McFarland v. McFarland , 2021 UT App 58 ( 2021 )

2021 UT App 58THE UTAH COURT OF APPEALS
BRUCE RAY MCFARLAND,
Appellant and Cross-appellee,
v.
NICOLE S. MCFARLAND,
Appellee and Cross-appellant.
Opinion
No. 20190541-CA
Filed June 4, 2021
Second District Court, Farmington Department
The Honorable David J. Williams
No. 084701533
Jacob K. Cowdin and A. Douglas Anderson,
Attorneys for Appellant and Cross-appellee
Angilee K. Dakic and Ryan C. Gregerson Attorneys
for Appellee and Cross-appellant
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN FORSTER and DAVID N. MORTENSEN
concurred.
HARRIS, Judge:
¶1 Bruce Ray McFarland (Bruce) and Nicole S. McFarland
(Nicole) 1 divorced in 2009 pursuant to a stipulated divorce
decree, but soon thereafter began to ignore many of the decree’s
important provisions. However, neither party brought any
matter to the attention of the district court for some eight years,
until Bruce filed a petition to modify in 2017, and Nicole
followed up with a request that the court hold Bruce in
1. Because the parties share the same surname, for clarity we
identify them by their first names, with no disrespect intended.
McFarland v. McFarland
contempt. Both parties now appeal the court’s ruling on those
requests and, for the reasons discussed herein, we affirm in part,
reverse in part, and remand for further proceedings.
BACKGROUND
The Divorce Decree
¶2 In 2008, after almost sixteen years of marriage, Bruce and
Nicole separated, and Bruce filed a petition for divorce. Soon
thereafter, the parties negotiated a resolution to the divorce
proceedings, and filed papers memorializing their agreement. In
February 2009, the court entered a decree of divorce (the Decree)
that incorporated the parties’ stipulated agreement. With regard
to alimony and the house in which they lived while they were
married (the Home), the parties’ agreement was straightforward:
Bruce was ordered to pay $1,700 per month in alimony to Nicole,
beginning in November 2008 and continuing until Nicole
“remarries, cohabits, dies, for a term equal to their marriage, or
further order of the Court,” and Nicole was awarded the Home,
including the obligation to make the mortgage payments.
¶3 But the parties’ agreement regarding custody and child
support was unusual. Bruce was to have overnight custody of
the parties’ four children every week from Sunday evening until
Friday morning, with the parties each enjoying weekend
overnight custody on an alternating basis. During the
modification proceedings at issue here, Nicole acknowledged
that the arrangement entitled her to fewer than 30% of the
overnights; indeed, the district court found that this
arrangement resulted in Bruce having “24 overnights per month
with the children,” leaving Nicole with just six, and neither party
takes issue with that finding. But despite the fact that Bruce was
awarded more than 70% of the overnights, see Utah Code Ann.
§ 30-3-10.1(2)(a) (LexisNexis 2009) (defining “joint physical
custody” as any arrangement in which “the child stays with each
parent overnight for more than 30% of the year”), the parties
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labeled their arrangement “joint . . . physical custody,” perhaps
because the arrangement contemplated that Nicole would pick
the children up from school every day and care for them until
eight o’clock p.m., at which point Bruce was to retrieve the
children so that they could “stay with him overnight.”
¶4 With regard to child support, the parties agreed to
calculate the amount using the sole custody worksheet, even
though they labeled their arrangement as joint custody, and
agreed that Bruce—and not Nicole, notwithstanding the fact that
Bruce had the lion’s share of the overnights—would be
considered the “Obligor Parent” on the worksheet. Using these
parameters, the parties agreed that Bruce would pay Nicole
monthly child support equating to one-half of what the
worksheet said Bruce would owe if he were the Obligor Parent,
an amount the parties computed to be $739.73 per month at the
time the Decree was entered, when all four children were still
minors. 2
2. Divorcing parties have limited ability to make child support
obligations the subject of a stipulated agreement. See Utah Code
Ann. § 78B-12-201(4) (LexisNexis 2018) (“A stipulated amount
for child support . . . is adequate under the guidelines if the
stipulated child support amount . . . equals or exceeds the base
child support award required by the guidelines.”); see also Baggs
v. Anderson, 528 P.2d 141, 143 (Utah 1974) (stating that a child’s
right to receive child support is his or her own and “is not
subject to being bartered away” by the litigating parents); Price v.
Price, 289 P.2d 1044, 1044 (Utah 1955) (“Future child support
effectively cannot be the subject of bargain and sale.”). Because
no party asks us to do so, we do not reach the question of
whether it was appropriate for the district court, at the time the
Decree was entered, to approve this particular child support
arrangement.
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Post-Divorce Events and Conduct
¶5 Soon after the court entered the Decree, both parties
began to ignore many of its provisions. For instance, Nicole
made no mortgage payments on the Home. And Bruce made
only one alimony payment (in January 2009) and three child
support payments (in December 2008, and January and February
2009), but after that made no payments of either kind.
¶6 In addition, with Nicole’s permission, Bruce moved back
into the Home in April 2009. After that point, although Bruce
made no payments denominated as alimony or child support, he
did resume paying the mortgage on the Home, a payment that
happened to be $1,728 per month, only slightly more than
Bruce’s alimony obligation. When Bruce first moved back in, he
and Nicole lived separately for a time, but beginning in
September 2009, and lasting until April 2010, Bruce and Nicole
resumed cohabiting as a couple, which included sharing familial
expenses and reinitiating sexual relations. It is not a matter of
dispute in this case that, during that seven-month period, the
parties were cohabiting, as that term is used in relevant statutes
and case law. See Myers v. Myers, 2011 UT 65, ¶ 17, 266 P.3d 806(identifying the “hallmarks of cohabitation, including
participation in a relatively permanent sexual relationship akin
to that generally existing between husband and wife and the
sharing of the financial obligations surrounding the maintenance
of the household” (quotation simplified)); see generally Utah
Code Ann. § 30-3-5(10) (LexisNexis 2017) (stating that alimony
“terminates upon establishment by the party paying alimony
that the former spouse is cohabitating with another person”).
¶7 In April 2010, Nicole enlisted in the military, and left Utah
for basic training. Over the next seven years, Bruce resided in the
Home with the children, and provided all necessary childcare
and financial support, including making the monthly mortgage
payments on the Home. Nicole served two tours of duty
overseas with the military, and visited the children or took them
on vacation periodically while on leave. But other than these
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short visits, Nicole exercised no custody or parent-time, and
provided no significant financial support to the children.
Eventually, in 2015, Nicole remarried.
¶8 For the seven years following Nicole’s enlistment, both
parties seemed content with their arrangement and, even though
both were materially violating the terms of the Decree, neither
filed so much as a single document with the court. In particular,
neither party sought to modify the terms of the Decree, and
neither party sought contempt sanctions against the other.
The Post-Divorce Filings
¶9 The parties’ tacit arrangement came to an end in 2017
when Bruce sought to refinance the Home. Because Nicole had
been awarded the Home in the Decree, Bruce asked Nicole to
deed him the Home to facilitate the refinance. Nicole refused to
authorize the refinance unless Bruce paid her half the equity,
asserting that she owned the Home and that any mortgage
payments made by Bruce constituted “either rent or alimony
payments” that he owed her. Then, in June 2017, Bruce filed a
petition to modify, followed by a motion for temporary orders in
February 2018, bringing three separate provisions of the Decree
to the court’s attention. First, Bruce requested that alimony be
terminated, dating back to 2009. Second, Bruce asked the court to
modify the Decree to award him sole physical and legal custody
of the two remaining minor children, and asked that he be
awarded child support payments from Nicole going forward.
And finally, Bruce asked the court to modify the Decree to
award him the Home, alleging that he assumed the mortgage to
avoid foreclosure because Nicole had “abandoned the property
when she joined the military.” While the petition and motion for
temporary orders were pending, Bruce completed a refinance of
the Home, apparently finding a way to close the transaction
without Nicole’s authorization.
¶10 Nicole responded by filing two orders to show cause,
asking the court to hold Bruce in contempt in three respects:
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(1) for failing to make alimony payments; (2) for failing to make
child support payments; and (3) for occupying the Home and for
refinancing it without her authorization. Nicole asked the court
to enter judgment in her favor for alimony and child support
arrears, as well as for “the amount that [Bruce] cashed out when
he refinanced” the Home, and asked the court to order that she
obtain immediate “use and possession” of the Home.
¶11 After a hearing, a domestic relations commissioner
certified a number of issues as ripe for an evidentiary hearing
before the district court, including the following: (1) whether
Bruce should be held in contempt for failing to pay alimony and,
if so, the amount of arrears at issue; (2) whether Bruce should be
held in contempt for failing to pay child support and, if so, the
amount of arrears at issue; (3) whether Bruce should be held in
contempt for refinancing the Home without Nicole’s consent;
and (4) whether Bruce should be held in contempt for occupying
and refusing to vacate the Home. All of the issues certified by
the commissioner were framed as contempt or temporary order
issues; the commissioner apparently did not envision that the
hearing would be a final dispositive hearing on Bruce’s petition
to modify.
¶12 In anticipation of the evidentiary hearing before the
district court, both parties filed papers outlining their positions.
Citing section 30-3-5(10) of the then-applicable Utah Code, Bruce
argued that he did not owe any alimony arrears because his
obligation to pay alimony terminated in 2009 due to “the
cohabitation relationship” that the two established when they
moved back into the Home together. Citing Scott v. Scott, 2017
UT 66, ¶¶ 10, 26–27, 26 n.7, 423 P.3d 1275, Nicole argued in
response that, under the applicable statute as interpreted by our
supreme court, a party attempting to terminate alimony for
cohabitation must file a motion or petition “during [the] alleged
co-habitation.”
¶13 Regarding child support, Bruce asserted that he should
not be required to pay Nicole for any point after 2009, because
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the children had been almost entirely in his care since then. In
particular, Bruce argued for the applicability of section 78B-12-
108 of the Utah Code, which provides that child support
payments generally “follow the child,” and that changes in child
support obligations can, under certain circumstances, occur
“without the need to modify” the governing decree. See Utah
Code Ann. § 78B-12-108(1), (2) (LexisNexis 2017). Bruce’s
arguments in the pretrial briefing were entirely defensive—that
is, he asserted that he should not be required to make child
support payments to Nicole after 2009, but at no point did he
assert an entitlement to child support arrears from Nicole
regarding any time period prior to the filing of his petition to
modify.
The Hearing and Subsequent Ruling
¶14 At the ensuing evidentiary hearing, the court heard live
testimony from Bruce, Nicole, Bruce’s father, and the parties’
adult daughter. At the conclusion of the evidence, the court took
the matter under advisement, and asked the parties to submit
written closing arguments in the form of post-trial briefs.
¶15 In her closing brief, Nicole attempted to rebut Bruce’s
cohabitation claim with two arguments. First, Nicole asserted
that the governing statute, as interpreted in Scott, required Bruce
to have requested termination of alimony during the period of
cohabitation. Second, Nicole argued that, even if Bruce’s request
was timely, no cohabitation occurred because Bruce, the payor
spouse, did not qualify as “another person” within the meaning
of the governing statute. See Utah Code Ann. § 30-3-5(10)
(LexisNexis 2017) (stating that alimony terminates if “the former
spouse is cohabitating with another person”). For his part, while
he attempted to rebut all of Nicole’s claims, Bruce again made no
affirmative claim to child support arrears running in his
direction.
¶16 A few weeks later, the court issued a written ruling. With
regard to alimony, the court found Bruce in contempt for failing
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to make payments. First, the court concluded that the mortgage
payments Bruce made were just that—mortgage payments on a
house Bruce lived in—and could not be considered alimony, and
it found that Bruce had not paid any alimony since 2009. Second,
the court determined that, even if all of the hallmarks of
cohabitation were present between September 2009 and April
2010, cohabitation had not occurred because “‘cohabitation’ does
not include meeting the elements of cohabitation with the ex-
spouse.” Accordingly, the court concluded that Bruce’s alimony
obligation had not terminated in 2009 when the parties moved
back in together, and that Bruce was in contempt for not paying
alimony between 2009 and Nicole’s remarriage in 2015. Based on
those findings, the court computed the alimony arrearage
amount to be “$150,744.50 plus post-judgment interest,” and
ordered Bruce to pay that amount.
¶17 With regard to child support, the court found that Bruce
was not in contempt. The court accepted Bruce’s argument that,
pursuant to section 78B-12-108 of the Utah Code, the child
support obligation was to follow the children, and concluded
that, pursuant to subsection (2) of that statute, which the court
found applicable, Bruce was relieved of his child support
obligation dating back to 2009, even though he did not file a
petition to modify until 2017. In addition, the court offered its
view that, even if section 78B-12-108 were inapplicable, “it
would not be equitable to require” Bruce to pay child support to
Nicole for time periods in which he cared for the children. On
those bases, the court determined that Bruce had no obligation to
pay child support to Nicole after 2009. But the court did “not
find that [Nicole] was required to pay child support payments to
[Bruce] after leaving for military service,” noting that, in its
view, Bruce had not made any such affirmative claim, and
instead had raised only defensive claims regarding any
obligations he might have to Nicole.
¶18 With regard to the Home, the court declined to find Bruce
in contempt for not vacating the Home, refusing to quitclaim it
to Nicole, or refinancing it. However, the court made no ruling
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on altering the Decree’s provision that originally awarded the
Home to Nicole, stating simply that Bruce “shall be allowed, on
a temporary basis, to remain” in the Home “until the matter is
brought forth and certified” by the commissioner as ripe for an
evidentiary hearing.
ISSUES AND STANDARDS OF REVIEW
¶19 Both parties appeal the district court’s ruling, raising two
main issues for our review. First, Bruce challenges the court’s
determination that his alimony obligation was not terminated by
cohabitation. In advancing this argument, Bruce relies entirely
on Utah’s alimony statute, and asserts that the court’s
interpretation of that statute was incorrect. See Utah Code Ann.
§ 30-3-5(10) (LexisNexis 2017) (stating that a payor spouse’s
obligation “terminates upon establishment by the party paying
alimony that the former spouse is cohabitating with another
person”). 3 “The proper interpretation and application of a statute
3. The Decree contains slightly different language than the
alimony statute; it states that the alimony obligation continues
until Nicole “remarries, cohabits, dies, for a term equal to their
marriage, or further order of the Court.” Thus, unlike the statute,
the operative language of the Decree contains no language
requiring that the payor spouse prove that the payee spouse “is
cohabitating” at the time of the petition to modify, and contains
no language specifying that cohabitation, in order to terminate
alimony, must be “with another person.” See Utah Code Ann.
§ 30-3-5(10) (LexisNexis 2017). But no party argues that the
language of the Decree mandates a different result than the
language of the statute; rather, in making their arguments about
alimony, both parties rely exclusively on the statute. As our
supreme court has done under similar circumstances, we limit
our analysis to the language of the alimony statute. See Scott v.
Scott, 2017 UT 66, ¶¶ 3 n.1, 21 n.5, 423 P.3d 1275 (stating that,
because “neither party argues . . . that [the court] should decide
(continued…)
20190541-CA 9 2021 UT App 58McFarland v. McFarland
is a question of law which we review for correctness . . . .” Veysey
v. Veysey, 2014 UT App 264, ¶ 7, 339 P.3d 131 (quotation
simplified).
¶20 Next, both parties challenge the court’s child support
rulings. Nicole takes issue with the court’s determination that
Bruce did not owe her child support payments, pursuant to the
terms of the Decree, after 2009. And Bruce asserts that the court
erred by declining to order Nicole to pay child support arrears to
him. Because the parties’ arguments center on interpretation and
application of section 78B-12-108 of the Utah Code (Section 108),
we review the district court’s decision for correctness. See Veysey,
2014 UT App 264, ¶ 7. 4
(…continued)
this case under the language of the divorce decree or that the
decree’s language demands a different result,” the court would
“limit [its] analysis to the parties’ arguments and [would] not
consider the decree’s language”).
4. In addition, Nicole argues that the court erred by “failing to
enter requisite findings for final disposition” of the Home. But
final disposition of the Home was not an issue certified for
adjudication at the evidentiary hearing, so it is not surprising
that the court did not issue a final decision on that matter. In
general, a district court is allowed “considerable discretion to
administer the business of its docket and determine how a trial
should be conducted.” Walker Drug Co. v. La Sal Oil Co., 972 P.2d
1238, 1244 (Utah 1998) (quotation simplified). The commissioner
certified issues regarding whether Bruce should be held in
contempt for occupying the Home, refusing to deed it to Nicole,
and refinancing it, as well as issues relating to “occupancy” of
the Home, as raised in Bruce’s motion for temporary orders. But
neither the commissioner nor the court viewed the evidentiary
hearing as the final trial on Bruce’s petition to modify; indeed,
the court clearly used language in its conclusions of law
(continued…)
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ANALYSIS
I. Alimony
¶21 We first address Bruce’s claim that his alimony obligation
terminated by operation of statute when the parties cohabited in
2009 and 2010. Because Bruce’s position is directly foreclosed by
our supreme court’s decision in Scott v. Scott, 2017 UT 66, 423
P.3d 1275, we reject his challenge to the district court’s ruling.
¶22 At all relevant times during the events precipitating this
appeal, Utah’s alimony statute provided that alimony
obligations “to a former spouse terminate[] upon establishment
by the party paying alimony that the former spouse is
cohabitating with another person.” Utah Code Ann. § 30-3-5(10)
(LexisNexis 2017) (emphasis added). 5 In Scott, our supreme court
(…continued)
indicating that it contemplated further proceedings regarding
whether to modify the Decree’s provision regarding the Home.
We anticipate that, on remand, the court will address in some
fashion the remaining issues raised in Bruce’s petition to modify,
including this one. Nothing in this opinion should be construed
as preventing the parties from asking the district court to
adjudicate those issues in due course.
5. The same version of the relevant subsection of the alimony
statute quoted above was in effect when the Decree was entered
in 2009, see Utah Code Ann. § 30-3-5(10) (LexisNexis 2009), when
the parties ceased cohabiting in 2010, see id. (2010), and when
Bruce filed his petition to modify the alimony provision of the
Decree in 2017, see id. (2017). At oral argument before this court,
both parties agreed that this version of the alimony statute is
applicable here. In the wake of the Scott ruling from our supreme
court, however, the legislature amended the alimony statute. See
id. § 30-3-5(10)–(12) (Supp. 2018). As it presently reads, the
statute allows a payor spouse to file a valid petition to modify
(continued…)
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was asked to interpret the same version of this statute. See 2017
UT 66, ¶ 3. After noting the statute’s use of present tense
language—“is cohabitating”—the court interpreted the statute as
requiring “the paying spouse to establish that the former spouse
is cohabiting at the time the paying spouse files the motion to
terminate alimony.” See id. ¶¶ 23, 33. While the Scott opinion
was not published until 2017, the statutory language the court
was interpreting in that case had been in effect at all times
relevant to this case. See supra note 5. That is, Scott did not
introduce a new rule that was effective only prospectively;
rather, it provided an interpretation of statutory text that had
already been in effect for several years. See DIRECTV, Inc. v.
Imburgia, 577 U.S. 47, 56 (2015) (“[J]udicial construction of a
statute ordinarily applies retroactively.”); see also Rivers v.
Roadway Express, Inc., 511 U.S. 298, 311–12 (1994) (stating that
“the principle that statutes operate only prospectively, while
judicial decisions operate retrospectively, is familiar to every law
student” (quotation simplified)).
¶23 Under the circumstances presented in this case, any
cohabitation between Bruce and Nicole ceased sometime in early
2010. But Bruce did not file his petition to modify until 2017. It is
therefore undisputed that the cohabitation to which Bruce points
had long since ceased by the time he filed his petition to modify.
Thus, under the statute then in effect (as interpreted by Scott),
(…continued)
alimony for cohabitation within “one year from the day on
which the party knew or should have known that the former
spouse has cohabited with another individual.” Id. § 30-3-
5(12)(b) (2019). The payor spouse no longer needs to file the
petition while the former spouse is presently cohabiting, so long
as the petition is filed within one year of notice. Id. § 30-3-
5(12)(a)–(b). Both parties in this case agree that, under the
current statute, if it applied, Bruce’s petition would be
considered untimely, because Bruce did not file it within one
year of learning of Nicole’s cohabitation.
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that petition was filed some seven years too late. Accordingly,
Bruce cannot now complain that his alimony obligation should
be terminated, by operation of statute, due to the parties’ long-
since-concluded cohabitation. Bruce has therefore not carried his
burden of demonstrating error in the district court’s ruling that
Bruce’s alimony obligation lasted until Nicole’s 2015
remarriage, 6 or in the court’s rulings holding Bruce in contempt
for failing to pay alimony from 2009 through 2015 and ordering
him to pay past-due alimony. 7
6. Neither party disputes that Nicole’s remarriage terminated
Bruce’s alimony obligation. See Utah Code Ann. § 30-3-5(9)
(LexisNexis 2017) (providing that the obligation to pay “alimony
to a former spouse automatically terminates upon the
remarriage . . . of that former spouse”).
7. Because Bruce’s argument is foreclosed by Scott, we need not
reach Nicole’s other argument, adopted by the district court, that
no cohabitation occurred because Nicole cohabited with Bruce—
the payor spouse—as opposed to someone else. Under the
applicable version of the alimony statute, alimony terminates
when the payor spouse demonstrates that the payee spouse “is
cohabitating with another person.” See Utah Code Ann. § 30-3-
5(10) (LexisNexis 2017) (emphasis added). In Nicole’s view,
Bruce—as the payor spouse—does not count as “another
person.” The district court accepted that argument, based in part
on case law from another jurisdiction. See In re Marriage of
Antonich, 499 N.E.2d 654, 656 (Ill. App. Ct. 1986). We have our
doubts about the applicability of the holding of that case to
Utah’s alimony statute, and about the correctness of the district
court’s ruling predicated upon it. Compare id. (suggesting that
“[t]he proper interpretation of a statute cannot always be based
on its language alone; it must be grounded on the nature, object,
and consequences that would result from construing it one way
or another”), with Scott, 2017 UT 66, ¶ 26 (recognizing that courts
must “start from the premise that we should discern what the
(continued…)
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II. Child Support
¶24 Next, we address the parties’ respective challenges to the
district court’s child support rulings. As noted, Nicole takes
issue with the court’s ruling that Bruce’s child support
obligations to her, as set forth in the Decree, ended in 2009, and
that therefore Bruce could not be held in contempt for not
meeting those obligations. Building on that same ruling, Bruce
takes issue with the court’s reluctance to go a step further and
order Nicole to pay him child support arrearages dating to 2009.
We begin our analysis by discussing some of the broad
overarching principles governing modification of child support
orders, including a discussion of Section 108 in particular. We
then address the parties’ respective challenges, in turn,
beginning with Nicole’s.
A
¶25 In general, decrees in domestic relations cases are binding
final judgments that may be modified “only under certain
conditions.” Kielkowski v. Kielkowski, 2015 UT App 59, ¶ 21, 346
P.3d 690; see also Robertson v. Stevens, 2020 UT App 29, ¶¶ 6–7,
461 P.3d 323 (explaining that once “judgment is entered” in a
divorce case, “the court’s power to modify the judgment is
limited” (quotation simplified)). While there are several tools
that can generally be used to modify final judgments, see, e.g.,
(…continued)
legislature intended from the plain language of the text
unencumbered by notions of what we think the legislature must
have wanted to accomplish”). At least at first blush, the plain
meaning of “another person” would seem to include the payor
spouse. However, we need not reach a conclusive ruling on this
point because we can readily affirm the district court’s ruling on
another ground—the timeliness ground made clear in Scott, as
discussed supra ¶¶ 21–23—that is apparent from the record. See
Bailey v. Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158.
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Utah R. Civ. P. 60(b), one tool that is specific to family law cases
is the petition to modify, see id. R. 106(a) (stating that, in most
cases, “proceedings to modify a divorce decree . . . shall be
commenced by filing a petition to modify”); see also Ross v. Ross,
2019 UT App 104, ¶ 11, 447 P.3d 104 (“[R]ule 106 establishes a
general rule . . . that any changes to divorce decrees must be
brought about by the filing of a petition to modify.”). Parties in
family law cases may use this tool, in accordance with applicable
statutes and rules, to seek modification of various provisions of
decrees, including child support provisions. See Utah Code Ann.
§ 78B-12-210(9)(a) (LexisNexis 2017) (“A parent . . . may at any
time petition the court to adjust the amount of a child support
order if there has been a substantial change in circumstances.”);
see also id. § 30-3-5(3) (“The court has continuing jurisdiction to
make subsequent changes or new orders for the custody of a
child and the child’s support, maintenance, health, and dental
care, and for distribution of the property and obligations for
debts as is reasonable and necessary.”); id. § 30-3-5(8)(i)(i) (“The
court has continuing jurisdiction to make substantive changes
and new orders regarding alimony based on a substantial
material change in circumstances . . . .”).
¶26 But in general, modifications to a decree’s provisions
regarding child support payments may date back only to “the
month following service” of the petition to modify “on the
parent whose support is affected.” See id. § 78B-12-112(4); see also
McPherson v. McPherson, 2011 UT App 382, ¶ 17, 265 P.3d 839(stating that “the statute does limit the time period during which
retroactive modification is available”). That is, as concerns child
support provisions, parties are generally barred from obtaining
modifications that date back further than the first day of the
month after the month in which the petition to modify was
served on the opposing party.
¶27 One potential exception to this general rule appears in
Section 108, a statutory provision entitled “Support Follows the
Child.” See Utah Code Ann. § 78B-12-108 (LexisNexis 2017). That
section, in relevant part, reads as follows:
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(1) Obligations ordered for child support and
medical expenses are for the use and benefit of
the child and shall follow the child.
(2) Except in cases of joint physical custody and split
custody as defined in Section 78B-12-102, when
physical custody changes from that assumed in
the original order, the parent without physical
custody of a child shall be required to pay the
amount of support determined in accordance
with [calculation guidelines found in other code
sections] without the need to modify the order for
. . . the parent who has physical custody of the
child.
Id. (emphasis added). Thus, Section 108 contains an overarching
mandate that child support payments “shall follow the child,”
and provides that, under certain limited circumstances, child
support obligations can change “without the need to modify”
the child support provisions in the governing decree. Id.; see also
Hansen v. Hansen, 2012 UT 9, ¶ 13, 270 P.3d 531 (stating that,
under certain circumstances, Section 108 “allows redirection of
child support [payments] without modification of the support
order”). In this way, Section 108 constitutes an exception to the
general rule that modifications to child support provisions may
date back only to the month following service of the petition to
modify on the opposing party: where Section 108 applies, it may
allow modification of child support awards even further back in
time.
¶28 But this exception comes with distinct statutory limits.
Indeed, our supreme court has noted that Section 108 “contains
two provisions: (1) a general statement that support shall follow
the child and (2) a specific provision providing guidelines for
redirection of child support to a new physical custodian.”
Hansen, 2012 UT 9, ¶ 7. And the court has already foreclosed any
argument that subsection (1)’s general statement—that child
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support “shall follow the child”—operates by itself “to redirect
support payments any time anyone provides any shelter or
sustenance to a child.” See id. ¶ 10. Instead, the specific
requirements of subsection (2) operate to “modif[y] the general
statement in subsection (1),” and those specific requirements
serve as the prerequisites for entitlement to a retroactive change
in child support that dates back further than the date of a duly
served petition to modify. See id. ¶ 11.
¶29 Under the provisions of subsection (2), a litigant can
obtain a change in a child support provision even “without the
need to modify the order” itself, but only if two conditions are
met: (a) there must be a change in “physical custody . . . from
that assumed in the original order,” and (b) the case must not be
one involving “joint physical custody.” See Utah Code Ann.
§ 78B-12-108(2).
B
¶30 Bruce asserts that Section 108 applies here, and allows
him to obtain retroactive modification, dating all the way back to
2009, of the Decree’s child support provisions, even though he
did not seek modification of either the custody provisions or the
child support provisions until 2017. The district court agreed
with Bruce’s interpretation of Section 108, and determined that
Bruce was not in contempt for failure to pay Nicole child
support between 2009 and 2017 because he had been caring for
the children during that time and because child support should
“follow the children.” (Citing Utah Code Ann. § 78B-12-108.)
¶31 Nicole challenges the court’s interpretation of Section 108.
We agree with Nicole because, for two independent reasons,
Section 108 is inapplicable here. First, this is not a case in which
physical custody ever legally changed “from that assumed in the
original order.” See Utah Code Ann. § 78B-12-108(2) (LexisNexis
2017). And second, even assuming that some sort of de facto
change of parent-time occurred in 2010 when Nicole joined the
military, that change did not constitute a change in physical
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custody under the operative definition of that term. See id. §§ 30-
3-10.1(3)(a), 78B-12-102(15) (each defining “joint physical
custody” for its respective chapter).
1
¶32 In order for Section 108’s exception to apply, the situation
must involve a change in “physical custody . . . from that
assumed in the original order.” See id. § 78B-12-108(2). The term
“physical custody,” as used in this statute, is a “legal term of art”
that “involve[s] much more than actual possession and care of a
child.” See Hansen, 2012 UT 9, ¶¶ 12, 15, 19. “A physical
custodian also has a legal responsibility to provide supervision
and control.” Id. ¶ 15 (emphasis added).
¶33 Given this definition, a change in “physical custody”
cannot occur without some sort of “formal legal process[].” Id.
¶¶ 19, 24. In most cases, this occurs by court order following the
filing of a petition to modify. See id. ¶¶ 21, 25. In other “rare
circumstances,” this can occur “by statute without the need for a
hearing or court order.” Id. ¶ 25. But in any event,
child support should be redirected only to those
persons or entities who acquire the rights and
responsibilities of the child’s new “physical
custodian” under the law. Usually that will happen
only after adjudication and a formal order, but in
all cases it requires fulfillment of the statutory
procedures and standards for a change in physical
custody. The actual provision of sustenance and
support is insufficient.
Id.
¶34 In this case, no one disputes that Bruce assumed all
responsibility for “sustenance and support” of the children after
April 2010. See id. But in this context, provision of additional
sustenance and support to the children beyond that anticipated
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in the Decree is not enough to effectuate an actual, legal change
in physical custody. See id. Bruce took no steps—at least not until
2017—to follow the “formal legal processes” typically used to
effectuate an actual change of physical custody. See id. ¶ 24. And
Bruce makes no argument that this case presents any “rare
circumstances” in which custody can change by operation of
statute, even in the absence of a petition to modify. See id.
¶35 Thus, no change in “physical custody”—in an actual legal
sense, as required by the “term of art” definition of the statutory
phrase, see id. ¶ 12 (quotation simplified)—occurred in April
2010, or at any time prior to the filing of Bruce’s petition to
modify. Because physical custody did not change, Section 108’s
narrow exception to the usual retroactivity rules governing
modification of child support orders does not apply here, and
therefore it does not enable Bruce to seek changes to the Decree’s
child support obligations dating any further back than 2017.
2
¶36 Moreover, even if we were to assume, for purposes of
argument, that a change in “physical custody” could
theoretically be effectuated merely by a parent’s provision of
additional sustenance and support beyond that required by the
governing child support order, no such change occurred on the
facts of this case. We have previously stated that “[c]ustody and
parent-time are conceptually distinct.” See Ross v. Ross, 2019 UT
App 104, ¶ 14 n.3, 447 P.3d 104. By statutory definition, there are
two kinds of physical custody—sole physical custody and joint
physical custody—with the dividing line based on the number of
overnight visits enjoyed by each parent. See Utah Code Ann.
§§ 30-3-10.1(3)(a), 78B-12-102(15) (both stating that “joint
physical custody means the child stays with each parent
overnight for more than 30% of the year, and both parents
contribute to the expenses of the child in addition to paying
child support” (quotation simplified)). Because either parent, in
any given case, could be awarded sole physical custody—
defined as having at least 70% of the overnights—there are three
20190541-CA 19 2021 UT App 58McFarland v. McFarland
possible physical custody arrangements: (a) Parent 1 has sole
custody; (b) Parent 2 has sole custody; and (c) the parents share
joint custody. When a change occurs that causes one parent to
obtain enough additional overnights to move from one category
to another (e.g., from 25% of overnights to 35%, or from 65% to
75%), there has been a change in physical custody. See Ross, 2019
UT App 104, ¶¶ 16–17, 17 n.5. But when a change occurs in
which one parent obtains a few additional overnights but not
enough to move from one category to another, the change
constitutes only a change in parent-time, and not a change in
physical custody, as that term is statutorily defined. See id. ¶ 16(noting that, in relocation cases, a parent need not file a petition
to modify if scheduling changes necessitated by the proposed
relocation would not change the statutory custody designation,
and would change only parent-time).
¶37 In this case, the parties started out with an arrangement,
under the Decree, in which Bruce had twenty-four overnights
each month and Nicole had only six. Although the parties
described that arrangement, in the Decree, as a joint custody
arrangement, the label the parties assigned to the arrangement is
inconsequential. See Stephens v. Stephens, 2018 UT App 196, ¶ 29,
437 P.3d 445 (stating that the “designation of ‘joint physical
custody’ or ‘sole physical custody’” used in a decree “is not as
important as whether the custody arrangement [actually]
exceeds the statutory threshold for joint physical custody”
(quotation simplified)). And here, despite the parties’ label, their
arrangement was actually a sole custody arrangement. See Utah
Code Ann. § 78B-12-102(15). As noted, the district court made a
specific (and unchallenged) finding on this point, and correctly
concluded that, because the Decree awarded Nicole only
“approximately 20% of the overnights,” it described a sole
custody arrangement.
¶38 Thus, the more recent arrangement, following Nicole’s
departure into the military, did not result in a change of custody.
After Nicole left, Bruce went from about 80% of the overnights to
nearly 100% of the overnights. Thus, Bruce had sole physical
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custody of the children under the original arrangement, and he
maintained sole physical custody of the children after Nicole left.
See id. In this situation, while Nicole’s departure did result in
practical (if not official) changes to the parties’ division of parent-
time, it did not effectuate any change in physical custody, under
the statutory definition of that term.
¶39 Section 108 applies only in instances where “physical
custody changes.” See id. § 78B-12-108(2). For both of the reasons
just discussed, no change in physical custody occurred here, and
therefore Section 108 cannot provide Bruce an escape from the
usual rule that modifications to a domestic decree’s child
support provisions cannot date back any further than the month
following service of the petition to modify. See id. § 78B-12-
112(4). We therefore sustain Nicole’s challenge to the district
court’s interpretation of the relevant statutes.
3
¶40 The district court’s ruling also included an alternative
basis for declining Nicole’s request that Bruce pay child support
arrearages. Specifically, the court stated as follows:
Finally, and regardless [of] whether [Section 108]
applies here, it would not be equitable to require
[Bruce] to pay child support arrearages to [Nicole]
in this case. Even if that statute does not apply
directly, subsection (1) is instructive of the
legislature’s intent that child support “is for the use
and benefit of the children.” . . . It would not be
equitable to acknowledge that [Bruce] was the sole
provider after moving back into the [Home] and
especially after [Nicole] entered the military,
acknowledge that [Nicole] provided very little, if
any, support to the children since that time, but
nonetheless require [Bruce] to pay the alleged child
support arrearages requested by [Nicole].
20190541-CA 21 2021 UT App 58McFarland v. McFarland
¶41 We do not necessarily disagree with the court’s sentiment
(although we note that, in a big-picture sense at least, there are
equities on the other side of the equation too: we can see wisdom
in a bright-line rule requiring parties to file petitions to modify
child support provisions, and in limiting parties’ ability to obtain
changes to decrees that date back any further than the month
following service of the relevant petition to modify). Looking
just at the facts of this case, there does seem to be something
intuitively inequitable about requiring Bruce to pay child
support arrearages to Nicole. And we acknowledge that district
courts are often given wide discretion to apply equitable
principles in family law cases. See Harmon v. Harmon, 491 P.2d
231, 232 (Utah 1971) (“In order to carry out the important
responsibility of safeguarding the interests and welfare of
children, it has always been deemed that the courts have broad
equitable powers.”).
¶42 But our legislature has enacted a number of statutes that
govern certain aspects of family law cases, and we are aware of
no principle of law that allows courts to override statutes, in
particular cases, simply out of generalized equitable concerns.
See Martin v. Kristensen, 2021 UT 17, ¶ 53 (stating that courts
have “no equitable power to override” statutory mandates due
to generalized concerns of “public policy and equity”). At a
minimum, the district court has not adequately explained how
its equitable concerns, in this situation, allow it to supersede
statutory mandates or interpretations of those statutes by our
supreme court. For instance, the district court’s reliance on
subsection (1) of Section 108 as being “instructive of the
legislature’s intent” that child support obligations shall “follow
the child[ren]” appears misplaced, given our supreme court’s
explanation, in Hansen v. Hansen, that “[s]ubsection (1)’s general
directive cannot possibly be interpreted unqualifiedly . . . to
redirect support payments any time anyone provides any shelter
or sustenance to a child,” and that subsection (1) is “modifie[d]”
by the “specific limitation[s]” found in subsection (2). See 2012
UT 9, ¶¶ 10–11, 270 P.3d 531. And as we have noted, supra
¶¶ 30–39, the prerequisites of subsection (2) are not satisfied
20190541-CA 22 2021 UT App 58McFarland v. McFarland
here. Apart from the language in subsection (1), the court does
not otherwise explain how generalized equitable considerations,
no matter how weighty, can justify modification of a child
support order back beyond the month following service of the
petition to modify, given our legislature’s clear directive that
such orders may be modified “only from the date of service of
the pleading on the obligee.” See Utah Code Ann. § 78B-12-
112(4).
¶43 We observe that there may well be specific doctrines of
equity or discretion that could apply in this situation to temper
Nicole’s requests. Nicole presented her request in the context of
an order to show cause seeking contempt, a legal doctrine that
has its own elements and requirements, see Von Hake v. Thomas,
759 P.2d 1162, 1172 (Utah 1988) (setting forth the required
showing for a contempt finding), in which courts are afforded
discretion in selecting an appropriate sanction once contempt is
found, see Utah Code Ann. § 78B-6-310(1) (LexisNexis 2018)
(stating that, “[i]f the court finds the person is guilty of the
contempt, the court may impose a fine” or other punishment
(emphasis added)); id. § 78B-6-311(1) (stating that a court “may
order” the contemnor to pay the aggrieved party “a sum of
money sufficient to indemnify and satisfy the aggrieved party’s
costs and expenses” (emphasis added)). Alternatively, various
equitable doctrines may apply in situations like this, depending
on the circumstances. See, e.g., Soter’s, Inc. v. Deseret Fed. Sav.
& Loan Ass’n, 857 P.2d 935, 939–40 (Utah 1993) (discussing the
doctrine of waiver and its elements); Veysey v. Veysey, 2014 UT
App 264, ¶ 16, 339 P.3d 131 (discussing the doctrine of laches
and its elements); Bahr v. Imus, 2009 UT App 155, ¶ 6, 211 P.3d
987 (discussing the doctrine of equitable estoppel and its
elements). We express no opinion as to the applicability of any
such doctrine to the facts of this case. But the district court did
not ground its child support ruling—that Bruce should not be
required to make child support payments—in its post-contempt
sentencing discretion or in any specific equitable doctrine;
instead, as we interpret its order, it concluded that, due to
unspecified equitable considerations, Bruce should be relieved
20190541-CA 23 2021 UT App 58McFarland v. McFarland
from any obligation to make payments in the first place. In our
view, the court has not adequately explained how equitable
considerations can override statutory commands in this case.
¶44 Accordingly, we reverse the district court’s determination
that Bruce was not “required to pay child support payments to
[Nicole] after [Nicole left] for military service,” and we remand
the matter for further proceedings on Nicole’s request that Bruce
be held in contempt for failing to make child support payments.
C
¶45 Finally, given our conclusion regarding Nicole’s challenge
to the district court’s child support ruling, we can readily
dispose of Bruce’s challenge to that same ruling. As an initial
matter, we agree with the district court’s conclusion that Bruce
made no affirmative claim, before the district court, to any child
support arrears dating back further than the service of his
petition to modify. On that basis alone, the district court was
justified in not awarding him any. But more substantively, for
the reasons already explained, we find no merit in Bruce’s
argument that Section 108 operates to allow him to look all the
way back to 2009 for modification of the Decree’s child support
provisions.
CONCLUSION
¶46 The district court correctly determined that Bruce’s
alimony obligation was not terminated—at least not under the
alimony statute—by the parties’ cohabitation in 2009 and 2010,
because the statute required Bruce to file a petition seeking
termination while the cohabitation was still occurring, and he
did not do so. Accordingly, the district court did not err by
holding Bruce in contempt for failing to pay alimony after 2009,
and in ordering Bruce to pay past-due alimony through 2015,
and we affirm those orders.
20190541-CA 24 2021 UT App 58McFarland v. McFarland
¶47 However, the district court erred in its interpretation of
Section 108, and erred in concluding that Section 108 operated to
relieve Bruce of his obligation, under the Decree, to continue to
pay Nicole child support after 2010. In this case, neither Section
108, nor generalized equitable concerns, operates to relieve Bruce
of that obligation, and neither allows Bruce to obtain a
modification of his child support obligations dating back any
further than the month following service of his petition to
modify. Accordingly, we reverse the district court’s
determination to the contrary, and remand the case for further
proceedings, consistent with this opinion, on Nicole’s request for
contempt relating to child support and on Bruce’s petition to
modify.
20190541-CA 25 2021 UT App 58