Volk v. Vecchi , 2020 UT App 77 ( 2020 )

2020 UT App 77THE UTAH COURT OF APPEALS
CARMELITA VOLK,
Appellee,
v.
JOHN VECCHI,
Appellant.
Opinion
No. 20180776-CA
Filed May 14, 2020
Third District Court, West Jordan Department
The Honorable James D. Gardner
No. 154907478
David S. Pace, Attorney for Appellant
Karra J. Porter and Kristen C. Kiburtz,
Attorneys for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES KATE APPLEBY and RYAN M. HARRIS concurred.
POHLMAN, Judge:
¶1 John Vecchi and Carmelita Volk entered into a
relationship and began living together around 1999, but the two
never formally married. After separating in 2015, Volk
petitioned for divorce, asserting that the parties had established
a common law marriage. The district court agreed. Vecchi
appeals, arguing that the court erred because Volk did not
establish all the required elements for common law marriage in
Utah. He also challenges the court’s alleged failure to order that
the parties equally share the costs of a custody evaluation. We
affirm.
Volk v. Vecchi
BACKGROUND 1
¶2 Volk and Vecchi met in approximately 1996. In 1999, they
began dating and moved in together. With the exception of
about one year in approximately 2001 or 2002, they lived
together in California from 1999 until the summer of 2012, when
they moved to Utah.
¶3 During the parties’ time in California, they had two
children together. Around the time their first child was born, the
parties “specifically agreed” that Volk “would be a stay-at-home
mother and [Vecchi] would pursue his career.” To that end, they
“agreed to divide up the responsibilities—with [Volk] taking on
primary responsibility for the children and household duties,”
while Vecchi “provide[d] financially for [Volk] and the kids.”
They also agreed to “pool their resources together and share
equally in everything that was accumulated (and in debts).”
¶4 As evidence of their agreement, the parties jointly
purchased four properties together during their relationship—
two in California, one in Illinois, and one in Utah. They were co-
borrowers on the loans, held title jointly, and shared in the
maintenance of each property. They also maintained “joint
checking and savings accounts, joint car loans, and joint credit
cards.” Indeed, as Volk later testified at trial, “none of the
financial aspects of their lives were handled separately.”
¶5 In early 2012, Vecchi began working for a company in
Utah. Because the parties “agreed that their children should
remain in California to finish the school year,” Vecchi commuted
1. “On appeal from a bench trial, we view the evidence in a light
most favorable to the trial court’s findings, and therefore recite
the facts consistent with that standard.” Chesley v. Chesley, 2017
UT App 127, ¶ 2 n.2, 402 P.3d 65 (cleaned up).
20180776-CA 2 2020 UT App 77Volk v. Vecchi
for approximately six months before the parties and their
children moved to Utah in the summer of 2012.
¶6 In late 2014, the parties began experiencing significant
difficulties in their relationship, and they separated in March
2015. In November 2015, Volk filed a petition for divorce,
seeking, among other things, a declaration of common law
marriage, alimony, child support, and equitable division of the
couple’s assets. During the proceedings, the court ordered a
custody evaluation for the parties’ children. The court required
Vecchi to pay for the evaluation but indicated that “[f]inal
allocation of this cost, if any, shall be reserved for trial.”
¶7 After a bench trial, the district court concluded that Volk
had carried her burden of demonstrating that the parties had
established a common law marriage for the time they resided in
Utah—approximately thirty months. On that basis, the court
ordered, among other things, equitable division of the parties’
assets as well as alimony in Volk’s favor for thirty months, the
length of the common law marriage in Utah. The court also
determined that it was “fair and equitable” for each party to pay,
aside from one exception not relevant to this appeal, “his or her
own attorneys’ fees and costs.”
¶8 Vecchi appeals.
ISSUES AND STANDARDS OF REVIEW
¶9 Vecchi raises two main issues on appeal. First, he argues
that the district court erred in determining that Volk had shown
that the parties established a common law marriage in Utah.
Specifically, he argues that the court erred by determining “that
the parties had acquired a uniform and general reputation as
husband and wife” and that “the parties had consented to a
common law marriage contract while residing” in Utah. We
review the district court’s interpretation of the common law
20180776-CA 3 2020 UT App 77Volk v. Vecchi
marriage statute for correctness, Hansen v. Hansen, 958 P.2d 931,
933 (Utah Ct. App. 1998), but we review the court’s findings of
fact for clear error and its application of the statute to those
findings for abuse of discretion, Clark v. Clark, 2001 UT 44, ¶ 14,
27 P.3d 538.
¶10 Second, Vecchi argues that the district court erred by
failing to order that the costs of the custody evaluation be shared
equally between the parties. When the issue is preserved, we
review the district court’s denial of costs and fees for abuse of
discretion. See Penunuri v. Sundance Partners, 2017 UT 54, ¶ 15,
423 P.3d 1150; Leppert v. Leppert, 2009 UT App 10, ¶ 10, 200 P.3d
223; Wilde v. Wilde, 969 P.2d 438, 442 (Utah Ct. App. 1998).
However, when, as here, an appellant challenges the adequacy
of the district court’s findings for the first time on appeal, we
consider the issue waived. See 438 Main St. v. Easy Heat, Inc., 2004
UT 72, ¶¶ 50–56, 99 P.3d 801; Shuman v. Shuman, 2017 UT App
192, ¶ 2, 406 P.3d 258.
ANALYSIS
I. The District Court’s Common Law Marriage Determination
¶11 As discussed above, the district court determined that
Volk proved that the parties established a common law marriage
during their time in Utah. Vecchi challenges this determination
on two grounds. First, he argues that the court erred when it
determined that the parties acquired a uniform and general
reputation as being married. Second, he argues that the court
erred when it determined that the parties consented to a
common law marriage.
¶12 Before 1987, Utah did not recognize common law
marriages. Whyte v. Blair, 885 P.2d 791, 793 (Utah 1994).
However, in 1987, our legislature enacted Utah Code section
30-1-4.5, which provides the requirements for establishing the
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validity of a marriage that has not been solemnized. See id. That
section sets out five requirements to establish the validity of such
a marriage:
A marriage which is not solemnized according to
this chapter shall be legal and valid if a court or
administrative order establishes that it arises out of
a contract between a man and a woman who:
(a) are of legal age and capable of giving consent;
(b) are legally capable of entering a solemnized
marriage under the provisions of this chapter;
(c) have cohabited;
(d) mutually assume marital rights, duties, and
obligations; and
(e) who hold themselves out as and have acquired
a uniform and general reputation as husband and
wife.
Utah Code Ann. § 30-1-4.5(1) (LexisNexis 2019). 2 Additionally,
the marriage contract must arise between “two consenting
parties.” Hansen v. Hansen, 958 P.2d 931, 935 (Utah Ct. App.
1998); see also Whyte, 885 P.2d at 794–95 & n.3 (recognizing that
“whether the parties consented to be married is often disputed,”
and setting forth evidence that may be used to establish
consent). In proving the existence of a common law marriage,
“[n]o single factor is determinative,” but each required element
must be established by sufficient evidence. Whyte, 885 P.2d at
794; Hansen, 958 P.2d at 935.
2. Because there have been no material changes to this statute
since 2015, we cite the current version for convenience.
20180776-CA 5 2020 UT App 77Volk v. Vecchi
¶13 As we explain below, we conclude that Vecchi has not
shown that the district court abused its discretion by
determining that the parties had acquired a uniform and general
reputation as a married couple and that they had consented to a
marriage while living in Utah. On this basis, we affirm the
district court’s determinations on both points.
A. Uniform and General Reputation
¶14 Vecchi first challenges the district court’s determination
that the parties had acquired a uniform and general reputation
as husband and wife. See Utah Code Ann. § 30-1-4.5(1)(e). He
points to a few witnesses who testified at trial that they were
informed (and therefore knew) that the parties were not legally
married, and he claims this testimony evidences that the parties
enjoyed a “divided” rather than a “uniform and general”
reputation as husband and wife.
¶15 It is true that “a partial or divided reputation of marriage
is insufficient” to establish that a couple has acquired a “uniform
and general reputation as husband and wife,” as required by
section 30-1-4.5(1)(e). Rivet v. Hoppie, 2020 UT App 21, ¶ 11, 460
P.3d 1054; see also Hansen, 958 P.2d at 936. For example, “a partial
or divided reputation of marriage may be shown when the
parties’ closest friends do not consider the parties married and
the parties are not consistent in holding themselves out as
married to the rest of the world.” Rivet, 2020 UT App 21, ¶ 11
(cleaned up).
¶16 Here, however, the court rejected the notion that the
parties’ reputation was divided and concluded that Volk met her
burden of showing that they had acquired a “general reputation
as husband and wife.” The court found that Volk testified
consistently about the fact that she “regularly referred” to Vecchi
as her husband, that “she considered them to be married,” and
“that she routinely introduced [Vecchi] as her husband to third
parties” and otherwise “regularly represented herself as being
20180776-CA 6 2020 UT App 77Volk v. Vecchi
married.” Volk also testified that both parties “provided
documentation and information to third parties, including
lenders, reflecting her and [Vecchi] as married” and that they
also generally “presented themselves as a married couple.” And
the court found that, although Vecchi’s “testimony was
inconsistent and contradictory,” Volk’s testimony on these
points nevertheless was “supported in large part by [Vecchi’s]
testimony.”
¶17 Additionally, the court found that “a number of
third-party witnesses called by [Volk] provided consistent and
persuasive support for the requirement” that the parties
acquired a uniform and general reputation of being husband and
wife. For example, the court found that a neighbor had the
impression that the parties were married “based on how they
held each other out, interacted with each other and socialized
with others” and that he “did not observe or hear anything
during his acquaintance with [the parties] . . . that made him
question whether they were married.” The court also found that
several of the parties’ acquaintances from their children’s school
similarly held the belief that the parties were married. One
witness testified that “in every discernible way she thought [the
parties] were a married couple,” while another testified that in
her view “there was never a suggestion” in the parties’ behavior
that “they were not married.” Yet another testified that the
parties “appeared to be a normal married couple” and that the
witness observed “nothing” that “suggested otherwise.”
¶18 Vecchi raises no challenge to these findings. See Clark v.
Clark, 2001 UT 44, ¶ 16, 27 P.3d 538 (concluding that there was
sufficient evidence that a couple had acquired a uniform and
general reputation as husband and wife where each party
“routinely introduced each other as husband and wife” and “at
least two witnesses, including a neighbor and a former
daughter-in-law, believed [the couple was] married” based in
part on the fact that the couple “acted like a husband and wife
20180776-CA 7 2020 UT App 77Volk v. Vecchi
would act” (cleaned up)); Hansen, 958 P.2d at 936 (noting that a
uniform and general reputation for marriage may be shown by
“the understanding among the neighbors and acquaintances
with whom the parties associate in their daily life, that they are
living together as husband and wife” (quoting People v. Lucero,
747 P.2d 660, 665 (Colo. 1987))). Instead, Vecchi’s entire
challenge is based on the testimony of a few witnesses he claims
knew that their union had not been solemnized, arguing that the
existence of persons who “were specifically informed and
aware” of the parties’ legal marital status is fatal to the
establishment of this element.
¶19 In this respect, Vecchi points to testimony by a longtime
coworker and friend (Friend) from California who testified he
knew that the parties had never formally married. He also points
to testimony of the human resources vice president of his
employer in Utah, who testified that Vecchi informed her of his
legal marital status for health insurance purposes and she had to
change the company’s health insurance plan to accommodate
Vecchi’s relationship status. And he points to testimony of one of
Volk’s witnesses (Witness), who said that Volk told her that the
parties had never formally married.
¶20 But in crafting section 30-1-4.5, our legislature chose to
base this requirement on the couple’s acquisition of a uniform
and general reputation for being husband and wife, not on the
awareness by a few of the legal status of a couple’s union. See
Utah Code Ann. § 30-1-4.5(1)(e); see also Nichols v. Jacobsen Constr.
Co., 2016 UT 19, ¶ 17, 374 P.3d 3 (“When we interpret a word
within a statute, we first consider its plain meaning. In looking
to determine the ordinary meaning of nontechnical terms of a
statute, our starting point is the dictionary.” (cleaned up));
Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d
863 (stating that “our primary goal” when interpreting statutes
“is to evince the true intent and purpose of the Legislature,”
which requires that we look to “the plain language of the statute
20180776-CA 8 2020 UT App 77Volk v. Vecchi
itself” and presume that “the legislature used each term
advisedly according to its ordinary and usually accepted
meaning” (cleaned up)).
¶21 The plain meaning of the term “reputation”
indicates that it does not rise and fall on particular persons’
knowledge. Rather, a reputation is a collective perception or
estimation by the public or a community. See Reputation,
Dictionary.com, https://www.dictionary.com/browse/reputation
[https://perma.cc/YU63-VBPZ] (defining “reputation” as
“the estimation in which a person or thing is held,
especially by the community or the public generally”);
Reputation, Merriam-Webster.com, https://www.merriam-
webster.com/dictionary/ reputation [https://perma.cc/X4GE-
ANSG] (defining “reputation” as an “overall quality or character
as seen or judged by people in general” and “recognition by
other people of some characteristic or ability”).
¶22 Likewise, the plain meaning of the terms “uniform” and
“general” do not obviously modify the term “reputation” such
that a few persons’ isolated awareness of the legal status of the
parties’ relationship, without more, is sufficient to undermine an
acquired community perception that the parties are husband
and wife. For example, “uniform” is defined as “consistent”
and having “always the same form, manner, or degree.”
See Uniform, Merriam-Webster.com, https://www.merriam-
webster.com/ dictionary/uniform [https://perma.cc/6EEV-EEQS].
In this respect, a couple’s acquired reputation for being
married—one created by the couple’s conduct in holding
themselves out as such—may be consistent in a community
despite some isolated awareness that the couple is not legally
married. Likewise, even assuming that isolated instances of
awareness alone could affect the parties’ overall reputation for
being married, the definition of “general” inherently includes
“possible exceptions.” See General, Dictionary.com,
https://www.dictionary.com/browse/general [https://perma.cc/8S
20180776-CA 9 2020 UT App 77Volk v. Vecchi
CU-Y6HH] (defining “general” as “of, relating to, or true of such
persons or things in the main, with possible exceptions; common
to most; prevalent; usual” and “considering or dealing with
overall characteristics, universal aspects, or important elements,
especially without considering all details or specific aspects”).
¶23 As described above, the district court determined that
the parties consistently held themselves out, and were also
consistently perceived by others, as though they were legally
married; the court found that the parties and “a number of
third-party witnesses” testified to that end. Vecchi has not
shown or explained how, despite the court’s numerous
determinations on this issue, the isolated awareness of his legal
marital status by a confidant or two affected the collective,
community perception and estimation of his relationship with
Volk.
¶24 Moreover, Vecchi’s reliance on Friend’s and Witness’s
testimonies to make his argument also seems misplaced, given
that each also testified to the marriage-like quality of the parties’
relationship. For example, Friend testified that while Vecchi told
him he never had a “formal marriage ceremony,” Friend
nevertheless viewed the parties’ relationship as exclusive and
committed—more than simply a boyfriend-girlfriend
relationship—and related that when they worked together in
California, it was a joking matter that “even though [Vecchi’s]
not married, he acts as if he’s married.” Likewise, Witness
testified that both parties referred to each other as husband and
wife, and she believed the parties were married based on the
parties’ move to Utah with their children and her own
observations with respect to the parties’ roles in the relationship.
Witness also testified that she did not “think much” of the
conversation she had with Volk about the parties’ lack of a
marriage ceremony “before or after” the conversation occurred,
because Volk “expressed that she felt [the parties] were married”
20180776-CA 10 2020 UT App 77Volk v. Vecchi
and Witness “didn’t see any difference” in the parties’
relationship.
¶25 In short, Vecchi has not shown that these witnesses’
awareness of the parties’ legal relationship status created a
“partial or divided” reputation for being husband and wife. We
therefore conclude that the district court did not abuse its
discretion by determining that the parties had acquired a
uniform and general reputation for being husband and wife
while in Utah.
B. Consent
¶26 Vecchi next challenges the district court’s determination
that the parties consented to a common law marriage. He points
to the fact that Volk allegedly proposed to him twice, including
once after moving to Utah, and that he declined both times. He
also generally asserts that the parties purposefully declined to
formally marry despite being able to do so at any time.
¶27 As explained by our courts, parties to a common law
marriage must consent “to the rights and responsibilities that
accompany a legally recognized marital relationship.” Hansen,
958 P.2d at 936; see also Whyte, 885 P.2d at 794 (describing the
consent required as consent “to be married” and to “assume all
marital responsibilities”). While the “best evidence of marital
consent is a written agreement . . . by both parties” manifesting
the requisite consent, our courts have noted that consent may be
established by evidence of certain circumstances in the parties’
relationship, such as “maintenance of joint banking and credit
accounts; purchase and joint ownership of property; the [sharing
of a spouse’s] surname by the [other spouse] and/or the children
of the union; the filing of joint tax returns; speaking of each other
in the presence of third parties as being married; and declaring
the relationship in documents executed by them while living
together, such as deeds, wills, and other formal instruments.”
Whyte, 885 P.2d at 794–95; see also Hansen, 958 P.2d at 936.
20180776-CA 11 2020 UT App 77Volk v. Vecchi
“[C]onsent also may be established by acquiescence,” as
evidenced by “objective words and actions” by one spouse that
led the other spouse “to believe that [the first spouse] had
consented to marriage.” Whyte, 885 P.2d at 794 n.3.
¶28 Here, although Vecchi points to his alleged refusal to
marry Volk while in Utah, he does not acknowledge that Volk
“denied that these proposals had ever occurred.” And the court
found Volk’s testimony about the parties’ relationship status to
be credible, but it found Vecchi’s testimony about it to be
“inconsistent and contradictory.” Thus, the court’s
determination that Vecchi consented to the rights and
responsibilities of a marital relationship is not undermined by
Vecchi’s alleged rejections of Volk’s proposals to marry because
there is no finding that they ever occurred.
¶29 Vecchi also does not challenge or otherwise deal with the
numerous determinations the court made on the issue of the
parties’ consent while in Utah. See Gines v. Edwards, 2017 UT
App 47, ¶ 31, 397 P.3d 612 (explaining that an appellant must
“engage with the bases” of the district court’s determinations to
carry his or her burden of persuasion on appeal); Duchesne Land,
LC v. Division of Consumer Prot., 2011 UT App 153, ¶ 8, 257 P.3d
441 (same); see also State v. Gibson, 2016 UT App 15, ¶¶ 10–11, 366
P.3d 876 (declining to reach the merits of the appellant’s
challenge where he failed “to adequately identify and engage
with the evidence supporting the trial court’s decision”).
¶30 For example, tracking the consent indicia identified in
Whyte, the court found that the “parties cohabitated for over 16
years, including years in Utah,” and that during that time they
“maintained joint bank accounts,” “had joint credit accounts and
car loans,” “purchased and had joint ownership of four (4)
parcels of real property,” and “prepared and filed their tax
returns together.” The court also found that the parties
“described themselves as husband and wife, or married, in the
20180776-CA 12 2020 UT App 77Volk v. Vecchi
presence of third parties” and “were generally known by
persons in the Utah area . . . as a married couple”; that “the
children used the surname of both parents”; and that Vecchi
“even referred to [Volk’s] parents as the ‘in-laws’ at trial.”
Additionally, the court found that “the parties were reflected as
married in numerous documents executed . . . while they were
living together, including insurance documents, loan documents
on real property, and the like.” For these reasons, the court
ultimately concluded that the “indicia of common law marriage
[were] present” and that “the parties consented to the common
law marriage.”
¶31 Because Vecchi does not acknowledge or persuasively
deal with the court’s findings on the issue of consent, Vecchi has
not shown an abuse of discretion in the court’s determination
that the parties consented to a common law marriage. See Gines,
2017 UT App 47, ¶ 31; Gibson, 2016 UT App 15, ¶¶ 10–11.
¶32 In short, Vecchi has not demonstrated that the district
court abused its discretion in determining that the parties
consented to a common law marriage and acquired a uniform
and general reputation as husband and wife. Accordingly, we
affirm the district court’s conclusion that Volk “met her burden”
of showing that the parties had established a common law
marriage in Utah.
II. The District Court’s Costs Decision
¶33 Vecchi also challenges the district court’s failure to order
that the parties share equally the costs of the custody evaluation.
He characterizes the court’s decision on this point as a complete
failure to render a decision on the issue. He also claims that it is
only equitable that both parties bear the cost of the evaluation
because both parties benefitted from it.
¶34 We are unable to grant the relief Vecchi requests. To begin
with, we question Vecchi’s assertion that the district court
20180776-CA 13 2020 UT App 77Volk v. Vecchi
completely failed to render a decision on the costs issue. In its
post-trial orders, the court expressly determined that it was “fair
and equitable” for each party to “pay his or her own attorneys’
fees and costs.” On its face, this determination arguably includes
the costs of the custody evaluation.
¶35 But to the extent Vecchi believed that the district court
failed in not making a specific finding about the custody
evaluation costs, it was incumbent on Vecchi to raise the issue in
that court. See 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶¶ 50–
56, 99 P.3d 801 (explaining that a challenge to the adequacy of a
district court’s findings must be raised before the district court in
the first instance, or the issue will be deemed waived on appeal);
Seamons v. Wiser, 2020 UT App 33, ¶¶ 12–14 (rejecting the
argument that the district court failed to rule on two specific
arguments where the appellant failed to raise the issue before
the district court); PC Crane Service, LLC v. McQueen Masonry,
Inc., 2012 UT App 61, ¶¶ 46–47, 273 P.3d 396 (concluding that the
appellant had waived the issue of the adequacy of the district
court’s costs findings where it did not raise it before the district
court). He did not do so.
¶36 While Vecchi included the issue of the custody evaluation
costs in his proposed findings of fact and conclusions of law,
after the court issued its post-trial orders Vecchi would have
been alerted to the alleged inadequacy in the court’s findings
with respect to the custody evaluation costs. Yet Vecchi has not
directed us to any place in the record indicating that he alerted
the court at any time following those orders to the alleged
inadequacy he asserts on appeal. Nor have we discovered his
presentation of the issue to the district court in our review.
Accordingly, he has waived this issue for appeal, and we will
not consider the issue further. See PC Crane, 2012 UT App 61,
¶¶ 46–47.
20180776-CA 14 2020 UT App 77Volk v. Vecchi
CONCLUSION
¶37 We conclude that Vecchi has not demonstrated that the
district court abused its discretion in determining that the parties
entered into a common law marriage in Utah. We also conclude
that Vecchi has waived his argument with respect to the custody
evaluation’s costs. For these reasons, we affirm.
20180776-CA 15 2020 UT App 77