Gullickson v. Gullickson , 731 Utah Adv. Rep. 10 ( 2013 )

2013 UT App 83_________________________________________________________
THE UTAH COURT OF APPEALS
CATHERINE N. GULLICKSON,
Petitioner and Appellee,
v.
JEFFREY M. GULLICKSON,
Respondent and Appellant.
Opinion
No. 20110700‐CA
Filed April 4, 2013
Third District, Salt Lake Department
The Honorable John Paul Kennedy
No. 044904488
Theodore R. Weckel Jr., Attorney for Appellant
Paul H. Liapis and Kim M. Luhn, Attorneys for Appellee
JUDGE STEPHEN L. ROTH authored this Opinion,
in which JUDGE MICHELE M. CHRISTIANSEN concurred.
JUDGE JAMES Z. DAVIS dissented in part and concurred in part,
with opinion.
ROTH, Judge:
¶1 Jeffrey M. Gullickson (Husband) appeals from the district
court’s order on a petition to modify the divorce decree and a
petition for temporary order filed by Catherine N. Gullickson
(Wife). Specifically, Husband contends that, without an evidentiary
hearing, the district court improperly modified the divorce decree’s
distribution of the home in which the parties had resided during
the marriage; overruled his objection to Wife’s plan to move out of
Gullickson v. Gullickson
state with the parties’ minor child, and the corresponding adjust‐
ment to his parent‐time, without a showing of immediate and
irreparable harm as required by Utah Rule of Civil Procedure 106;
denied him an evidentiary hearing on these issues; and refused to
consider his contempt claim. He also seeks his attorney fees
incurred in the home modification proceedings. We vacate the
court’s order regarding the home and remand for a modification
hearing. On remand, the court should reconsider the award of
attorney fees as appropriate following the modification hearing.
Otherwise, we affirm the district court.
BACKGROUND
¶2 In January 2008, as part of the resolution of property issues
in their divorce proceeding, the parties reached an agreement
about how to deal with the house they had lived in during the
marriage. The house was Husband’s premarital property, but the
divorce court had awarded a one‐half equitable interest to Wife
based on her maintenance and enhancement of the home during
the marriage. In addition, according to the second amended
divorce decree (the divorce decree),1 Wife was permitted to live in
the home until January 22, 2013, with the parties’ teenaged son,
who has special needs. During this time, Wife was to be responsi‐
ble for making the payments on the two mortgages, which totaled
approximately $2,800 per month. At the end of the five‐year period,
Husband was required to either buy out Wife’s 50% share of the
equity in the property or put the house up for sale, with the sale
proceeds to be divided as specified in the divorce decree. Husband
1
The second amended divorce decree incorporates the
settlement terms regarding the home, and it otherwise governs
the terms of the parties’ divorce. Because this appeal requires us
to consider only the second amended decree, we refer to it
simply as the divorce decree.
20110700‐CA 2 2013 UT App 83Gullickson v. Gullickson
was to notify Wife of which alternative he intended to pursue
“[w]ithin six (6) months prior to January 22, 2013.”
¶3 The divorce decree also awarded Wife primary physical
custody of the son and awarded parent‐time to Husband. The
parties agreed to suspend Husband’s parent‐time, however, after
Husband and the son were involved in an altercation. By the
parties’ agreement, the son was to receive counseling and Husband
would refrain from exercising parent‐time pending a recommenda‐
tion from the therapist that the son was ready to resume visitation
with Husband. The son’s therapy ended in September 2010, but
Husband was not notified that he was entitled to resume parent‐
time and he did not seek to resolve the issue with the court until
Wife gave notice that she intended to move from the state. At the
time of the hearings before the commissioner and the district court
judge in mid‐2011, Husband had not had any visitation with the
son since November 2009.
¶4 In May 2011, Wife filed a petition to modify the divorce
decree and a motion for temporary orders, requesting that Hus‐
band’s option to buy out her interest or sell the house be acceler‐
ated so that she could relocate to Virginia with the son. In the
alternative, she requested that she be permitted to rent out the
home in order to be able to fulfill her obligation to pay the mort‐
gages. Wife explained that she had been unemployed since fall
2010 and had been unable to find suitable work in Utah. As a
result, she had underpaid the May mortgage payments by about
$1,500. Husband responded with a countermotion, seeking a
temporary restraining order prohibiting Wife from leaving the state
with the son, a determination that Wife was in contempt for failing
to pay the mortgages as required by the decree, and, if Wife were
allowed to relocate, reduction of his $4,000 monthly alimony
obligation. The parties’ motions were set for hearing before a
domestic relations commissioner.
20110700‐CA 3 2013 UT App 83Gullickson v. Gullickson
I. The Commissioner Proceedings
¶5 At the hearing before the commissioner, the parties called no
witnesses but presented their evidence by proffer only.
A. Real Property Modification
¶6 Regarding the home, Wife explained that because she had
been unable to find full‐time work locally, she could no longer
keep current on the mortgage payments. She had found employ‐
ment in Virginia, however, at her brother’s retail store and was
planning to move. Wife represented that she had located and
screened two potential renters willing to pay $3,300 per month in
rent, more than enough to cover the two mortgage payments.
Alternatively, she proposed that Husband assume responsibility
for paying the mortgages until January 2013 and that he could rent
out the property himself to cover the expense.
¶7 Husband objected to Wife’s request to rent the property,
asserting that while Wife had an equitable interest, he, and not
Wife, was “the owner of the property and [Wife] does not have the
right to rent the property.” Husband further objected to Wife’s
alternative proposal that the burden of paying the mortgages be
shifted to him in advance of the January 2013 option date, a period
of approximately nineteen months. Husband asserted that Wife’s
proposal would constitute a permanent modification of the divorce
decree and seemed to take the position that a trial or evidentiary
hearing was required to resolve the issue, not simply a proceeding
before the commissioner. In addition, Husband argued that rule
106 of the Utah Rules of Civil Procedure limits temporary orders in
modification proceedings to child support, custody, and parent‐
time, thus precluding the interim changes that Wife sought in the
divorce decree’s allocation of responsibility for the mortgages. See
generally Utah R. Civ. P. 106(b) (explaining that the “decree sought
to be modified remains in effect during the pendency of the
petition [to modify],” except with respect to child support, custody,
and parent‐time orders, which may be modified in the interim
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under certain circumstances). The commissioner disagreed that the
circumstances created a need for modification of the divorce decree
because he did not see “anything in the decree that would not
allow [Wife] th[e] opportunity to rent the home.” Accordingly, the
commissioner offered Husband the choice of accelerating his
option to sell the home or allowing Wife to rent the home and
continue paying the mortgages. Although the commissioner’s
decision amounted to a recommendation to be submitted to the
district court, he ordered Husband to make an election between the
two alternatives within fifteen days of the hearing, a date that
occurred prior to the hearing before the district court.
B. Wife’s Relocation
¶8 With regard to parent‐time, Husband asserted that Wife had
failed to establish the “immediate and irreparable harm” required
for temporary modification of the decree under rule 106 to allow
her to move immediately to Virginia with their son. See id. R.
106(b)(1)(B) (authorizing a court to “order a temporary modifica‐
tion of . . . parent‐time to address an immediate and irreparable
harm . . . , provided that the modification serves the best interests
of the child” while a petition to modify is pending). The commis‐
sioner disagreed with Husband’s argument that the move consti‐
tuted a temporary modification under rule 106 and recommended
that Wife be allowed to move and that Husband receive parent‐
time according to the schedule recommended by the Guardian ad
Litem (GAL), which essentially followed the schedule provided in
Utah Code section 30‐3‐37.2 See Utah Code Ann. § 30‐3‐
2
The GAL actually made a recommendation for parent‐
time in summer 2011 that did not precisely comport with the
statutory parent‐time requirements. That recommendation
appears to have been aimed at accommodating Wife’s move and
nurturing the son’s relationship with Husband, which had
become strained. The GAL anticipated that parent‐time begin‐
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37 (LexisNexis Supp. 2011) (current version at id. (LexisNexis Supp.
2012)) (providing minimum guidelines for visitation when one
parent moves more than 150 miles from the residence identified in
the divorce decree).
C. Contempt
¶9 Husband sought to have Wife held in contempt for failing
to make a full mortgage payment in May 2011. Husband alleged
that Wife deliberately failed to seek suitable work in Utah. He
further asserted that Wife had not demonstrated why she could not
manage mortgage payments totaling $2,800 when his alimony
payments had been increased to $4,000 a month for the purpose of
assisting Wife to remain in the home with the son. The commis‐
sioner, for reasons that he did not explain, did not certify or
otherwise make a recommendation on the issue of contempt to the
district court.
D. Other Issues
¶10 The commissioner reserved for trial Husband’s request to
reduce his alimony obligation, explaining that it did not have
authority under rule 106 to reduce alimony pending resolution of
the petition to modify. The commissioner also recommended that
the parties bear their own attorney fees. This recommendation was
based on the court’s conclusion that neither party had acted in bad
faith because the situation “wasn’t contemplated in the decree and
something needs to be done now” to accommodate Wife’s inability
to find appropriate work.
2
(...continued)
ning in fall 2011 would adhere to the statutory schedule. The
recommended deviation from the statutory minimum for parent‐
time is not significant to the issues presented for review.
20110700‐CA 6 2013 UT App 83Gullickson v. Gullickson
E. Husband’s Objection to the Commissioner’s Recommendations
¶11 Following the hearing, Husband filed a written objection to
the commissioner’s recommendations in the district court, in
accordance with rule 101(k) of the Utah Rules of Civil Procedure.
See Utah R. Civ. P. 101(k) (explaining the procedure for
“[o]bject[ing] to court commissioner’s recommendation”).3 The
objection essentially reiterated the arguments Husband made at the
hearing. In addition, regarding the home, Husband expressed
concern that the commissioner had not included a third
option—provided in the divorce decree—that would have allowed
him to buy out Wife’s equitable interest as an alternative to either
requiring Husband to sell or allowing Wife to rent the home to
cover her mortgage payment obligation. In response to the
commissioner’s order that he choose within fifteen days to either
put the house up for sale or allow it to be rented by Wife, Husband
filed a “Notice of Election Under Protest,” in which he “renew[ed]
his objection that the [commissioner] had no power to force [him]
to accelerate the terms of the” decree but nevertheless “elect[ed] to
list the property for sale, under the understanding that [Wife] is
still liable to pay the mortgages until such time as the property is
sold.” Husband requested an evidentiary hearing to determine
who would be responsible for payment of the mortgages if the
property was listed for sale and to address his concerns about the
commissioner’s authority to accelerate the divorce decree’s sale
option while effectively abrogating Husband’s option under the
decree to simply buy out Wife’s interest. An objection hearing was
scheduled before the district court.
3
As of April 1, 2012, subsection (k) has been removed
from rule 101 and has been made a separate rule, rule 108. See
Utah R. Civ. P. 108 (“Objection to Court Commissioner’s
Recommendation.”).
20110700‐CA 7 2013 UT App 83Gullickson v. Gullickson
II. The District Court Proceedings
¶12 Husband brought witnesses to the objection hearing based
on his “understanding that [the parties] were going to present
evidence . . . as well as oral argument.” He admitted, however, that
he had not presented any of the evidence that he now wished to
present at the objection hearing at the hearing before the
commissioner, by proffer or otherwise. The district court denied
Husband’s request to put on witnesses, explaining that the parties
should “bring issues before the commissioner[ on which] the
commissioner makes recommendations” because the district court
is not a forum where a party may “bring in new things that were
not considered by the commissioner.” The court explained that to
do otherwise “would be inappropriate and contrary to the whole
idea of having commissioners,” and proceeded on the arguments
of counsel.
¶13 The district court decided to enforce Husband’s earlier
election to accelerate the sale of the home and ordered Husband to
assume responsibility for the mortgage payments until a sale
occurred. The court also adopted the commissioner’s
recommendation that the son be permitted to relocate to Virginia
with Wife and ordered parent‐time for Husband that corresponded
with the GAL’s recommendation. The court subsequently
determined that parent‐time during the summer of 2011 was not in
the son’s best interest and ordered the parties to work with a
therapist in Virginia to develop a parent‐time schedule moving
forward. The court declined to rule on Husband’s request to hold
Wife in contempt for failure to pay the mortgages because the
commissioner had not certified the issue. The court agreed with the
commissioner’s recommendation to reserve decision on the request
to modify alimony until trial and indicated that, at that time,
Husband could seek reimbursement of any expenses he had
incurred in the interim for maintaining the home, paying the
mortgages, and marketing the home for sale. The court awarded
Wife $6,000 in attorney fees. Husband appeals from the district
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court’s orders regarding the home and mortgage payments, parent‐
time, and contempt.
ISSUES AND STANDARDS OF REVIEW
¶14 “A trial court’s resolution of a party’s objection to the
recommendation of a commissioner is one of law. We review
conclusions of law for correctness.” Dent v. Dent, 870 P.2d 280, 282
(Utah Ct. App. 1994). We review the subsidiary determinations
necessary to that resolution according to the standard appropriate
to the issue.
¶15 Husband first contends that the shift in responsibility for the
mortgage payments and upkeep of the house constituted a
modification of the divorce decree that cannot be made under the
limited temporary order authority granted to the court by rule
106(b) of the Utah Rules of Civil Procedure but instead may only
be made following an evidentiary hearing, essentially a trial.
“Interpretation of a rule of procedure is a question of law that we
review for correctness.” Arbogast Family Trust v. River Crossings,
LLC, 2010 UT 40, ¶ 10, 238 P.3d 1035.
¶16 Husband next appeals from the district court’s order
allowing Wife to move with the son to Virginia on the basis that the
decision was made without a showing of immediate and
irreparable harm and without allowing Husband an evidentiary
hearing at which Husband could have demonstrated that there
would be no such harm and that the move was not in the son’s best
interest. Husband’s argument is rooted in rule 106 of the Utah
Rules of Civil Procedure. Wife asserts that relocation of a minor
child is governed by Utah Code section 30‐3‐37. The applicability
of a particular rule or statute is a question of law reviewed for
correctness. Cf. Colosimo v. Roman Catholic Bishop of Salt Lake City,
2007 UT 25, ¶ 11, 156 P.3d 806 (explaining that the applicability of
the statute of limitations and the discovery rule are questions of
law). We review the district court’s refusal to allow Husband to
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present a witness on this issue for abuse of discretion. See Olson v.
Olson, 2010 UT App 22, ¶ 10, 226 P.3d 751.
¶17 Finally, Husband argues that the district court improperly
declined to consider the contempt issue. When a party requests that
the district court consider an issue that has been reserved, we will
consider whether the court abused its discretion in granting or
denying that request. See generally A.K. & R. Whipple Plumbing &
Heating v. Aspen Constr., 1999 UT App 87, ¶ 11, 977 P.2d 518 (“Trial
courts have broad discretion in managing the cases before them
and we will not interfere with their decisions absent an abuse of
discretion.”).
ANALYSIS
I. Sale of the Property and Transfer of the Mortgage Obligation
A. The Issue Is Not Moot.
¶18 According to Wife, Husband’s challenge to the court’s order
that the house be listed for sale and that Husband bear
responsibility for paying the mortgages until it is sold presents a
preliminary question of mootness because the divorce decree
provides that Husband was to make an election to sell the home or
buy out Wife’s interest by July 2012, a deadline that has since
passed.4 An issue is “moot when the requested judicial relief cannot
affect the rights of the litigants.” See Burkett v. Schwendiman, 773
P.2d 42, 44 (Utah 1989). We conclude that the expiration of the
4
The divorce decree actually requires Husband to make
an election “[w]ithin six (6) months prior to January 22, 2013.”
(Emphasis added.) For purposes of addressing the mootness
question, we accept Wife’s contention that “[w]ithin” means by
July 2012 “at the latest.”
20110700‐CA 10 2013 UT App 83Gullickson v. Gullickson
election deadline does not moot the property disposition issue for
two reasons.
¶19 First, the commissioner limited Husband’s choices to
allowing Wife to rent out the property or listing the home for sale,
and the district court accepted Husband’s subsequent election
(under protest) to sell the home. Neither the commissioner nor the
court provided Husband with an option that was available to him
under the divorce decree, namely, to simply buy out Wife’s
equitable interest. Second, the divorce decree implies that Wife was
to maintain the mortgage payments until the property was either
sold or Husband purchased her interest because it permits Wife to
seek “reimburse[ment for] all principal payments that she pays on
the first and second mortgage payments on the home from January
22, 2008 up to the date of the sale of this home or the refinancing as
elected by [Husband].” In other words, despite Husband’s election
deadline of July 2012, Wife was responsible for the mortgage
payments until at least January 2013, and perhaps beyond, if
Husband elected to sell and the sale did not occur immediately. Yet
the district court transferred the mortgage obligation to Husband,
effective July 2011.
¶20 Husband has requested that we reverse the court’s order
regarding the property division and remand for an evidentiary
hearing in accordance with established divorce decree modification
procedures. Such a hearing would permit the parties the
opportunity to present evidence relevant to whether there were
compelling reasons arising from a material change in circumstances
not contemplated by the decree and provide the court with a basis
for determining whether modification was indeed in order. See
generally Whitehouse v. Whitehouse, 790 P.2d 57, 61 (Utah Ct. App.
1990) (“[M]odifications in a decree of divorce affecting the
disposition of real property are to be granted only upon a showing
of compelling reasons arising from a substantial and material
change in circumstances.” (emphasis, citation, and internal
quotation marks omitted)). Because Husband’s requested relief
may affect his rights in the property and/or other claims under the
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divorce decree, resolution of the issue may still have an effect on
the outcome and therefore the issue is not moot. See Burkett, 773
P.2d at 44.
B. Husband Is Entitled to an Evidentiary Hearing on the
Disposition of the Home.
¶21 We next address whether Husband is entitled to an
evidentiary hearing on the disposition of the home. Rule 106 of the
Utah Rules of Civil Procedure provides that “proceedings to
modify a divorce decree . . . shall be commenced by filing a petition
to modify.” Utah R. Civ. P. 106(a). “[A] party requesting that a
divorce decree be modified must demonstrate that there has been
a substantial change of circumstances occurring since the entry of
the decree and not contemplated in the decree itself.” Whitehouse,
790 P.2d at 61 (citation and internal quotation marks omitted). With
regard to a divorce decree’s division of the parties’ property, we
have noted that courts should modify such provisions “with great
reluctance” and “only upon a showing of compelling reasons
arising from a substantial and material change in circumstances.”
Id. (emphasis, citation, and internal quotation marks omitted).
¶22 The divorce decree, prompted at least in significant part by
the son’s ongoing special needs, provides for Wife to remain in the
home for a period of five years beginning in January 2008. It then
gives Husband certain alternatives for paying off Wife’s equitable
interest at the end of that period. The decree does not address the
possibility of an interim contingency that might disrupt the
decree’s simple five‐year plan. Indeed, Wife’s attorney conceded
before the commissioner that “there’s nothing in the decree that
deals with th[e] scenario of an early departure from the home.” The
commissioner agreed, explaining that “this eventuality simply
wasn’t contemplated in the decree” but that “something needs to
be done now.” The commissioner then made his recommendation
that Husband choose between selling the home and allowing Wife
to rent out the property, not based on the terms of the divorce
decree, but rather because he “c[ould]n’t find anything in the
20110700‐CA 12 2013 UT App 83Gullickson v. Gullickson
decree that would not allow [Wife] th[e] opportunity” to rent the
property.
¶23 That the circumstances—Wife’s leaving the home before the
end of the five years—were not contemplated at the time of the
divorce decree seems to be undisputed by the parties. But we are
not persuaded that because the decree did not address the issue,
Wife was simply entitled to rent out the property. Rather, once a
change in circumstances not contemplated by the decree was
established, the commissioner’s task moved out of the realm of
interpreting the divorce decree, see Osborne v. Osborne, 2011 UT
App 150, ¶ 6, 260 P.3d 202 (explaining that a divorce decree ought
to be interpreted according to the parties’ intent as evidenced by
the language of the decree), and into an inquiry into whether the
change in circumstances was sufficiently material and substantial
to require modification of the decree’s terms, Whitehouse, 790 P.2d
at 61 (explaining that once a change in circumstances not
contemplated by the divorce decree has been established, the legal
inquiry turns to whether there are “compelling reasons arising
from [the] substantial and material change in circumstances” to
warrant modifying the decree (emphasis, citation, and internal
quotation marks omitted)). Thus, whether Wife should be
permitted to rent the home to defray the mortgage expense when
she is not occupying it or whether Husband’s options, exercisable
under the decree only at the end of the five‐year period, ought to
be changed or accelerated are questions that must be resolved at an
evidentiary hearing typical of modification proceedings and seem
to require something more rigorous than the simple contract
interpretation approach employed here.
¶24 But until that determination is made, the “decree sought to
be modified remains in effect.” Utah R. Civ. P. 106(b)(1). In other
words, at least under rule 106, which was the rule relied on by the
parties, the court cannot modify the real property division prior to
an evidentiary hearing unless there are no material facts at issue,
which does not appear to be the case here. See generally id. R.
106(b)(1)(B) (explaining that the court may temporarily modify
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child support, custody, or parent‐time during the pendency of a
modification proceeding to address “an immediate and irreparable
harm” but carving out no such exception for property
distribution).5
¶25 We therefore vacate the court’s ruling ordering Husband to
place the home for sale and to assume responsibility for the
mortgage payments, maintenance, and upkeep. We remand for a
hearing, at which time evidence may be presented on the question
of whether there are “compelling reasons arising from a substantial
and material change in circumstances” that make modification of
the decree’s treatment of the house appropriate. See Whitehouse v.
Whitehouse, 790 P.2d 57, 61 (Utah Ct. App. 1990) (emphasis, citation,
and internal quotation marks omitted). Whether Husband is
entitled to reimbursement for the expenses he has incurred in
maintaining the home since the July 2011 order has been reserved
by the district court for later resolution and might properly be
considered in conjunction with the evidentiary hearing on
modification. At that hearing, Husband may offer any evidence,
legal authority, and arguments regarding the legal and factual
effect of that evidence or legal authority that he thinks beneficial to
his claims on this issue, including his contention that the facts give
rise to contractual remedies.6 The district court should consider the
5
The parties have addressed the issue of temporary orders
in the context of a modification proceeding only under the
authority of rule 106. We therefore do not reach the issue of
whether a divorce court might have the authority under its
continuing jurisdiction and broad equitable powers to fashion
temporary solutions to circumstances that appear to require
immediate attention, even though the circumstances have arisen
in the context of a modification proceeding.
6
In his appellate briefing, Husband argues that the district
court did not consider the “authorities” he presented. It is not
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20110700‐CA 14 2013 UT App 83Gullickson v. Gullickson
applicability and merits of these arguments at that time, and it is
not appropriate for this court to do so in the first instance.
II. Wife’s Relocation
¶26 Husband next challenges the district court’s adoption of the
commissioner’s recommendation that Wife be allowed to relocate
with their son. In particular, Husband complains that Wife failed
to demonstrate the “immediate and irreparable harm” that rule 106
requires to justify temporary modification of the parent‐time
arrangement and that he was denied an evidentiary hearing, at
which he would have presented evidence that there was no such
harm and that it was in the son’s interest to stay in Utah. See Utah
R. Civ. P. 106(b)(1)(B).
¶27 The district court, however, did not analyze Wife’s intention
to move with the son under rule 106 but instead conducted an
analysis under Utah Code section 30‐3‐37 (the Relocation Statute).
Rule 106 governs temporary orders regarding emergency
adjustments of parent‐time while a motion to modify a decree is
pending. See id. In other words, rule 106 applies only if one party
is seeking to modify the existing custody or parent‐time provisions
of a decree. Permanent orders addressing the relocation of one
parent, on the other hand, are governed by the Relocation Statute.
The Relocation Statute defines relocation as “moving 150 miles or
more from the residence specified in the court’s decree.” Utah
Code Ann. § 30‐3‐37(1) (LexisNexis Supp. 2011) (current version at
id. (LexisNexis Supp. 2012)). Upon receiving a motion to modify a
6
(...continued)
apparent from his brief whether he is using “authorities” to refer
to legal precedent or to certain evidence that the district court
excluded because it had not been presented to the commissioner.
We need not resolve this issue, however, because Husband will
have a new opportunity to present his evidence and any relevant
legal authority at the evidentiary hearing on remand.
20110700‐CA 15 2013 UT App 83Gullickson v. Gullickson
parent‐time arrangement due to one parent’s intention to relocate,
the court “may . . . schedule a hearing . . . to review the notice of
relocation,” id. § 30‐3‐37(3), and must “make appropriate orders
regarding the parent‐time and costs for parent‐time
transportation,” id. § 30‐3‐37(3)–(5). In making these
determinations, the court must consider a number of factors,
including “the reason for the parent’s relocation,” “the additional
costs or difficulty to both parents in exercising parent‐time,” and
“other factors the court considers necessary and relevant.” Id. § 30‐
3‐37(4)–(5). A natural concern often raised at this hearing is
whether relocation is in the best interest of the child.7 If the court
determines that relocation is appropriate, the court must then
adjust parent‐time, taking into account the presumptive minimum
parent‐time schedule the statute provides. Id. § 30‐3‐37(5).
¶28 In this case, upon receiving Husband’s objection to Wife’s
plan to move with the son, the district court held a hearing at
which it conducted an appropriate best interest analysis as part of
its consideration of Wife’s proposed move under the Relocation
Statute. The court considered the commissioner’s recommendation
7
The 2012 version of the Relocation Statute specifically
identifies the “best interest of the child” as a primary factor in
determining whether relocation is appropriate. Utah Code Ann.
§ 30‐3‐37(3)–(5) (LexisNexis Supp. 2012). The 2011 version,
which was in effect at the time of these proceedings, does not
specifically identify the child’s best interest as a factor in
considering an objection to a relocation request, but it did
require the court to consider “other factors” that are “necessary
and relevant” to making an appropriate order regarding parent‐
time arrangements when the custodial parent relocates. See id.§ 30‐3‐37(3)–(4) (LexisNexis Supp. 2011). The best interest of the
child is ordinarily implicated by any proceeding involving
custody and parent‐time, including a proposed relocation of the
custodial parent. See generally Grindstaff v. Grindstaff, 2010 UT
App 261, ¶ 4, 241 P.3d 365.
20110700‐CA 16 2013 UT App 83Gullickson v. Gullickson
that the son be allowed to move to Virginia and that parent‐time be
arranged according to the schedule in the Relocation Statute with
an adjustment for the upcoming summer when Husband would
have the son for three weeks, rather than the prescribed one‐half of
summer vacation. See generally id. § 30‐3‐37(6)(c). The court also
heard from the GAL and Husband’s counsel that such an
arrangement would be in the son’s best interest and accorded with
Husband’s desire to parent the son. The court then considered the
feasibility of such an arrangement and determined that Husband’s
employment with a commercial airline would facilitate the son’s
transportation between his parents. When the son, who was then
sixteen, refused to cooperate with the parent‐time arrangement, the
court interviewed him in person and amended the order,
explaining that “it would not be in [the son’s] best interest at this
time . . . [to] visit with [Husband].” The court ordered, however,
that Husband be permitted to participate in the son’s counseling,
with the goal of reinstating statutory parent‐time.
¶29 Because Husband’s briefing focuses on the propriety of the
court’s order under rule 106, not the Relocation Statute, he has
failed to adequately challenge the basis of the court’s decision. See
Benns v. Career Serv. Review Office, 2011 UT App 362, ¶ 2, 264 P.3d
563 (per curiam) (“If an appellant does not challenge the lower
court’s basis for its judgment, the lower court’s determination is
placed beyond the reach of further appellate review . . . .”). In
particular, he has failed to demonstrate that there was any error in
the court’s best interest evaluation and subsequent order under the
Relocation Statute. We therefore will not disturb the court’s order
on the basis that it failed to comply with the standards contained
in rule 106 for temporary orders in modification proceedings.
¶30 Husband also takes issue with the court’s failure to grant his
request for an evidentiary hearing on the relocation issue.
Husband’s argument on this issue is contained in only three
paragraphs of his forty‐nine‐page brief and asserts that it was an
abuse of discretion for the court not to hold such a hearing when,
during the commissioner proceeding, he and Wife had expressed
20110700‐CA 17 2013 UT App 83Gullickson v. Gullickson
competing views on whether moving to Virginia was in the son’s
best interest.
¶31 Husband’s argument is based on two cases that he claims
support his position, but he identifies the cases without page
citations or any description or analysis of their facts or holdings. See
Utah R. App. P. 24(a)(9) (requiring an appellant to give
“contentions and reasons” for his or her position that are supported
by specific citation to pertinent legal authority); Morford v. Division
of Child & Family Servs., 2010 UT App 285, ¶ 11, 241 P.3d 1213(explaining that appellate courts will not consider arguments that
“consist[] of nothing more than bald citations to authority without
any development of that authority [or] reasoned analysis based on
that authority” (second alteration in original) (citation and internal
quotation marks omitted)). Even if the briefing were more robust,
however, under the particular circumstances of this case, we would
conclude that the court did not err.
¶32 At the commissioner proceeding, Husband did not proffer
any witness testimony or call any witnesses to testify regarding the
son’s best interest. Husband attributed this to Wife’s delay in
responding to his countermotion, explaining that because Wife did
not file her response until two days prior to the hearing before the
commissioner, he “didn’t have a chance to follow‐up with” certain
persons who had evaluated the son and who may have been able
to establish that moving to Virginia was not in the son’s best
interest. Husband orally requested a continuance to supplement
the record with documentation from the son’s therapist and to
allow him an opportunity to interview a second potential witness,
whose profession and experience with the son were never
disclosed at the hearing. Wife opposed the continuance, denying
that her delay contributed to Husband’s lack of preparation; she
asserted, rather, that Husband had not made any effort to
communicate with the therapist and had canceled a previously
scheduled deposition with the second witness. The commissioner
did not rule on Husband’s motion for a continuance at the time it
20110700‐CA 18 2013 UT App 83Gullickson v. Gullickson
was made, and Husband did not raise that issue again once the
parties went on to address the merits.
¶33 Husband then requested an evidentiary hearing in
conjunction with his written objection to the commissioner’s
recommendations. However, the subject of the hearing he
requested was not the relocation issue but the commissioner’s real
property recommendation, specifically the issue of who would be
responsible for payment of the mortgages if the property were
listed for sale and Husband’s concerns about the commissioner’s
authority to accelerate the divorce decree’s sale option while
effectively abrogating Husband’s option under the decree to
simply buy out Wife’s interest. In the end, the court did not grant
the evidentiary hearing that Husband had requested in his motion;
nonetheless, Husband brought witnesses to the objection hearing.
Husband’s witnesses included not only witnesses on the property
issues he had identified in the request for an evidentiary hearing
but also his sister, who he represented as an expert in speech
pathology prepared to testify that the Utah schools were better
equipped to handle the son’s needs than Virginia’s schools. Wife
objected to Husband’s proposed witness on the relocation issue on
two bases. First, she asserted that “[t]he whole request for an
evidentiary hearing to present . . . new evidence that was not before
the commissioner is contrary to the whole recommendation process
of matters and motions and counter motions to be heard by the
commissioner.” Second, Wife asserted that the witness, Husband’s
sister, had not seen the son for four years and had not been shown
to be professionally qualified to address the son’s special needs.
The district court sustained that objection, declining to hear from
Husband’s relocation witness because Husband proposed to
present evidence that he had not presented to the commissioner.8
8
The Utah Supreme Court has since adopted rule 108 of
the Utah Rules of Civil Procedure to regularize the process for
objecting to recommendations by a domestic relations
(continued...)
20110700‐CA 19 2013 UT App 83Gullickson v. Gullickson
¶34 We affirm the district court’s ruling because, under the
totality of the circumstances, we are not convinced that the district
court abused its discretion in declining to hear Husband’s newly‐
disclosed witness. See Bailey v. Bayles, 2002 UT 58, ¶ 13, 52 P.3d 1158(allowing an appellate court to affirm on any basis apparent in the
record). Husband had not offered to present the testimony of any
relocation witness at the hearing before the commissioner, and
when he requested an evidentiary hearing in his objection, he
identified only the real property issue and had failed to mention
the relocation issue as the subject of the request. In addition,
Husband had not previously identified to the court or to Wife the
proposed expert witness he produced at the time of the hearing, he
had not submitted her curriculum vitae or resume, and the witness
had apparently not seen or evaluated the son in four years. Further,
Husband did not identify his unresolved request for a continuance
of the commissioner hearing to obtain testimony on this topic as a
basis for his request to present his proposed witness during the
objection hearing.
¶35 Thus, while we recognize that ordinarily an evidentiary
hearing is the preferred mechanism for resolving disputes about
the best interest of a child, see, e.g., Montano v. Third Dist. Court for
Cnty. of Salt Lake, 934 P.2d 1156, 1157 (Utah Ct. App. 1997), under
8
(...continued)
commissioner in the district court. According to rule 108, “any
evidence, whether by proffer, testimony or exhibit, not presented
to the commissioner[,] shall not be presented to the judge”
unless the offering party can demonstrate that “there has been a
substantial change of circumstances since the commissioner’s
recommendation,” in which case the court “may, in the interests
of judicial economy, consider new evidence.” Utah R. Civ. P.
108(c). The court’s rationale for declining to hear Husband’s
witnesses seems to track the provisions of the new rule, but
because rule 108 was not in effect at the time of these
proceedings, we apply the abuse of discretion standard.
20110700‐CA 20 2013 UT App 83Gullickson v. Gullickson
the particular circumstances of this case, Husband has failed to
persuade us that the district court abused its discretion by
declining to hear witness testimony on the relocation issue for the
first time at the objection hearing.9
¶36 In summary, Husband has neither addressed the basis of the
district court’s ruling regarding Wife’s relocation nor convinced us
that the district court abused its discretion in declining to hold an
evidentiary hearing. We therefore affirm the court’s relocation
order.
III. Contempt
¶37 Finally, Husband challenges the district court’s refusal to
consider his contempt claim against Wife. Husband explains that
he “provid[ed] an affidavit . . . that [Wife] had failed to make the
9
The circumstances here were unusual and have further
evolved since the objection hearing. At the time of the hearing
before the judge in July 2011, Husband had not visited with the
son since November 2009 per the parties’ stipulation. And
shortly after the court’s approval of the commissioner’s
recommendation that Wife and son be allowed to relocate to
Virginia and that Husband’s parent‐time be reinstated, the son
refused to visit with his father. After a subsequent hearing, the
court determined that visitation was not in the son’s best interest
at that time and advised the parties to work with the son’s
therapist in Virginia in an attempt to rebuild their relationship so
that parent‐time might resume in the future. Although neither
the record nor the briefing include the outcome of the parties’
efforts with the Virginia therapist to reestablish parent‐time, it is
apparent that Husband had not had parent‐time with the son for
a considerable amount of time when the appeal was filed.
Further, the son has now resided and attended school in Virginia
for more than a year and a half and is approaching the age of
majority.
20110700‐CA 21 2013 UT App 83Gullickson v. Gullickson
May, 2011 payment on the first mortgage” and that Wife admitted
that she had failed to do so, but the commissioner nevertheless
declined to certify it and instead “reserved” the issue. Husband
objected to the commissioner’s decision not to certify, arguing that
he had established Wife’s contempt. The district court refused to
consider contempt because the issue had not been certified.
Husband now contends that because he raised an objection to the
commissioner’s recommendation, “the [district c]ourt was under
a duty to consider the merits of his objection, regardless of whether
the [c]ommissioner had certified the issue or not.”
¶38 Rule 6‐401 of the Code of Judicial Administration defines the
parameters of a domestic relations commissioner’s powers and
responsibilities. Among other things, a commissioner has the duty
to “conduct hearings with parties and their counsel for the purpose
of submitting recommendations to the parties and the court.” Utah
R. Jud. Admin. 6‐401(3)(C). The commissioner is then required to
“make recommendations on all issues under consideration at the
pretrial [hearing] and submit those recommendations to the district
court.” Id. R. 6‐401(2)(K); see also id. R. 6‐401(2)(D) (“Court
commissioners shall have the following authority: . . . Make
recommendations to the court regarding any issue . . . in domestic
relations . . . cases at any stage of the proceedings.”). In addition,
should the commissioner determine that a matter “appear[s] to
require a hearing before the district court judge,” he or she has the
authority and the duty to “[c]ertify those cases directly to the
district court” for resolution. Id. R. 6‐401(3)(B). Thus, a
commissioner is generally required either to consider an issue and
make a recommendation to the district court as to how it should be
resolved or to certify the issue directly to the court for resolution.
¶39 Here, the commissioner neither ruled on the issue of Wife’s
alleged contempt nor certified it to the court for resolution but
reserved his decision without explaining the reasons for doing so.
It is certainly within the discretion of a judge or commissioner to
postpone the decision on an issue when it is reasonable to do so, for
example where the best decision requires additional evidence or
20110700‐CA 22 2013 UT App 83Gullickson v. Gullickson
resolution reasonably depends on yet unresolved or developing
circumstances. See A.K. & R. Whipple Plumbing & Heating v. Aspen
Constr., 1999 UT App 87, ¶ 11, 977 P.2d 518 (“Trial courts have
broad discretion in managing the cases before them and we will
not interfere with their decisions absent an abuse of discretion.”);
Black’s Law Dictionary 11 (9th ed. 2009) (explaining that a court
abuses its discretion only when it fails “to exercise sound,
reasonable, and legal decision‐making”). Such discretion is
necessary to informed and effective judicial decision‐making at
both the commissioner and the district court levels. District courts
likewise have discretion to consider issues upon which a
commissioner’s decision has previously been reserved in order to
expeditiously move cases through the court system. See A.K. & R.
Whipple Plumbing & Heating, 1999 UT App 87, ¶ 11; cf. Pitt v. Taron,
2009 UT App 113, ¶ 5, 210 P.3d 962 (“[T]he trial court is responsible
for carrying [the trial] forward as efficiently and expeditiously as
possible consistent with fairness and thoroughness in
administering justice.” (second alteration in original) (citation and
internal quotation marks omitted)). But while a district court has
the discretion to consider an issue that has not been certified,
Husband has provided us with no authority for the proposition
that a court is required to do so.
¶40 Instead, if Husband believed that the commissioner had no
reasonable basis for reserving decision on the contempt issue, then
his remedy was to ask the judge to order the commissioner to make
a recommendation on contempt, to certify the issue to the district
court, or to explain why reserving decision was appropriate.
Husband could request, but not demand, that the court consider
the issue in the first instance. We therefore affirm the court’s
decision to decline to consider the non‐certified issue of contempt.
IV. Attorney Fees
¶41 Husband requests attorney fees pursuant to Utah Code
section 30‐3‐3 on the real property modification issue. See Wilde v.
Wilde, 969 P.2d 438, 444 (Utah Ct. App. 1998) (explaining that Utah
20110700‐CA 23 2013 UT App 83Gullickson v. Gullickson
Code section 30‐3‐3 permits the district court to award attorney
fees in a modification proceeding). It is not appropriate for us to
consider a fee award at this stage of the proceedings, however,
when we are remanding the issue for further consideration and
neither party has yet prevailed on the merits. Rather, the district
court may consider the attorney fees issue on remand. See generally
id. (requiring the award of attorney fees in a modification
proceeding to “be based on evidence of the financial need of the
receiving spouse, the ability of the other spouse to pay, and the
reasonableness of the requested fees” (citation and internal
quotation marks omitted)). In so doing, the court may adjust the
amount previously awarded to Wife as appropriate.
¶42 Wife requests an award of the attorney fees she incurred on
appeal. “In divorce actions where the trial court has awarded
attorney fees and the receiving spouse [prevails] on the main
issues, we generally award fees on appeal.” Stonehocker v.
Stonehocker, 2008 UT App 11, ¶ 11, 176 P.3d 476 (alteration in
original) (citation and internal quotation marks omitted). We deny
Wife’s request in this instance, however, because we cannot
conclude that Wife is the prevailing party on the main issues on
appeal. Rather, Wife prevailed on the relocation issue while
Husband succeeded on his claim to an evidentiary hearing to
determine whether modification of the decree’s treatment of the
house is appropriate. The orders on the house and the relocation
are the primary issues raised on appeal, and each claim seems to
carry the same relative significance when viewed in the totality of
what each party was seeking. We therefore conclude that the
comparative result was essentially a draw. See Olsen v. Lund, 2010
UT App 353, ¶ 12, 246 P.3d 521 (explaining that a party prevails for
purposes of receiving attorney fees only when that “party has
attained a comparative victory, considering what a total victory
would have meant for each party and what a true draw would look
like” (citation and internal quotation marks omitted)). As a result,
we decline to make an award of fees.
20110700‐CA 24 2013 UT App 83Gullickson v. Gullickson
CONCLUSION
¶43 We reverse and remand for appropriate modification
proceedings in accordance with this decision. We affirm the order
with regard to parent‐time and contempt. Following the
modification hearing, the district court may award attorney fees on
the home disposition issue as appropriate. Wife’s request for
attorney fees on appeal is denied.
DAVIS, Judge (dissenting in part and concurring in part):
¶44 I respectfully dissent from Section II of the majority opinion
and concur as to all other sections. Although the district courts
“have broad discretion in managing the cases before them,” A.K. &
R. Whipple Plumbing & Heating v. Aspen Constr., 1999 UT App 87,
¶ 11, 977 P.2d 518, I believe it was nonetheless inappropriate for the
district court here to refuse Husband an evidentiary hearing on
preservation grounds. The relationship between court
commissioners and district courts is not, and never was intended
to be, similar to the relationship between the district courts and
appellate courts.10 Cf. State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346(“As a general rule, claims not raised before the trial court may not
be raised on appeal.”); In re M.S., 781 P.2d 1289, 1290–91 (Utah Ct.
App. 1989) (explaining, in an appeal from the juvenile court’s de
novo review of the juvenile commissioner’s decision, that raising
an argument before the juvenile commissioner did not preserve it
10
Notwithstanding the majority’s effort to justify its
ruling, the only reason the district court denied Husband an
evidentiary hearing was Husband’s failure to first mention the
evidence to the commissioner. The district court explained that
litigants cannot “bring in new [evidence] that [was] not
considered by the commissioner” because to allow otherwise
“would be inappropriate and contrary to the whole idea of
having commissioners.”
20110700‐CA 25 2013 UT App 83Gullickson v. Gullickson
for appellate review because the argument was not reasserted, and
therefore not preserved, at the juvenile court level).
¶45 Court commissioners are court employees that fill the
important role of “assist[ing] the judiciary in the exercise of its
judicial power,” which undoubtedly increases the efficiency and
effectiveness of the judicial process. See Holm v. Smilowitz, 840 P.2d
157, 167 (Utah Ct. App. 1992). A commissioner’s authority is
necessarily not as expansive as that of Article VIII judges,
amounting to “[t]he differentiation . . . between adjunct fact finding
and plenary judicial responsibility.” Id. (internal quotation marks
omitted); see also Utah Const. art. VIII, § 1; Utah Code Ann. § 30‐3‐
15.3 (LexisNexis Supp. 2012); id. § 78A‐5‐107 (2012) (describing the
functions and powers of domestic commissioners); Salt Lake City v.
Ohms, 881 P.2d 844, 846–55 (Utah 1994) (analyzing the
constitutionality of the court commissioner system). Regardless of
whether it is appropriate or desirable to first present evidence to a
commissioner, applying the preservation rule to the proceedings
before a domestic relations commissioner impermissibly expands
the function of the court commissioner system by barring litigants
access to the court regardless of the merits of their cases. Cf. BAC
v. BLM, 2001 WY 83, ¶ 15, 30 P.3d 573 (“[T]he district court [must]
independently review[] the evidence and findings [submitted to a
court commissioner] to reach its informed decision. This
requirement is especially necessary in child custody cases because
[t]he right to associate with one’s immediate family is a
fundamental liberty . . . . Accordingly, a court must afford a parent
notice and a meaningful opportunity to be heard before it can deny
the parent custody of his or her children. . . . [D]istrict courts . . .
have no authority to abdicate their decision‐making responsibilities
on these fundamental issues to others.” (fifth alteration in original)
(emphasis, citations, and internal quotation marks omitted)).
¶46 Coincidentally, imposition of a preservation requirement in
proceedings before the commissioner may negatively impact the
system by requiring litigants to present every scrap of evidence to
the commissioner or risk having that evidence rejected by a judge.
20110700‐CA 26 2013 UT App 83Gullickson v. Gullickson
Because “[t]he people have a right to have their cases and
controversies ultimately decided by . . . judges who have been
vested with judicial power by the constitution,” and “[a]nything
less is a clear violation of the Utah constitution and Utah law,”
Holm, 840 P.2d at 168, I respectfully dissent from Section II of the
majority opinion and would, on remand, direct the district court to
hear Husband’s evidence regarding the best interest issue.
20110700‐CA 27 2013 UT App 83