Pulham v. Kirsling

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