Pulham v. Kirsling , 427 P.3d 261 ( 2018 )


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    2018 UT App 65
    THE UTAH COURT OF APPEALS
    KRISTEN PULHAM,
    Appellee,
    v.
    WILLIAM KIRSLING,
    Appellant.
    Opinion
    Nos. 20150577-CA and 20160236-CA
    Filed April 12, 2018
    Third District Court, Salt Lake Department
    The Honorable Richard D. McKelvie
    No. 104901246
    Margaret S. Edwards, Attorney for Appellant
    Steve S. Christensen and Clinton R. Brimhall,
    Attorneys for Appellee
    JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES
    KATE A. TOOMEY and DAVID N. MORTENSEN concurred.
    POHLMAN, Judge:
    ¶1     This case involves two appeals in the same domestic
    relations dispute. 1 In the first appeal (the First Appeal), William
    Kirsling challenges several aspects of the amended decree
    entered in his divorce from Kristen Pulham. In the second
    appeal (the Second Appeal), Kirsling challenges the trial court’s
    denial of his petition to modify the divorce decree’s custody
    1. We have consolidated Case No. 20150577-CA and Case No.
    20160236-CA for purposes of this opinion.
    Pulham v. Kirsling
    arrangement. We affirm the trial court’s decisions in both
    appeals.
    BACKGROUND
    The Trial and the Amended Decree
    ¶2     Pulham and Kirsling were married in 2008 and separated
    in 2010. The parties had one child (Child) born during the
    marriage. In June 2012, the trial court entered a bifurcated decree
    of divorce, reserving several issues for trial.
    ¶3     At a bench trial in 2014, the parties contested the issues of
    custody, child support, past-due child support, and
    unreimbursed child care expenses. Each party also alleged that
    the other party was in contempt of the court’s prior orders and
    should therefore face sanctions.
    ¶4     On Child’s custody, the trial court made detailed findings.
    Among other things, it found that Pulham had remarried, had a
    son with her new husband, and was living in Tooele, Utah. The
    court also found that Pulham had been the primary caregiver of
    Child since birth and that, at the time of trial, Pulham was
    unemployed and was acting as the full-time caregiver of her
    younger son and Child.
    ¶5     Regarding Kirsling, the court found that he was living in
    Taylorsville, Utah, with his girlfriend and her children, and that
    Kirsling’s older son from a previous marriage lived with Kirsling
    part-time. The court also found that Kirsling had resided in
    various places, including Brigham City, Utah, and Phoenix,
    Arizona, for lengthy periods after the parties separated. The
    court found that even though Kirsling’s “contact and visitation
    with [Child] ha[d] been inconsistent for much of that time,” his
    contact had “stabilized considerably” in the year leading up to
    trial.
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    Pulham v. Kirsling
    ¶6     Although Kirsling and Pulham agreed at trial that it
    would be in Child’s best interest if they shared joint physical and
    legal custody, they sharply disagreed about the details of that
    custody, including where Child should be enrolled in school and
    with whom she should primarily reside. A custody evaluator
    prepared a custody evaluation and testified about it at trial.
    ¶7     Kirsling requested a court order requiring Child to enroll
    in the school near his home in Taylorsville for three years, at
    which point Child would then transfer to the school near
    Pulham’s home for the latter half of elementary school. The court
    rejected Kirsling’s request, reasoning that his plan would require
    Child “to spend considerable time commuting by car between
    Taylorsville and Tooele”—amounting to “upwards of an hour
    each way, before school and after school”—and that it was not in
    Child’s best interest to do so merely to accommodate Kirsling’s
    preferred parenting plan. The court also reasoned that Kirsling’s
    plan would require Child to change elementary schools and that
    such a plan, which would put Child through “an unnecessary
    adjustment of surroundings, friends and routine,” was not in
    Child’s best interest.
    ¶8     In the November 2014 amended divorce decree (the
    Amended Decree), which followed the earlier bifurcated decree,
    the trial court awarded the parties joint physical and legal
    custody. The court also ordered that Pulham would be the
    primary custodial parent and would have the final say in
    parenting decisions for Child, including which school Child
    would attend.
    ¶9     As for parent-time, the court determined that a standard
    parent-time order, as anticipated under Utah Code section
    30-3-35, did “not provide sufficient parent time” for Kirsling and
    was not in Child’s best interest. As a result, the court awarded
    Kirsling additional parent-time in a manner that avoided
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    “creating the attendant travel time that would be inflicted upon
    [Child] by [Kirsling’s] proposed parenting plan.”
    ¶10 On future child support, the trial court found that it
    would be calculated based on Pulham’s monthly income of $30
    and Kirsling’s monthly income of $4,580, “which are the
    stipulated monthly gross incomes” of the parties. Then,
    referencing the Utah Code and a custody worksheet, 2 the court
    ordered Kirsling to pay Pulham $548 per month for child
    support.
    ¶11 On past-due child support, the trial court found that the
    evidence supported Pulham’s claim that Kirsling had an
    outstanding obligation for a period before 2012. The court also
    found that Pulham incurred fees paid to the Office of Recovery
    Services (ORS) due to Kirsling’s “failure to timely pay his child
    support obligation.” Because Kirsling had not been “consistently
    responsible for payments until ORS intervened,” the court
    agreed with Pulham that Kirsling should reimburse her for the
    ORS fees. Accordingly, the court ordered Kirsling to pay Pulham
    for past-due child support and ORS fees.
    ¶12 On unreimbursed child care expenses, the trial court
    found that Pulham had shown that Kirsling had not paid his
    share of some expenses. The court ordered Kirsling to pay
    Pulham those expenses.
    ¶13 Finally, on the allegations of contempt of court, the trial
    court found that “insufficient evidence was presented at trial to
    warrant sanctions for either party.” Thus, the court dismissed all
    charges of contempt.
    2. This child support worksheet is not part of the record on
    appeal.
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    Pulham v. Kirsling
    The Motion for a New Trial
    ¶14 Kirsling moved for a new trial pursuant to rule 59(a) of
    the Utah Rules of Civil Procedure. 3 The motion was
    accompanied by an unsworn document signed by his attorney
    that purported to be Kirsling’s affidavit. As relevant here,
    Kirsling challenged the trial court’s decisions regarding child
    support and custody as well as the amounts Kirsling owed to
    Pulham for past-due child support and child care expenses.
    ¶15 With respect to the amounts owed to Pulham for past-due
    child support and child care expenses, Kirsling contended that,
    under rule 59(a)(4), he had newly discovered evidence that he
    could not have produced at trial. Referring to Pulham’s
    testimony that she did not receive a particular payment, he
    asserted that post-trial he was “able to obtain a photocopy of the
    cashed money order that was presented to [Pulham’s] counsel as
    settlement for the financial issues of the case” and that the new
    information affected the amounts he owed Pulham.
    ¶16 In denying the motion, the trial court began by
    characterizing the purported affidavit as “an argument by
    [Kirsling’s] counsel, complaining generally of the failure of the
    Court to find in [Kirsling’s] favor.” The court then rejected
    Kirsling’s newly discovered evidence argument, explaining that
    3. Rule 59(a) provided, in relevant part, that “a new trial may be
    granted to . . . any . . . part[y] and on all or part of the issues, for
    any of the following causes[:] . . . (a)(4) [n]ewly discovered
    evidence, material for the party making the application, which
    he could not, with reasonable diligence, have discovered and
    produced at the trial; . . . (a)(6) [i]nsufficiency of the evidence to
    justify the verdict or other decision”; or “(a)(7) [e]rror in law.”
    Utah R. Civ. P. 59(a) (2014). Because rule 59 has been amended,
    we cite the version in effect at the time Kirsling filed his motion.
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    Kirsling had not established “whether or why he was unable to
    obtain this evidence prior to trial” and also had not shown that
    “the introduction of the evidence would have resulted in a
    different trial outcome.” 4
    ¶17 Kirsling raised another argument under rule 59(a)(6),
    attacking the court’s determination that Pulham’s gross monthly
    income was $30 for child support purposes. Kirsling argued that
    the evidence was insufficient because the court did “not show[]
    why Ms. Pulham’s income was not calculated” based on her
    employment potential and probable earnings pursuant to a
    statute governing the imputation of income. Kirsling asserted
    this same argument as an error of law under rule 59(a)(7).
    ¶18 The court rejected Kirsling’s arguments. It explained that
    Utah Code section 78B-12-203(7) dictates the circumstances
    under which the trial court may impute income and gives
    discretion to the court to impute under those certain
    circumstances. The court then explained that it “did not impute
    income to [Pulham]” and that the application of this statute was
    “not the basis for a complaint of ‘insufficient evidence’” under
    4. Kirsling also cited rule 59(a)(3), making a related argument
    that he was surprised by Pulham’s assertion at trial that she had
    not received the settlement payment and that it was “not
    prudent to expect [him to] guard against” that assertion. While
    Kirsling briefly refers to rule 59(a)(3) in his statement of the
    issues on appeal, he makes no argument based on surprise and
    instead focuses this portion of his appeal on rule 59(a)(4) and his
    contention of newly discovered evidence. Accordingly, we do
    not address whether the trial court abused its discretion in not
    granting a new trial under rule 59(a)(3). See Wintle-Butts v. Career
    Service Review Office, 
    2013 UT App 187
    , ¶ 20, 
    307 P.3d 665
    (refusing to consider an undeveloped and inadequately briefed
    issue).
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    rule 59(a)(6). Similarly, the court concluded that, in relation to
    rule 59(a)(7), it had not committed an error of law, because it had
    “exercised its discretion in determining not to impute income to
    [Pulham], something the statute authorizes it to do.”
    ¶19 Concerning custody, Kirsling contended that, under rule
    59(a)(7), the trial court erred when it did not follow the
    recommendations of the custody evaluator. In particular, he
    stated that the court failed to provide “a detailed and clear
    finding” explaining why it did not adopt the custody evaluator’s
    recommendation. The court rejected this argument as well,
    maintaining that it had “articulated the reasons for its decision
    regarding custody.”
    ¶20 The trial court denied the motion for a new trial on June
    17, 2015. Kirsling filed a timely notice of appeal, giving rise to
    the First Appeal. In his notice of appeal, Kirsling stated that he
    thereby appealed “the final Decree of Divorce . . . entered in this
    matter on June 17, 2015,” and that the appeal was “taken from
    such parts of the judgment as follow”: Paragraph 3 regarding
    child support calculation; Paragraph 4 regarding child support,
    ORS fees, and child care expenses; and Paragraph 8 regarding
    contempt.
    The Petition to Modify the Amended Decree
    ¶21 On the same day he filed the First Appeal, Kirsling
    petitioned the trial court for a modification of the Amended
    Decree. Specifically, Kirsling asserted that “[a] significant change
    of circumstances has occurred as a result of [his] recent
    relocation to Stansbury Park, Utah, which is located
    approximately 15 minutes of driving time from his home to the
    home of [Pulham].” Kirsling further asserted that at the time the
    trial court entered the Amended Decree he lived approximately
    forty-five minutes away from Pulham and that “[t]his distance
    affected the Court’s awarding of parent time for both the
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    overnight schedules, school choices and the midweek parent
    time determinations.” Because the long “commute time no
    longer exist[ed],” Kirsling requested that the court change the
    schedule to “fifty-fifty,” essentially asking to have Child spend
    every other week with him. 5
    ¶22 Pulham responded by filing a motion to dismiss the
    petition to modify. Although she did not dispute that Kirsling
    had relocated, she contended that Kirsling’s move from
    Taylorsville to Stansbury Park did “not represent a change of
    circumstances sufficient to modify the controlling order,”
    because it did not affect her “parenting ability” and the
    “functioning of the current custodial relationship.”
    ¶23 A court commissioner heard the matter and
    recommended that the trial court deny Pulham’s motion to
    dismiss. Pulham objected to that recommendation, and the trial
    court ultimately resolved the petition to modify on its merits.
    The court observed that it had “considered the distance the
    minor child would be subjected to traveling” when entering its
    custody and parent-time orders in the Amended Decree, but it
    expressed concern that Kirsling’s “stop” in Stansbury Park
    would be “brief,” in light of his “somewhat migratory history.”
    The court also expressed concern that, “given the timing of the
    move and the petition itself, [Kirsling] made this move solely to
    create a change in circumstances in an effort to succeed in
    modifying the decree.”
    ¶24 Although Kirsling’s relocation closer to Pulham “benefits
    all parties, including the minor child,” the court concluded that
    the “move, in and of itself, is wholly insufficient to create a
    sufficient change of circumstances to warrant reconsideration” of
    5. The parties seem to agree that Kirsling was trying to move
    from 40% overnights to 50% overnights.
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    Pulham v. Kirsling
    the Amended Decree, and it denied Kirsling’s petition to modify.
    Kirsling filed another notice of appeal, which triggered the
    Second Appeal.
    ANALYSIS
    I. The First Appeal
    ¶25 Kirsling raises three issues in the First Appeal. First, he
    contends that the trial court erred in calculating “Pulham’s
    income at $30 per month for child support purposes.” Second, he
    contends that it erred in denying his motion for a new trial on
    his claim of newly discovered evidence related to child care
    expenses. Third, he contends that the trial court erred in
    deviating “from the recommendations of the court-appointed
    custody evaluator without making any specific findings on the
    record as to its deviation.” Before we reach the merits of these
    contentions, however, we must consider whether Kirsling’s
    notice of appeal vested this court with jurisdiction to consider
    and address these issues.
    A.    The Scope of This Court’s Jurisdiction
    ¶26 As a threshold matter, we first consider Pulham’s
    argument that this court lacks jurisdiction to review certain
    issues on appeal. Pulham argues that “Kirsling’s notice of appeal
    invokes this Court’s jurisdiction over only some of the issues he
    has argued in his brief.” According to Pulham, “Kirsling’s notice
    of appeal references only the decisions in the Amended Decree
    relating to child support, a monetary judgment, and the
    dismissal of contempt charges,” and “[b]ecause [his] notice of
    appeal does not reference the district court’s custody award or
    the . . . denial of [his] motion for a new trial, this Court lacks
    appellate jurisdiction over issues related to those decisions.”
    Kirsling counters that a notice of appeal’s “designation of the
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    Pulham v. Kirsling
    specific parts [of an order or judgment] does not waive the
    appeal of the whole order or judgment” and that therefore this
    court “has jurisdiction over all of the issues raised on appeal . . . ,
    as well as the issues concerning the post-trial motion” for a new
    trial.
    ¶27 “Whether appellate jurisdiction exists is a question of
    law . . . .” Goggin v. Goggin, 
    2011 UT 76
    , ¶ 16, 
    267 P.3d 885
    (quotation simplified). Likewise, we “determine whether a
    Notice of Appeal is adequate to grant this court jurisdiction as a
    matter of law.” State v. Valdovinos, 
    2003 UT App 432
    , ¶ 13, 
    82 P.3d 1167
     (quotation simplified).
    ¶28 The Utah Supreme Court has “emphasized that the object
    of a notice of appeal is to advise the opposite party that an
    appeal has been taken from a specific judgment in a particular
    case . . . [because the opposing party] is entitled to know
    specifically which judgment is being appealed.” Jensen v.
    Intermountain Power Agency, 
    1999 UT 10
    , ¶ 7, 
    977 P.2d 474
    (quotation simplified). Rule 3(d) of the Utah Rules of Appellate
    Procedure dictates the content of a notice of appeal: “The notice
    of appeal . . . shall designate the judgment or order, or part
    thereof, appealed from . . . .” Utah R. App. P. 3(d); see also U.P.C.,
    Inc. v. R.O.A. Gen., Inc., 
    1999 UT App 303
    , ¶ 11, 
    990 P.2d 945
    . This
    requirement “is jurisdictional.” Jensen, 
    1999 UT 10
    , ¶ 7. As a
    result, an “order not identified in the notice of appeal falls
    beyond [this court’s] appellate jurisdiction.” In re adoption of B.B.,
    
    2017 UT 59
    , ¶ 106.
    ¶29 “[W]here the notice of appeal sufficiently identifies the
    final judgment at issue and the opposing party is not prejudiced,
    the notice of appeal is to be liberally construed.” Kilpatrick v.
    Bullough Abatement, Inc., 
    2008 UT 82
    , ¶ 14, 
    199 P.3d 957
    (quotation simplified). Put another way, “[w]here the appealing
    party’s intent is clear and the appellee suffers no prejudice, the
    notice of appeal is sufficient.” Id. ¶ 15.
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    Pulham v. Kirsling
    ¶30 As noted above, rule 3(d) requires that the notice of
    appeal “designate the judgment or order, or part thereof, appealed
    from.” Utah R. App. P. 3(d) (emphasis added). If an appellant
    has adequately designated the judgment or order appealed from,
    we do not read the rule’s language as also requiring the
    appellant to designate the “part thereof.” See 
    id.
     But where an
    appellant chooses to identify the specific parts of a judgment
    subject to the appeal and gives notice of its intent to appeal only
    those parts of a particular judgment, our jurisdiction is limited
    by that representation. Cf. In re adoption of B.B., 
    2017 UT 59
    ,
    ¶ 106. In other words, “our jurisdiction is limited by the wording
    of the notice.” Kovaco v. Rockbestos-Surprenant Cable Corp., 
    834 F.3d 128
    , 135 (2d Cir. 2016) (quotation simplified) (holding that
    the language of a notice of appeal limits an appellate court’s
    jurisdiction to those issues expressly identified in the notice); 6 see
    also Muller v. Holmes, 353 F. App’x 664, 666 (2d Cir. 2009) (same);
    Elfman Motors, Inc. v. Chrysler Corp., 
    567 F.2d 1252
    , 1254 (3d Cir.
    1977) (“When an appeal is taken from a specified judgment only
    or from a part of a specified judgment, the court of appeals acquires
    thereby no jurisdiction to review other judgments or portions
    thereof not so specified or otherwise fairly to be inferred from the
    notice as intended to be presented for review on the appeal.”
    (emphasis added)).
    ¶31 Here, Kirsling’s notice of appeal for the First Appeal
    states that he appeals “the final Decree of Divorce . . . entered in
    6. Substantively similar to Utah Rule of Appellate Procedure
    3(d), the federal counterpart requires that a party designate in its
    notice of appeal “the judgment, order, or part thereof being
    appealed.” Fed. R. App. P. 3(c)(1)(B); see also Drew v. Lee, 
    2011 UT 15
    , ¶ 16 & n.22, 
    250 P.3d 48
     (indicating that where federal court
    procedural rules are substantively similar to Utah’s rules, we
    may look to interpretations of the federal rules for guidance and
    as persuasive authority).
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    Pulham v. Kirsling
    this matter on June 17, 2015,” and specifies that the appeal “is
    taken from such parts of the judgment as follow”:
    1) Paragraph 3 regarding child support calculation;
    2) Paragraph 4 wherein Mr. Kirsling was ordered
    to pay . . . child support and ORS fees and . . . child
    care expenses; and
    3) Paragraph 8 wherein all charges of Contempt are
    dismissed.
    The Amended Decree was entered on November 4, 2014. The
    order denying Kirsling’s motion for a new trial was entered on
    June 17, 2015. When the notice of appeal is considered in context,
    its reference to “the final Decree of Divorce” manifests Kirsling’s
    intent to appeal from the Amended Decree, and its reference to
    an order “entered in this matter on June 17, 2015,” manifests his
    intent to appeal from the order denying his motion for a new
    trial. See Speros v. Fricke, 
    2004 UT 69
    , ¶ 15, 
    98 P.3d 28
    (interpreting a notice of appeal as an appeal from a January 15
    order despite its reference to a nonexistent January 11 order
    because the appellant’s intent to appeal the former order was
    evident from the context). We thus conclude that Kirsling’s
    notice of appeal sufficiently designates the Amended Decree and
    the order denying the motion for a new trial as “the judgment[s]
    or order[s] . . . appealed from.” Utah R. App. P. 3(d).
    ¶32 But the notice of appeal does more; it also designates the
    “part[s] thereof” to be appealed. See 
    id.
     It does so by stating that
    the appeal “is taken from such parts of the judgment as follow”:
    Paragraph 3 regarding child support; Paragraph 4 regarding
    past-due child support, ORS fees, and child care expenses; and
    Paragraph 8 regarding contempt. Because the Amended Decree
    has paragraph numbers and subject matters that correspond to
    those mentioned in the notice of appeal, we read the notice of
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    appeal’s references to specific paragraphs as referring to
    Paragraphs 3, 4, and 8 of the Amended Decree. We thus construe
    the notice of appeal as manifesting Kirsling’s intent to contest on
    appeal only the issues of child support, past-due child support,
    ORS fees, child care expenses, and contempt. In contrast, the
    notice of appeal does not convey Kirsling’s intent to appeal
    issues related to the custody evaluation or the parenting plan—
    issues that were resolved in other paragraphs of the Amended
    Decree that are not cited in the notice of appeal. By expressly
    identifying the parts of the trial court’s ruling from which the
    appeal was taken, Kirsling manifested an intent not to appeal the
    other parts of the trial court’s Amended Decree and its related
    order denying his post-trial motion. 7
    ¶33 In sum, because Kirsling’s notice of appeal identifies the
    specific parts of the trial court’s Amended Decree that he
    contests on appeal, our jurisdiction is limited to those particular
    parts. To be precise, this court has jurisdiction to review issues
    related to “the child support calculation”; the order directing
    Kirsling to pay ORS fees, past-due child support, and child care
    expenses; and the dismissal of the contempt charges. 8 The issues
    7. The same intent is also manifest in Kirsling’s petition to
    modify the Amended Decree, which he filed contemporaneously
    with his notice of appeal. In his motion, he advised the trial court
    that “[a] Notice of Appeal on three sections of the Decree of
    Divorce is being filed, but none of these sections pertain to or
    affect this Petition to Modify regarding parent time.” In his
    supporting affidavit, Kirsling further “emphasize[d] that none of
    the items that [he] . . . [n]oticed [for appeal] pertain to the issues”
    raised in his petition to modify the trial court’s determinations
    regarding parent-time.
    8. Despite the fact that the issues related to the ORS fees and the
    contempt charges are within our jurisdiction, Kirsling has not
    (continued…)
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    in his opening brief that are not identified in his notice of
    appeal—relating to the custody evaluation and the parenting
    plan—are outside this court’s jurisdiction. Cf. In re adoption of
    B.B., 
    2017 UT 59
    , ¶ 106 (determining that the supreme court had
    no jurisdiction to review a consent order, where that order was
    not mentioned in the notice of appeal and where that order was
    a distinct final judgment from another final judgment that was
    properly identified in the notice of appeal). Having identified
    those issues that are properly before this court in the First
    Appeal, we now address their merits.
    B.    Calculation of Income for Child Support Purposes
    ¶34 Kirsling contends that the trial court erroneously
    calculated Pulham’s monthly income for child support purposes
    as $30, asserting that “[e]ither the $30 per month finding
    regarding Pulham’s income was supported by insufficient
    evidence, or the trial court erroneously imputed income to her
    absent proper procedure.” In his view, Pulham’s income should
    have been imputed at a much higher amount. He thus asserts
    that the trial court’s error resulted in “an excessive award of
    child support to Pulham” and asks us to reverse and remand for
    the trial court to “determine the income based on [Pulham’s]
    historical income.”
    ¶35 Because trial courts have broad discretion to award child
    support, we will not disturb such a decision “absent an abuse of
    discretion.” Roberts v. Roberts, 
    2014 UT App 211
    , ¶ 7, 
    335 P.3d 378
    . “That means that as long as the court exercised its discretion
    within the bounds and under the standards we have set and has
    supported its decision with adequate findings and conclusions,
    (…continued)
    briefed on appeal any challenge to the trial court’s decisions on
    those issues. Consequently, we do not consider them further.
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    Pulham v. Kirsling
    we will not substitute our judgment for the trial court’s.” 
    Id.
    (quotation simplified). Likewise, we review the trial court’s
    denial of Kirsling’s motion for a new trial for abuse of discretion.
    See Wall v. Wall, 
    2007 UT App 61
    , ¶ 8, 
    157 P.3d 341
    . We will set
    aside the trial court’s factual findings only if they are clearly
    erroneous. Kimball v. Kimball, 
    2009 UT App 233
    , ¶ 14, 
    217 P.3d 733
     (“A trial court’s factual determinations are clearly erroneous
    only if they are in conflict with the clear weight of the evidence,
    or if this court has a definite and firm conviction that a mistake
    has been made.” (quotation simplified)).
    ¶36 We begin with Kirsling’s contention that the trial court’s
    finding regarding Pulham’s income is clearly erroneous because
    it lacks evidentiary support. On this point, we agree that no
    evidence adduced at trial supported the conclusion that, at the
    time of trial, Pulham had a monthly income of $30. It was
    undisputed that Pulham was unemployed and cared for her
    young children full-time. The trial court, however, did not
    purport to base its determination of income on the testimony or
    other evidence at trial. Rather, the court twice stated that its
    income determination was based on the parties’ “stipulated
    monthly gross incomes.”
    ¶37 Kirsling does not acknowledge the trial court’s
    explanation that its income determination was not based on
    evidence but on a stipulation by the parties. See Duchesne Land,
    LC v. Division of Consumer Prot., 
    2011 UT App 153
    , ¶ 8, 
    257 P.3d 441
     (requiring an appellant to address the basis for the trial
    court’s ruling). Nevertheless, we acknowledge that the
    referenced stipulation does not appear to be in the record on
    appeal. And, when asked in oral argument to explain the origin
    of the $30 figure, counsel for Pulham admitted that he did not
    know.
    ¶38 But even assuming the court erred in determining that the
    parties stipulated to Pulham’s monthly income in the amount of
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    Pulham v. Kirsling
    $30, we conclude that the error would not warrant reversal.
    “[W]e will not reverse a judgment merely because there may
    have been [an] error; reversal occurs only if the error is such that
    there is a reasonable likelihood that, in its absence, there would
    have been a result more favorable to the complaining party.”
    Portfolio Recovery Assocs., LLC v. Migliore, 
    2013 UT App 255
    , ¶ 15,
    
    314 P.3d 1069
     (quotation simplified); see also Utah R. Civ. P. 61
    (“The court at every stage of the proceeding must disregard any
    error or defect in the proceeding which does not affect the
    substantial rights of the parties.”). As noted above, the
    undisputed evidence at trial showed that Pulham was
    unemployed and had no income. Thus, if the court erred in
    attributing some income to her based on a stipulation, that error
    arguably favored Kirsling. At the least, Kirsling has not
    demonstrated that if Pulham’s income was decreased from $30
    to $0 that his child support obligation would be reduced. As a
    result, we will not reverse the trial court on this basis.
    ¶39 We further conclude that Kirsling has not established that
    the alleged error of which he complains entitles him to his
    requested relief—a new trial with the opportunity to request the
    imputation of additional income to Pulham based on evidence
    not presented at trial. Kirsling did not move for a new trial on
    this issue under rule 59(a)(4) of the Utah Rules of Civil
    Procedure based on a claim of newly discovered evidence, and
    he has not shown that the court committed an error of law by
    not imputing income to Pulham based on her anticipated
    earnings or the federal minimum wage such that a new trial
    would be warranted under rule 59(a)(7). See Utah Code Ann.
    § 78B-12-203(7) (LexisNexis 2012) (allowing under certain
    circumstances for the imputation of income for child support
    purposes based on employment potential and anticipated
    earnings or the federal minimum wage for a forty-hour work
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    Pulham v. Kirsling
    week). 9 See generally Utah R. Civ. P. 59(a)(4), (a)(7) (2014)
    (permitting the court to grant a new trial on the grounds of
    newly discovered evidence or errors in law).
    ¶40 Income in a contested case may be imputed under Utah
    Code section 78B-12-203 only if the court “enters findings of fact
    as to the evidentiary basis for the imputation.” Utah Code Ann.
    § 78B-12-203(7)(a). Where income is imputed, it “shall be based
    upon [the parent’s] employment potential and probable
    earnings,” id. § 78B-12-203(7)(b), or, where a parent “has no
    recent work history” or an unknown occupation, “income shall
    be imputed at least at the federal minimum wage for a 40-hour
    work week,” id. § 78B-12-203(7)(c). Moreover, income “may not
    be imputed” if certain conditions exist, including where “the
    reasonable costs of child care for the parents’ minor children
    approach or equal the amount of income the custodial parent
    can earn.” Id. § 78B-12-203(d)(i).
    ¶41 The subject of imputation of income was not raised until
    Kirsling’s post-trial rule 59 motion. And, as Kirsling concedes on
    appeal, none of the factors relevant to imputing income to
    Pulham based on her employment potential and probable
    earnings were discussed, and information about those factors
    was not placed on the record. In fact, the only evidence at trial
    arguably relevant to the imputation of income was that Pulham
    worked for a time but that she “barely made anything” after
    paying for child care. Given that the record contains no evidence
    regarding Pulham’s employment potential and probable
    earnings, and given that her undisputed testimony was that the
    cost of child care approached the amount of income she
    previously had earned, see id., we cannot conclude that the trial
    9. This statutory provision was recently amended. We cite the
    version in effect when the trial court determined Kirsling’s child
    support obligation.
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    Pulham v. Kirsling
    court committed legal error in not imputing income to Pulham
    under section 78B-12-203(7)(b).
    ¶42 Similarly, Kirsling’s argument that the trial court should
    have imputed income to Pulham under Utah Code section 78B-
    12-203(7)(c) at the federal minimum wage also fails. Not only did
    Kirsling not ask for imputation under this provision at trial or in
    his post-trial motion, but he now admits that “Pulham does have
    recent work history.” Thus, he implicitly concedes that
    imputation under that section would not have been appropriate.
    See 
    id.
     § 78B-12-203(7)(c) (“If a parent has no recent work history
    or a parent’s occupation is unknown, income shall be imputed at
    least at the federal minimum wage for a 40-hour work week.”
    (emphasis added)). We therefore affirm the trial court’s child
    support order and its denial of Kirsling’s related rule 59
    motion. 10
    C.    Newly Discovered Evidence Related to Child Care
    Expenses
    ¶43 Kirsling next contends that the trial court erred in
    denying his motion for a new trial when it refused to consider
    newly discovered evidence relating to past-due child care
    expenses. According to Kirsling, he “had been misinformed at
    the time of trial that he could not obtain evidence to show that
    Pulham had received and cashed” a money order that he had
    10. In his motion for a new trial, Kirsling also argued that the
    child support order should have given him credit for other
    children in his home. The trial court rejected that argument. On
    appeal, Kirsling refers to these facts, but he does not present any
    related analysis supported by citations to the record and legal
    authority. See Utah R. App. P. 24(a)(9) (2016). He therefore has
    not carried his burden to show error in the court’s decision on
    this point.
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    Pulham v. Kirsling
    given to her counsel, but he was able to obtain a copy of that
    cashed money order after trial. Kirsling asserts that he
    undertook due diligence but that the misinformation given to
    him was “outside of his control.” He further asserts that the copy
    of the cashed money order would “affect[] the financial
    settlement ordered by the court” and that therefore the court
    should have granted him a new trial. 11
    ¶44 Rule 59(a)(4) provides that a new trial may be granted if a
    party shows the existence of material and “[n]ewly discovered
    evidence, . . . which he could not, with reasonable diligence,
    have discovered and produced at the trial.” Utah R. Civ. P.
    59(a)(4) (2014). Such a motion “shall be supported by affidavit.”
    
    Id.
     R. 59(c). “In deciding whether to grant a new trial, the trial
    court has some discretion, and we reverse only for abuse of that
    discretion.” Wall v. Wall, 
    2007 UT App 61
    , ¶ 8, 
    157 P.3d 341
    (quotation simplified).
    ¶45 The trial court denied Kirsling’s rule 59 motion based on
    his claim of newly discovered evidence. The court reasoned that
    he had not established “whether or why he was unable to obtain
    this evidence prior to trial” and had not shown that “the
    introduction of the evidence would have resulted in a different
    trial outcome.”
    11. Kirsling purports to challenge the trial court’s calculation of
    the amounts he owed Pulham for past-due child support and
    child care expenses, asserting that the court erred “in
    determining the financial award” and “in denying the financial
    settlement or offsetting amounts owed to Pulham.” But because
    his related briefing focuses on the denial of his rule 59 motion
    and does not attempt to show other error in the Amended
    Decree’s calculation of the amounts Kirsling owed to Pulham,
    we construe his argument as pertaining solely to the court’s
    denial of the rule 59 motion.
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    Pulham v. Kirsling
    ¶46 Kirsling’s argument fails because he has not addressed
    the trial court’s rationale for denying his motion. See Duchesne
    Land, LC v. Division of Consumer Prot., 
    2011 UT App 153
    , ¶ 8, 
    257 P.3d 441
     (explaining that an appellant must address and show
    error in the basis for the trial court’s ruling). Moreover, though
    Kirsling recites the factual basis for his claim that evidence was
    newly discovered, he cites no evidentiary basis for his assertions
    that he could not obtain the relevant evidence prior to trial.
    Aside from his rule 59 motion and memorandum, the only
    material that Kirsling presented to the trial court in support of
    his newly discovered evidence claim was a document signed by
    his attorney purporting to be Kirsling’s affidavit. Rule 59(c)
    requires that a newly discovered evidence claim be “supported
    by affidavit,” Utah R. Civ. P. 59(c) (2014), but, as the trial court
    correctly noted, the purported affidavit is “more accurately
    characterized as an argument by [Kirsling’s] counsel.” Given
    Kirsling’s failure to provide the trial court with evidentiary
    support, the court did not exceed its discretion in denying
    Kirsling’s motion.
    II. The Second Appeal
    ¶47 The Second Appeal centers on the trial court’s denial of
    Kirsling’s petition to modify the Amended Decree. We first
    address Kirsling’s sole argument on appeal regarding that
    decision, and then address the parties’ requests for an award of
    attorney fees incurred in the Second Appeal.
    A.     The Petition to Modify
    ¶48 Kirsling argues that the trial court “applied an incorrect
    heightened standard to arbitrarily foreclose modification” on the
    basis that “a substantial change of material circumstances had
    not occurred.” According to Kirsling, he was asking for a
    modification of parent-time, and the trial court therefore should
    have applied “a less strict” standard.
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    Pulham v. Kirsling
    ¶49 “We generally review the determination to modify a
    divorce decree for an abuse of discretion. However, to the extent
    that determination is based on a conclusion of law, we review it
    for correctness.” Snyder v. Snyder, 
    2015 UT App 245
    , ¶ 9, 
    360 P.3d 796
     (quotation simplified).
    ¶50 The Utah Supreme Court has recognized that the
    threshold “change in circumstances required to justify a
    modification of a divorce decree varies with the type of
    modification sought.” Haslam v. Haslam, 
    657 P.2d 757
    , 758 (Utah
    1982). As a general rule, modifying a custody order requires a
    showing of a substantial and material change in circumstances.
    Doyle v. Doyle, 
    2011 UT 42
    , ¶¶ 24–25, 
    258 P.3d 553
    . In contrast,
    altering parent-time arrangements requires a showing of
    changed circumstances, but that “showing does not rise to the
    same level as the substantial and material showing required
    when a district court alters custody.” Jones v. Jones, 
    2016 UT App 94
    , ¶ 10, 
    374 P.3d 45
     (citing Becker v. Becker, 
    694 P.2d 608
    , 609, 611
    (Utah 1984); Haslam, 657 P.2d at 758); accord Blocker v. Blocker,
    
    2017 UT App 10
    , ¶¶ 12–14, 
    391 P.3d 1051
    .
    ¶51 Contrary to Kirsling’s contention, the trial court did not
    apply a “substantial change of material circumstances” standard.
    The court ultimately stated that Kirsling’s move was
    “insufficient to create a sufficient change in circumstances to
    warrant reconsideration of the Court’s Order.”12 (Emphasis
    added.) And while the court described the standard as “high,”
    12. Kirsling points to this statement as evidence that the court
    applied the “substantial change in material circumstances”
    standard to foreclose modification. But this statement cannot be
    read in isolation. As we explain below, because the court
    actually reached the merits of Kirsling’s petition, we cannot
    agree that the court refused to reconsider its prior order based
    on an unmet threshold.
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    Pulham v. Kirsling
    nowhere in its order did it identify the “substantial change of
    material circumstances” standard as the one that must be met.
    ¶52 Even more importantly, however, the trial court did not
    arbitrarily refuse to hear Kirsling’s petition based on an
    application of a standard. Rather, the court considered the merits
    of Kirsling’s petition. The court accepted as true that Kirsling
    moved to Stansbury Park after the entry of the Amended Decree,
    but it rejected his assertion that the court’s custody and parent-
    time orders were driven primarily by the fact that Kirsling lived
    in Taylorsville at the time of trial. The court expressed concern
    that Kirsling’s “stop in [Stansbury Park would] be . . . brief,”
    given Kirsling’s “migratory history.” The court also expressed
    concern that the move was motivated to create a change of
    circumstances to justify a modification of the Amended Decree.
    Thus, rather than reject Kirsling’s petition on the basis that a
    move by one parent fails to constitute a “substantial change in
    material circumstances,” the court considered its merits and
    determined why Kirsling’s move, under the relevant
    circumstances, did not warrant modification of the court’s order.
    ¶53 But even assuming the court’s order could be construed
    as having applied a “substantial change in material
    circumstances” standard, Kirsling’s argument would fail for lack
    of preservation. “To preserve an argument for appellate review,
    the appellant must first present the argument to the district court
    in such a way that the court has an opportunity to rule on it.”
    Gowe v. Intermountain Healthcare, Inc., 
    2015 UT App 105
    , ¶ 7, 
    356 P.3d 683
     (quotation simplified). “We generally do not address
    unpreserved arguments raised for the first time on appeal.” 
    Id.
    ¶54 Kirsling never alerted the court to his argument that his
    petition requested a type of modification that should be based
    on something less than a substantial and material change of
    circumstances. Instead, he practically invited the court to apply
    the heightened standard. Kirsling premised his petition on the
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    Pulham v. Kirsling
    occurrence of “[a] significant change in circumstances,” and in
    his briefing he referred to a move to a new community as an
    example of a “material and substantial change[]” justifying the
    modification of a custody award. These submissions—
    particularly the suggested standard—arguably invited the court
    to apply the standard about which Kirsling now complains. See
    Kerr v. City of Salt Lake, 
    2013 UT 75
    , ¶ 44, 
    322 P.3d 669
     (stating
    that under the doctrine of invited error, “a litigant may not
    induce the trial court to make a ruling and then argue on appeal
    that the ruling was in error”). In any event, Kirsling did not
    preserve his argument that the court erred in applying the
    substantial change of circumstances standard rather than “a less
    strict” standard “for a change in parent time.” See Baumann v.
    Kroger Co., 
    2017 UT 80
    , ¶¶ 17–18 (deeming an argument
    unpreserved where the appellant did not argue for the more
    forgiving standard she advocated for on appeal and where she
    arguably invited the district court to apply the less forgiving
    standard). Thus, we will not now reverse the trial court’s denial
    of his petition to modify on that basis. See Gowe, 
    2015 UT App 105
    , ¶ 9.
    B.    Attorney Fees on Appeal
    ¶55 Both parties request an attorney fees award pursuant to
    rule 33 of the Utah Rules of Appellate Procedure. Rule 33 allows
    this court, if it determines that an appeal is “either frivolous or
    for delay,” to “award just damages, which may include . . .
    costs . . . and/or reasonable attorney fees, to the prevailing
    party.” Utah R. App. P. 33(a). “[P]arties seeking attorney fees
    under rule 33 face a high bar,” and the Utah Supreme Court has
    directed that such sanctions are warranted only in “egregious
    cases.” Porenta v. Porenta, 
    2017 UT 78
    , ¶ 51 (quotation
    simplified). We conclude that this case does not present an
    egregious case and therefore deny the parties’ requests for
    attorney fees.
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    Pulham v. Kirsling
    CONCLUSION
    ¶56 In the First Appeal, we conclude that only two of the
    three issues that Kirsling argues on appeal were identified in his
    notice of appeal and are properly before this court. On the merits
    of those two issues, we conclude that Kirsling’s challenge to the
    trial court’s calculation of income fails and he has not shown that
    the trial court erred in denying his motion for a new trial based
    on his claim of newly discovered evidence. As for the Second
    Appeal, we conclude that the trial court did not err in denying
    Kirsling’s petition to modify the Amended Decree. Accordingly,
    we affirm the trial court’s decisions in both appeals.
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