Reller v. Argenziano ( 2015 )

2015 UT App 241THE UTAH COURT OF APPEALS
KARINE RELLER,
Appellant,
v.
FRANCIS ARGENZIANO,
Appellee.
Opinion
No. 20140736-CA
Filed September 17, 2015
Third District Court, Salt Lake Department
The Honorable Su J. Chon
No. 094903937
Gregory W. Stevens, Attorney for Appellant
James A. McIntyre and Richard R. Golden, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES STEPHEN L. ROTH and JOHN A. PEARCE concurred.
CHRISTIANSEN, Judge:
¶1 Karine Feldman (formerly Karine Reller) appeals from the
trial court’s Amended Supplemental Decree of Parentage and
Judgment. She challenges the trial court’s order denying her
motion to amend her complaint to recover retroactive child
support from 2005 to 2009. In addition, Feldman claims that the
trial court abused its discretion by imputing income to Francis
Argenziano without first finding that he was voluntarily
underemployed and by declining to hold Argenziano in
contempt for failing to pay child support for January and
February 2013. We affirm.
Reller v. Argenziano
BACKGROUND
¶2 In 2005, Feldman gave birth to a child while married to
Micah Reller. Feldman and Reller divorced in 2006 via a default
decree. See Reller v. Reller, 2012 UT App 323, ¶ 2, 291 P.3d 813.
That divorce decree identified that the parties had one child
during the marriage. Id. At the time the decree was entered,
Feldman had sole physical custody of the child and Reller had
visitation rights. Id. In 2007, Reller petitioned the court to modify
the custody arrangement. Id. Feldman opposed the petition to
modify, and filed her own petition to modify, “wherein she
asserted for the first time that [Reller] was not actually the father
of her child.” Id. Feldman then sought to join Argenziano in the
divorce case so that he could be adjudicated as the father of the
child. Id. ¶ 3. Through genetic testing, Reller was excluded as the
child’s father. Id. In March 2009, the district court in the divorce
case “entered a stipulated partial decree of divorce, effectively
divorcing [Reller] and [Feldman] and setting forth findings
adequate to rebut the parental presumption as to [Reller],
excluding him as the father of the child born during the
marriage.” Id.
¶3 In September 2009, the State of Utah commenced a child-
support and paternity action against Argenziano on behalf of
Feldman. The complaint requested that child support be
awarded both prospectively and retroactively from March 2009.
¶4 In September 2010, Feldman and Argenziano attempted
to resolve the child-support issue by mutual agreement. In a
written stipulation, Argenziano and Feldman agreed that
Argenziano would pay Feldman “$26,000.00 representing 13
months of retroactive child support from July 1, 2009 to August
1, 2010.”
¶5 The trial court declined to approve the stipulation because
it was only a partial settlement and Feldman was not a party to
the child-support case. In December 2010, the trial court ordered
20140736-CA 2 2015 UT App 241Reller v. Argenziano
that Feldman be substituted as the petitioner in the child-
support case in place of the State, stating that the underlying
complaint would remain.
¶6 After she was joined in the case, Feldman filed a motion
for “Temporary Orders and an Order Enforcing the Settlement
Agreement,” seeking orders regarding child support, retroactive
child support “pursuant to the parties’ stipulated agreement,”
parent-time, and health insurance. A domestic relations
commissioner held a hearing on the motion, entered temporary
orders, and reserved for trial the issues of child support and
retroactive child support. At a review hearing one month later,
the commissioner recommended that Argenziano pay child
support prospectively from November 2010 in the amount of
$3,017.30 per month and reserved “any prior claims” for trial.
¶7 Following the commissioner’s recommendation, the trial
court denied Feldman’s renewed motion to enforce the
settlement agreement. Regarding child support, the court
ordered Argenziano to pay Feldman child support in the
amount recommended by the commissioner. The court based
this determination on Feldman’s imputed gross monthly income
of $1,257.00 and Argenziano’s adjusted gross monthly income
for 2010 of $41,815.45. The court did not enter any orders
regarding retroactive child support, stating that “the issue of
whether or not the Respondent should be ordered to pay to
Petitioner support prior to November 2010 is reserved for trial.”
¶8 Argenziano’s income changed significantly before trial.
As a result, he moved to reduce his temporary support
obligation. The court denied Argenziano’s request to reduce his
temporary child support from $3,017.30 to $920.00 based on his
claimed change in income. The court did, however, reduce his
temporary child support obligation to $2,724.00 based on credits
for having a minor child in his home and medical insurance
premiums for that minor child.
20140736-CA 3 2015 UT App 241Reller v. Argenziano
¶9 On November 18, 2012, Feldman’s counsel sent an email
to Argenziano’s counsel, stating, “As I am sure you have
assumed, our position will be for support from September, 2005,
per the statute.” Discovery closed on March 21, 2013. The parties
filed their trial briefs on August 21, 2013. In her trial brief,
Feldman stated,
Utah Code Ann. § 78B-15-109 allows the Court to
make the child support order retroactive four years
prior to the filing of the petition. Here, the petition
was filed on September 3, 2009. There is no reason
not to require [Argenziano] to support his child as
far back as the statute allows. Thus, the Court
should make the support order retroactive to
September 3, 2005.
We refer to Feldman’s claim for retroactive child support
extending back to 2005 as the “Retroactive Support Claim.”
¶10 A pretrial hearing was held on August 28, 2013. At the
pretrial hearing, Argenziano raised a number of evidentiary
objections but did not object to the Retroactive Support Claim.
The court then directed the parties to identify before trial any
exhibits to which there were objections and concluded the
hearing. On the morning of trial, Argenziano objected to the
Retroactive Support Claim. Argenziano also objected to the
admission of any tax returns for years predating the filing of the
action because “they would not be relevant to child support.”
Argenziano claimed that the complaint, which sought
retroactive child support only from March 2009 to September
2009, was “the basis [the parties have] litigated the entire lawsuit
and now, in the trial brief for the first time, the issue of child
support back to 2005 is being raised. That’s improper and that
denies [Argenziano] due process of law.” In response, Feldman
made an oral motion to amend the complaint, claiming that the
petition was filed by the State, not Feldman, and that she “did
not see [the complaint].” Argenziano then stated that, had
20140736-CA 4 2015 UT App 241Reller v. Argenziano
Feldman moved to amend her complaint to add the Retroactive
Support Claim, he “would have objected” and “now to move to
amend [the complaint] on the day of trial is certainly prejudicial
to [Argenziano].” The court took the motion under advisement
and told both parties that it would conditionally accept evidence
relating to child support for the years 2005 through 2009 and
would rule on the motion and evidence once it received
supplemental briefing from the parties after trial. After receiving
the supplemental briefing, the court denied the motion to
amend, finding that it was untimely and prejudicial to
Argenziano and that there was no justification for Feldman’s
delay in filing the motion.
¶11 In its findings of fact and conclusions of law entered after
trial, the trial court imputed $6,443.33 in monthly income to
Argenziano “[b]ased on all of the evidence, [the] uncertainty
with respect to [Argenziano’s] employment, and the [Bureau of
Labor Statistics’s] average median wage in the New York area”
for financial specialists working in investment banking and
securities dealing. The trial court also denied Feldman’s request
to hold Argenziano in contempt for failing to pay child support
in January and February 2013 because Argenziano “did not have
the ability to pay.”
¶12 Feldman filed a motion for new trial, arguing, among
other things, that the trial court erred by not treating the
Retroactive Support Claim as having been tried by consent. The
trial court denied the motion, explaining that it could not deem
the Retroactive Support Claim to have been tried by consent,
because Argenziano objected before trial to Feldman’s attempt to
try the issue. Feldman now appeals.
ISSUES AND STANDARDS OF REVIEW
¶13 Feldman argues that the trial court should have
determined that the Retroactive Support Claim was tried by
20140736-CA 5 2015 UT App 241Reller v. Argenziano
express or implied consent pursuant to rule 15(b) of the Utah
Rule of Civil Procedure. “We review for correctness a district
court’s determination that rule 15(b) is inapplicable.” McCollin v.
J.D.F. Props., LLC, 2014 UT App 75, ¶ 13, 324 P.3d 662.
¶14 Next, Feldman argues that by denying her motion to
amend, the court “effectuated a waiver” of the Retroactive
Support Claim in violation of Utah Code section 78B-12-109.
Whether Utah Code section 78B-12-109 applies “is a matter of
statutory interpretation, which presents a question of law.” See
Vorher v. Henriod, 2013 UT 10, ¶ 6, 297 P.3d 614 (citation and
internal quotation marks omitted). We review the trial court’s
interpretation of the statute for correctness. See id. And we will
not disturb a trial court’s denial of a motion to amend pleadings
absent an abuse of discretion. See Fishbaugh v. Utah Power &
Light, 969 P.2d 403, 405 (Utah 1998).
¶15 Feldman claims that the court erred in imputing income
to Argenziano “when it concluded, albeit implicitly, that Mr.
Argenziano is not voluntarily underemployed” and that the
court erred “as a matter of law when it imputed income to him
based solely on general data from the [Bureau of Labor
Statistics].” Because trial courts have broad discretion to award
child support, “we will not disturb such decisions 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 exercise[d] its
discretion within the bounds and under the standards we have
set and has supported its decision with adequate findings and
conclusions,’ we will not substitute our judgment for the trial
court’s.” Id. (alteration in original) (quoting Connell v.
Connell, 2010 UT App 139, ¶ 5, 233 P.3d 836).
¶16 Finally, Feldman argues that the court erred by declining
to hold Argenziano in contempt for failing to pay child support
in accordance with the trial court’s temporary child-support
order. We review the trial court’s decision not to hold a party in
20140736-CA 6 2015 UT App 241Reller v. Argenziano
contempt for an abuse of discretion. Gardner v. Gardner, 2012 UT
App 374, ¶ 14, 294 P.3d 600.
ANALYSIS
I. The Court Correctly Concluded That the Retroactive Support
Claim Was Not Tried by Express or Implied Consent.
¶17 Feldman first argues that the trial court erred “when it
failed to treat the issue of retroactive child support as having
been tried by express or implied consent” pursuant to rule 15(b)
of the Utah Rules of Civil Procedure. Feldman bases this
argument on the trial court’s “prior, repeated, specific
reservation of the issue and the parties’ prior, implicit consent to
try the issue.” Feldman contends that Argenziano implicitly
consented to try the Retroactive Support Claim because Feldman
raised the issue in her trial brief and Argenziano did not object
to the Retroactive Support Claim until the morning of trial.
¶18 “When issues not raised by the pleading are tried by
express or implied consent of the parties, they shall be treated in
all respects as if they had been raised in the pleadings.” Utah R.
Civ. P. 15(b). “Such amendments of the pleadings as may be
necessary . . . to raise these issues may be made upon motion of
any party at any time, . . . but failure so to amend does not affect
the result of the trial of these issues.” Id. A finding of
implied consent “depends on whether the parties recognized
that an issue not presented by the pleadings entered the case at
trial.” Keller v. Southwood N. Med. Pavilion, Inc., 959 P.2d 102, 105
(Utah 1998) (citation and internal quotation marks omitted). “A
party may give implied consent when it does not object to the
introduction of evidence at trial.” Id.; see also Zions First Nat’l
Bank v. Rocky Mountain Irrigation, Inc., 795 P.2d 658, 663–64 (Utah
1990) (concluding that rule 15(b) requires “that the pleadings be
conformed to the evidence presented at trial when no objection
is made to the introduction of such evidence”).
20140736-CA 7 2015 UT App 241Reller v. Argenziano
¶19 Here, Feldman first raised the Retroactive Support Claim
in her trial brief. 1 Argenziano did not object to the Retroactive
Support Claim at the pretrial hearing, but the morning of trial he
objected to trying this issue. Counsel for Argenziano stated that
he had not conducted discovery or prepared for the Retroactive
Support Claim because the claim did not appear in the
complaint. Counsel therefore objected to the admission of any
evidence related to Argenziano’s income for the years 2005
through 2008 because it “would not be relevant to child
support.” In light of Argenziano’s objection, the court
conditionally received the evidence related to the Retroactive
Support Claim pending the court’s resolution of Feldman’s
motion to amend and Argenziano’s objection.
¶20 Given the course of these proceedings, we cannot agree
with Feldman that the Retroactive Support Claim was tried by
consent. Argenziano objected to the admission of any evidence
related to the Retroactive Support Claim. While the trial court
nevertheless received that evidence, it did so conditionally upon
resolution of Feldman’s motion and Argenziano’s objection
before and after trial. Because the evidence relating to the
Retroactive Support Claim was not received without objection,
we cannot conclude that the issue was tried by consent such that
the pleadings were required to be “conformed to the evidence
presented at trial” pursuant to rule 15(b). See Zions First Nat’l
Bank, 795 P.2d at 663.
1. Feldman’s counsel’s November 2012 email to Argenziano’s
counsel stating that “[Feldman’s] position will be for support
from September, 2005, per the statute,” arguably raised the
Retroactive Support Claim somewhat earlier. Such a conclusion
would not affect our analysis, however, because Argenziano
objected to the claim and the related evidence once the issue
arose at trial.
20140736-CA 8 2015 UT App 241Reller v. Argenziano
¶21 Feldman also argues that the Retroactive Support Claim
was tried by consent because the trial court repeatedly reserved
the issue for trial “without limitation.” However, the court never
unconditionally reserved the issue of child support for
September 2005 through March 2009, the relevant period for the
Retroactive Support Claim. The complaint sought retroactive
child support only for March 2009 to September 2009. Nothing in
the record suggests that the trial court understood Feldman’s
claim to encompass more than the relief sought in the complaint
until Feldman filed her trial brief. And when, on the morning of
trial, the trial court reserved the question of the Retroactive
Support Claim until after trial, it did so in the face of
Argenziano’s objection to Feldman’s claim for relief not sought
in the complaint. Thus, the trial court’s statements reserving
“retroactive” child support or “any prior claims” for trial cannot
reasonably be read as going beyond the claims set forth in the
complaint, which requested child support only from March 2009
onward. Thus, even were we to accept Feldman’s contention that
the trial court itself could have “consented” to the trial of an
issue by reserving it for trial, we would nevertheless conclude
that the trial court did not do so here.
¶22 Accordingly, the trial court correctly determined that rule
15(b) was inapplicable because the Retroactive Support Claim
was not tried by express or implied consent. 2
2. Feldman also argues that the trial court “should have treated
the reservation of retroactive child support as the law of the
case.” Under the law of the case doctrine, “a decision made on
an issue during one stage of the case is binding in successive
stages of the same litigation.” B.A.M. Dev., LLC v. Salt Lake
County, 2012 UT 26, ¶ 34, 282 P.3d 41 (citation and internal
quotation marks omitted). By reserving the issue for later
disposition, the trial court explicitly declined to render a decision
on the issue of retroactive-child support in its pretrial orders.
(continued…)
20140736-CA 9 2015 UT App 241Reller v. Argenziano
II. The Trial Court Did Not Abuse Its Discretion in Denying
Feldman’s Motion to Amend.
¶23 Second, Feldman claims that the trial court erred “as a
matter of law by deciding that Ms. Feldman had waived her
right to seek retroactive child support . . . based on the fact that a
specific claim for it was not included in the initial Complaint
filed by the State of Utah.” Feldman argues that the trial court’s
denial of her oral motion to amend her complaint to include the
Retroactive Support Claim on the morning of trial “effectuated a
waiver of child support, absent a specific, written waiver, in
contravention of [Utah Code section] 78B-12-109.” We therefore
first consider whether the trial court properly denied Feldman’s
motion to amend her complaint to include the Retroactive
Support Claim. We then consider whether that denial
“effectuated a waiver of child support.”
¶24 Rule 15(a) of the Utah Rules of Civil Procedure states that,
after the responsive pleadings have been filed, “a party may
amend his pleading only by leave of court or by written consent
of the adverse party; and leave shall be freely given when justice
so requires.” In ruling on a motion to amend, a trial court must
weigh three factors: the timeliness of the motion, the justification
for the delay, and the resulting prejudice to the responding
party. ASC Utah, Inc. v. Wolf Mountain Resort, LC, 2013 UT 24,
¶ 26, 309 P.3d 201. We must give considerable deference to the
trial court, “as it is best positioned to evaluate the motion to
amend in the context of the scope and duration of the lawsuit.”
Daniels v. Gamma W. Brachytherapy, LLC, 2009 UT 66, ¶ 60, 221
P.3d 256 (citation and internal quotation marks omitted). We
(…continued)
Thus, there was no decision on the issue of retroactive-child
support that could have implicated the law of the case doctrine
until the trial court entered its post-trial ruling.
20140736-CA 10 2015 UT App 241Reller v. Argenziano
generally will uphold a trial court’s denial of a motion to amend
“where the amendment is sought late in the course of the
litigation, where there is no adequate explanation for the delay,
and where the movant was aware of the facts underlying the
proposed amendment long before its filing.” Hill v. State Farm
Mut. Auto. Ins. Co., 829 P.2d 142, 149 (Utah Ct. App. 1992)
(citation and internal quotation marks omitted).
¶25 “[M]otions to amend are typically deemed untimely when
they are filed in the advanced procedural stages of the litigation
process, such as after the completion of discovery, [or] on the eve
of a scheduled trial date.” Kelly v. Hard Money Funding, Inc., 2004
UT App 44, ¶ 29, 87 P.3d 734. Additionally, “regardless of the
procedural posture of the case, motions to amend have typically
been deemed untimely when they were filed several years into
the litigation.” Id. ¶ 30; see also Neztsosie v. Meyer, 883 P.2d 920,
922 (Utah 1994) (concluding that the trial court’s denial of a
motion to amend filed three years after the complaint was not an
abuse of discretion). This is because “the ongoing passage of
time makes it increasingly difficult for the nonmoving party to
effectively respond to the new allegations or claims.” Kelly, 2004
UT App 44, ¶ 30. Additionally, the Utah Supreme Court has
stated that when determining whether a motion to amend
should be granted, the trial court must consider “whether the
opposing side would be put to unavoidable prejudice by having
an issue adjudicated for which he had not had time to prepare.”
Kasco Servs. Corp. v. Benson, 831 P.2d 86, 92 (Utah 1992) (citation
and internal quotation marks omitted).
¶26 The State filed a complaint against Argenziano on
September 3, 2009. In the complaint, the State requested that
Argenziano be ordered to pay child support “[b]eginning March
2009.” The complaint did not seek retroactive child support
beyond March 2009. When Feldman was substituted as the
petitioner in the case in place of the State in December 2010, the
court stated that the underlying complaint would remain.
20140736-CA 11 2015 UT App 241Reller v. Argenziano
Feldman’s trial counsel entered an appearance in March 2012
and remained Feldman’s counsel for the remainder of the case.
In November 2012, Feldman’s counsel sent an email to
Argenziano’s counsel inquiring whether Argenziano had a
“settlement proposal to make on back child support” and
stating, “As I am sure you have assumed, our position will be for
support from September, 2005, per the statute.” But Feldman did
not move to amend the complaint until the morning of trial, after
Argenziano objected to the Retroactive Support Claim contained
in Feldman’s trial brief. Before filing her trial brief, Feldman had
never identified the Retroactive Support Claim in any filing with
the court, and she made no attempt to actually plead such a
claim until the morning of trial, when she moved to amend her
complaint.
¶27 The trial court found that Feldman’s motion was
untimely, that Feldman had failed to present sufficient
justification for her delay, and that Argenziano would be
prejudiced by the amendment. The trial court found the motion
untimely because, by Feldman’s “own statement, [she] knew in
November 2012 that she wanted to request child support from
September 2005. The parties stipulated to a scheduling order,
and fact discovery expired on March 21, 2013,” yet “[n]o motion
to amend was filed at or before either time.” The trial court
found that Feldman’s proffered reason for the delay—that she
did not know what was in the complaint and could not read
English—was not justified, because Feldman was represented by
counsel. And based on the November 2012 email, the court
found that Feldman and her counsel were aware that she
intended to seek retroactive child support and “had ample time
to move to amend the Complaint.” Finally, the court found that
Argenziano would be prejudiced by an amendment to the
complaint on the morning of trial because “he conducted
discovery based on the dates identified in the Complaint” and he
“did not conduct discovery with respect to the back child
support and would be prejudiced in presenting evidence at
20140736-CA 12 2015 UT App 241Reller v. Argenziano
trial.” Accordingly, the court denied Feldman’s motion to amend
her complaint.
¶28 Even assuming that the November 2012 email from
Feldman’s counsel provided Argenziano with notice of
Feldman’s intent to seek retroactive child support back to
September 2005, Feldman never moved to amend her claim until
the morning of trial. At that point, the period for fact discovery
had long expired and Argenziano had prepared for trial based
on the claims in the complaint. Under Utah’s pleading
requirements, “‘claims must . . . be restricted to the grounds set
forth in the complaint.’” Barton Woods Homeowners Ass’n, Inc. v.
Stewart, 2012 UT App 129, ¶ 11, 278 P.3d 615 (omission in
original) (quoting Holmes Dev., LLC v. Cook, 2002 UT 38, ¶ 31, 48
P.3d 895). Any assertions of unpleaded claims in emails or trial
briefs “cannot remedy the failure to include them in an
appropriate pleading.” Id.
¶29 Having concluded that the motion to amend was properly
denied, we next consider Feldman’s argument that the denial of
her motion to amend “effectuated a waiver of child support” in
violation of Utah Code section 78B-12-109. 3 We conclude that the
trial court’s decision resulted in Feldman’s forfeiture of her
Retroactive Support Claim, rather than a waiver of that claim,
and that Utah Code section 78B-12-109 is therefore not
implicated.
¶30 Though principles of waiver and forfeiture are “often
used interchangeably,” “the two concepts are technically
distinct.” Ralphs v. McClellan, 2014 UT 36, ¶ 24 n.3, 337 P.3d 2303. Utah Code section 78B-12-109 states, “Waiver and estoppel
shall apply only to the custodial parent when there is no order
already established by a tribunal” and only then if the custodial
parent specifically waives the support in writing. Utah Code
Ann. § 78B-12-109(1) (LexisNexis 2012).
20140736-CA 13 2015 UT App 241Reller v. Argenziano
(citation and internal quotation marks omitted). “Forfeiture ‘is
the failure to make the timely assertion of a right,’ whereas
waiver ‘is the intentional relinquishment or abandonment of a
known right.’” Id. (quoting United States v. Olano, 507 U.S. 725,
733 (1993)).
¶31 The question at issue here is thus, technically, a matter of
forfeiture rather than waiver. The trial court did not find that
Feldman or her child had waived the right to retroactive child
support from Argenziano. Instead, the trial court found that
Feldman failed to amend her complaint pursuant to rule 15 of
the Utah Rules of Civil Procedure. By failing to timely move to
amend her complaint, Feldman effectively forfeited any claim
for retroactive child support for the period of 2005 to March
2009. 4 Because Utah Code section 78B-12-109 imposes limitations
on the waiver, but not the forfeiture, of child-support claims, we
conclude that the statute was not implicated by the trial court’s
denial of Feldman’s motion to amend. Accordingly, the trial
court did not abuse its discretion by denying Feldman’s motion
to amend her complaint on the morning of trial.
III. The Trial Court Did Not Abuse Its Discretion When It
Imputed Income to Argenziano.
¶32 Next, Feldman argues that to impute income to
Argenziano, the trial court was required to first determine if
Argenziano was voluntarily unemployed or underemployed and
then determine how much income should be imputed. She
argues that the trial court “abused its discretion and reached a
clearly erroneous[] finding when it concluded, albeit implicitly,
that Mr. Argenziano [was] not voluntarily underemployed” and
that the court erred “as a matter of law when it imputed income
4. We do not address the issue of whether Feldman was legally
entitled to seek retroactive child support beginning in September
2005.
20140736-CA 14 2015 UT App 241Reller v. Argenziano
to him based solely on general data from the [Bureau of Labor
Statistics].”
¶33 Before imputing income to a parent, the trial court must
“enter[] findings of fact as to the evidentiary basis for the
imputation.” Utah Code Ann. § 78B-12-203(7)(a) (LexisNexis
2008). Though voluntary unemployment or underemployment
may be relevant when considering whether a party is
“concealing income or . . . shirking in his [or her] efforts to earn
income,” a finding of voluntary unemployment or
underemployment is not a prerequisite to imputing income. 5 See
Rayner v. Rayner, 2013 UT App 269, ¶ 10 & n.4, 316 P.3d 455(citation and internal quotation marks omitted); Busche v. Busche,
2012 UT App 16, ¶ 16, 272 P.3d 748. The focus of the imputation
analysis is therefore on the “detailed findings of fact necessary to
support a decision to impute income” rather than the “ultimate
fact or . . . legal conclusion” of voluntary unemployment or
underemployment. Cf. Rayner, 2013 UT App 269, ¶ 10.
¶34 Despite the trial court’s later concession that it “did not
find [Argenziano] to be underemployed and perhaps used the
5. A previous version of Utah Code section 78B-12-203 allowed
imputation of income in contested cases only after “a hearing
[was] held and a finding made that the parent [was] voluntarily
unemployed or underemployed.” Utah Code Ann. § 78-45-
7.5(7)(a) (LexisNexis 2002). That section was amended in 2007,
replacing the requirement that a parent be found voluntarily
unemployed or underemployed with the general requirement
that the trial court identify the evidentiary basis for the decision.
See Rayner v. Rayner, 2013 UT App 269, ¶ 10 & n.4, 316 P.3d 455.
Compare Utah Code Ann. § 78-45-7.5(7)(a) (LexisNexis 2002),
with id. § 78-45-7.5(7)(a) (Supp. 2007). The statute was then
renumbered in 2008 as section 78B-12-203. Id. § 78B-12-203
(2008).
20140736-CA 15 2015 UT App 241Reller v. Argenziano
word ‘impute’ incorrectly,” the substance of the court’s order
was in fact an imputation of income. The trial court entered
detailed findings of fact regarding Argenziano’s employment
history and salary between 2006 and 2013. The court considered
the testimony given at trial regarding each of Argenziano’s jobs
and his reasons for leaving, as well as his periods of
unemployment, and found Argenziano’s testimony credible. The
court then considered Argenziano’s work history and
occupational qualifications. The court found that Argenziano’s
employment opportunities with high-paying brokerage firms
were limited due to his educational background. The court then
considered the earning potential reported by the Bureau of
Labor Statistics (the BLS) for Argenziano’s job description.
¶35 In explaining its findings, the court stated that Feldman
had failed to “provide any evidence or expert testimony
rebutting [or] regarding [Argenziano’s] testimony, his
profession, his employment opportunities, his alleged voluntary
underemployment, employment situation for persons similarly
situated to [Argenziano], the pay rates available at boutique
firms, and any job description and duties for a managing
director.” Based on the findings regarding Argenziano’s
employment potential and probable earnings, the trial court
imputed to Argenziano an income in the amount of $77,320 per
year, or $6,443.33 per month.
¶36 Given the trial court’s detailed findings and the text of the
relevant statute, we conclude that the trial court was not
required to make a finding that Argenziano was voluntarily
unemployed before imputing income to him. See id. ¶ 10 & n.4.
Moreover, Feldman has not explained why a finding of
voluntary unemployment would have made any difference to
the trial court’s decision to impute income to Argenziano. A
harmless error is “‘an error that is sufficiently inconsequential
that we conclude there is no reasonable likelihood that the error
affected the outcome of the proceedings.’” Covey v. Covey, 2003
20140736-CA 16 2015 UT App 241Reller v. Argenziano
UT App 380, ¶ 21, 80 P.3d 553 (quoting Crookston v. Fire Ins.
Exch., 817 P.2d 789, 796 (Utah 1991)). If the trial court had found
that Argenziano was voluntarily underemployed, that finding
could only have provided additional support for the trial court’s
decision to impute income to Argenziano. Thus, although the
trial court imputed income to Argenziano without finding that
he was voluntarily underemployed, any error in declining to
make that finding was harmless. 6
¶37 We next consider Feldman’s claim that the trial court
improperly relied “solely” on data from the BLS in calculating
the amount of income to impute to Argenziano. Utah Code
section 78B-12-203(7)(b) states,
6. Even if we were to assume that the trial court implicitly found
that Argenziano was voluntarily underemployed because he
was not “forced” to resign from his employment in 2011 but
rather resigned voluntarily, the result reached by the trial court
would still be a matter of discretion. “[A] finding of voluntary
underemployment does not require a court to impute the higher
income; it merely allows it to do so.” Connell v. Connell, 2010 UT
App 139, ¶ 17, 233 P.3d 836; see also Hill v. Hill, 869 P.2d 963, 964–
65 (Utah Ct. App. 1994) (stating that a court may impute income
if it has made a finding that a party is voluntarily unemployed
or underemployed). “Thus, the court maintains its broad
discretion to select an appropriate method of assessing a
spouse’s income.” Connell, 2010 UT App 139, ¶ 17 (citation and
internal quotation marks omitted). The trial court imputed an
income to Argenziano based on his occupational qualifications,
his previous employment, and the prevailing earnings of similar
persons, without finding that Argenziano was voluntarily
underemployed. Even had the trial court found that Argenziano
was voluntarily underemployed, Feldman has failed to explain
how such a finding would have altered the trial court’s ultimate
imputation of income.
20140736-CA 17 2015 UT App 241Reller v. Argenziano
If income is imputed to a parent, the income shall
be based upon employment potential and probable
earnings as derived from employment oppor-
tunities, work history, occupation qualifications,
and prevailing earnings for persons of similar
backgrounds in the community, or the median
earning for persons in the same occupation in the
same geographical area as found in the statistics
maintained by the Bureau of Labor Statistics.
Utah Code Ann. § 78B-12-203(7)(b) (LexisNexis 2008).
¶38 First, we disagree that the trial court’s calculation of
Argenziano’s imputed income was based “solely on general data
from the BLS.” The trial court considered Argenziano’s work
history and his occupational qualifications, finding that he did
not have employment opportunities with larger brokerage firms.
The court then considered the BLS information provided by both
parties. The court stated that Feldman had failed to “provide any
evidence or expert testimony rebutting [or] regarding
[Argenziano’s] testimony, his profession, his employment
opportunities, his alleged voluntary underemployment,
employment situation for persons similarly situated to
[Argenziano], the pay rates available at boutique firms, and any
job description and duties for a managing director.” The court
also found credible Argenziano’s testimony regarding his
employment. Based on the evidence presented at trial, the court
relied on the BLS data as a guide to impute income to
Argenziano.
¶39 The trial court determined that “[i]n totality, . . . the BLS
figure was an appropriate means in determining support
payments.” Given the trial court’s findings relating to the other
imputation factors, we see no abuse of discretion in the trial
court’s use of the BLS data to arrive at an appropriate income.
The trial court relied on Argenziano’s testimony regarding his
previous and current employment, his wife’s testimony, and the
20140736-CA 18 2015 UT App 241Reller v. Argenziano
BLS information in arriving at the imputed income amount.
Relying on this evidence, the court found that the recession in
2008 “had a significant effect on the brokerage industry” and
that “many of [Argenziano’s] friends lost their jobs in the same
industry during the recession and had not found replacement
jobs as a result.” The court also found that Argenziano “was
impacted by . . . the recession.”
¶40 Despite these findings, Feldman argues that the court
should have used Argenziano’s historical income to impute
income to Argenziano because “his historical income provides
the best evidence of his earning capacity.” Yet Feldman has
failed to demonstrate how, in light of the findings made by the
court, Argenziano’s historical income provides a better basis for
calculating Argenziano’s earning potential than the trial court’s
detailed analysis. Feldman also failed to provide the court with
any evidence or expert testimony that Argenziano could obtain a
job paying a salary similar to his historical income. The court
therefore properly relied on Argenziano’s testimony, his current
job placement, and the BLS data to impute an income of $77,320,
or $6,443.33 per month. Feldman has failed to convince us that
the court abused its discretion in calculating Argenziano’s
imputed income.
IV. The Trial Court Did Not Abuse Its Discretion in Declining to
Find Argenziano in Contempt for Failure to Comply with the
Temporary Child Support Order.
¶41 Finally, Feldman argues that the court erred by declining
to hold Argenziano in contempt for failing to pay child support
in January and February 2013. “‘Under Utah law, in order to
prove contempt for failure to comply with a court order it must
be shown that the person cited for contempt knew what was
required, had the ability to comply, and intentionally failed or
refused to do so.’” Homeyer v. Stagg & Assocs. (In re Interest of
Cannatella), 2006 UT App 89, ¶ 6, 132 P.3d 684 (Von Hake v.
Thomas, 759 P.2d 1162, 1172 (Utah 1988)).
20140736-CA 19 2015 UT App 241Reller v. Argenziano
¶42 The court found that Argenziano knew both that there
was a child-support order and that he was required to pay child
support for January and February 2013. However, the trial court
found that Argenziano did not have the ability to pay.
Argenziano testified that he was unemployed in November and
December 2012, that he was displaced by Hurricane Sandy for
several weeks, and that he had another child born around that
time. Argenziano testified that in January 2013, he began to work
with a new company but received no income other than COBRA
insurance premiums, which had been paid by another employer.
The court found credible his testimony “regarding the change in
the economy, the impact on the financial services industry, his
loss of jobs and income, and his 2013 income year to date.”
Because of his inability to pay, the court declined to hold
Argenziano in contempt for failing to pay the child support he
owed to Feldman.
¶43 Feldman does not challenge the trial court’s finding that
Argenziano lacked the ability to comply with the child-support
order. Rather, she simply argues that based on his decision to
take a job where he earned less money, “his failure to satisfy his
child support obligation was clearly intentional.” But even if we
agreed with Feldman, the trial court’s unchallenged finding that
Argenziano lacked the means to comply with the child-support
order precludes a finding of contempt. See id.
¶44 In sum, based on the evidence presented at trial and the
court’s finding that Argenziano’s testimony was credible, the
trial court found that Argenziano did not have the ability to pay
child support in January and February 2013. Feldman has not
demonstrated that this finding was erroneous. We therefore
conclude that the trial court did not abuse its discretion in
declining to hold Argenziano in contempt.
20140736-CA 20 2015 UT App 241Reller v. Argenziano
CONCLUSION
¶45 The trial court correctly determined that the Retroactive
Support Claim was not tried by express or implied consent. The
trial court did not abuse its discretion in denying Feldman’s
motion to amend her complaint to include the Retroactive
Support Claim, in imputing income to Argenziano, or in
declining to hold Argenziano in contempt. Accordingly, we
affirm.
20140736-CA 21 2015 UT App 241