. Ahlstrom, Jason B. Richards
District Court: 2nd District Court, Honorable Joseph M. Bean
Summary: Colten filed a petition to terminate Kathy’s alimony due to cohabitation. The Court scheduled a three day trial. Colten disclosed for the first time witnesses and evidence approximatey a month before trial. Kathy moved to dismiss the petition because Colten never disclosed initial disclosures. The court allowed the trial to go forward on the basis that the late disclosures were harmless because Colten could just call them as impeachment witnesses. The district court allowing husband to present witnesses and evidence that were not properly disclosed in initial disclosures was not harmless and resulted in prejudice to former wife. Reversed.
Holding (Harmless Error): “[R]ule 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). ““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, 493 P.3d 1131.
“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, 493 P.3d 1131. “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 . The presumptive sanction here would have been to bar Colten’s evidence at trial.
Knowing what witnesses Colten was going to call could completely change Kathy’s legal strategy, as well as her decision whether or not to retain counsel, which she did not.
The case goes through many of the other cases and points that demonstrate why disclosure is so important, even when the other side is the only witness for a case in chief.
Holding (Impeachment): The court also errored in finding that Colten could essentially provide his entire case in chief as impeachment evidence. The issue is dicta because the court should have excluded Kathy from testifying, in which case there would be no impeachment process. The exception for disclosure for impeachment evidence is not found in subsections (a)(1)(A)(ii) or (a)(1)(B). “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.”
Nakkina v. Mahanthi, 496 P.3d 1173 (2021)
Utah Court of Appeals
Attorneys: Eric K. Johnson, Kelli J. Larson
District Court: 3rd District, Honorable Barry Lawrence
Summary: The court was upheld in recasting a motion to amend as a motion to reconsider and denying it as such.
Holding (Motion to Reconsider/Amend): “Motions to reconsider are not recognized by the Utah Rules of Civil Procedure,” and “trial courts are under no obligation to consider [them].” Tschaggeny v. Milbank Ins. Co., 2007 UT 37, ¶ 15, 163 P.3d 615; see also A.S. v. R.S., 2017 UT 77, ¶ 28, 416 P.3d 465. Mahanthi's motion did not seek to amend a judgment; rather, Mahanthi sought to amend the court's prejudgment findings of fact and conclusions of law.
Smash Tech., LLC v. Smash Solutions, LLC, 107 Fed. R. Serv. 3d 417
United States District Court, D. Utah
Summary:
Holding (vague discovery objections): The court held that all of the boilerplate objections to discovery failed “for want of specificity.” Specificity is required in federal rules 33 and 34. The court discusses the need to break discovery traditions of including boilerplate objections, regardless of if they apply. “The hallmark of a boilerplate objection is its generality. The word “boilerplate” refers to “trite, hackneyed writing”—an appropriate definition in light of how boilerplate objections are used. An objection to a discovery request is boilerplate when it merely states the legal grounds for the objection without (1) specifying how the discovery request is deficient and (2) specifying how the objecting party would be harmed if it were forced to respond to the request. For example, a boilerplate objection might state that a discovery request is “irrelevant” or “overly broad” without taking the next step to explain why. These objections are taglines, completely “devoid of any individualized factual analysis.” Often times they are used repetitively in response to multiple discovery requests.” These “boilerplate objections” violate the rule that “[t]he grounds for objecting” be “stated with specificity” as to interrogatories and that objections to document requests be “state[d] with specificity ... including the reasons.” In other words, “merely assert[ing] boilerplate objections that the discovery sought is vague, ambiguous, overbroad, unduly burdensome, etc.... without specifying how each [interrogatory or] request for production is deficient and without articulating the particular harm that would accrue if [the responding party] were required to respond to [the] discovery requests” simply is not enough.
Using the term “general objections” alone is enough to violate the specificity requirements.
If you are going to object, make it specific and apply the rule to the facts and explain why the objection is correct in your particular case. In addition, state what information is being withheld due to the objection.
Holding (failure to respond): A party cannot delay responding to discovery requests simply because the other party has not yet responded to its discovery.
Holding (contention interrogatory): You can ask what a party contends or ask for all of the facts upon which a party bases a contention or ask them to apply law to facts. But, the court can grant more time (even to the end of discovery) to respond to such a question.
The Court declined to follow Smash Tech here: Podium Corp. Inc. v. Chekkit Geolocation Servs. Inc., No. 2:20-CV-00352, 2022 WL 1773016, at *4–5 (D. Utah June 1, 2022)
Podium used the phrase “to the extent” in its objections to RFP Nos. 12, 24, 26, and 27.1 Chekkit argues this language is prohibited, citing Smash Technology, LLC v. Smash Solutions, LLC, 335 F.R.D. 438, 446–47 (D. Utah 2020). Chekkit asks the court to order Podium to supplement its responses to remove this phrase. The motion is denied as to this issue. As noted, Rule 34 requires a response to “state with specificity the grounds for objecting.” Fed. R. Civ. P. 34(b)(2)(B). However, the mere use of the phrase “to the extent” does not automatically render an objection unintelligible or nonspecific. But cf. Smash Tech., 335 F.R.D. at 447 (“[T]he ‘to the extent that’ moniker does not satisfy the specificity requirement because the objecting party is not even definitively contending that there is an actual, objection-worthy problem in the request.”). The grounds for Podium's objections to RFP Nos. 12, 24, 26, and 27 are clear despite Podium's use of the phrase “to the extent.” Requiring Podium to remove this phrase from its responses would not clarify the objections; it would be purely semantic and place form over function. Podium is not required to supplement its responses to remove this language.
