Tilleman v. Tilleman ( 2024 )

2024 UT App 54THE UTAH COURT OF APPEALS
MICHAEL ROBERT TILLEMAN,
Appellant,
v.
MICHAL CHRISTINE TILLEMAN,
Appellee.
Opinion
No. 20210637-CA
Filed April 11, 2024
Fourth District Court, Provo Department
The Honorable M. James Brady
No. 164402522
Julie J. Nelson, Attorney for Appellant
Douglas B. Thayer, Andy V. Wright, and
Jessica Griffin Anderson, Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.
ORME, Judge:
¶1 Michael Robert Tilleman (Father) and Michal Christine
Tilleman (Mother) were married and share one child (Child).
Following rather contentious divorce proceedings, the trial court
awarded sole legal custody of Child to Mother but awarded the
parties joint physical custody. The court also imputed federal
minimum wage income to Mother for child support purposes,
and it awarded her attorney fees and costs.
¶2 On appeal, Father makes various arguments challenging
the court’s legal custody award. He also contends that the court
abused its discretion in imputing federal minimum wage income
to Mother and in awarding her attorney fees and costs. Although
Tilleman v. Tilleman
we affirm several aspects of the court’s legal custody award, we
nevertheless hold that the court abused its discretion in applying
the wrong legal standard and accordingly reverse and remand for
the court’s consideration of all the statutorily mandated custody
factors. We also reverse the court’s imputation of Mother’s income
and its attorney fee award and remand for further proceedings.
BACKGROUND 1
¶3 Mother and Father married in 2013, and Child was born a
little over a year later. In 2016, following a separation, Father filed
a petition for divorce. This was soon followed by Mother’s
counter-petition for divorce. The trial court characterized the
ensuing litigation as “contentious” and the parties as “unusually
accusatory, intransigent, and uncooperative.” We limit our
recounting of the divorce proceedings to facts relevant to the
issues raised on appeal.
¶4 In 2018, the court entered a stipulated, bifurcated decree of
divorce reserving for trial, in relevant part, the issues of custody,
parent-time, child support, and attorney fees. Although the
parties each initially sought sole physical custody and joint legal
custody of Child, by the time of trial they had each amended their
pleadings to request sole physical and sole legal custody of Child.
¶5 In conjunction with her counter-petition for divorce,
Mother also filed a motion asking that the court order Father to
undergo a psychological examination under rule 35 of the Utah
Rules of Civil Procedure “to properly address his ability to
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 (quotation simplified).
20210637-CA 2 2024 UT App 54Tilleman v. Tilleman
parent” Child. 2 The motion alleged that Father “has exhibited
intense anger toward [Mother] and has engaged in mental and
emotional abuse,” that “such anger has been exhibited toward”
Child, and that he “may be suffering from mental health
conditions.”
¶6 Father opposed Mother’s rule 35 motion and denied its
allegations. In turn, he asked the court to order that Mother
undergo a rule 35 evaluation, alleging that she “has been verbally
and physically abusive towards” him, that she “is unable to
control her anger and aggressions towards” him, and that “recent
irrational and inappropriate actions, behaviors, and instability
indicate that she may be suffering from some form of mental
illness.”
¶7 In 2017, at a hearing on temporary orders, Mother’s
counsel informed the trial court that the parties had stipulated,
among other things, “that either party can request and . . . the
other party will participate in a Rule 35 mental health exam as
long as the requesting party pays the cost up front.” Accordingly,
the court’s temporary order included a provision stating that
“[e]ither party may request the other party to participate in [a]
Rule 35 examination at the requesting party’s expense.”
2. As relevant here, rule 35(a) of the Utah Rules of Civil Procedure
states,
When the mental or physical condition or attribute
of a party or of a person in the custody or control of
a party is in controversy, the court may order the
party to submit to a physical or mental examination
by a suitably licensed or certified examiner or to
produce for examination the person in the party’s
custody or control. The order may be made only on
motion for good cause shown.
20210637-CA 3 2024 UT App 54Tilleman v. Tilleman
¶8 Mother subsequently provided Father with a list of three
potential rule 35 evaluators, of which Father selected one (First
Expert) to conduct his exam. When First Expert requested that
Father sign medical releases for his psychological health records,
Father refused. In response, Mother filed a motion requesting that
the court order Father “to sign and execute all necessary medical
releases, upon presentation by [First Expert], so that [Father’s]
Rule 35 mental examination can proceed as expeditiously as
possible.” At a hearing before a commissioner on the matter,
Father argued that he never agreed to sign medical releases and
that his understanding of the stipulation was “that he was
agreeing to an independent, objective, standardized
psychological test.” He also argued that releasing his medical
records “prejudices him down the road” because “it allows
information that would not otherwise be admissible to become
admissible.”
¶9 In ruling on the motion, the commissioner first stated that
because the trial court—and not a jury—would be the finder of
fact in this case, he did not consider prejudice “to be a significant
issue.” Next, in addressing the scope of the rule 35 exam, the
commissioner stated that based on his decades of experience
interacting with mental health professionals, “the one thing that
they all assure me is true [is that] the best predicter of future
behavior is past behavior.” The commissioner also noted that the
parties had not submitted affidavits from professionals indicating
what their usual practice is for such evaluations. Thus, the
commissioner recommended, “If it is the Rule 35 examiner’s
professional opinion that certain information would assist him in
completing his evaluation/report, then both parties shall
cooperate in good faith and sign whatever releases for records
or information the evaluator wants[.]” Father objected to
the commissioner’s recommendation, but the trial court overruled
his objection and ordered him to sign the requested medical
releases.
20210637-CA 4 2024 UT App 54Tilleman v. Tilleman
¶10 Upon completion of the rule 35 evaluation, First Expert
reached the following conclusions, as summarized by the trial
court. First Expert noted that “Father was so guarded and
defensive when he took the psychological testing that credible
information from testing is not available.” First Expert did not
observe Father with Child as part of the evaluation. Nevertheless,
First Expert concluded, among other things, that Father exhibited
“varying degrees” of several negative personality traits; that he
“is a very persistent person,” which when “utilized to intimidate
and control others” can cause substantial harm to himself and
others; and that he “tends to place his own interests before those
of others and is not invested in cooperative relationships.” See also
infra note 5. First Expert also recommended against joint legal
custody of Child.
¶11 In anticipation of trial, Father filed a motion in limine to
exclude First Expert’s testimony, contending that his “report and
his corresponding testimony have not been shown by [Mother] to
be reliable, based on sufficient facts or data, and reliably applied
to the facts as required by rule 702 of the Utah Rules of Evidence.”
See Utah R. Evid. 702(b). In support of his motion, Father included
a report from his own expert (Second Expert) who reviewed the
rule 35 evaluation. Second Expert opined, among other things,
that “the methodology employed” by First Expert “did not
comport with generally accepted standards of practice.” He
further stated that First Expert’s “recommendation against joint
legal custody is concerning because there is no indication the
purpose of the evaluation was to aid the Court in determining
custody.”
¶12 Following a hearing, the court ruled that First Expert
would be permitted to testify at trial because his “report and his
. . . procedures, his methodology, and his data gathering and his
qualifications meet that low threshold of showing an indicia of
reliability.” But because First Expert’s “qualifications and
methodology don’t meet the requirements for a custody
20210637-CA 5 2024 UT App 54Tilleman v. Tilleman
evaluation,” the court limited his testimony by precluding him
from offering his opinion on that subject at trial.
¶13 Toward the end of 2020, the court held a ten-day bench
trial, after which it entered thirty-three pages of findings of fact
and conclusions of law. In addressing custody, the court prefaced
its findings by discussing Utah Code sections 30-3-10(2) and
30-3-10.2(2), which govern child custody determinations. Section
30-3-10(2) states, with our emphasis, that “[i]n determining any
form of custody and parent-time . . . , the court shall consider the
best interest of the child and may consider among other factors the
court finds relevant, the following for each parent” and then lists
various factors. The court interpreted that section to mean that it
“is not required to make findings on all factors listed in” that
section. Further, section 30-3-10.2(2) provides, again with our
emphasis, that “[i]n determining whether the best interest of a
child will be served by ordering joint legal custody or joint
physical custody or both, the court shall consider the custody
factors in Section 30-3-10 and” additional factors listed in section
30-3-10.2(2). The court stated that it understood the interplay
between the two sections to mean that when considering joint
legal or physical custody of a child, it is “obligated to address the
enumerated factors in” section 30-3-10.2(2), but that its
consideration of each factor listed in section 30-3-10(2) is not
mandatory.
¶14 The trial court then proceeded to make extensive findings
pertaining to custody and parent-time, as summarized below. The
court found that “[a] primary condition that permeated the
marriage was Father’s underlying hostility,” which also “affected
the first few years of [Child’s] life and [Father’s] early relationship
with, and care for” Child. Throughout Child’s life, Mother has
been Child’s primary caregiver. Although “Father rarely, if ever,
held, fed, changed, or played with” Child during the marriage,
since the separation he has cared for Child during his parent-time.
Father and Mother have “demonstrated a strong desire for
20210637-CA 6 2024 UT App 54Tilleman v. Tilleman
parent-time since their separation,” and Father “has rearranged
work schedules and career goals to accommodate as much time
as possible with” Child. His interactions with Child have
“significantly improved,” and he “has bonded more with her.”
But his “anger towards Mother occasionally interferes with his
ability to see, understand, and meet the needs of” Child. Child
“has a strong bond with Father” and “enjoys spending time with”
him.
¶15 The court found that Mother consistently demonstrated
the ability to meet Child’s developmental needs and that Father
had demonstrated an improvement in his ability to do so,
although the court was unsure whether this was a long-term
change. Each parent was able to meet Child’s physical needs and
to function as an effective parent, although Father’s “apparent
lack of insight of how his anger towards Mother, and his efforts
to embroil Mother in allegations of abuse,” see infra ¶ 17, “have
physically impacted” Child and have interfered with his
parenting abilities. The court determined that both parents have
negatively impacted Child’s emotional wellbeing—albeit Mother
to a lesser extent—through their poor responses and behaviors
when in each other’s presence.
¶16 The court found that although “each parent has shown that
they have the capacity and willingness to function as a parent to”
Child, “[t]he difficulty lies in their inability to co-parent and
properly interact with the other parent,” particularly during
drop-off and pick-up, as well as when communicating about
Child. Regarding drop-off and pick-up, the court stated that “[t]he
difficulty comes about by actions of both parents, although Father
more consistently causes [Child’s] transitions to be difficult” by
not encouraging her to transition to Mother’s care and by saying
things that “weigh negatively on [Child’s] emotions in a
manipulative and passive aggressive manner.” Mother also
occasionally expressed displeasure about Father’s behavior in
Child’s presence. Concerning the parents’ communication, the
20210637-CA 7 2024 UT App 54Tilleman v. Tilleman
court stated that in 2017, “[d]ue to the high level o[f] conflict,” it
ordered Mother and Father to communicate through a third-party
service that reviewed and, if necessary, edited and revised the
messages they sent each other. The third-party service had to
make substantial edits to many of Father’s messages and advised
him that it would “not send emails that are threatening.” Because
Father also became adversarial with the third-party service, it
withdrew, and the parties had to find another communication
intermediary. But in the months leading up to trial,
communication between the parties had “been relatively civil.”
¶17 The court next expressed concern regarding Father’s
“emotional and sometimes indirect physical abuse of” Child
through his repeated claims, “without sufficient justification,”
that Mother was physically abusive toward Child. Specifically,
between 2017 and 2020, Father made multiple reports of abuse to
various police departments, the Division of Child and Family
Services (DCFS), and medical providers. This “exposed [Child] to
unnecessary emotional trauma and invasive physical
examinations” and never resulted in criminal charges being filed
against Mother or in DCFS taking enforcement action against her.
“When the agencies did not confirm his opinion, [F]ather became
overly focused, argumentative, and belligerent” and “was
unwilling to accept the many conclusions of DCFS.” The court
found that “Father’s reports of abuse were vexatious and were
calculated and designed to harm Mother,” and he either “was not
aware of, or did not care about the emotional harm he was causing
[Child] through the continuous filing of unsupported claims of
abuse.”
¶18 The court then addressed Father’s rule 35 evaluation. 3 At
trial, First Expert, Second Expert, and another expert (Third
Expert) testified about the evaluation. The court noted that based
3. Mother also underwent a rule 35 examination, but it does not
appear that those results were admitted into evidence at trial.
20210637-CA 8 2024 UT App 54Tilleman v. Tilleman
on First Expert’s own testimony, it appeared that First Expert
“primarily identified personality traits of [Father] from testing
which [First Expert himself] considered invalid.” The court also
agreed with many of Second Expert’s critiques of First Expert’s
opinions, including that First Expert’s “opinions based on testing
should not be considered” because First Expert “testified that the
test results were unreliable due to Father’s high degree of
defensiveness”; that First Expert “did not utilize many of the
standard tests and methods for determining parenting capacity
and therefore his opinions on parenting capacity are not helpful”;
and that First Expert did not observe Father interact with Child.
Accordingly, the court “found little value in much of [First
Expert’s] diagnostic expert opinions,” 4 but it noted that, based on
other trial testimony and on its own review of some of the records
that First Expert examined that were also submitted into evidence,
it agreed with his conclusions regarding Father’s negative
characteristics and personality traits. Specifically, the court noted
Father’s “historical demonstration of grandiosity, entitlement,
interpersonal exploitativeness, lack of empathy, high levels of
persistence, rigidity, lack of agreeableness, vexatious
intimidation, along with a tendency to resort to arrogant and
intimidating behaviors toward others, particularly when
encountering others whom he believes stand in his way.” The
court, however, rejected several of First Expert’s other opinions. 5
4. The trial court initially found First Expert “to be credible
although not entirely unbiased.” But following Father’s post-trial
motion, the court did not include that statement in the amended
findings of fact and conclusions of law that it later issued.
5. Specifically, the court rejected First Expert’s opinion that Father
“is prone to bouts of depression”; that he “appears to have a
disconnect between his emotions and his cognitive abilities,
(continued…)
20210637-CA 9 2024 UT App 54Tilleman v. Tilleman
¶19 The court also found Third Expert to be “qualified,”
“credible,” and “an unbiased witness.” Third Expert testified that
in counseling sessions, he “worked with Father to understand
how to modify his behavior” and that Father had demonstrated
improvement. Third Expert described Father’s current character
traits as “[p]ersistent,” “[i]ntelligent,” “[e]ven keeled,” “[c]onstant
in demeanor,” and “[a]ble to rise and process issues and
disagreement more effectively.”
¶20 Turning to the question of legal custody, the court held that
the presumption that joint legal custody is in the child’s best
interest was rebutted in this case by the parties’ inability “to set
aside their personal differences and focus on the needs of” Child,
and it awarded sole legal custody to Mother. The court based this
decision on several things: the difficulties the parties had in
setting aside their personal differences to attend to Child’s needs,
although it noted that Mother was better able to do so; Father’s
emotional abuse of Child “by subjecting her to repeated
interviews and physical examinations when he repeatedly raises
allegations of abuse against Mother without sufficient cause”;
“Father’s need to control and dominate Mother” and to disrespect
her; Father’s “inability to recognize the value of input from others,
including Mother”; Father’s history of being unable to effectively
communicate with Mother; Father’s aggressive and
passive-aggressive behavior during pick-up and drop-off and his
failure to make it a less emotionally draining experience for Child;
Father’s lack of encouragement that Child “equally share time,
love and affection with Mother”; and Mother’s constant
meaningful participation in raising Child, while Father did not do
which impedes his ability to utilize constructive feedback and an
inability to learn from his experience and mistakes”; and that “[i]t
is likely that Father has not emotionally separated, or moved on
from his relationship with Mother.”
20210637-CA 10 2024 UT App 54Tilleman v. Tilleman
so for the first few years of Child’s life due to “his anger issues”
and university studies.
¶21 Regarding physical custody, the court determined that it
was in Child’s best interest “that Father be actively involved in
her life” and that he “should have frequent and consistent time
with” her so long as there were orders in place enforcing
respectful communication between Mother and Father and
reducing their interactions during pick-up and drop-off.
Accordingly, the court awarded the parties joint physical custody,
with Mother as the primary physical custodian and with Father
having “frequent and expanded rights of parent time.”
¶22 The court then considered child support, the main issue of
which was the income to be imputed to Mother. The court noted
that Mother had left full-time employment when Child was born
and that she was not employed at the time of trial, but she was
attending university classes. The court found that Mother had the
experience and skills to find employment in the fields of
marketing and public relations with a likely starting income of
between $2,500 and $2,800 per month. But the court also found
that as a result, Mother would necessarily incur childcare costs
and either have to terminate or significantly modify her studies.
Ultimately, the court determined that Mother was voluntarily
underemployed. But because there was insufficient evidence
presented regarding childcare costs or whether current
employment was “available in either of her experience categories,
or what the current rate of pay would be,” 6 the court imputed to
6. A vocational expert, whom the court found to be “qualified and
credible,” opined at trial that Mother could earn “approximately
$2,800 to $3,750 gross per month” as a public relations specialist.
But the court stated that the expert’s calculations did not take the
COVID-19 pandemic’s impact on the job market into
consideration, and although the expert provided a projection of
(continued…)
20210637-CA 11 2024 UT App 54Tilleman v. Tilleman
Mother “the federal minimum wage of $1,257 per month.” And
based on Father’s actual income and Mother’s imputed income,
the court ordered Father to make $666 monthly child support
payments to Mother.
¶23 Finally, the court awarded Mother $161,066.94 in attorney
fees and costs pursuant to Utah Code section 30-3-3, holding that
Mother had substantially prevailed and finding, among other
things, that Father had a greater ability to pay. 7
¶24 Father appeals.
ISSUES AND STANDARDS OF REVIEW
¶25 Father raises five primary issues on appeal. First, Father
argues that the trial court erred in awarding sole legal custody of
Child to Mother.8 Specifically, he contends that the “court’s
analysis of Utah Code sections 30-3-10 and 30-3-10.2 does not
comply with Utah law.” Generally, we review a trial court’s
custody award for an abuse of discretion. See T.W. v. S.A., 2021 UT
App 132, ¶ 15, 504 P.3d 163. “This discretion is broad; indeed, as
long as the court exercises it within the confines of the legal
standards we have set, and the facts and reasons for the decision
are set forth fully in appropriate findings and conclusions, we will
not disturb the resulting award.” Id. (quotation simplified). But
whether the court correctly interpreted the legal standards set
future job openings in the field, he did not identify any current job
openings or pay rates.
7. We recount the relevant details of the trial court’s attorney fees
award in Part V.
8. Father does not challenge the trial court’s physical custody
award on appeal.
20210637-CA 12 2024 UT App 54Tilleman v. Tilleman
forth in sections 30-3-10 and 30-3-10.2 is a question of law that we
review for correctness. See Ross v. Ross, 2019 UT App 104, ¶ 8, 447
P.3d 104. See also State v. De La Rosa, 2019 UT App 110, ¶ 4, 445
P.3d 955 (stating that because “trial courts do not have discretion
to misapply the law,” “the abuse-of-discretion standard of review
will at times necessarily include review to ensure that no mistakes
of law affected a lower court’s use of its discretion”) (quotation
simplified).
¶26 Second, Father contends that the court abused its
discretion when it found that he had emotionally abused Child.
We review the trial court’s findings of fact for clear error. See T.W.,
2021 UT App 132, ¶ 15. Under this standard, “the factual findings
of the district court will not be disturbed unless they are clearly
erroneous by being in conflict with the clear weight of the
evidence. But the existence of conflicting evidence is not sufficient
to set aside a district court’s finding.” Hinds v. Hinds-Holm, 2022
UT App 13, ¶ 28 n.4, 505 P.3d 1136 (quotation simplified).
¶27 Third, Father argues that the trial court erred in allowing
First Expert to testify at trial. 9 In reviewing the admissibility of
evidence, we review the underlying legal questions for
correctness and the “court’s decision to admit or exclude evidence
and [its] determinations regarding the admissibility of expert
testimony” for an abuse of discretion. Smith v. Volkswagen
SouthTowne, Inc., 2022 UT 29, ¶ 41, 513 P.3d 729 (quotation
simplified). “However, error in the district court’s evidentiary
9. Father also contends that the trial court erred in ordering him
to sign medical releases for his mental health records without first
undertaking the analysis set forth in Debry v. Goates, 2000 UT App
58, 999 P.2d 582, cert. denied, 9 P.3d 170 (Utah 2000). See id. ¶ 26.
But because Father did not raise this issue below, and instead
opposed the release of the records only on prejudice and
scope-of-the-stipulation grounds, this argument is not preserved,
and we do not address it further.
20210637-CA 13 2024 UT App 54Tilleman v. Tilleman
rulings will result in reversal only if the error is harmful.”
Anderson v. Larry H. Miller Commc’ns Corp., 2015 UT App 134, ¶ 17,
351 P.3d 832.
¶28 Fourth, Father challenges the court’s imputation of federal
minimum wage income to Mother for child support purposes.
“We review the district court’s interpretation of statutory
requirements for correctness” and “the court’s ultimate
imputation of income . . . for abuse of discretion.” Burggraaf v.
Burggraaf, 2019 UT App 195, ¶ 23, 455 P.3d 1071 (quotation
simplified).
¶29 Fifth, Father takes issue with the court’s award of attorney
fees and costs to Mother under section 30-3-3 of the Utah Code.
“We review a district court’s decision to award attorney fees
pursuant to this statute for an abuse of discretion,” Gardner v.
Gardner, 2019 UT 61, ¶ 16, 452 P.3d 1134, but review its underlying
legal conclusions for correctness, see De La Rosa, 2019 UT App 110,
¶ 4.
ANALYSIS
I. Legal Custody Factors
¶30 Utah law establishes “a rebuttable presumption that joint
legal custody . . . is in the best interest of the child.” 10 Utah Code
10. The presumption in favor of joint legal custody does not apply
in cases that include, among other things, “emotional abuse.”
Utah Code Ann. § 30-3-10(3)(a) (LexisNexis Supp. 2023).
Although the trial court in this case did make several findings
regarding emotional abuse, the court nonetheless applied the
presumption but found that it was rebutted by the parties’
inability “to set aside their personal differences and focus on the
needs of” Child.
20210637-CA 14 2024 UT App 54Tilleman v. Tilleman
Ann. § 30-3-10(3) (LexisNexis Supp. 2023). This presumption
“may be rebutted by a showing by a preponderance of the
evidence that [joint legal custody] is not in the best interest of the
child.” Id. § 30-3-10(4)(b). The Utah Code also provides several
factors to aid in the best interest analysis. See id.
§§ 30-3-10(2), -10.2(2) (2019).
¶31 In challenging the trial court’s award of sole legal custody
to Mother, Father argues that (A) the court wrongly interpreted
Utah Code sections 30-3-10(2) and 30-3-10.2(2) to mean that its
consideration of the factors listed in section 10(2) was
discretionary; (B) the court’s application of the wrong legal
standard resulted in its failure to consider certain relevant factors
in its custody analysis; and (C) the court “analyzed certain factors
only as they related to Father but not to Mother.” 11 We address
each argument in turn.
A. Statutory Interpretation
¶32 At issue is the interplay between Utah Code sections
30-3-10(2) and 30-3-10.2(2). Section 10(2) provides that “[i]n
determining any form of custody and parent-time . . . , the court
shall consider the best interest of the child and may consider
among other factors the court finds relevant, the following for
each parent[.]” Utah Code Ann. § 30-3-10(2) (LexisNexis 2019)
11. Father also argues that the trial court made unsupported
findings concerning Mother’s financial stability, Father’s
involvement in Child’s life, and the parties’ communications. But
because Father has not marshaled the evidence in support of these
findings, he has not carried his burden of persuasion. See
Pankhurst v. Pankhurst, 2022 UT App 36, ¶ 15, 508 P.3d 612 (“A
party will almost certainly fail to carry its burden of persuasion
on appeal if it fails to marshal the evidence sufficient to overcome
the healthy dose of deference owed to factual findings.”)
(quotation simplified).
20210637-CA 15 2024 UT App 54Tilleman v. Tilleman
(emphasis added). There then follows a list of factors, (a) through
(r), several of which have subparts. See id. Taken in isolation,
section 10(2) suggests that while the trial court must consider the
child’s best interest when determining custody, the court has
discretion as to which specific factors are appropriate for
consideration in making that key determination.
¶33 But when joint legal or physical custody is at issue, section
10.2(2) also comes into play. That section provides that “[i]n
determining whether the best interest of a child will be served by
ordering joint legal custody or joint physical custody or both, the
court shall consider the custody factors in Section 30-3-10, and the
following factors[.]” Id. § 30-3-10.2(2) (emphasis added). And here
again, a number of factors are then listed, (a) through (i), several
of which include subparts. See id.
¶34 The parties are at odds on whether, when joint custody is
at issue, the court’s consideration of the section 10(2) factors is
discretionary or mandatory. We agree with Father that, in
undertaking any joint custody determination, courts are required
to consider, in some fashion, all the section 10(2) factors and all
the section 10.2(2) factors.
¶35 “Our primary goal when interpreting a statute is to
ascertain the legislature’s intent,” the best evidence of which “is
the plain language of the statute itself.” McKitrick v. Gibson, 2024
UT 1, ¶ 31, 541 P.3d 949 (quotation simplified). In this pursuit,
“where the statute’s language marks its reach in clear and
unambiguous terms, it is our role to enforce a legislative purpose
that matches those terms, not to supplant it with a narrower or
broader one.” Id. (quotation simplified). See Brindley v. Logan City,
2023 UT App 46, ¶ 22, 530 P.3d 557 (“When the meaning of a
statute can be discerned from its language, no other interpretive
tools are needed.”) (quotation simplified). Furthermore, to
determine legislative intent “when two statutory provisions
conflict in their operation, the provision more specific in
20210637-CA 16 2024 UT App 54Tilleman v. Tilleman
application governs over the more general provision.” Taghipour
v. Jerez, 2002 UT 74, ¶ 11, 52 P.3d 1252 (quotation simplified). With
this charge, we look to the directives our Legislature mandated
regarding determinations of joint custody.
¶36 Section 10(2) provides that when “determining any form of
custody,” the court may consider, among other things, the factors
listed in that section. Utah Code Ann. § 30-3-10(2) (emphasis
added). Section 10.2(2), on the other hand, applies when the court
is tasked with “determining whether the best interest of a child
will be served by ordering joint legal custody or joint physical custody
or both.” Id. § 30-3-10.2(2) (emphasis added). Thus, although both
section 10(2) and section 10.2(2) purport to govern custody
determinations, because section 10(2) applies more generally to
“any form of custody,” id. § 30-3-10(2), and because section 10.2(2)
“is tailored precisely” to address joint custody—the type of
custody at issue here—section 10.2(2) is the more specific of the
two provisions and thus governs, see Taghipour, 2002 UT 74, ¶ 14.
¶37 Therefore, based on the plain language of section 10.2(2)
that “the court shall consider the custody factors in Section 30-3-10
and” additional factors listed in section 10.2(2), see Utah Code
Ann. § 30-3-10.2(2) (emphasis added), our Legislature has deemed
it necessary to impose additional requirements and heightened
sensitivities regarding a court’s decision to order joint custody. In
simple terms, this means that in cases where joint custody is under
consideration, trial courts lose much of their discretion about
which factors to consider. In other words, when considering the
best interest of the child under section 10.2(2), the court is required
to consider all the custody factors identified by both section 10(2)
and section 10.2(2). Cf. Martinez v. Sanchez-Garcia, 2023 UT App
60, ¶ 21, 532 P.3d 105 (stating that under Utah Code section
30-3-10.4(2), which similarly states that when considering
whether modifying a custody order is in the child’s best interest,
the trial court shall consider the factors listed in section 10(2) and
section 10.2(2), courts “are statutorily required to consider, at least
20210637-CA 17 2024 UT App 54Tilleman v. Tilleman
in some form, twenty-five enumerated factors, as well as any
other relevant factor”) (quotation simplified).
¶38 We note, however, that “not all [the section 10(2) and
section 10.2(2)] factors are on equal footing, and a district court
generally has discretion to determine, based on the facts before it
and within the confines set by the appellate courts, where a
particular factor falls within the spectrum of relative importance
and to accord each factor its appropriate weight.” Id. ¶ 22
(quotation simplified). “Some factors might not be relevant at all
to the family’s situation, and others might be only tangentially
relevant or will weigh equally in favor of both parents.” Id. For
example, among the other custody factors, section 10(2) indicates
that the court must consider “the relative benefit of keeping
siblings together.” Utah Code Ann. § 30-3-10(2)(o). But in some
cases, such as the one currently before us, the child does not have
any siblings. In such circumstances, it is obviously unnecessary to
analyze this factor because it is inapplicable to the court’s ultimate
decision, although best practice suggests that the court should at
least make a note of the factors it considers inapplicable in a given
case. See Martinez, 2023 UT App 60, ¶ 22 n.6 (“Even with factors
not relevant to the situation or factors that do not move the needle
one way or the other, a court is well-served to at least mention
those factors in its ruling and briefly indicate that it deems them
irrelevant or of equal weight for each party. By mentioning them,
even if only to say that they are irrelevant, a court ensures that the
parties—and, significantly, a reviewing court—will be able to tell
that the court at least considered them.”) (quotation simplified).
¶39 In sum, the trial court erred when it interpreted the
relevant statutes to mean that its consideration of the section
10.2(2) factors was mandatory, while its consideration of the
section 10(2) factors was discretionary. The court was required to
consider, at least to some degree, all factors listed under both
sections, and its failure to do so constituted an abuse of discretion.
But “unless an appellant demonstrates that an error is prejudicial,
20210637-CA 18 2024 UT App 54Tilleman v. Tilleman
it will be deemed harmless and no appellate relief is available.”
See Huish v. Munro, 2008 UT App 283, ¶ 8, 191 P.3d 1242 (quotation
simplified). We consider this question in conjunction with
Father’s argument addressed in the next section of this opinion.
B. Consideration of All Relevant Factors
¶40 Father argues that the trial court’s misinterpretation of the
governing statutes resulted in its failure to consider a number of
relevant factors. Specifically, he asserts that the court abused its
discretion when it did not consider the parent’s “ability to provide
personal care rather than surrogate care”; “the past conduct and
demonstrated moral character of the parent”; and “previous
parenting arrangements in which the child has been happy and
well-adjusted in the home, school, and community,” Utah Code
Ann. § 30-3-10(2)(c)(iii), (d), (n) (LexisNexis Supp. 2023), even
though he presented evidence at trial relevant to each of these
factors.
¶41 As an initial matter, we commend the trial court for
providing thirty-three pages of detailed findings in this matter, in
which it addressed the majority of the section 10(2) and section
10.2(2) factors. But even given these extensive findings, the court
expressly stated that it did not consider certain statutorily
mandated factors in making its legal custody determination.
Instead, it stated that it would consider the 10(2) factors “if it elects
to do so.” Furthermore, because at least one of the three factors
Father identifies, i.e., each parent’s “past conduct and
demonstrated moral character,” id. § 30-3-10(2)(d), carries some
weight in the legal custody determination, 12 we cannot say that
12. The other two factors, the “ability to provide personal care
rather than surrogate care” and the “previous parenting
arrangements in which the child has been happy and
well-adjusted in the home, school, and community,” Utah Code
(continued…)
20210637-CA 19 2024 UT App 54Tilleman v. Tilleman
the court’s failure to consider all the section 10(2) factors was
harmless.
¶42 We therefore vacate the trial court’s legal custody
determination and remand the case for consideration of all section
10(2) factors, and for such adjustment in the court’s legal custody
determination, if any, as may then become appropriate. See
Twitchell v. Twitchell, 2022 UT App 49, ¶ 25, 509 P.3d 806.
C. Comparative Findings
¶43 A best-interest determination is “based on a number of
factors that compare the parenting skills, character, and abilities
of both parents in light of a realistic and objective appraisal of the
needs of a child.” Woodward v. LaFranca, 2013 UT App 147, ¶ 22,
305 P.3d 181 (quotation simplified), cert. denied, 312 P.3d 619 (Utah
2013), abrogated on other grounds by Zavala v. Zavala, 2016 UT App
6, 366 P.3d 422. See Twitchell, 2022 UT App 49, ¶ 23 n.4 (noting that
a trial court’s findings should compare both parents’ “relative
character, skills, and abilities” and not just that of one parent in
particular). In other words, the court is required to undertake a
comparative analysis whereby the court must consider the
evidence relating to each parent. 13
Ann. § 30-3-10(2)(c)(iii), (n) (LexisNexis Supp. 2023), are more
germane to a physical custody rather than to a legal custody
determination, and Father conceded as much during oral
argument before this court.
13. The case of Allen v. Allen, 2014 UT App 27, 319 P.3d 770,
provides a good example of how appropriate comparison
between the parents works in practice. After considering the
applicable factors and concluding that “both parents appeared
nearly equally capable of caring for” their child, the district court
(continued…)
20210637-CA 20 2024 UT App 54Tilleman v. Tilleman
¶44 Father argues that the court’s comparative analysis and
subsequent findings on a number of factors addressed only him
and did not adequately compare the evidence as it related to
Mother. Specifically, Father asserts that the court failed to make
findings relating to Mother’s emotional stability, Child’s bond
with her, her maturity and willingness to protect Child from
parental conflict, and her ability to cooperate with Father. See
Utah Code Ann. § 30-3-10(2)(e), (q) (LexisNexis Supp. 2023); id.§ 30-3-10.2(2)(g), (h) (2019). Although Father acknowledges that
the court made certain findings relating to these factors, he
contends that the findings did not account for specific pieces of
evidence he identifies on appeal. 14 But the trial court is not
in that case determined that, with respect to two factors where the
parents were not equally strong, “the stability offered by [the
father] outweighed the apparent empathy of [the mother].” Id. ¶ 5
(quotation simplified). See id. ¶ 12 (holding that given the district
court’s observation that the parties were “nearly equally capable
of caring for” the child and its findings of fact supporting that
determination, the court had adequately considered the
“character and quality of [the child’s] bonds with both parents”).
The deciding factors in the district court’s view were the father’s
stability and the mother’s immaturity, “with a tendency to put her
needs above those of others, including” the child. Id. ¶ 10. On
appeal, this court concluded that the district court’s “discussion
of the parties’ relative maturity, stability, and ability to care for
[the child] constitutes adequate consideration of both parties’
‘past conduct and demonstrated moral standards.’” Id. ¶ 11
(quoting Utah Code Ann. § 30-3-10(2)(d) (LexisNexis 2013)).
14. On this point, Father contends that our decision in Twitchell v.
Twitchell, 2022 UT App 49, 509 P.3d 806, requires a trial court to
make a finding on all evidence presented by either party. Father
misinterprets that decision. In Twitchell, we determined that “to
(continued…)
20210637-CA 21 2024 UT App 54Tilleman v. Tilleman
required to recite all evidence presented at trial in its findings of
fact; just the evidence that is key to its custody decision. See
Twitchell, 2022 UT App 49, ¶ 21 (highlighting that “courts are not
required to render a global accounting of all evidence presented
or to discuss all aspects of a case that might support a contrary
ruling” and instead must present sufficiently detailed findings
and “include enough subsidiary facts to disclose the steps by
which the ultimate conclusion on each factual issue was reached”)
(quotation simplified).
¶45 We address each of the factors Father challenges on appeal
and ultimately reject his suggestion that a court’s comparative
analysis must proceed in a point-by-point, side-by-side
comparison of each piece of evidence presented at trial in the
context of each custody factor. Overall, the court’s comparative
analysis in this case was sufficient.
¶46 Emotional Stability. Father contends that the court
included specific findings regarding his emotional stability but
did not include similar findings related to Mother despite
evidence he presented at trial reflecting negatively on her in that
respect. But Father misinterprets the trial court’s charge. The court
is required to make only sufficient findings to support its decision.
And the trial court is in the best position to weigh the evidence.
ensure that the trial court’s custody determination, discretionary
as it is, is rationally based, it is essential that the court set forth in
its findings of fact not only that it finds one parent to be the better
person to care for the child, but also the basic facts which show
why that ultimate conclusion is justified.” Id. ¶ 24 (quotation
simplified). The premise of Twitchell is not that a court must make
a specific finding regarding each piece of evidence, but simply
that a court must make findings on the “basic facts” that support
its ultimate conclusion.
20210637-CA 22 2024 UT App 54Tilleman v. Tilleman
¶47 The court found that each parent had shown “the capacity
and willingness to function as a parent” but that they both
demonstrated an “inability to co-parent and properly interact
with the other parent” and that they had “shown [a] limited
ability to communicate effectively about [Child] over the years.”
The court also found Third Expert to be credible and made
findings consistent with his opinion that Father had improved his
character traits since the parties’ separation. But despite Father’s
improvement, the court also found that Father “says things to
[Child] which weigh negatively on her emotions in a
manipulative and passive aggressive manner.” Comparatively,
the court found that “Mother occasionally expresses her
displeasure of Father’s behavior openly in front of [Child] either
by word or by her actions.” Based on its charge to make sufficient
findings necessary to support its decision, the trial court’s
findings are sufficiently comparative as concerns the parties’
emotional stability, particularly as concerns the issue of legal
custody.
¶48 Child’s Bond with Parent. Father argues that the court
specifically found that Child “has a strong bond with” and
“enjoys spending time with” him but made no comparative
findings regarding Mother’s bond with Child. He further asserts
that the court did not consider evidence he presented that Mother
and Child have a weak bond. But the court’s findings demonstrate
that the court at least implicitly considered the strong bond
between Child and Mother. The court found that “Mother has
been the primary caregiver of [Child] from the time she was born,
both during the marriage and after separation” and that although
Father seemed uninterested in Child during the marriage, since
the separation Father’s bond with Child had improved through
his beginning to care for her during his parent-time. With the
court’s recognition that Child’s bond with Father had improved
and became “strong” as he began to show interest in and to care
for Child, which Mother has done from the very beginning of
20210637-CA 23 2024 UT App 54Tilleman v. Tilleman
Child’s life, the court sufficiently compared Child’s bonds with
each parent.
¶49 Maturity and Willingness to Protect Child. Father next
contends that the court made findings relating to his maturity and
willingness to protect Child from parental conflict but did not
make such findings relating to Mother. We disagree. The court
specifically found that each parent showed an “inability to
co-parent and properly interact with the other parent,” resulting
in difficulty surrounding parenting decisions and custody
handoffs. The court also found that Mother “occasionally
expresses her displeasure of Father’s behavior openly in front of
[Child] either by word or by her actions.” Similarly, the court
found that Father displayed “inappropriate interactions with
[Child] and Mother during pickup and drop off,” demonstrated
an “insistence on addressing speculative and false allegations of
abuse at the expense of [Child’s] emotional well-being,” did not
encourage Child to look forward to being with Mother, and “is
either unaware of the emotional upset his behavior causes [Child]
or he is aware but prefers to upset her.” Thus, because the court
addressed both parents’ interactions on custody handoffs and the
like, the court’s findings are sufficiently comparative as to the
parties’ maturity and willingness to protect Child from parental
conflict.
¶50 Ability to Cooperate. Lastly, Father challenges the court’s
findings regarding his inability to cooperate with Mother. He
does not assert that the court did not make comparative findings
regarding Mother’s ability to cooperate with him. Instead,
Father’s argument is limited to asserting that the court’s findings
on this point did not reflect evidence he presented at trial
regarding his cooperation with Mother and her lack of
cooperation with him. But, as discussed above, the trial court is
not required or expected to make a finding on every bit of
evidence presented. The litigation in this matter comprised
numerous motion hearings and a ten-day trial with multiple
20210637-CA 24 2024 UT App 54Tilleman v. Tilleman
witnesses, resulting in an appellate record in excess of 6,000
pages. The court made thirty-three pages of specific findings and
those findings sufficiently show how the court arrived at its
decision.
¶51 For these reasons, while the court did not undertake
granular comparisons of each piece of evidence deemed
problematic by Father, the court did adequately consider Child’s
best interest by making appropriate comparisons. From the
court’s extensive findings, it appears that the court made the
difficult decision concerning the best interest of Child, who
obviously has two very loving parents. See Tucker v. Tucker, 910
P.2d 1209, 1215 (Utah 1996) (“A trial court need not find one
parent inadequate before awarding custody to the other.”).
¶52 In conclusion, because the court abused its discretion in not
considering every factor it was statutorily required to, we remand
this matter with instructions that the court reconsider its joint
legal custody award in light of all the factors listed in section 10(2)
and section 10.2(2), and in particular each parent’s “past conduct
and demonstrated moral character,” Utah Code Ann.
§ 30-3-10(2)(d), as explained in Part I.B.
II. Emotional Abuse
¶53 Father argues that the court’s finding of his “substantial
emotional abuse of [Child] through false allegations” was against
the clear weight of the evidence. He primarily asserts that the
court did not address the evidence of Child’s repeated injuries
(cuts, bruises, and welts) that prompted him to alert authorities,
and that “Mother presented little to no evidence that Child was
[harmed], or even affected by the reports.”
¶54 As discussed above, under section 30-3-10.2(2) of the Utah
Code, the court must address all the factors included in section
30-3-10(2) and make comparative findings for those factors. This
20210637-CA 25 2024 UT App 54Tilleman v. Tilleman
includes consideration of “evidence of domestic violence, neglect,
physical abuse, sexual abuse, or emotional abuse, involving the
child, the parent, or a household member of the parent.” Utah
Code Ann. § 30-3-10(2)(a) (LexisNexis Supp. 2023). Here, the trial
court expressed concern about “Father’s use of emotional and
sometimes indirect physical abuse of [Child] by claiming
[Mother] has harmed [Child] without sufficient justification” that
“exposed [Child] to unnecessary emotional trauma and invasive
physical examinations.” The court then provided three pages of
findings concerning this factor, including a list of some, but not
all, of the reports of physical abuse Father made to the authorities
about Mother and their outcomes. 15 But because neither party
presented expert testimony at trial to establish or rebut whether
Father’s many reports amounted to emotional abuse in a
diagnostic sense, the court’s reference to emotional abuse is
properly understood as usage in a more colloquial sense with a
rather limited purpose.
¶55 The court limited its findings relating to emotional abuse
to its legal custody award. Although emotional abuse resulting in
harm to Child would absolutely play a significant role in a
physical custody determination, the court made no mention of it
when it awarded the parties joint physical custody of Child.
Instead, the court concluded that it was in Child’s best interest
that “Father be actively involved in her life” and “have frequent
and consistent time with” her.
¶56 And in addressing legal custody, the court discussed its
emotional abuse findings in the limited context of discussing the
issue of Mother and Father being unable “to set aside their
personal differences and focus on the needs of” Child, which
15. The trial court acknowledged that its list was not a
comprehensive one. Mother asserts that she presented evidence
at trial that Father instigated a total of 28 investigations against
her.
20210637-CA 26 2024 UT App 54Tilleman v. Tilleman
formed the basis for the court’s determination that the
presumption in favor of joint legal custody had been rebutted. The
court awarded Mother sole legal custody because she was better
able to set aside her differences, while “Father is not able to set
aside his differences with Mother to give first priority to the
welfare of [Child] and reach shared decisions in [Child’s] best
interests.” Father’s “subjecting [Child] to repeated interviews and
physical examinations when he repeatedly raises allegations of
abuse against Mother without sufficient cause” was one such
example of this.
¶57 Also notable is that the trial court applied the statutory
presumption in favor of joint custody in its analysis (holding that
it had been rebutted) when such a presumption does not apply in
cases involving emotional abuse. See id. § 30-3-10(3)(a) (stating
that the presumption in favor of joint legal custody does not apply
in cases involving, among other things, “emotional abuse”). This
further illustrates the very limited purpose for which the court
applied its findings on “emotional abuse,” focusing on how it
reflected that Father’s hostility toward Mother was paramount
even if it entailed exposing Child to repeated interviews and
physical exams—and not on any harm Child actually suffered as
a result.
¶58 With this limited view in mind, we conclude that the
court’s findings were sufficiently supported by the evidence.
Even in light of all the evidence Father presented at trial
supporting the various cuts, bumps, and bruises that prompted
him to alert authorities, the court’s finding that his “reports of
abuse were vexatious and were calculated and designed to harm
Mother” is supported by the sheer number of reports Father made
that never resulted in criminal charges being filed against Mother
or in DCFS taking enforcement action against her. Several
different agencies all investigated Mother and each investigation
produced the same result. Although, as Father points out, they
could not conclusively rule out the possibility that Mother abused
20210637-CA 27 2024 UT App 54Tilleman v. Tilleman
Child, the many investigations did not produce sufficient
evidence of abuse to cause intervention by the authorities. After
multiple reports of such injuries to various authorities and
medical professionals did not produce the desired intervention, it
was not unreasonable for the court to find that Father’s primary
motivation in continuing to file such reports was his desire to
harm Mother. 16
¶59 For these reasons, and given the limited role the court’s
findings related to “emotional abuse” served in the legal custody
analysis, we do not disturb those findings.
III. First Expert’s Testimony
¶60 Father argues that the trial court abused its discretion in
not excluding First Expert’s testimony as unreliable under rule
702 of the Utah Rules of Evidence. In support of this argument, he
points to the court’s ultimate agreement with Second Expert’s
testimony that, among other things, First Expert’s “opinions
based on testing should not be considered” and that First Expert
“did not utilize many of the standard tests and methods for
16. In any event, although Father argues that the trial court’s
findings are against the clear weight of the evidence given the
evidence of Child’s various injuries presented at trial, he has not
marshaled the evidence supporting the court’s findings. To
successfully challenge a finding, it is not enough to focus only on
“evidence that points to an alternate finding or a finding contrary
to the trial court’s finding of fact.” Taft v. Taft, 2016 UT App 135,
¶ 19, 379 P.3d 890 (quotation simplified). Accordingly, Father has
also not carried his burden of persuasion on appeal. See Pankhurst
v. Pankhurst, 2022 UT App 36, ¶ 15, 508 P.3d 612 (“A party will
almost certainly fail to carry its burden of persuasion on appeal if
it fails to marshal the evidence sufficient to overcome the healthy
dose of deference owed to factual findings.”) (quotation
simplified).
20210637-CA 28 2024 UT App 54Tilleman v. Tilleman
determining parenting capacity and therefore his opinions on
parenting capacity are not helpful.” But even assuming, without
deciding, that the court’s decision to allow First Expert to testify
amounted to an abuse of discretion, such error was harmless here.
¶61 “Not every trial error requires reversal.” State v. Leech, 2020
UT App 116, ¶ 42, 473 P.3d 218 (quotation simplified), cert. denied,
481 P.3d 1039 (Utah 2021). “Unless an appellant demonstrates that
an error is prejudicial, it will be deemed harmless and no
appellate relief is available.” Huish v. Munro, 2008 UT App 283,
¶ 8, 191 P.3d 1242 (quotation simplified). “An error is harmless
and does not require reversal if it is sufficiently inconsequential
that we conclude there is no reasonable likelihood that the error
affected the outcome of the proceedings.” State v. Reece, 2015 UT
45, ¶ 33, 349 P.3d 712 (quotation simplified).
¶62 Here, after agreeing with several of Second Expert’s
concerns and critiques of First Expert’s rule 35 evaluation of
Father, the court stated that it ultimately “found little value in
much of his diagnostic expert opinion” and that it agreed with
only some of his “conclusions regarding characteristics and
personality traits” of Father. But even here, the court stated that
First Expert’s opinions with which it agreed “are consistent with
other evidence presented to the Court regarding Father’s
historical demonstration of” certain negative personality traits,
specifically records submitted into evidence and other trial
testimony. Thus, First Expert’s testimony did not serve as the sole
basis for the court’s findings regarding some of Father’s
characteristics and personality traits. Indeed, the court seemed to
emphasize that its agreement with First Expert in that regard was
based on the corroboration furnished by the court’s own review
of some of the records First Expert examined and on other trial
testimony.
20210637-CA 29 2024 UT App 54Tilleman v. Tilleman
¶63 For these reasons, Father has not demonstrated a
reasonable likelihood that First Expert’s testimony affected the
outcome of the trial, and this argument therefore fails.
IV. Mother’s Imputed Income
¶64 Father contends that the court abused its discretion by
imputing Mother’s income at only the federal minimum wage,
when a higher income was in order given the evidence before the
court. Because the trial court misapplied the controlling legal
standard, we agree.
¶65 “Because income imputation itself is primarily focused on
a spouse’s ability to produce income, it is not unusual for courts
to impute income to a spouse who has not worked during the
marriage (or who has not worked for a number of years preceding
the divorce) but who is nevertheless capable of producing
income.” Petrzelka v. Goodwin, 2020 UT App 34, ¶ 26, 461 P.3d 1134(quotation simplified). “The purpose of such imputation is to
prevent parents from reducing their child support or alimony by
purposeful unemployment or underemployment.” Connell v.
Connell, 2010 UT App 139, ¶ 16, 233 P.3d 836 (quotation
simplified).
¶66 Section 78B-12-203 of the Utah Code establishes the
guidelines by which income may be imputed. It provides that in
contested cases, a trial court may not impute income to a party
without first holding a hearing on the matter and entering
“findings of fact as to the evidentiary basis for the imputation.”
Utah Code Ann. § 78B-12-203(8)(a) (LexisNexis 2022). The statute
further provides that the court’s imputation of income “shall” be
based on the following ten factors, “to the extent known”:
“(i) employment opportunities; (ii) work history; (iii) occupation
qualifications; (iv) educational attainment; (v) literacy; (vi) age;
(vii) health; (viii) criminal record; (ix) other employment barriers
and background factors; and (x) prevailing earnings and job
20210637-CA 30 2024 UT App 54Tilleman v. Tilleman
availability for persons of similar backgrounds in the
community.” 17 Id. § 78B-12-203(8)(b).
¶67 Here, the trial court deemed Mother voluntarily
underemployed and found that she “has experience and skills in
the workforce that would enable her to find employment in
marketing and public relations work.” The court further found
that “[i]f Mother were able to find employment as either a PR
Specialist or in Advertising Sales her likely income would start
around $2,500 to $2,800” per month. But the court opined that to
become employed full-time, “Mother would necessarily incur
childcare costs for a six (6) year old with transportation to and
from school and would need to terminate or significantly modify
her current study program” and that the evidence presented at
trial “does not provide a calculation of the costs of day care
expense necessary for Mother to become full time employed.” The
court further stated that “the evidence provided is insufficient for
the Court to determine that there is current employment available
in either of her experience categories, or what the current rate of
pay would be,” presumably given the impact of the COVID-19
pandemic. Based on those considerations, the court imputed to
Mother “the federal minimum wage of $1,257 per month.”
17. The statute further provides that in cases where “a parent has
no recent work history,” a court may impute “an income at the
federal minimum wage for a 40-hour work week,” and that “[t]o
impute a greater or lesser income, the judge in a judicial
proceeding . . . shall enter specific findings of fact as to the
evidentiary basis for the imputation.” Utah Code Ann.
§ 78B-12-203(8)(c) (LexisNexis 2022). Although Mother was not
working at the time of trial, this did not form the basis for the trial
court’s decision to impute the federal minimum wage to her.
Rather, it found that she had the potential of earning between
$2,500 and $2,800 per month but reduced this amount based on
other factors as explained in paragraph 67.
20210637-CA 31 2024 UT App 54Tilleman v. Tilleman
¶68 The court’s reasons for reducing Mother’s imputed income
from between $2,500 and $2,800 per month to the federal
minimum wage go against the legal standard set forth in section
78B-12-203. As an initial matter, the reasoning that Mother would
need to make adjustments to her schooling in order to pursue
full-time employment has no legal basis. “[T]he pursuit of a
higher education simply does not preclude employment.” Mancil
v. Smith, 2000 UT App 378, ¶ 17, 18 P.3d 509. Although section
78B-12-203 provides that a trial court may not impute an income
to a parent who “is engaged in career or occupational training to
establish basic job skills” when such training “is not of a
temporary nature,” Utah Code Ann. § 78B-12-203(8)(d)(iii), this is
not the case here. Mother already had a bachelor’s degree and was
pursuing a graduate program. Moreover, the court already found
that she possessed skills and experience in the field of marketing
and public relations. See Fish v. Fish, 2010 UT App 292, ¶ 18, 242
P.3d 787 (“The basic job skills training envisioned by the statute is
training which can aid a person in achieving an income beyond
the minimum wage job which can be had with no training at all,
i.e., training for the starting point on a consecutive progressive
career track.”) (quotation simplified). Thus, the court incorrectly
based its reduction in Mother’s imputed income on her pursuit of
higher education.
¶69 As for daycare expenses, at age six, Child would begin
school soon, thus drastically reducing childcare costs as well. In
any event, Utah law provides that “[t]he child support order shall
require that each parent share equally the reasonable
work-related child care expenses of the parents.” See Utah Code
Ann. § 78B-12-214(1) (LexisNexis 2022). Accordingly, the child
support order—and not Mother’s imputed income—was the
appropriate means by which to address childcare costs.
¶70 Lastly, section 78B-12-203(8) mandates that the trial court
base its imputation of income on “employment potential and
probable earnings” by evaluating the ten enumerated factors, “to
20210637-CA 32 2024 UT App 54Tilleman v. Tilleman
the extent known.” Id. § 78B-12-203(8)(b) (emphasis added). The
statute thus expressly provides for possible uncertainty regarding
the factors. Here, the vocational expert, whom the trial court
found to be “qualified and credible,” provided a projection of
future job openings in the field and stated that the unemployment
rate in the area had doubled from the previous year due to the
COVID-19 pandemic. Insofar as the court felt that additional
information regarding current employment opportunities in the
area was necessary, the uncertainty regarding this factor did not
support a reduction of the already determined likely beginning
wage of between $2,500 and $2,800 per month to the federal
minimum wage. To be sure, the trial court has discretion when
weighing the statutory factors, but because the statute expressly
allows for uncertainty regarding the factors, that uncertainty
cannot rationalize the court’s somewhat speculative decision.
¶71 For these reasons, the trial court abused its discretion by
applying the wrong legal standard when imputing Mother’s
income. See T.W. v. S.A., 2021 UT App 132, ¶ 15, 504 P.3d 163. We
therefore reverse the trial court’s imputation of federal minimum
wage income to Mother and remand for recalculation of her
imputed income consistent with this opinion.
V. Attorney Fees and Costs
¶72 Finally, Father contends that in awarding attorney fees and
costs to Mother, the trial court misapplied Utah law by incorrectly
applying the “substantially prevailed” standard and by basing its
decision, in part, on Father’s greater ability to pay. We agree.
¶73 A trial court may award attorney fees in a divorce action
pursuant to section 30-3-3 of the Utah Code. “Both the decision to
award attorney fees and the amount of such fees are within the
district court’s sound discretion.” Lobendahn v. Lobendahn, 2023 UT
App 137, ¶ 44, 540 P.3d 727 (quotation simplified). But the court
must still “make detailed findings of fact supporting its
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determination.” Connell v. Connell, 2010 UT App 139, ¶ 27, 233
P.3d 836.
¶74 Section 30-3-3 “creates two classes of attorney fees—those
incurred in establishing court orders and those incurred in
enforcing court orders.” Id. ¶ 28 (emphasis in original). Subsection
(1) provides,
In any action . . . to establish an order of custody,
parent-time, child support, alimony, or division of
property in a domestic case, the court may order a
party to pay the costs, attorney fees, and witness
fees, including expert witness fees, of the other
party to enable the other party to prosecute or
defend the action. The order may include provision
for costs of the action.
Utah Code Ann. § 30-3-3(1) (LexisNexis Supp. 2023) (emphasis
added). “[T]he party to be awarded attorney fees under this
[subsection] has the burden to prove (1) that the payee spouse has
a financial need, (2) that the payor spouse has the ability to pay,
and (3) that the fees requested are reasonable.” Lobendahn, 2023
UT App 137, ¶ 44.
¶75 Subsection (2) provides,
In any action to enforce an order of custody,
parent-time, child support, alimony, or division of
property in a domestic case, the court may award
costs and attorney fees upon determining that the
party substantially prevailed upon the claim or
defense. The court, in its discretion, may award no
fees or limited fees against a party if the court finds
the party is impecunious or enters in the record the
reason for not awarding fees.
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Utah Code Ann. § 30-3-3(2) (emphasis added). In contrast to
subsection (1), when “awarding fees under subsection (2), the
court may disregard the financial need of the moving party” using
the “substantially prevailed” standard as “the guiding factor.”
Connell, 2010 UT App 139, ¶ 28 (quotation simplified).
¶76 The differing standards of the two subsections are
attributed to the different purposes each subsection serves. See id.
¶ 29. “Attorney fees are granted under subsection (1) to enable a
party to prosecute or defend the action.” Id. (quotation
simplified). Otherwise, “a spouse lacking a separate income
would be unable to meaningfully participate in divorce
proceedings.” Id. “Consequently, the moving spouse’s need is a
sine qua non of a subsection (1) award.” Id. Conversely, “fee
awards under subsection (2) serve no equalizing function but
allow the moving party to collect fees unnecessarily incurred due
to the other party’s recalcitrance.” Id. ¶ 30.
¶77 Here, in addressing the question of attorney fees and costs,
the trial court prefaced its findings with the observation that the
litigation in this matter “was contentious and relied on a
significant amount of documents, which caused a significant
amount of fees to be incurred by the parties.” The court first
denied Father’s request for attorney fees “as a sanction for
[Mother’s] unreasonableness in requiring these proceedings to go
to trial,” ruling that “[a]ttorney’s fees as sanctions are not applied
because a party has been unreasonable in requiring disputes to go
to trial.” The court then turned to Mother’s competing request
premised on her “having ‘substantially prevailed.’” The court
stated that Mother “did substantially prevail, not only at trial, but
at interim hearings on motions prior to trial.”
¶78 Following this preface, the court entered findings
regarding the parties’ need and ability to pay. The court found
that Mother “has limited income, if any, at this time,” and it noted
Father’s annual salary. The court then proceeded to make findings
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on the parties’ expenses and disposable income, prefacing its
findings by stating that it “has limited information regarding each
party’s monthly expenses.” The court found that Father has
“approximately $44,500 in disposable funds annually.” Turning
to Mother next, the court first noted that neither party provided
any evidence of her expenses, leaving the court “with no basis to
find Mother has any expenses beyond those which are covered by
her need for child support.” 18 The court thus found that Mother
“has no income and no evidence of expenses.” The court also
noted that “it received no evidence that Mother can pay for her
costs and attorney fees.” Based on this, the court found that “[a]s
between Father and Mother, Father has the greater ability to pay
attorney’s fees” and held that “Mother should be awarded her
reasonable costs and attorney fees.”
¶79 The court then addressed the reasonableness of Mother’s
attorney fees. It again prefaced its findings by stating that
“[a]lthough the issues of custody, parent time, and child support
are routinely dealt with in our courts, this case is not a ‘usual’
case” because “[t]he parties have been unusually accusatory,
intransigent, and uncooperative which has significantly raised the
costs of this litigation to both parties.” The court noted that
“Father’s decisions caused Mother to successfully bring multiple
orders to show cause, motions to compel, and statements of
discovery issues,” and have “forced Mother to incur otherwise
unnecessary legal costs.” Against this backdrop, the court found
18. Father argues that Mother bore the burden of establishing her
expenses and that the court incorrectly faulted him for not
providing evidence of her expenses. But the inability to establish
Mother’s expenses only benefitted Father—admittedly to a very
limited degree—as the court ultimately did not attribute any
expenses to Mother apart from those that are covered by her need
for child support in its calculation of disposable funds available
to her.
20210637-CA 36 2024 UT App 54Tilleman v. Tilleman
that not all Mother’s requested costs and fees, totaling almost
$410,000, were “reasonable and necessary,” and it ultimately
awarded her $161,066.94 in attorney fees and costs. The court
largely based this reduction on Mother’s “duplication of legal
services, unnecessary review and consultation between multiple
attorneys, and inefficiencies in presenting evidence at trial,”
which the court deemed to be unreasonable.
¶80 There are two problems with the trial court’s award. First,
the court conflated the two distinct bases for awarding fees under
section 30-3-3, resulting in an undifferentiated attorney fees
award. See Connell, 2010 UT App 139, ¶ 31. The court began its
analysis by stating that Mother “substantially prevail[ed], not
only at trial, but at interim hearings on motions prior to trial.”19
This statement in and of itself is concerning as the purpose of the
ten-day bench trial was largely “to establish an order of custody,
parent-time, [and] child support,” thereby implicating subsection
(1). See Utah Code Ann. § 30-3-3(1). But subsection (1) does not
apply a “substantially prevailed” standard. See Lobendahn, 2023
UT App 137, ¶ 44; Connell, 2010 UT App 139, ¶ 29.
¶81 Although some pre-trial motions dealt with enforcing the
court’s temporary orders regarding “custody, parent-time, child
support, alimony, or division of property,” thereby falling under
the ambit of subsection (2), see Utah Code Ann. § 30-3-3(2), the
court did not distinguish between the two distinct statutory bases
for awarding attorney fees. Rather, the court took the total amount
of attorney fees Mother sought and reduced the amount to the
sum it considered reasonable based on multiple inefficiencies on
Mother’s part.
19. The court awarded some attorney fees to Mother for her
success in pre-trial motions along the way. The court also reserved
for later determination the issue of attorney fees on certain other
pre-trial motions.
20210637-CA 37 2024 UT App 54Tilleman v. Tilleman
¶82 The second problem is that in awarding attorney fees
under subsection (1), the court did not expressly find that Father
“has the ability to pay” the requested attorney fees. Lobendahn,
2023 UT App 137, ¶ 44. Instead, the court found that between the
two, “Father has the greater ability to pay attorney’s fees.”
Whether Father is in a better position than Mother to pay attorney
fees and whether Father has an actual ability to pay both his and
Mother’s attorney fees are two different inquiries. Although the
answer to both questions may, on remand, end up being the same,
the court nonetheless did not make the required finding when
awarding Mother attorney fees. See Connell, 2010 UT App 139,
¶ 27 (stating that as part of its attorney fees award, the court
“must make detailed findings of fact supporting its
determination”).
¶83 In sum, we reverse the trial court’s award of attorney fees
and costs and remand with instructions that the court distinguish
the fees that fall under subsection (1) and subsection (2) of section
30-3-3, and that it apply the corresponding legal standard to each
group of fees. In the course of this effort, the court also needs to
make a specific finding regarding Father’s ability to pay Mother’s
attorney fees as to any fees awarded under subsection (1).
CONCLUSION
¶84 There remain issues that require additional attention and
must be revisited on remand. Although we affirm certain of the
trial court’s findings of fact and evidentiary rulings relating to its
award of sole legal custody of Child to Mother, we reverse and
remand with instructions that the court reevaluate its legal
custody award by considering all the statutorily mandated
custody factors, in particular the one focused on past conduct and
moral character. We likewise reverse and remand for further
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consideration of Mother’s imputed income and the award of
attorney fees and costs in Mother’s favor.20
20. Father recently asked that we take judicial notice of
developments in legal proceedings involving other parties that he
believes are germane to this case. Mother opposes Father’s
motion. We are not persuaded that the matters we are asked to
take notice of bear on the issues presented in this appeal and so
deny the motion. If relevant to the issues the trial court will
address on remand, Father may renew his request in that forum.
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