First, the facts:

A judge in L.A. upheld the terms of Clarkson’s and Blackstock’s prenup and awarded Clarkson the $10.4M Montana ranch, which she purchased in 2019 (she is the sole title holder). However, Clarkson is living in L.A., Blackstock is still living at the ranch, and now he appears to be refusing to accept the court’s judgment. Clarkson wants to sell the ranch, and Blackstock is digging in his heels.

This could go two ways:

Clarkson tries to sell the house with Blackstock still in it. But because Blackstock doesn’t have any vested interest in the property, he likely won’t be motivated to help sell it. In fact, he may very well try to sabotage the sale out of spite — a classic symptom of an in-spouse with nothing to gain from the sale.

Let’s say he declines showings, refuses to leave when buyers and agents arrive, and keeps the house in poor condition. That will affect the value which will depreciate over time.

The plot thickens even more because there are cattle and horses on the property, at least according to an article published in 2020 before their divorce.

Complicated “stuff” on the premises, such as livestock, dilapidated motor vehicles, or inventory from a business should really be addressed before listing the property.

OR

Clarkson will need to go back to court to get him removed. That also gets complicated because it will likely be an L.A. judge making an order that law enforcement in Montana would have to enforce. Because nearly every state has different eviction rules, the order may not align with the eviction process in Montana.

My two big takeaways based on my experience in divorce real estate:

Shore up the property first. Blackstone will have to move at some point, so it’s better to have him out of the picture sooner rather than later. If the livestock hasn’t already been rehomed, at the very least, have a plan for it so there are no delays that could put them in breach of a timeline-riddled contract.

Line up the eviction or possession procedures in Montana before requesting an order, so that a judge’s orders are appropriate enough to be carried out by law enforcement.

It will be interesting indeed to see how this one unfolds!

Have a great week!

Cheers, Matt Wadsworth is a divorce attorney serving the Wasatch Front: Salt Lake City, Ogden, Park City, Draper, Provo, Lehi etc. Utah.

The post Kelly Clarkson’s Divorce & the Montana Ranch appeared first on Arnold Wadsworth Coggins.

Utah Code Annotated 78B-15-109. Limitation on recovery from the obligor.

The obligor’s liabilities for past support are limited to the period of four years preceding the commencement of an action.

Utah Code Annotated 78B-12-105.1

(1) Except as otherwise provided in this section, a biological father of a child has a duty to pay 50% of the mother’s pregnancy expenses.
(2)(a) If paternity is disputed, a biological father owes no duty under this section until the biological father’s paternity is established.
(b) Once paternity is established, the biological father is subject to Subsection (1).
(3)(a) Any portion of a mother’s pregnancy expenses paid by the mother or the biological father reduces that parent’s 50% share under Subsection (1), not the total amount of pregnancy expenses.
(b) Subsection (3)(a) applies regardless of when the mother or biological father pays the pregnancy expense.
(4) If a mother receives an abortion, as defined in Section 76-7-301, without the biological father’s consent, the biological father owes no duty under this section, unless:
(a) the abortion is necessary to avert the death of the mother; or
(b) the mother was pregnant as a result of:
(i) rape, as described in Section 76-5-402;
(ii) rape of a child, as described in Section 76-5-402.1; or
(iii) incest, as described in Subsection 76-5-406(2)(j) or Section 76-7-102.
(5) Subsection (1) does not apply if a court apportions pregnancy expenses under Section 30-3-5.
(6) A person may seek payment under Subsection (1) in accordance with Section 78B-12-113.
(7) Nothing in this section or Section 78B-12-212.1 requires a person to separately bill a biological father for pregnancy expenses.

Matt Wadsworth is an attorney practicing in divorce and family law in Salt Lake City, Ogden and Provo Utah.

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The post Wills v Wills 853 SE 2d 536 – Postnuptial Agreements appeared first on Arnold Wadsworth Coggins.

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

Appellee, v.

ROBERT DENNIS MALLOY,

Appellant.

Heard September 11, 2020No. 20190446

Filed January 21, 2021

Third District, Salt Lake County The Honorable Todd M. ShaughnessyOn Certiorari to the Utah Court of Appeals

No. 161903789

Sean D. Reyes, Att‘y Gen., Jeffrey S. Gray, Asst. Solic. Gen., Samuel P. Sutton, Dist. Att‘y, Salt Lake City, for appelleeAttorneys:

Andrea J. Garland, Elise C. Lockwood, Salt Lake City, for appellant

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

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:

¶1 Robert Dennis Malloy was confronted by police officers while apparently asleep at the wheel of his vehicle at a Salt Lake City McDonald‘s. The police had been told that a witness had seen someone driving a pickup truck in a McDonald‘s parking lot who had fallen asleep at the wheel, hit a light pole, and then backed away into a parking stall and nodded off again. When the first police officer arrived, he walked up to the truck, looked inside, and saw someone (Malloy) slouched forward in the driver‘s seat and not moving. The officer then opened the truck door and saw evidence of drug paraphernalia between Malloy‘s feet. Follow-up questions and investigation uncovered additional evidence.

¶2 Malloy was charged with felony DUI and possession of drugs and drug paraphernalia. He moved to suppress the evidence on the ground that the officer had effected an unreasonable search in opening the door of his truck without first knocking on the window. The district court denied the motion, concluding that the officer was justified in opening the door in service  of  the  police  officer‘s  ―community  caretaking‖  concerns. Malloy entered a conditional guilty plea, reserving the right to appeal the denial of the motion to suppress.

¶3 The court of appeals affirmed on alternative grounds. State v. Malloy, 2019 UT App 55, 441 P.3d 756. It held that the officer was justified in opening the car door incident to a lawful traffic stop under the standard in State v. James, 2000 UT 80, 13 P.3d 576—a case in which this court noted the settled authority of the police to direct a driver to ―leave the vehicle‖ during the course of an investigation incident to such a stop, asserted that―[c]ausing‖ a car door to be opened is a ―reasonable and practical means‖ of securing compliance with such an order, and held that there is no ―functional‖ or constitutionally relevant distinction between an officer opening a car door and a driver being asked to do so. Id. ¶¶ 10–13. Because the police had the reasonable suspicion necessary to temporarily detain Malloy in his vehicle and ask him to step out of it, the court of appeals cited James for the proposition that the subsequent search could not be rendered unreasonable on the ground that the officer had opened the car door. Malloy, 2019 UT App 55, ¶ 17. And on that basis, the court of appeals declined to reach the community caretaking considerations addressed in the district court. Id. ¶ 12.

¶4 Malloy filed a petition for certiorari, which we granted. Malloy challenges the court of appeals‘ decision on two main fronts. He first asserts that the analysis in James is unduly sweeping and has been overtaken by subsequent, binding authority, such as United States v. Jones, 565 U.S. 400 (2012) (holding that a physical trespass on a vehicle—in the attachment of a GPS device—constituted a search under the Fourth Amendment). And he also contends that the police acted unreasonably—and not in a manner commensurate with any community caretaking concerns—in opening his car door and thereby effecting a search.

¶5 We agree with Malloy‘s first point as a matter of Fourth Amendment principles. On reflection, and over time, our sweeping statements in James have been revealed to be overbroad. Under Jones and related cases, it can no longer be said that it makes no constitutional difference whether a police officer opens a car door or asks a driver to do so. For reasons explained further below, we repudiate the sweeping language of our opinion in James and hold that the identity of the door-opener may well affect the reasonableness of a given police encounter.

¶6 In so stating we are not holding that any and all police  acts of door-opening amount to Fourth Amendment searches— much less unreasonable searches, or unreasonable searches triggering the exclusionary rule. In fact, we do not conclude that the evidence here is subject to exclusion. We affirm the denial of Malloy‘s motion to suppress under the authority of Davis v. United States, 564 U.S. 229 (2011). Davis establishes an important limitation on the exclusionary rule. It holds that evidence secured in ―objectively reasonable reliance on binding . . . precedent‖ is not subject to exclusion. Id. at 232.

¶7 We affirm on that narrow basis. While repudiating and limiting the sweeping language of our opinion in James, we hold that the police here acted objectively reasonably in reliance on that precedent. And we thus affirm the denial of the motion to suppress without reaching the ultimate question of the reasonableness of the search or seizure in question (as an element of a traffic stop or an encounter incident to community caretaking).

I

¶8 In the early hours of a March morning in 2016, Officer Matthew Overman responded to a report that ―the driver of [a] truck had fallen asleep and hit‖ a light pole in a McDonald‘s parking lot in Salt Lake City. Overman received an update on his way to the scene—an indication that the driver had initially passed out, then stirred, backed into a parking space, and passed out again. When he got to the McDonald‘s, Overman saw no damage to either the truck or the pole. A witness approached Overman and told him what had happened, and that he was worried the driver was dead, as ―he looked gray.‖ Overman took down the witness‘s contact information before approaching the truck. As he neared the truck, Overman observed that the driver was ―kind of slumped, slouched forward‖ over the steering wheel, and ―appeared to be unconscious.‖

¶9 Without knocking, Officer Overman opened the door of the truck. The driver (Malloy) immediately turned and looked at him. Overman observed a drug pipe on the floor of the vehicle between Malloy‘s feet, which he retrieved as he asked Malloy―what he was doing and why he was slouched over.‖ The officer asked Malloy to exit the truck, and as he did, Overman saw a meth pipe on the driver‘s seat, as well as a plate of pancakes and sausage on the console between the seats. After being handcuffed and told to sit on the curb, Malloy told a backup officer who had arrived that ―he had taken oxycodone for some foot pain.‖ Malloy then ―failed a series of field sobriety tests‖ and was arrested for driving under the influence of drugs. ―In a search incident to arrest, the officers found heroin in Malloy‘s left coat pocket.‖ After obtaining a search warrant, the officers collected a blood sample, which ultimately tested positive for methamphetamine.

¶10 Malloy was charged with driving under the influence of drugs, unlawful possession of a controlled substance, and possession of drug paraphernalia. He moved to suppress the evidence, asserting that Overman had ―conducted an unlawful search when he opened the truck door without first knocking on the window to see if Malloy would respond.‖ The State opposed the  motion,  ―arguing  that  opening  the  truck  door  was  justified‖ under an emergency aid or community caretaking ―exception[] to the warrant requirement.‖ The district court denied the motion, concluding that the search was reasonable as a matter of emergency aid or community caretaking.

¶11 After entering a conditional plea, Malloy filed an appeal from the denial of the motion to suppress. On appeal, the State again argued that opening the door was justified under the emergency aid exception. The court of appeals affirmed on an alternative ground. Because Overman could have opened  the door to investigate Malloy‘s condition as part of a lawful traffic stop, opening the door was not an independent search, but  a  factor incidental to a reasonable investigation of the driver. State v. Malloy, 2019 UT App 55, ¶ 19, 441 P.3d 756 (relying on State v.

James, 2000 UT 80, ¶ 13, 13 P.3d 576).

¶12 Malloy sought to challenge that decision in a petition for certiorari, which we granted. Our review on certiorari is for

correctness. State v. Ainsworth, 2017 UT 60, ¶ 13, 423 P.3d 1229 (―We review the court of appeals‘ decision  for  correctness,  without according any deference to its analysis.‖).

II

¶13 Malloy presents two principal challenges to the decision of the court of appeals. He first contends that the court of appeals erred in giving controlling effect to our sweeping statement in State  v.  James  that  there  is  no  ―functional‖  or  constitutionally relevant distinction between an officer opening a car door and a driver being asked to do so. 2000 UT 80, ¶ 13, 13 P.3d 576. Because in his view the police acted unreasonably—and not in a manner commensurate with any community caretaking concerns—in opening his car door and thereby effecting a search, Malloy also claims that the evidence secured by the police should have been excluded.1

¶14 We agree with Malloy‘s first point but reject his second. First, we find the sweeping language of our holding in James to have been overtaken by subsequent, binding authority—in particular, the decision in United States v. Jones, 565 U.S. 400 (2012). In light of cases like Jones, we hold that there may well be a

―functional,‖   constitutionally   relevant   distinction   between   an officer opening a car door and a driver being asked to open it. Second, we nonetheless affirm the denial of Malloy‘s motion to suppress under Davis v. United States, 564 U.S. 229 (2011). Davis holds that the exclusionary rule does not apply to ―searches conducted  in  objectively  reasonable  reliance  on  binding  . . .

1 Malloy also questions the propriety of the decision to affirm on alternative grounds. He asserts that the basis of the decision under James is not apparent in the record in light of findings in the district court that the officer in this case ―opened the door for a welfare check‖ of the driver, not ―to remove the driver‖ in the course of a traffic stop. But this objection is rooted in a mistaken premise. The propriety of a traffic stop is measured objectively. Whren v. United States, 517 U.S. 806, 813 (1996) (rejecting the argument that ―the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved‖). So it matters not what the officer‘s subjective motivation may have been. And the findings in the record  are thus no barrier to our decision.

precedent.‖ Id. at 232. Our James opinion is binding precedent in our Utah justice system until we set it aside. And we affirm on the ground that the police were entitled to rely on our precedent and suppression is thus improper under Davis.2

A

¶15 Our decision in James arose from a traffic stop. A police officer had responded to a report of reckless driving and engaged in a lawful traffic stop to investigate the allegedly reckless driver. State v. James, 2000 UT 80, ¶ 2, 13 P.3d 576. When the officer approached the truck, he could see there were two people inside it but could not clearly see what they were doing. Id. ¶¶ 3, 3 n.1. Concerned for his safety, the officer opened the truck door before ordering the driver (James) to exit the vehicle. Id. Upon opening the door, the officer observed a twelve-pack of beer sitting on the passenger side floor of the vehicle, with one of the cans opened. Id. ¶ 3. The officer reported that James ―smelled strongly of alcohol, his face was flaccid, his speech slurred, and his eyes were droopy and bloodshot.‖ Id. He ―appeared to be unstable, unable to stand straight.‖ Id. The officer eventually conducted a field sobriety test, which James failed. Id. ¶ 4. The officer then arrested James, who was charged ―with driving under the influence and having an open container of alcohol in his vehicle.‖ Id.

2 Our analysis and holding are governed and limited  by federal law. That is because Malloy has asserted a claim only under the Fourth Amendment of the United States Constitution. He has not invoked or developed an argument under article I, section 14 of the Utah Constitution. That is his prerogative as a litigant. But he may be leaving some cards on the table. See State v. Watts, 750 P.2d 1219, 1221 n.8 (Utah 1988) (noting that our court had not yet interpreted the search and seizure provision of the Utah Constitution ―in a manner different from the fourth amendment to the federal constitution‖ but entertaining ―the possibility of doing so in some future case‖); JEFFREY S. SUTTON, 51 IMPERFECT SOLUTIONS: STATES AND THE MAKING OF AMERICAN CONSTITUTIONAL LAW, 7–10 (2018) (analogizing claims to potentially game-winning free throws at the end of a basketball game; asserting that it makes no sense for the shooter to take ―just one shot rather than two to invalidate state or local . . . executive branch action‖).

¶16 We upheld the reasonableness of this encounter under the Fourth Amendment. In so doing we emphasized that the question presented went only to the ―propriety of opening the driver‘s-side door of James‘s truck for the purpose of speaking to James and requesting that he step out of the vehicle.‖ Id. ¶ 11. Because the record exhibited ample grounds for reasonable suspicion of James‘s involvement in reckless driving, we concluded that the police had a right to ―temporarily detain‖ his vehicle ―for the purpose of conducting a limited investigation of the suspicion.‖  Id. ¶ 10 (citing Whren v. United States, 517 U.S. 806, 810 (1996)). We also held that the police were ―legally authorized to order James to step from the cab of his truck‖ under Pennsylvania v. Mimms, 434 U.S. 106, 110–11 (1977). James, 2000 UT 80, ¶ 11. And we

identified the Mimms premise as a logical ground for our conclusion that there was no ―functional‖ or constitutional basis for any distinction ―as to who actually opened the door.‖ Id. ¶ 13.

¶17 In James we observed that ―[c]ausing the door to be opened in some manner was a reasonable and practical means for obtaining compliance with‖ the police officer‘s ―authority to lawfully require James to step from the vehicle.‖ Id. (emphasis added). We then pivoted to the broader conclusion that the identity of the door-opener ―was an incidental factor‖ in the encounter. Id. Ultimately, we broadly refused to ―draw distinctions‖ under the Fourth Amendment based on ―who actually opened the door‖—a matter we characterized as

―elevat[ing] form over substance.‖ Id. And we upheld the reasonableness of the officer‘s ―opening of James‘s door‖ as a permissible element of the investigation of James‘s alleged reckless driving. Id.

¶18 Our analysis in James was plausibly rooted in the notion that the rights protected by the Fourth Amendment are defined by

―a person‘s reasonable expectation of privacy,‖ id. ¶ 9 (citing United States v. Jacobson, 466 U.S. 109, 113 (1984))—a formulation that traces to a concurring opinion of Justice Harlan in Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). But the ―reasonable expectation‖ standard has been limited by subsequent authority. It is now viewed as only one of two alternative grounds for evaluating the scope of a person‘s Fourth Amendment rights. A parallel line of precedent has  emerged, most notably in United States v. Jones, in which the Supreme Court has defined the scope of Fourth Amendment protection by reference to a ―property-based‖ inquiry that looks to a founding- era notion of ―common-law trespass.‖ 565 U.S. 400, 405 (2012); see

also Kyllo v. United States, 533 U.S. 27, 31 (2001) (considering founding-era principles of common-law trespass in defining the nature of a Fourth Amendment ―search‖).

¶19 The Jones opinion held that the government effected a Fourth Amendment search in attaching a GPS device to a vehicle to monitor its movements. 565 U.S. at 404. It did so on the basis of an originalist, property-based inquiry. It held that the attachment of a GPS device would have qualified as a ―trespass‖ on private property and would have been considered a  ―search‖  where the trespass was aimed at obtaining information.3 Id. at 406, 406 n.3.

3 A trespass without announcement or consent may often have this effect. It may sometimes be the whole point. See The Office: Frame Toby (NBC television broadcast Nov. 20, 2008) (Dwight to the camera: ―I love catching people in the act. That‘s why I always whip open doors.‖). The facts of this case could be illustrative. When the officer opened the door to Malloy‘s car he revealed a drug pipe between his feet. That evidence may not have been revealed if the officer had knocked on the window, awakened Malloy, and asked him to open the door.

In so observing, we are by no means establishing a ―knock and announce‖ rule for traffic stops or community caretaking encounters. To date, the ―knock and announce‖ rule—informed by its exceptions—has been limited to dwellings. See Wilson v. Arkansas, 514 U.S. 927, 931–32 (1995) (noting that the founding-era common law afforded some significance to ―whether law enforcement officers announced their presence and  authority prior to entering‖ a dwelling); Hudson v. Michigan, 547 U.S. 586, 589  (2006)  (noting  exceptions  to  the  ―rule,‖  as  where  ―there  is

‗reason to believe that evidence would likely be destroyed if advance notice were given‘‖ (citation omitted)). Traffic stops and community caretaking encounters, moreover, have been governed by  a  ―reasonableness‖  requirement  that  may  not  lend  itself  to  a hard-and-fast rule of announcement. See Brigham City, Utah v. Stuart, 547 U.S. 398, 408 (2006) (noting that an officer acting in a community caretaking capacity would not need to knock when it is  ―obvious‖  that  knocking  ―would  have  been  futile‖);  State  v. Anderson, 2015 UT 90, ¶ 26, 362 P.3d 1232 (establishing a reasonableness standard for community caretaking encounters).

We need not and do not parse the reasonableness of the police encounter  at  issue here under  these standards. We simply clarify

(continued . . .)

The central holding of Jones is that a ―physical intrusion of a constitutionally protected area‖—someone‘s ―person[],‖

―house[],‖ ―papers,‖ or ―effects‖ (which includes vehicles)—may qualify as a search under the Fourth Amendment.4 Id. at 404–07.

¶20 An ―actual trespass‖ alone ―is neither necessary nor sufficient to establish a constitutional violation.‖ Id. at 408 n.5 (emphasis, citation, and internal quotation marks omitted). But a physical intrusion amounting to a trespass under the common- law may amount to a search where it is ―conjoined with . . . an attempt to find something or to obtain information.‖ Id.

¶21 The originalist analysis in Jones overtakes and forecloses our sweeping holding in James. With the focus shifted from the vague notion of a reasonable expectation of privacy to a property- based inquiry into trespass, it can no longer be said that there is no salient difference between a police officer opening a door and a vehicle driver doing so. The identity of the door-opener is not

―form over substance.‖ It is the very substance of the notion of a trespass.

¶22 A trespass is an unconsented physical ―intrusion‖ on a person‘s property. Such intrusion is effected when a police officer physically touches or impacts another person‘s property, as with the attachment of a GPS device to a car, or even ―an officer‘s momentary reaching into the interior of a vehicle.‖5 There is no

that an officer‘s physical intrusion on a vehicle can carry implications not presented by a mere request for compliance by the driver.

4 The originalist inquiry was not established as an exclusive touchstone in Jones. The Jones opinion preserved the ―reasonable expectation of privacy‖ standard as an additional, parallel standard of protection. See United State v. Jones, 565 U.S. 400, 408– 09 (2012). Under Jones, the originalist, common-law trespass inquiry yields additional protection. ―Situations involving merely the transmission of electronic signals without trespass . . . remain subject to‖ the ―reasonable expectation of privacy‖ standard. Id. at 411.

5 Id. at 410 (citing New York v. Class, 475 U.S. 106, 114–15 (1986), in support of the view that such ―momentary reaching‖ is a Fourth Amendment search).

trespass, however, where the intrusion on property is effected through the consent or invitation of the property owner.6

¶23 This originalist, property-based standard forecloses our sweeping holding in James. The trespass inquiry may often turn on whether a physical intrusion was effected with the consent of the property owner. And that means that it can no longer be said that the question of who opens a car door in a traffic stop is an

―incidental factor‖ that ―elevate[s] form over substance.‖ James, 2000 UT 80, ¶ 13.

¶24 We thus repudiate the sweeping statement of our holding in James along these lines. See State v. Silva, 2019 UT 36, ¶ 20, 456 P.3d 718 (noting our obligation to follow binding precedent from the U.S. Supreme Court, and to repudiate our case law when it becomes clear that it has become overtaken by it). And we hereby clarify that the identity of a door-opener may well have constitutional significance under the Fourth Amendment.

¶25 In so stating we need not and do not hold that a Fourth Amendment ―search‖ is effected every time a police officer opens the door of a vehicle. Nor do we decide whether or under what circumstances any such search would qualify as ―unreasonable.‖ The resolution of these questions is not necessary to our disposition of this case given our holding in Part II.B. that there is no basis for exclusion under Davis v. United States, 564 U.S. 229 (2011).

¶26 Our holding is accordingly limited. We simply repudiate our sweeping conclusions in James about the constitutional insignificance of the identity of the person who causes a car door to be opened. And we leave for another day the articulation of additional considerations of relevance to the determination of the

6 See id. at 409 (distinguishing United States v. Knotts, 460 U.S. 276 (1983), and United States v. Karo, 486 U.S. 705 (1984), in which electronic tracking devices had been implanted in certain containers  on  the  ground  with  the  ―consent‖  of  the  original  or prior owner of the container; also citing On Lee v. United States, 343 U.S. 747, 751–52 (1952), for the proposition that there is ―no search or seizure where an informant, who was wearing a concealed microphone, was invited into the defendant‘s business‖).

constitutional reasonableness of any search effected by an officer who opens a car door without consent.

B

¶27 Despite repudiating the sweeping standard set forth in James we nonetheless affirm the denial of Malloy‘s motion to suppress on the basis of that standard. We do so not because the James standard is still good law. In light of this opinion, it is not.

¶28 But James stood as controlling precedent at the time of the traffic stop in question here. And the police thus had an objective, good-faith basis for the manner and means of their encounter with Malloy—a basis that forecloses the application of the remedy of exclusion.

¶29 This follows clearly from Davis v. United States, 564 U.S. 229 (2011). Davis emphasizes that the Fourth Amendment ―says nothing about suppressing evidence obtained in violation‖ of its commands. Id. at 236. It notes that the exclusionary rule is ―a

‗prudential‘ doctrine, created by‖ the Supreme Court ―to deter future Fourth Amendment violations.‖ Id. at 236–37 (citations and internal quotation marks omitted). And it makes clear that the exclusionary rule has been limited ―to situations in which‖ the purpose of deterrence ―is thought most efficaciously served.‖ Id. at 237 (citation and internal quotation marks omitted). ―For exclusion to be appropriate‖ under the Davis line of cases, ―the deterrence benefits of suppression must outweigh its  heavy costs.‖ Id.

¶30  Davis  notes  that  ―the  deterrence  benefits  of  exclusion

‗var[y] with the culpability of the law enforcement conduct‘ at issue.‖ Id. at 238 (citation omitted). ―When the police exhibit

‗deliberate,‘ ‗reckless,‘ or ‗grossly negligent‘ disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs.‖ Id. (citation omitted). ―But when the police act with an objectively ‗reasonable good-faith belief‘ that their conduct is lawful, or when their conduct involves only simple, ‗isolated‘ negligence, the ‗deterrence rationale loses much of its force,‘ and exclusion cannot ‗pay its way.‘‖ Id. (citations and internal quotation marks omitted).

¶31 Over time the Court has ―applied this ‗good-faith‘ exception across a range of cases.‖ Id. It has ―‗never applied‘ the exclusionary rule to suppress evidence obtained as a result of nonculpable, innocent police conduct.‖ Id. at 240. And in Davis, the Court specifically declined to condone the remedy of

exclusion where the search under review was performed in reliance on ―binding appellate precedent.‖ Id. at 241. Law enforcement officers are expected to ―take care to learn ‗what is required  of  them‘  under  Fourth  Amendment  precedent‖  and to

―conform  their  conduct  to  these  rules.‖  Id.  (citation omitted).

―[W]hen binding appellate precedent specifically authorizes a particular police practice, well-trained officers‖ can be expected to use the authorized ―tool to fulfill their crime-detection and public safety responsibilities.‖ Id. ―An officer who conducts a search in reliance on binding appellate precedent does no more than ‗ac[t] as a reasonable officer would and should act‘ under the circumstances.‖ Id. (alteration in original) (citation and internal quotation marks omitted). And under Davis, there is thus no basis for ―the harsh sanction of exclusion‖ in that event. Id.

¶32 We affirm on this basis. Our James decision was binding appellate precedent on the day when the police confronted Malloy at McDonald‘s. The police acted in good-faith, reasonable reliance on that precedent when they opened the door of his car as an incident of their investigation of reports of his erratic driving. And that good-faith basis forecloses the applicability of the exclusionary rule.

III

¶33 Despite what we said in James, it is now clear that there can be a constitutional difference between a police officer‘s act of opening a car door and that same officer‘s request that a driver do so. Our broad holding to the contrary in James was good law at the time of the search at issue here, however, and we affirm on the ground that the exclusionary rule does not apply where law enforcement relied reasonably on then-existing precedent.

The post State of Utah v. Malloy – Felony DUI Defense in Utah appeared first on Arnold Wadsworth Coggins.

RYAN MILLER,

Appellant,

v.

BRENDA MILLER,

Appellee.

Opinion

No. 20190748-CA

Filed December 24, 2020

Second District Court, Farmington Department The Honorable Michael Edwards

No. 134701192

Jonathan Hibshman, Marco Brown, and Rodney R. Parker, Attorneys for Appellant

Dustin D. Gibb, Attorney for Appellee

JUDGE KATE APPLEBY authored this Opinion, in which JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.

APPLEBY, Judge:

¶1 Ryan Miller appeals the district court’s dismissal of his petition to modify the parties’ divorce decree. Ryan’s1 petition asked that he be appointed the primary custodial parent of the parties’ children. The district court dismissed the petition for failure to state a claim under rule 12(b)(6) of the Utah Rules of Civil Procedure and, alternatively, for the parties’ failure to engage in a dispute resolution procedure before seeking court intervention. On appeal, Ryan contends the court applied the

1. Because the parties share the same last name, we refer to each by their first names, with no disrespect intended by the informality.

wrong standards for dismissal under rule 12(b)(6) and for determining whether a change of circumstances justified modifying the divorce decree. He also challenges the court’s dismissal of his petition based on his failure to use a dispute resolution procedure before filing the petition. We reverse and remand for further proceedings.

BACKGROUND

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

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

¶4 In May 2019, Ryan filed a petition to modify the divorce decree (the Petition). He contended it was in the children’s best interest that he be awarded “primary custody” of them, “with Brenda enjoying parent-time pursuant to Utah Code Annotated,

Section 30-3-35.1.”2 Ryan asserted there had been “substantial and material changes in circumstances that were unforeseeable” at the time the decree was entered, and he made twelve allegations in support.

¶5 Specifically, Ryan alleged: (1) “Brenda  does  not communicate with Ryan regarding [the children] and their needs”; (2) Ryan was “not informed” when one of the children “suffered a concussion” or about the associated “activity restrictions”; (3) “Brenda has refused to allow [the children] to attend significant events in Ryan’s and [the children’s] lives”;

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

2. Utah Code section 30-3-35.1 provides an “optional parent-time schedule” of “145 overnights” for children “5 to 18 years of age.” Utah Code Ann. § 30-3-35.1(1) (LexisNexis 2019). The parties acknowledge this was the parent-time awarded to Ryan under the divorce

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

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

3. Brenda also asked the district court to order Ryan to pay her attorney fees and costs related to the The court ultimately denied the request, and that ruling has not been challenged on appeal.

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

¶9 Ryan timely appeals.

ISSUES AND STANDARDS OF REVIEW

¶10 Ryan appeals the Petition’s dismissal under rule 12(b)(6) of the Utah Rules of Civil Procedure. “We review a decision granting a motion to dismiss for correctness, granting no deference to the decision of the district court.” Fehr v. Stockton, 2018 UT App 136,

¶ 8, 427 P.3d 1190 (quotation simplified). “We likewise review the

4. Utah Code section 30-3-10.4(1) sets forth the conditions under which a court may grant a petition for modification of a custody order. In addition to a “verified petition” showing “that the circumstances of the child or one or both parents or joint legal or physical custodians have materially and substantially changed since the entry of the order to be modified” and that the modification is in the child’s best interest, both parents must also have complied in good faith with an applicable dispute resolution procedure. See Utah Code Ann. § 30-3-10.4(1) (LexisNexis 2019).

district court’s subsidiary legal determinations for correctness.”

Id.5

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

5. We assume without deciding that rule 12(b)(6) applies in the context of a petition for modification of custody. The parties appear to believe that it does, and we have not been provided argument or authority to otherwise question this assumption. Similarly, we assume without deciding that correctness is the appropriate standard of review to apply to the district court’s rule 12(b)(6) dismissal in this context. We note this seems to be a case “where deferential and correctness standards appear to ” See Lindsey v. Lindsey, 2017 UT App 38, ¶ 27, 392 P.3d 968. Although we review for correctness a dismissal under rule 12(b)(6), we review the “fact-intensive legal determination” of whether “substantial and material changes have occurred” for abuse of discretion. See Doyle v. Doyle, 2009 UT App 306, ¶ 15, 221 P.3d 888, aff’d, 2011 UT 42, 258 P.3d 553; see also Peeples v. Peeples, 2019 UT App 207, ¶ 11, 456 P.3d 1159; Huish v. Munro, 2008 UT App 283, ¶ 19, 191 P.3d 1242. Nevertheless, the parties appear to agree that the court’s dismissal of the Petition should be reviewed for correctness and do not argue that the ruling is entitled to deference.

ANALYSIS

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

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

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

1. Dismissal for Failure to State a Claim

1. Applicable Principles

¶15 “A complaint states a claim upon which relief can be granted if it alleges the facts and sets forth the legal basis for an available legal remedy.” Simmons Media Group, LLC v. Waykar, LLC, 2014 UT App 145, ¶ 15, 335 P.3d 885 (quotation simplified). “A rule 12(b)(6) motion to dismiss admits the facts alleged in the complaint but challenges the plaintiff’s right to relief based on

those facts.” Blanch v. Farrell, 2018 UT App 172, ¶ 14, 436 P.3d 285 (quotation simplified). Our review of a rule 12(b)(6) dismissal is “concerned solely with the sufficiency of the pleadings, and not the underlying merits of the case.” Fehr v. Stockton, 2018 UT App 136, ¶ 8, 427 P.3d 1190 (quotation simplified); see also Capri Sunshine, LLC v. E & C Fox Invs., LLC, 2015 UT App 231, ¶ 11, 366 P.3d 1214 (“The purpose of a rule 12(b)(6) motion is to challenge the formal sufficiency of the claim for relief, not to establish the facts or resolve the merits of a case.” (quotation simplified)); Shah

1. Intermountain Healthcare, Inc., 2013 UT App 261, ¶ 6, 314 P.3d 1079 (explaining that a rule 12(b)(6) review concerns the “legal sufficiency of the claim”). “We assume the truth of the factual allegations in the complaint and draw all reasonable inferences therefrom in the light most favorable to the plaintiff.” Fehr, 2018 UT App 136, ¶ 8 (quotation simplified). While courts “need not accept legal conclusions or opinion couched as facts,” Miller v. West Valley City, 2017 UT App 65, ¶ 12, 397 P.3d 761 (quotation simplified), “[a] district court should grant a motion to dismiss only if it is clear from the allegations that the non-moving party would not be entitled to relief under the set of facts alleged or under any facts it could prove to support its claim,” O’Hearon v. Hansen, 2017 UT App 214, ¶ 10, 409 P.3d 85; see also Van Leeuwen
2. Bank of Am. NA, 2016 UT App 212, ¶ 6, 387 P.3d 521 (stating that dismissal under rule 12(b)(6) “is justified only when the allegations of the complaint clearly demonstrate that the plaintiff does not have a claim” (quotation simplified)).

¶16 The Petition requested a change in primary custody. Modification of an order establishing joint physical or legal custody is governed by Utah Code section 30-3-10.4. It provides that upon petition by “one or both of the parents, . . . the court may, after a hearing, modify or terminate an order that established joint legal custody or joint physical custody if” “the verified petition or accompanying affidavit initially alleges that admissible evidence will show that the circumstances of the child

or one or both parents or joint legal or physical custodians have materially and substantially changed since the entry of the order to be modified” and that “a modification of the terms and conditions of the order would be an improvement for and in the best interest of the child.” Utah Code Ann. § 30-3-10.4(1)(a), (b) (LexisNexis 2019). This is a two-part test: the court “first must decide whether there are changed circumstances warranting the exercise of the court’s continuing jurisdiction to reconsider the custody award,” and it may then proceed to the best interest determination “only if circumstances have materially and substantially changed.” Erickson v. Erickson, 2018 UT App 184,

¶ 14, 437 P.3d 370 (quotation simplified).

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

207, ¶ 14 (noting the “important ends” served by the changed- circumstances requirement are avoiding “the deleterious effects of ‘ping-pong’ custody awards that subject children to ever- changing custody arrangements” and “prevent[ing] the undue burdening of the courts and the harassing of parties by repetitive actions” (quotation simplified)).

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

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

422.

¶20  Nevertheless, for custody changes, “[t]he required finding of a material and substantial change of circumstances is statutory,” with the result that “[n]either this court nor the supreme court has purported to—or could—alter that requirement.” Zavala, 2016 UT App 6, ¶ 16; see also Peeples, 2019 UT App 207, ¶ 13. As a result, although the changed-circumstances showing may differ depending on the case, “[i]f a custody award has already been entered, custody will not be re-examined absent a material and substantial change of

circumstances.” Zavala, 2016 UT App 6, ¶ 16; see also Peeples, 2019 UT App 207, ¶ 15 (acknowledging “that the change-in-circumstances requirement still applies even in cases involving stipulated (as opposed to adjudicated) custody orders”). See generally Doyle, 2011 UT 42, ¶ 38 (“Even an overwhelming case for the best interest of the child could not compensate for a lack of proof of a change in circumstances.”).

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

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

1. Custody Standard

¶23 Ryan contends the district court, in evaluating the Petition, improperly applied the heightened changed-circumstances

standard applicable to custody changes. He claims the Petition merely requested a change in parent-time and asserts the court erred by declining to apply the lesser changed-circumstances showing applicable to changes in parent-time.

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

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

¶26 In this respect, Ryan’s request is more than merely  a  request to change parent-time. If the request were granted, Ryan would be deemed the primary custodial parent, with Brenda

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

¶27 Thus, we do not agree with Ryan that his request is  properly characterized merely as a change in parent-time; in substance, he has asked for an order to have the children’s primary custodial parent changed.6 We therefore conclude the court correctly applied the statutory changed-circumstances

6. Ryan cites Blocker Blocker, 2017 UT App 10, 391 P.3d 1051, and Jones v. Jones, 2016 UT App 94, 374 P.3d 45, as support for his contention that the district court applied the wrong standard where he requested only a change in parent-time. But he acknowledges he cites the cases “for their legal proposition” regarding the showing required to justify a change in parent-time, “not for their factual similarities to [his] case.” And, indeed, it is apparent the modification requests in Blocker and Jones were for parent-time, not custody. See Blocker, 2017 UT App 10, ¶¶ 5–8, 11,

16 (changing mother’s parent-time from supervised to unsupervised); Jones, 2016 UT App 94, ¶¶ 5–7, 10–11 (modifying the extent of mother’s parent-time after she relocated closer to the children). Thus, neither case is helpful or applicable here.

standard applicable to custody modification requests under section 30-3-10.4—whether there has been a substantial and material change in circumstances justifying a modification of the divorce decree—as opposed to the lesser showing applicable to mere parent-time changes.7

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

1. Rule 12(b)(6) Standard

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

7. Ryan also briefly suggests the district court did not apply the “low ebb” standard applicable to evaluating petitions to modify stipulated custody See Peeples v. Peeples, 2019 UT App 207,

¶ 15, 456 P.3d 1159 (explaining that “a lesser showing of changed circumstances may support modifying a stipulated award” because “the res judicata policies underlying the changed-circumstances rule are at a particularly low ebb” (quotation simplified)). We do not agree. The court explicitly determined that because the “original custody agreement was by way of stipulation” rather than adjudication, applying the “low ebb” standard to the Petition was appropriate. And apart from pointing out that the court “should have been looking for a lower showing of changed circumstances” given the stipulated nature of the decree, Ryan has not otherwise demonstrated that, despite the court’s determination, it failed to apply that standard in evaluating the Petition. Therefore, we are not persuaded the court erred by failing to apply the “low ebb” changed-circumstances standard generally applicable to stipulated custody orders.

¶30 Rule 12(b)(6) permits a party to move for dismissal of a complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Utah R. Civ. P. 12(b)(6). This means that, even accepting the complaint’s allegations as true, “it is clear

. . . that the non-moving party would not be entitled to relief under the set of facts alleged or under any facts it could prove to support its claim.” O’Hearon v. Hansen, 2017 UT App 214, ¶ 10, 409 P.3d 85; see also Van Leeuwen v. Bank of Am. NA, 2016 UT App 212, ¶ 6, 387 P.3d 521 (stating that dismissal under rule 12(b)(6) “is justified only when the allegations of the complaint clearly demonstrate that the plaintiff does not have a claim” (quotation simplified)).

¶31 The Petition sought a change in the parties’ custody arrangement. See supra ¶¶ 23–28. As discussed above, in the context of petitions to modify custody orders, the allegations must demonstrate “that admissible evidence will show that the circumstances of the child or one or both parents or joint legal or physical custodians have materially and substantially changed since the entry of the order to be modified.” Utah Code Ann.

• 30-3-10.4(1)(a) (LexisNexis 2019). To meet the changed-circumstances requirement, the Petition thus had to include allegations demonstrating “(1) that since the time of the previous decree, there have been changes in the circumstances upon which the previous award was based; and (2) that those changes are sufficiently substantial and material to justify reopening the question of custody.” Peeples v. Peeples, 2019 UT App 207, ¶ 15, 456 P.3d 1159 (quoting Hogge v. Hogge, 649 P.2d 51,

54 (Utah 1982)).

¶32 Here, the district court articulated the correct  legal standard, but ultimately misapplied it. It recognized its duty “to review  [the  changed-circumstances  allegations]  of  the Petition

. . . and to take those alleged facts at face value and any inferences that can be drawn from them in favor of the non-moving party” to determine whether the Petition stated a claim for modifying the custody order. And the court recited the appropriate standard in

reaching its conclusion that Ryan had “not supported the allegation that admissible evidence will show that the circumstances of the children or one or both of the parents have materially and substantially changed since the entry of the order to be modified,” stating it reached its conclusion by “taking all allegations together and considering them in the light most favorable to [Ryan].”8

¶33 But in reaching that conclusion, the court acknowledged  that most of the Petition’s allegations “could support some change” and thereby constituted appropriate considerations for evaluating a custody change. Nevertheless, the court discounted those allegations in conducting its analysis of the changes. The court determined that, for various reasons, many of the Petition’s allegations were entitled to little weight. For example, it determined that allegations about Brenda’s failure to communicate, failure to allow the children to attend “significant events,” allowance of constant screen-time, and neglect were entitled to “little weight” in the overall substantial and material change analysis. Similarly, the court determined that several of the allegations, including the homework-related, cohabitation, and medication-regime allegations, were “of less value” in the

8. Ryan seems to challenge the district court’s consideration of his allegations as a whole to determine whether there had been a substantial and material change in circumstances. But the court committed no error in evaluating the Petition and its allegations as a whole in determining whether to grant Brenda’s motion to dismiss. See, g., Edwards v. Carey, 2017 UT App 73, ¶ 19, 397 P.3d 797 (explaining that a complaint is to be read and construed as a whole (citing Geros v. Harries, 236 P. 220, 222 (Utah 1925))); McNair v. State, 2014 UT App 127, ¶ 14, 328 P.3d 874 (same); Mower v. Simpson, 2012 UT App 149, ¶¶ 24–25, 278 P.3d 1076 (explaining that dismissal of a claim should not occur “without an analysis of the claim as a whole”).

substantial and material change analysis as the result of Ryan’s failure to engage in alternative dispute resolution and enforcement proceedings before bringing the Petition. And for certain allegations, including those regarding screen-time and Brenda’s cohabitation, the court acknowledged that it needed more facts to properly analyze the weight and consideration to be afforded them in the overall change-of-circumstances analysis, yet it also discounted the allegations for that reason.

¶34 By analyzing the weight and value of the allegations  as  well as the necessity of more facts, the court proceeded past the proper rule 12(b)(6) question—whether the Petition stated a legally sufficient claim for a substantial and material change in circumstances—to the merits-related questions of whether the various allegations actually constituted a material and substantial change in circumstances. See Fehr v. Stockton, 2018 UT App 136,

¶ 8, 427 P.3d 1190 (stating that a rule 12(b)(6) inquiry is “concerned solely with the sufficiency of the pleadings, and not the underlying merits of the case” (quotation simplified)). Doing so was error.

¶35 To be sure, the determination of whether allegations of changed circumstances amount to a material and substantial change is a legal one. See Huish v. Munro, 2008 UT App 283, ¶ 19, 191 P.3d 1242 (characterizing a court’s conclusion about “whether a material change in circumstances has occurred that would warrant reconsidering the original decree” as a “legal conclusion” (quotation simplified)); Hudema v. Carpenter, 1999 UT App 290,

¶ 21, 989 P.2d 491 (same). As a result, if changed-circumstances allegations clearly raise only circumstances that our courts have already determined to be insufficient to justify modification of a divorce decree as a matter of law, a district court may dismiss a modification petition as failing to state a legally sufficient claim. See generally O’Hearon, 2017 UT App 214, ¶ 10 (stating a motion to dismiss should be granted “only if it is clear from the allegations that the non-moving party would not be entitled to relief under

the set of facts alleged or under any facts it could prove to support its claim”); cf. Peeples, 2019 UT App 207, ¶¶ 25, 27 (stating “[i]ssues that were present prior to the decree, and continue to be present in much the same way thereafter,” as well as “violations of a custody order by one party,” ordinarily do not “justify reexamining the propriety of the [custody] order”); Kelley v. Kelley, 2000 UT App 236, ¶ 22, 9 P.3d 171 (concluding “remarriage and/or failure to make support payments cannot alone justify a modification” of a divorce decree). Likewise, if a court determines a petition as a whole clearly does not allege a change in circumstances that has any relation to the parenting skills or custodial relationship or the circumstances on which the custodial arrangement was based, it may dismiss the petition for failure to state a claim. See O’Hearon, 2017 UT App 214, ¶ 10; cf. Becker v. Becker, 694 P.2d 608, 610 (Utah 1984) (stating that, to meet the materiality requirement, the change in circumstances must “have some material relationship to and substantial effect on parenting ability or the functioning of the presently existing custodial relationship” or “appear on their face to be the kind of circumstances on which an earlier custody decision was based”).

¶36 But because a determination of whether “substantial and material changes have occurred is a fact-intensive legal determination,” see Doyle v. Doyle, 2009 UT App 306, ¶ 15, 221 P.3d

888, aff’d, 2011 UT 42, 258 P.3d 553, a decision that a modification petition may be dismissed as legally insufficient under rule 12(b)(6) will be unusual. Here, the court expressly found that most of the allegations were appropriate considerations for a change-of-circumstances analysis and potentially could have supported a change of custody. In doing so, the court necessarily determined the allegations suggested that “admissible evidence will show that the circumstances of the child or one or both parents or joint legal or physical custodians have materially and substantially changed since the entry of the order to be modified.” See  Utah  Code  Ann.  §  30-3-10.4(1)(a).  Once  it  made  such  a

determination, the court’s task under rule 12(b)(6) was at an end. See Fehr, 2018 UT App 136, ¶ 8. It was improper for the court to proceed beyond the question of sufficiency of the pleadings to merits-related questions of how much weight, value, or type of consideration to give to certain allegations in the overall changed- circumstances analysis, particularly in light of the court’s acknowledgement that more facts were needed regarding some of the allegations for it to make that assessment in the first place. See id.

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

1. Dismissal for Failure to Use Dispute Resolution Procedures

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

¶39 Our supreme court has explained that Utah’s “appellate system has developed along the adversarial model, which is founded on the premise that parties are in the best position to select and argue the issues most advantageous to themselves,

while allowing an impartial tribunal to determine the merits of those arguments.” State v. Johnson, 2017 UT 76, ¶ 8, 416 P.3d 443. In this respect, as a general rule, “all parties are entitled to notice that a particular issue is being considered by a court and to an opportunity to present evidence and argument on that issue before decision.” Plumb v. State, 809 P.2d 734, 743 (Utah 1990). “Sua sponte decisions by [district] courts are inconsistent with the notion of due process when parties are not provided advance notice that the court is considering a given course of action, and the losing party is not allowed to be heard thereon.” Jenkins v. Weis,  868  P.2d  1374,  1383  (Utah  Ct.  App.  1994)  (Bench,  J.,

dissenting). In other words, “[t]imely and adequate notice and an opportunity to be heard in a meaningful way are the very heart of procedural fairness.” Nelson v. Jacobsen, 669 P.2d 1207, 1211 (Utah 1983); see also Rubins v. Plummer, 813 P.2d 778, 780 (Colo. App. 1990) (“The right to prior notice and an opportunity to be heard is a critical part of our judicial system.” (citing Goldberg v. Kelly, 397

U.S. 254 (1970))). And, as to sua sponte dismissals in particular, a court should “normally refrain” from doing so unless the deficiency or issue “is brought to its attention by way of pleadings or motions by the parties.” See Rubins, 813 P.2d at 779. “[I]f the court is inclined to dismiss sua sponte, it must afford the plaintiff an opportunity to be heard” and to “persuade the court that dismissal is not proper” as a “matter of fundamental fairness, if not procedural due process.” Id.

¶40   Here, Brenda’s motion to dismiss did not raise the failure  to use dispute resolution procedures in relation to the request to modify custody as a basis for failure to state a claim under rule 12(b)(6) or for dismissal on another basis; her motion sought dismissal only for failure to state that a material and substantial change had occurred, as required under Utah Code section 30-3-10.4(1)(a). Further, the relevant notice of hearing indicated the issue to be considered during the hearing was the motion to dismiss. See generally In re Cannatella, 2006 UT App 89, ¶ 3, 132

P.3d 684 (“To satisfy an essential requisite of procedural due process, a hearing must be prefaced by timely notice which adequately informs the parties of the specific issues they must prepare to meet.” (quotation simplified)).

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

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

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

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

CONCLUSION

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

*** This information is provided for research and educational. Attorney Brian Arnold of Arnold Wadsworth & Coggins provides a free consultation concerning Divorce, Family Law, and Custody issues. Please call (801) 475-0123 to set up a free consultation today.

The post Miller v. Miller – Divorce Dismissal under 12(b)(6) appeared first on Arnold Wadsworth Coggins.

THE UTAH COURT OF APPEALS

KELLEY HARPER,

Appellee,

v.

DAMON M. HARPER,

Appellant.

Opinion

No. 20190351-CA

Filed January 14, 2021

Fourth District Court, Provo Department The Honorable James R. Taylor

No. 104402558

1. Grant Dickinson, Attorney for Appellant Anthony C. Kaye, Melanie J. Vartabedian, Allison G.

Belnap, and Nathan R. Marigoni, Attorneys

for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

POHLMAN, Judge:

¶1 Damon M. Harper  (Harper) appeals the district  court’s  order denying his petition to modify custody. He contends that the court should have concluded that circumstances had changed substantially, justifying a modification, based on temporary conditions that had been resolved by the time of trial and based on the temporary custody arrangement that was in place during the proceedings on his petition. We affirm.

BACKGROUND1

¶2 In 2012, Harper divorced Kelley Harper,  who  is  now  known as Ian Giles (Giles).2 Harper and Giles have one child (Child). After trial, the court awarded joint legal custody to both parents and awarded primary physical custody of Child to Giles. The divorce decree further provided that “both parties shall be completely open about where [Child] will be, where she can be reached, and who will be providing substitute care for [her].”

¶3   One day in October 2015, Giles failed to pick up Child from school. The school then contacted Harper, but before Harper arrived—and unbeknownst to Harper—Giles had arranged for a proxy to pick up Child. Giles did not answer Harper’s subsequent calls and was not home to inform Harper of Child’s whereabouts, prompting Harper to call the police. Giles did not thereafter offer an explanation or disclose why they had not kept Harper informed.

¶4 In the spring of 2016, Harper learned that  Child  had  accrued absences and tardies at school. He also learned that during the October 2015 incident, Giles was at the hospital and that some of Giles’s acquaintances were concerned for Giles’s health.

¶5 In April 2016, Harper  filed  a  petition  to  modify  the divorce decree, seeking, as relevant here, primary custody of

1. We recite the facts consistent with the district court’s findings of fact. See Nebeker v. Orton, 2019 UT App 23, ¶ 2 n.1, 438 P.3d 1053. On appeal, Harper does not take issue with the court’s factual

2. Giles’s brief informs us that Giles uses they/them/their pronouns. We therefore refer to Giles using their preferred pronouns.

Child. Relying chiefly on the October 2015 incident, Child’s school attendance problems, and concerns about Giles’s health, Harper asserted that “a material and substantial change in circumstances” existed to justify modifying the divorce decree. Harper simultaneously applied for a temporary restraining order that would award him immediate primary care and custody of Child.

¶6 At a hearing on April 18, 2016, a domestic relations commissioner determined that a temporary modification of custody was warranted. The commissioner thus awarded temporary  custody  of  Child  to  Harper  and  ordered  that Giles would have supervised parent-time with Child. A final amended order from the hearing was entered on May 6, 2016 (the Temporary Order). Giles did not timely object to this ruling, and Child remained in Harper’s custody. Thus, the Temporary Order—which, as the district  court  later  explained,  was  “never intended to  extend  beyond  a  trial  on  the  merits  of  the petition to  modify  the  original  decree”—remained  in  place until the petition to modify was tried to the bench in November 2018.3

¶7 During trial, Harper  argued  that  a  material  and  substantial change in circumstances had occurred since the original custody award was entered because Giles “has become less capable of caring for [Child] as a result of a degradation” in Giles’s health and that these health issues had “negative effects” on Child, including increased tardies and less success in school. The district court ultimately rejected Harper’s argument that there was a change in circumstances.

3. During the more than two-year period between entry of the Temporary Order and trial, Giles attempted to vacate the Temporary Order and moved to dismiss the petition to modify, but those efforts were

¶8 The court found that although Giles acknowledged experiencing temporary health issues between the fall of 2015 and the spring of 2016, Giles credibly testified that their health problems resulted from “an unanticipated reaction to prescribed medication” and that they improved when their doctors modified their prescription. The court similarly noted that one doctor concluded that Giles’s health concerns during that period “were situational—related to events.” It also found that Giles was “capable of feeding, loving, and caring” for Child and that nothing in Giles’s life or parenting style was “threatening or potentially harmful” to Child. Additionally, the court found Harper had not produced sufficient evidence that Giles’s health concerns had “significantly or substantially inhibited [their] ability to care for and meet [Child’s] needs” or that Giles “lack[ed] the sufficient human, monetary, or other resources to care for [Child].” The court further found that both Harper and Giles have “an uncommon willingness to see to [Child’s particular] needs.” And even though the ability of the parents to communicate openly about Child’s care and location was “suppressed for a time” as Giles dealt with personal problems, “that inability is now resolved.”

¶9   The court then determined that there was no showing of   the requisite change in circumstances to justify modifying the divorce decree. It reasoned that the “permanence of an alleged changed circumstance matters” given that “[p]ersons become ill occasionally and no one is permanently [in] best” health. For example, and in line with public policy, the court observed that “it is expected in periods of temporary disability that a joint parent will step in to see to the best interests of a child.” But if “such a circumstance were to justify a reconsideration of custody

. . . , it would discourage openness, cooperation, and communication that is core to expected behavior under joint custody orders.” The court then determined that the circumstances from the fall of 2015 to the summer of 2016 “were concerning” and that “[i]mmediate action to protect” Child in

“the form of [the Temporary Order] was justified.” Yet the court found that “not long after the flurry of activity in 2016, [Giles] recovered to the same capacities that resulted in an order of primary physical custody at the time of divorce in 2012.”

¶10 Because Harper “failed to establish that a material, substantial change of circumstances has occurred which would justify setting aside the conclusion of [the court] from 2012,” the court concluded that “[f]urther consideration of [Child’s] best interests is therefore not possible under Utah law.” The court accordingly denied Harper’s petition to modify the divorce decree. Consequently, although Child had remained in Harper’s custody from the time of the Temporary Order until trial—a period lasting around two and a half years—the court ordered that the custody arrangement under the divorce decree would be restored and “primary custody and care for [Child] will transition back to [Giles].” Harper appeals.

ISSUE AND STANDARD OF REVIEW

¶11   Harper contends that the district court erred in declining  to determine that a change in circumstances had occurred that would justify modifying the custody arrangement in the divorce decree. We review the court’s “ultimate determination regarding the presence or absence of a substantial change in circumstances” for an abuse of discretion. Peeples v. Peeples, 2019 UT App 207, ¶ 11, 456 P.3d 1159. “An appellate court can properly find abuse of discretion only if no reasonable person would take the view adopted by the trial court.” Hibbens v. Hibbens, 2015 UT App 278, ¶ 12, 363 P.3d 524 (cleaned up).

ANALYSIS

¶12 While not challenging the court’s factual findings, Harper contends that the district court erred in concluding that he had not established a material and substantial change in circumstances. Harper’s challenge has two parts. First, Harper argues that Giles’s health issues from the fall of 2015 through the spring of 2016 did in fact constitute a material change in circumstances and that the district court “failed to consider” those concerns. Second, Harper argues that “the trial court failed to consider the 2.5 years [Child] has spent in the care of Harper as part of the changed circumstances.”

¶13     The  Utah  Code  requires  that  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 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).4Under this two-step approach, “a court first must decide ‘whether there are changed circumstances warranting the exercise of the court’s continuing jurisdiction to reconsider the custody award.’” Doyle v. Doyle, 2011 UT 42, ¶ 24, 258 P.3d 553 (quoting Hogge v. Hogge, 649 P.2d 51, 53 (Utah 1982)). “Only if circumstances have materially and substantially changed may the court proceed to the second step—a determination ‘as to the manner in which custody should be modified, if at all,’ based on a de novo review of the child’s best interests.”5 Id. (quoting Hogge, 649 P.2d at 53). The

4. Because recent statutory amendments since the relevant time are not material in this case, we cite the current version of the Utah

5. Our two-step approach requires “only analytical—and not formal procedural—bifurcation,” recognizing that “evidence supporting changed circumstances is often the same evidence that is used to establish the best interests of the child.” Doyle v. Doyle, 2011 UT 42, ¶¶ 28, 33, 258 P.3d 553 (cleaned up).

district court’s determination “that there has or has not been a substantial change in circumstances is presumed valid” and is reviewed only for an abuse of discretion. Hibbens v. Hibbens, 2015 UT App 278, ¶ 12, 363 P.3d 524 (cleaned up).

¶14 The change-in-circumstances requirement serves several purposes. Doyle, 2011 UT 42, ¶ 25. “First, because a custody decree is predicated on a particular set of facts, that decree is res judicata,” and “the threshold requirement of changed circumstances thus prevents an unnecessary drain on judicial resources by repetitive litigation of the same issue when the result would not be altered.” Id. (cleaned up). Second, the requirement “protects the custodial parent from harassment by repeated litigation.” Id. (cleaned up). Third, it also “protects the child from ‘ping-pong’ custody awards.” Id. (cleaned up).

¶15 To satisfy the change-in-circumstances threshold requirement, “the party seeking modification must demonstrate

(1) that since the time of the previous decree, there have been changes in the circumstances upon which the previous award was based; and (2) that those changes are sufficiently substantial and material to justify reopening the question of custody.” Hogge, 649 P.2d at 54. Where this “burden of proof is not met, the trial court will not reach the second step, the petition to modify will be denied, and the existing custody award”—here, the divorce decree’s award of primary custody to Giles—“will remain unchanged.” See id.6

6. (continued…)Unlike an adjudicated custody decree, such as the one in this case, a stipulated custody decree “is not necessarily based on an objective, impartial determination of the best interests of the child, and therefore the res judicata policies underlying the changed-circumstances rule are at a particularly low ebb.” Peeples v. Peeples, 2019 UT App 207, ¶ 15, 456 P.3d 1159 (cleaned up). Thus, “in some cases, a lesser showing of changed

¶16 Harper first argues that Giles’s health concerns, present at the time he filed his petition to modify custody, satisfied the change-in-circumstances requirement. We disagree. Despite Giles’s admitted health issues from late 2015 to early 2016, the district court found that those problems were temporary and that, at the time of trial, Giles had “recovered to the same capacities that resulted in an order of primary physical custody at the time of divorce.” Given these unchallenged findings, the court essentially determined that the facts as they existed at the time of trial in 2018 mirrored the facts as they existed at the time of the divorce decree in 2012. Thus, in the court’s view, as compared to the time of the divorce decree, there had not been a change in the circumstances on which the previous custody award was based. See id.; see also Becker v. Becker, 694 P.2d 608, 610 (Utah 1984) (“[C]ustody placements, once made, should be as stable as possible unless the factual basis for them has completely changed.”). We do not see an abuse of discretion in the court’s decision.

¶17 Second, Harper argues that the court should  have concluded that circumstances had changed based on the fact that the Temporary Order giving him primary custody of Child had been in place for around two and a half years during the course of these proceedings. Again, we disagree. The Temporary Order was only that—temporary. See Tucker v. Tucker, 910 P.2d 1209, 1215 (Utah 1996). As a temporary custody order, it was “effective circumstances may support modifying a stipulated award than would be required to modify an adjudicated award.” Id. (cleaned up). For the same reasons, in change of custody cases involving a nonlitigated custody decree, the changed-circumstances rule “must not be so inflexible as to categorically foreclose examination of the child’s well-being.” Taylor v. Elison, 2011 UT App 272, ¶ 14, 263 P.3d 448.(…continued) only until a fully informed custody determination [could] be made at a final hearing.” Id. Indeed, the court here “never intended [the Temporary Order] to extend beyond a trial on the merits of the petition to modify.” See generally Utah R. Civ. P. 106 (permitting the court to order temporary modifications to custody during the pendency of a petition to modify). We agree with Giles that, unlike a permanent custody order, a temporary custody order is modifiable without a showing of a substantial and material change in circumstances. See Tucker, 910 P.2d at 1215–16.

¶18 Additionally, Harper’s emphasis on the Temporary Order misplaces the proper focus of the change-of-circumstance inquiry. Generally, “the asserted change must have some material relationship to and substantial effect on parenting ability or the functioning of the presently existing custodial relationship and not on the parenting of the noncustodial parent.”7 Doyle, 2011 UT 42, ¶ 41 (cleaned up). Harper’s custody of Child under the Temporary Order does not alone demonstrate a change in circumstance bearing on Giles’s parenting ability or the functioning of the custodial relationship established under the divorce decree. See id. Thus, the district court did not abuse its discretion by declining to give more weight to the Temporary Order.

¶19 We recognize that the district court’s denial of Harper’s petition to modify resulted in Child being returned to Giles’s custody after she spent over two years in Harper’s care under

7. There is an exception to this general rule. Namely, “where the original custody award was subject to or apparently conditioned upon an improvement in the noncustodial parent’s circumstances, a court may properly consider those changes in deciding to reopen the original custody determination.” Doyle, 2011 UT 42, ¶ 41 (cleaned up). This exception is not at issue in this case.

the Temporary Order as this case was pending. While we appreciate that this shift may have been disruptive at that juncture, the law is clear that “[i]t is only where circumstances have substantially changed that the trial court may reopen a litigated custody order and reevaluate the best interests of the child de novo.” Id. ¶ 38. Here, the district court observed that “[w]ere it to go there, the consideration of [Child’s] best interests

. . . would be a difficult, close contest.” But our supreme court has instructed that “[e]ven an overwhelming case for the best interest of the child could not compensate for a lack of proof of a change in circumstances.” Id. In light of Harper’s failure to establish a material and substantial change in circumstance that would justify modifying the divorce decree’s custody award, the district court correctly concluded that “further consideration of [Child’s] best interest is not possible under existing Utah law.” See id. ¶¶ 24, 38.

CONCLUSION

¶20 The district court did not abuse its discretion  in  determining that there had not been a substantial and material change in circumstances. Accordingly, we affirm.

The post Harper v. Harper – Substantial Change in Circumstances to Modify Custody appeared first on Arnold Wadsworth Coggins.

Young v. Hagel

2020 UT App 100

Background: In a child custody proceeding in which father registered custody and visitation order of another state, both father and mother petitioned to modify parent-time and mother requested sole physical custody. Following mother’s attorney file notice of withdrawal and the entry of default order, the Second District Court, Farmington Department, John R. Morris, J., denied mother’s motion to set aside default order. Mother appealed.

¶1 After nearly four years of contested litigation in a child custody case, the district court entered a default order against Michaela M. Hagel after her attorney purported to withdraw and she did not file a response to a notice to appear or appoint counsel. After learning of the default order, Hagel asked the district court to set it aside, but the district court denied her motion. Hagel now appeals that denial, and we reverse.

¶2 Hagel and Joshua J. Young have a child (Child) together. In 2011, a Texas court entered an “agreed order” appointing Young as Child’s “sole managing conservator” and limiting Hagel to “reasonable supervised visitation,” finding that it would not be in Child’s best interest for Hagel to have “specific periods of possession” of Child. The Texas court also ordered that Child have no contact with Hagel’s current husband. In 2015, after relocating to Utah, Young registered the Texas order with the Utah district court.

¶3 Soon after the Texas order was registered in Utah, both Young and Hagel—through counsel—filed competing petitions to modify it. Young alleged that Hagel had allowed the Child to have contact with her husband, and therefore asked the court to allow Hagel to exercise parent-time only in Utah and only under professional supervision. In her petition, Hagel asserted that her circumstances had changed, and that she not only should be allowed unsupervised parent-time, but that she should be awarded sole physical custody of Child. After over a year of litigation, the parties reached agreement on modification of the Texas order, and in 2016 the Utah district court entered an order encapsulating that agreement and superseding the Texas order.

¶4 Over a year later, in early 2018, Hagel filed a motion for an order to show cause, asking the court to hold Young in contempt for alleged violations of the operative custody order. Young responded by filing a counter-motion of his own, alleging that Hagel had violated the order, and asking the court to hold her in contempt. The matter came before a court commissioner, who recommended that the parties be ordered to participate in mediation. No party objected to that recommendation, and the district court entered an order commanding the parties to mediate their differences, and stating that if mediation proved unsuccessful, then the parties should “schedule a pre-trial conference to certify the issues for [an] informal trial.”

¶5 The parties complied with the court’s order, and participated in mediation, but they were not able to reach agreement on the issues raised in the competing cross-motions for contempt. After the unsuccessful mediation, Hagel’s attorney filed a notice announcing his withdrawal, incorrectly certifying that no motions were currently pending,¹ and incorrectly identifying the client from whose representation he was attempting to withdraw. Hagel’s counsel did not file a motion asking the court for permission to withdraw, and the court did not sign an order authorizing counsel to withdraw.

¶6 In response to Hagel’s attorney’s notice of withdrawal, Young’s attorney filed a document captioned “Notice of Appearance,” but which was apparently intended to serve as a notice to appear or appoint counsel.

¶7 Hagel filed no response to the “Notice of Appearance,” either personally or through counsel. About two months later, Young filed a motion asking the court to enter default against Hagel due to her lack of response. However, Young did not serve a copy of his motion on Hagel and, predictably, she did not respond to it. A court clerk later entered a default certificate.

¶8 After obtaining the default certificate, Young then filed a “Motion for Default Orders,” in which he asked the district court to hold Hagel in contempt. He also asked the court to order certain modifications to the parties’ custody arrangement, including requiring that Hagel exercise parent-time exclusively in Utah, that Young would be allowed to claim Child for tax purposes, and that Hagel pay his attorney fees. Young did not serve a copy of this motion on Hagel, and Hagel did not respond to it. The district court, without holding a hearing, entered Young’s requested order (the Order), captioned “Order of Modification.” In that order, the court held Hagel in contempt for various reasons, including smoking around Child, “harassing” Young’s spouse, and for a child support arrearage; entered judgment against her for $850 related to unpaid child support; and “restrained” her from “calling [the] cops to do welfare checks” on Child and from “calling CPS.”³ The court also ordered that Young “is awarded his attorney fees.” In addition, the court ordered that all of Hagel’s parent-time “must occur in Utah” and that Young could “claim [Child] for tax purposes.” Following entry of the Order, Young mailed Hagel a copy of it, as required by rules 5(a)(2)(D) and 58A(g) of the Utah Rules of Civil Procedure, even though he had not served her with copies of any of the motions leading up to the Order.

¶9 About three weeks later, a new attorney representing Hagel entered an appearance and filed a motion asking the district court to set aside the Order. The motion invoked rule 60(b) of the Utah Rules of Civil Procedure, and asserted that Hagel’s actions in failing to respond to the “Notice of Appearance” and the motions for default were due to excusable neglect. Hagel also pointed out, among other things, that her previous attorney’s notice of withdrawal was improper under rule 74(a) of the Utah Rules of Civil Procedure, which states that, when motions are pending, “an attorney may not withdraw except upon motion and order of the court.” Young opposed the motion, and the court denied it in a written ruling and order.

10 Hagel now appeals, arguing that the court improperly denied her motion to set aside the Order. Though district courts have “broad discretion” to grant or deny rule 60(b) motions, that discretion is “not unlimited,” especially in the context of default judgments. See Menzies v. Galetka, 2006 UT 81, ¶ 54, 150 P.3d 480 (quotation simplified); see also Lund v. Brown, 2000 UT 75, ¶ 10, 11 P.3d 277 (stating that “the nature of a default judgment and the equitable nature of rule 60 provide further limits” on a court’s discretion). When a default judgment is at issue, rule 60(b) motions “should be liberally granted because of the equitable nature of the rule,” and courts “should exercise [their] discretion in favor of granting relief so that controversies can be decided on the merits rather than on technicalities.” Menzies, 2006 UT 81, ¶ 54, 150 P.3d 480. A district court abuses its discretion if it denies a rule 60(b) motion to set aside a default judgment in a case where all of the requirements for the granting of that motion are met. See id. (stating that “it is an abuse of discretion for a district court to deny a 60(b) motion to set aside a default judgment if there is a reasonable justification for the moving party’s failure and the party requested 60(b) relief in a timely fashion”); Lund, 2000 UT 75, ¶ 11, 11 P.3d 277 (stating that “it is quite uniformly regarded as an abuse of discretion to refuse to vacate a default judgment where there is reasonable justification or excuse for the defendant’s failure to appear, and timely application is made to set it aside” (quotation simplified)); see also Katz v. Pierce, 732 P.2d 92, 93 (Utah 1986) (per curiam) (“Where there is doubt about whether a default should be set aside, that doubt should be resolved in favor of doing so.”). And, “[i]f a district court’s ruling on a 60(b) motion is based on clearly erroneous factual findings or flawed legal conclusions, the district court has likely abused its discretion.” Menzies, 2006 UT 81, ¶ 55, 150 P.3d 480.

11 A litigant is “entitled to have a default judgment set aside under rule 60(b)” if three requirements are satisfied: “(1) the motion is timely; (2) there is a basis for granting relief under one of the subsections of [rule] 60(b); and (3) the movant has alleged a meritorious defense.”⁴ Menzies, 2006 UT 81, ¶ 64, 150 P.3d 480. It is uncontested that Hagel’s rule 60(b) motion was filed in a timely fashion; we therefore focus our discussion on the other two requirements, both of which are contested here.

12 To meet the second requirement, Hagel must demonstrate that at least one of the subsections of rule 60(b) provides a basis for setting aside the Order. In an effort to make this showing, Hagel points to subsection (1) of rule 60(b), and asserts that her failure to respond to the “Notice of Appearance” and to Young’s default motions was the result of excusable neglect. See Utah R. Civ. P. 60(b)(1) (stating that a court “may relieve a partyfrom a judgment [or] order … for … mistake, inadvertence, surprise, or excusable neglect”). We find Hagel’s assertion persuasive, because her failure to respond to the “Notice of Appearance” did not, by itself, automatically place her in default.

¶13 According to our rules, “default” may be entered against a party who “has failed to plead or otherwise defend” the case, see id. R. 55(a), and a party who is “in default” is no longer entitled to receive service of motions and other papers filed in the case, see id. R. 5(a)(2) (stating that “[n]o service is required on a party who is in default”). Young did not serve Hagel with copies of his motions for default, and asserts that he was not required to do so because Hagel was “in default,” for purposes of rule 5, once Hagel failed to respond to the “Notice of Appearance” within twenty-one days. The district court appears to have credited this argument; indeed, an implied premise of its order of dismissal was that Hagel was in default for failing to respond to the notice.

¶14 Young correctly notes that a litigant who is properly served with a complaint and who fails to make a timely response is considered to be in default and no longer entitled to service of documents, even if the clerk has not yet entered a default certificate. See Arbogast Family Trust v. River Crossings, LLC, 2010 UT 40, ¶ 23, 238 P.3d 1035 (stating that, “unless a party enters a formal appearance through a pleading in the trial court, it has not appeared and is not entitled to service under rule 5” (quotation simplified)); see also Cutting v. Allenstown, 936 F.2d 18, 21 n.1 (1st Cir. 1991) (“Where defendants … were served with the summons and d[id] not appear and answer within the required period, they [we]re parties in default for Rule 5(a) purposes,” notwithstanding that “the clerk had yet to enter a default” (quotation simplified)). In the context of a litigant who has failed to respond at all to a duly-served complaint, the outcome of these cases aligns with the text of the operative rules; after all, such a litigant has “failed to plead or otherwise defend” the case, which is the prerequisite for “default” in our rules. See Utah R. Civ. P. 55(a).

¶15 But a litigant who fails to timely respond to a notice to appear or appoint has not necessarily “failed to plead or otherwise defend” against allegations raised in a complaint. Such a litigant, by definition, has been involved in the case, with counsel, for some time already before the attorney’s withdrawal, and suddenly finds herself without counsel. Courts should not automatically infer, solely from a newly pro se litigant’s failure to file any document within twenty-one days of the filing of a notice to appear or appoint, that the litigant has no further interest in litigating the case.

¶16 And no provision in our rules requires any such automatic inference. Rule 74(c) directs opposing counsel to send the newly pro se party a notice “informing the party of the responsibility to appear personally or appoint counsel,” and prescribes a twenty-one-day hiatus in the litigation, but rule 74 does not set forth any deadline (as, for instance, rule 12(a) does for responding to a complaint) for the newly pro se party to file any particular document. See generally Utah R. Civ. P. 74. And rule 74 likewise does not set forth any particular consequence that will necessarily be visited upon the newly pro se party for failure to file any document within any particular timeframe; no provision of that rule or any other indicates that a party who fails to respond to a rule 74(c) notice is “in default.” Thus, we disagree with Young’s contention that Hagel was in default here; while she did not file a response to the “Notice of Appearance,” she had been actively litigating the case for years and thus had not failed to “plead or otherwise defend” the case. See id. R. 55(a). And because she was not in “default” under rule 55(a), we cannot consider her “in default” for the purposes of rule 5(a)(2).

¶17 To be sure, a newly pro se party is not entitled to remain inactive indefinitely, and the opposing party, after expiration of the twenty-one-day hiatus mandated by rule 74(c), may of course seek relief from the court. In appropriate cases, and among other potential sanctions, the opposing party may ask the court to enter default against the newly pro se party. But that party is still entitled to be served with a copy of all documents filed in the case, including any motion seeking sanctions, and should not be considered to be in “default”—under either rule 55(a) or rule 5(a)(2)—merely by virtue of failing to respond to the notice to appear or appoint.

¶18 The Order contains no explicit analysis of why the district court considered Hagel in “default.” The court appears to have based that conclusion solely on her failure to respond to the “Notice of Appearance.” But this conclusion was unwarranted. Given her active participation in the litigation up to that point, including the recent mediation, Hagel had not failed to plead or otherwise defend the case; to the contrary, she had shown a longstanding desire to advocate for custody of Child. A party should not be considered in default simply for failing to respond to a notice to appear or appoint, and we are aware of no other ground upon which the court might have presumed that Hagel was no longer interested in participating in the litigation.

¶19 Hagel, of course, cannot be faulted for failing to respond to Young’s motions for default, because she was not served with those papers and there is no indication that she was even aware that they had been filed. Because she was not “in default,” she was entitled to service of those papers. See Utah R. Civ. P. 5(a)(2). And we think it likely that, if served with those motions, Hagel would have responded to them. And we have doubts about whether the district court would have granted those motions for default if Hagel had responded to them. Default was a harsh sanction in this case, especially considering that the case involved custody of Child and that Hagel had vigorously litigated the matter for years.

20 For all of these reasons, the district court erred by presuming that Hagel was in “default,” and where a district court grants a rule 60(b) motion on the basis of a “flawed legal conclusion[ ], the district court has likely abused its discretion.” Menzies v. Galetka, 2006 UT 81, ¶ 55, 150 P.3d 480. Hagel was under no rule-based deadline to respond to Young’s “Notice of Appearance” in any particular time frame, and had done nothing else—other than not respond to that notice—to merit an assumption that she was uninterested in participating in a lawsuit in which she had actively participated for nearly four years. And because Young erroneously considered Hagel to be “in default” pursuant to rule 5, Hagel was never served with copies of Young’s motions for default. Under these circumstances, we are hard-pressed to identify any neglect at all on Hagel’s part; certainly any such neglect was entirely excusable. Accordingly, Hagel has demonstrated that rule 60(b)(1) provides a basis for setting aside the Order.

¶21 To meet the third requirement, Hagel must “allege[ ] a meritorious defense.” Menzies, 2006 UT 81, ¶ 64, 150 P.3d 480. This requirement exists in order to “prevent the necessity of judicial review of questions which, on the face of the pleadings, are frivolous,” id. ¶ 108 (quotation simplified), and “ensures that vacating the judgment will not be an empty exercise or a futile gesture,” see Judson v. Wheeler RV Las Vegas, LLC, 2012 UT 6, ¶ 14, 270 P.3d 456. “This requirement does not set an overly burdensome threshold.” Menzies, 2006 UT 81, ¶ 108, 150 P.3d 480. To meet it, a party need not present evidence supporting the claimed defenses, but merely must articulate a “clear and specific proffer of a defense that, if proven, would preclude total or partial recovery by the claimant.” Judson, 2012 UT 6, ¶ 23, 270 P.3d 456 (quotation simplified). “Even general denials that would allow a litigant to prevail if proven are sufficient.” Menzies, 2006 UT 81, ¶ 108, 150 P.3d 480 (quotation simplified); see also Somer v. Somer, 2020 UT App 93, ¶ 11 n.5, ––– P.3d –––– (citing cases, and stating that “proof beyond allegations stating a claim or defense is unnecessary”).

¶22 Here, Hagel proffers potentially meritorious defenses to several of the Order’s provisions. First, she contends that her child support arrearage was only $350, and that the judgment entered against her for $850 is incorrect. Second, she proffered to the district court that many of the other facts alleged by Young in support of his contempt request were inaccurate; for instance, she proffered that she had never smoked around Child or harassed Young’s spouse. Third, she proffered that Young’s request that all of her parent-time occur in Utah would be unduly burdensome and inappropriate. In the context of a custody and contempt dispute, these denials are sufficient under the Menzies standard. While Young argues on appeal that Hagel “provided no details” supporting her defense and “failed to prove facts that would preclude the relief granted” to Young, definitive proof is not required. Under the circumstances, we conclude that Hagel has alleged defenses to much of the Order that, if proven, would result in significant portions of the Order being improvident. Thus, Hagel has met the third requirement.

¶23 Hagel meets all three of the requirements for relief under rule 60(b). Accordingly, the district court abused its discretion by denying her motion to set aside the Order. We therefore reverse the court’s denial of Hagel’s rule 60(b) motion, vacate the Order, and remand for further proceedings consistent with this opinion.

*****This post is for information purposes only, it is not intended to be legal advice and does not establish an attorney/client relationship.****** 

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Rule 109 is fabulous and welcome in the profession. It makes certain nefarious activity subject to contempt out the outset of the case giving the court power to make necessary orders expeditiously, where before it took months. If you have questions about Rule 109, please contact Matt Wadsworth with Arnold, Wadsworth & Coggins, PLLC for a consultation at 801-475-0123 or email info@arnoldwadsworth.com.

The content of Rule 109, Utah Rules of Civil Procedure is contained below:

Rule 109. Injunction in certain domestic relations cases.

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

(b) General provisions. 

(b)(1) If the action concerns the division of property then neither party may transfer, encumber, conceal, or dispose of any property of either party without the written consent of the other party or an order of the court, except in the usual course of business or to provide for the necessities of life.

(b)(2) Neither party may, through electronic or other means, disturb the peace of, harass, or intimidate the other party.

(b)(3) Neither party may commit domestic violence or abuse against the other party or a child.

(b)(4) Neither party may use the other party’s name, likeness, image, or identification to obtain credit, open an account for service, or obtain a service.

(b)(5) Neither party may cancel or interfere with telephone, utility, or other services used by the other party.

(b)(6) Neither party may cancel, modify, terminate, change the beneficiary, or allow to lapse for voluntary nonpayment of premiums, any policy of health insurance, homeowner’s or renter’s insurance, automobile insurance, or life insurance without the written consent of the other party or pursuant to further order of the court.

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

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

(c)(1)(A) an itinerary of travel dates and destinations;

(c)(1)(B) how to contact the child or traveling party; and

(c)(1)(C) the name and telephone number of an available third person who will know the child’s location.

(c)(2) Neither party may do the following in the presence or hearing of the child:

(c)(2)(A) demean or disparage the other party;

(c)(2)(B) attempt to influence a child’s preference regarding custody or parent time; or

(c)(2)(C) say or do anything that would tend to diminish the love and affection of the child for the other party, or involve the child in the issues of the petition.

(c)(3) Neither party may make parent time arrangements through the child.

(c)(4) When the child is under the party’s care, the party has a duty to use best efforts to prevent third parties from doing what the parties are prohibited from doing under this order or the party must remove the child from those third parties.

(d) When the injunction is binding. The injunction is binding

(d)(1) on the petitioner upon filing the initial petition; and

(d)(2) on the respondent after filing of the initial petition and upon receipt of a copy of the injunction as entered by the court.

(e) When the injunction terminates. The injunction remains in effect until the final decree is entered, the petition is dismissed, the parties otherwise agree in a writing signed by all parties, or further order of the court.

(f) Modifying or dissolving the injunction. A party may move to modify or dissolve the injunction.

(f)(1) Prior to a responsive pleading being filed, the court shall determine a motion to modify or dissolve the injunction as expeditiously as possible. The moving party must serve the nonmoving party at least 48 hours before a hearing.

(f)(2) After a responsive pleading is filed, a motion to modify or to dissolve the injunction is governed by Rule 7 or Rule 101, as applicable.

(g) Separate conflicting order. Any separate order governing the parties or their minor children will control over conflicting provisions of this injunction.

(h) Applicability. This rule applies to all parties other than the Office of Recovery Services.

Effective January 1, 2020

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Typical protections offered by either one or both of the preceding statutes:

1. Interest rate cap for pre-service debts
2. Terminate residential and vehicle lease early
3. Foreclosures, repossessions, and storage lien seizures all require court orders first

Utah Code sections referring to deployment:

1. UCA § 30-3-33(19) Advisory guideline
2. UCA § 30-3-10.9(10) Parenting Plan requirements
3. UCA § 30-3-10(9) Custody considerations
4. UCA § 30-3-10.4(6) Order modification

If either party is active duty, make sure the parenting plan includes all relevant provisions of a Custodial Responsibility Agreement (§ 78B-20-201)

Retirement Considerations

Contrary to prevailing voices, military retirement is subject to equitable division by a divorce court whenever the service member obtains a property interest in such retirement. There is no service time threshold requirement. The service time requirements trigger for health insurance for the spouse under the 20/20 Rule (20 years active service coinciding with 20 years marriage) and  there is a similar 10/10 rule for when DFAS will recognize and enforce a garnishment for alimony to a former spouse to be processed through DFAS.  But that is not to be confused with a legal recognition of when alimony is allowed.

Matt Wadsworth is a partner in Arnold, Wadsworth & Coggins.  He has been recognized by Superlawyers for many years and Utah Legal’s Elite while practicing in Salt Lake City, Utah and Ogden, Utah. Arnold, Wadsworth & Coggins has served many at Hill Air Force Base in Layton, Utah for over a decade. Mr. Wadsworth has processed many hundreds of divorce cases in Utah and has over 500 hours of trial experience while practicing for twelve years. Call for a consult today: 801-475-0123

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effective 7/1/2017

30-3-10.1 Definitions — Joint legal custody — Joint physical custody.

          As used in this chapter:

(1)(a) “Custodial responsibility” includes all powers and duties relating to caretaking authority and decision-making authority for a child.

(b) “Custodial responsibility” includes physical custody, legal custody, parenting time, right to access, visitation, and authority to grant limited contact with a child.

(2) “Joint legal custody”:

(a) means the sharing of the rights, privileges, duties, and powers of a parent by both parents, where specified;

(b) may include an award of exclusive authority by the court to one parent to make specific decisions;

(c) does not affect the physical custody of the child except as specified in the order of joint legal custody;

(d) is not based on awarding equal or nearly equal periods of physical custody of and access to the child to each of the parents, as the best interest of the child often requires that a primary physical residence for the child be designated; and

(e) does not prohibit the court from specifying one parent as the primary caretaker and one home as the primary residence of the child.

(3) “Joint physical custody”:

(a) means the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support;

(b) can mean equal or nearly equal periods of physical custody of and access to the child by each of the parents, as required to meet the best interest of the child;

(c) may require that a primary physical residence for the child be designated; and

(d) does not prohibit the court from specifying one parent as the primary caretaker and one home as the primary residence of the child.

(4) “Servicemember” means a member of a uniformed service.

(5) “Uniformed service” means:

(a) active and reserve components of the United States Armed Forces;

(b) the United States Merchant Marine;

(c) the commissioned corps of the United States Public Health Service;

(d) the commissioned corps of the National Oceanic and Atmospheric Administration of the United States; or

(e) the national guard of a state.

Amended by Chapter 224, 2017 General Session

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