Nave Free v. Free

2019 UT App 83THE UTAH COURT OF APPEALS
LINDA LEE NAVE-FREE,
Appellee,
v.
WENLOCK DUANE FREE JR.,
Appellant.
Opinion
No. 20170751-CA
Filed May 16, 2019
Fourth District Court, Heber Department
The Honorable Jennifer A. Brown
No. 134500083
Russell W. Hartvigsen, Attorney for Appellant
Aaron D. Banks, Attorney for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.
MORTENSEN, Judge:
¶1 After nearly twenty-five years of marriage, Wenlock
Duane Free Jr. (Husband) and Linda Lee Nave-Free (Wife)
divorced. They agreed to a division of their assets and an
upward deviation in the amount of child support based on the
medical needs of two of their children. Wife eventually
remarried and began renting out a house she was awarded in the
divorce. Alleging a substantial change in material circumstances,
Husband petitioned to modify the amount of child support he
was required to pay. The trial court denied the petition, and
Husband appeals. We affirm.
Nave-Free v. Free
BACKGROUND
¶2 Wife and Husband were married in 1990 and had four
children together. They separated in 2012 and divorced in
August 2013. The parties did not use attorneys in their divorce
negotiations. Pursuant to the divorce decree, Wife was awarded
a house in Heber City, Utah, and Husband received a house in
Pleasant Grove, Utah. Frequent flier miles and the proceeds of a
sale of land in Eureka, Utah, were to be divided equally. Wife
also received $24,050 as compensation for any interest she might
have in business ventures developed during the course of the
marriage.
¶3 The parties agreed that Wife was to receive $7,629 per
month as support for the three minor children. The amount
decreased to $6,586 per month when the first child reached
eighteen years of age. See Utah Code Ann. § 78B-12-219
(LexisNexis 2018). 1 The amount further decreased to $5,043 per
month when the second child reached eighteen, and it was to
remain at that amount until April 2023. The amount of child
support represented an upward deviation of about $4,558 per
month from the guidelines. At the time of the divorce, the parties
agreed that the “increased amount [was] based on the ongoing
medical needs of two of the children born to this marriage. Both
parties . . . determined this amount to be fair and necessary.” 2 At
1. Because the statutory provisions in effect at the relevant time
do not differ in any material way from those now in effect, we
cite the current version of the Utah Code.
2. The upward deviation was for the medical needs of the two
oldest children, who were respectively twenty and seventeen
years old at the time of the divorce decree, and not tied to their
minority status. Indeed, the deviation continues until April 2023,
long after both children are over eighteen years old.
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trial, Wife clarified that the increased amount was designated for
the “medical needs” of the two children in a broad sense,
eclipsing actual expenses:
[The deviated amount allowed Husband] to go and
do his thing, and I needed to maintain raising and
taking care of the children, medical needs,
corresponding doctor’s appointments . . . and
accommodating . . . raising children, which then
therefore entailed me not having the right to go
and pursue a career where I could . . . travel and
earn more money. . . . [I]t was so that I would
create a home base, so that I would have a solid
foundation for these kids. Be there. Raise them.
Create that sense of family. You know, and not put
my career first, but put my children first.
¶4 In November 2014, Husband filed a petition to modify the
divorce decree, alleging that substantial changes merited an
adjustment in the amount of child support he was required to
pay. Specifically, he argued that Wife’s income had substantially
increased because she had remarried and moved out of the
house in Heber City and subsequently received rental income
from that property.3 Husband contended that, by this move,
Wife had “voluntarily completely changed her circumstances
and those of the parties’ minor children.” Husband testified that
his income had “gone down just slightly” since the divorce
decree was entered.
3. In his petition to modify, Husband alleged that Wife’s salary
was $3,000 per month. And the trial court made a factual
finding, not challenged on appeal, that Wife’s income in
Wyoming was $3,000 per month. Wife’s income at the time of
the divorce, as reported on the child support obligation
worksheet, was $4,084 per month.
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¶5 At trial, in addition to arguing that Wife’s income and
relative wealth had substantially increased, Husband asserted
that the medical expenses of the two oldest children had
substantially changed. To support his claim of a substantial
change in the medical needs of the children, Husband offered
evidence that Wife’s out-of-pocket expenses relating to the
children’s medical needs had decreased.
¶6 The trial court determined that there had been no material
changes in Wife’s income or in her relative wealth. Regarding
the amount of child support, the trial court concluded that the
deviated amount was “compensation for the ongoing medical
needs of the two oldest children and compensation for the
marital estate acquired over 23 years of marriage.” 4 The trial
4. While not material to the appeal here, in ruling on this matter
the trial court noted that the upward deviation for child support
was “in the nature of a property settlement” because, although it
was to be paid in monthly installments, it was a “sum certain”
and had a “specific date as to when the payments will end.”
While noting our concern about the propriety of using child
support as a means to facilitate property settlements, we decline
to address whether this characterization of the child support
here is accurate because this appeal can be completely resolved
on the basis of the trial court’s conclusion that no material
change of circumstances occurred. However, we note that, with
regard to property settlements, “[s]tipulations entered into in
contemplation of a divorce are conclusive and binding on the
parties unless, upon timely notice and for good cause shown,
relief is granted therefrom.” Bayles v. Bayles, 1999 UT App 128,
¶ 15, 981 P.2d 403 (cleaned up); see also Batty v. Batty, 2006 UT
App 506, ¶ 2, 153 P.3d 827 (“[S]tipulations regarding property
distribution . . . should be respected and given great weight.”
(cleaned up)). Although stipulated agreements “may be
perceived as paring back the role of the court as fact-finder, in
(continued…)
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court, having concluded that there had been no substantial
changes, denied Husband’s petition. It further awarded attorney
fees to Wife as the prevailing party. Husband appeals.
ISSUES AND STANDARDS OF REVIEW
¶7 The first issue on appeal is whether the trial court erred in
determining Wife had not benefited from a substantial change in
income when she started receiving rental income after the
divorce. The second issue is whether the trial court erred when it
determined that Wife had not experienced a material change in
relative wealth when she remarried after the divorce and began
living in a two-income home. The third issue is whether the trial
court erred when it concluded that there had been no substantial
changes in the medical needs of the children to warrant a
modification of child support. 5
(…continued)
most cases this result should be welcomed as an exercise entirely
consistent with efficient and just judicial administration.” Batty,
2006 UT App 506, ¶ 2 (cleaned up).
5. Husband asserts two other issues on appeal. First, he argues
that the trial court failed to address certain issues raised at trial,
specifically the division of frequent flyer miles and the transfer
of marital real property in Eureka, Utah. In fact, the court did not
overlook these issues, because it had previously addressed them
in a contempt judgment against Husband. On appeal, Husband
could have challenged the contempt judgment, but he did not do
so. Thus, we decline to address issues related to the division of
the frequent flyer miles and the property in Eureka.
Second, Husband contends that the trial court erred in its
award of attorney fees to Wife, but the only argument Husband
makes in this regard is the following syllogism: (a) the trial
(continued…)
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¶8 These three issues share a common standard of review.
“We generally review a [trial] court’s determination to modify or
not to modify a divorce decree for an abuse of discretion.
However, we review for correctness any challenges to the legal
adequacy of findings of fact or to the legal accuracy of the [trial]
court’s statements underlying such a determination.” Fish v. Fish,
2016 UT App 125, ¶ 5, 379 P.3d 882 (cleaned up). Furthermore, a
trial “court’s determination regarding whether a substantial
change of circumstances has occurred is presumptively valid,
and our review is therefore limited to considering whether the
[trial] court abused its discretion.” Earhart v. Earhart, 2015 UT
App 308, ¶ 5, 365 P.3d 719.
ANALYSIS
I. Change in Wife’s Income
¶9 Husband’s primary contention is that because Wife’s
income substantially increased, the amount of child support
should be adjusted in his favor. The Utah Child Support Act
(Act), see generally Utah Code Ann. §§ 78B-12-101 to -403
(LexisNexis 2018), allows a parent to petition the court to adjust
the amount of child support for, among other circumstances,
“material changes of 30% or more in the income of a parent,” id.
§ 78B-12-210(9)(b)(iii). “However, to succeed on a petition to
(…continued)
court’s fee award was grounded in the assumption that Wife
substantially prevailed at trial; (b) according to Husband, he
should have prevailed at trial; and therefore (c) he (and not
Wife) should be awarded fees. Without opining on the propriety
of the trial court’s use of the “substantially prevailed” standard
to award fees in the first place, we reject Husband’s argument
because we affirm the trial court’s substantive rulings, and
therefore Husband’s minor premise fails.
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modify, the moving party must first show that a substantial
material change of circumstance has occurred since the entry of
the decree and second, that the change was not contemplated in
the decree itself.” Diener v. Diener, 2004 UT App 314, ¶ 7, 98 P.3d
1178 (cleaned up). Because Husband has failed to show that a
material change has occurred, we limit our analysis to the first
prong.
¶10 “An appellant [who] fails to devote adequate attention to
an issue is almost certainly going to fail to meet [his] burden of
persuasion.” Bank of Am. v. Adamson, 2017 UT 2, ¶ 13, 391 P.3d
196. In this regard, Husband “must cite the legal authority on
which [his] argument is based and then provide reasoned
analysis of how that authority should apply in the particular
case, including citations to the record where appropriate.” Id.“[Husband] cannot carry [his] burden by simply listing or
rehashing the evidence and arguments [he] presented during
trial.” Taft v. Taft, 2016 UT App 135, ¶ 43, 379 P.3d 890. Nor can
he “persuasively carry [his] burden by merely pointing to
evidence that might have supported findings more favorable to
[him]; rather, [Husband] must identify flaws in the evidence
relied on by the trial court that rendered the trial court’s reliance
on it, and the findings resulting from it, clearly erroneous.” Id.;
accord Shuman v. Shuman, 2017 UT App 192, ¶ 8, 406 P.3d 258.
Thus, Husband “has the burden of showing a substantial change
in circumstances. It is insufficient to show that there has been
some change, without a showing that such change was
substantial.” Diener, 2004 UT App 314, ¶ 7 (cleaned up). Under
this standard, Husband has failed to carry his burden of
persuasion.
¶11 Husband contends that “[i]t is undisputed that Wife’s
income increased by more than 40% from the time of the decree
of divorce to the time the petition to modify was filed.” But a
40% increase in income is undisputed only if one buys into
Husband’s flawed logic. Using Wife’s income at the time of the
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decree of divorce ($4,084 per month) as a base, Husband adds
$1,750 per month of rental income from the house in Heber City,
resulting in a monthly income of $5,834, a 43% increase in
income. But Husband ignores a key fact in his ciphering: Wife’s
income was only $3,000 per month at the time of the petition to
modify. 6 Even if we credit $1,750 per month in rent as income,
Wife made $4,750 per month at the time of the petition to
modify, an increase of only 16% from her income at the time of
the divorce. 7 Thus, Husband has failed to carry his burden of
persuasion to show that Wife’s income has increased sufficiently
(i.e., 30% or more) under section 78B-12-210(9)(b)(iii). 8
6. Husband does not dispute or challenge with evidence to the
contrary the amount of Wife’s income when the petition to
modify was filed. Indeed, Husband assigned $3,000 in monthly
income to Wife in his petition to modify. Citing Utah Code
section 78B-12-203 on appeal, Husband obliquely suggests that
more income should be imputed to Wife. But he offers no
argument and provides no evidence to support his position.
7. Wife mortgaged the Heber City house to help pay for a house
in Wyoming that she shares with her current husband. She
testified that her monthly mortgage payment is about $2,200.
The trial court noted that the income Wife received in rent was
offset by expenses associated with the mortgage and
maintenance of the Heber City house. Husband attacks this
analysis, but we conclude it is not material to our decision,
because even assuming no offset for the mortgage and
maintenance, Husband still has not shown an increase in income
of 30%.
8. As a separate issue, Husband contends the trial court erred in
not holding that Cantrell v. Cantrell, 2013 UT App 296, 323 P.3d
586, was applicable to this case. Husband asserts that Cantrell “is
(continued…)
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II. Change in the Relative Wealth or Assets of the Parties
¶12 Next, Husband argues that Wife has had a change in
relative wealth because she has remarried and now lives in a
two-income household. The Act allows a parent to petition the
court to adjust the amount of child support for “material
changes in the relative wealth or assets of the parties.” Utah
Code Ann. § 78B-12-210(9)(b)(ii) (LexisNexis 2018).
¶13 As with our analysis of the alleged material change in
income, Husband “has the burden of showing a substantial
change in circumstances” with respect to the parties’ relative
wealth. Diener v. Diener, 2004 UT App 314, ¶ 7, 98 P.3d 1178(cleaned up). “It is insufficient to show that there has been some
change, without a showing that such change was substantial.”
Id. (cleaned up).
¶14 Husband has failed to carry his burden of persuasion
because he has not established by evidence a change in relative
wealth. Although Wife’s income has increased—if we include
the rental income—from $4,084 to $4,750 per month, her
monthly expenses, owing largely to a mortgage taken on the
house in Heber City, have also increased. Husband testified that
(…continued)
not just instructive for this matter, but controlling case law on
eerily similar facts.” Although Cantrell might be superficially
similar to the present case, as the trial court pointed out, it is
readily distinguishable. Unlike Cantrell, in this case (1) there is
substantial evidence of the reason for the upward deviation;
(2) the children and Wife were not living in the marital home at
the time of the divorce; (3) Wife was not maintaining the same
level of lifestyle but was forced to change her living
circumstances in response to the loss of Husband’s income; and
(4) Husband does not actively participate in his children’s lives.
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his income has slightly decreased. Far from a material change in
the parties’ relative wealth, the evidence supports the conclusion
that their relative wealth has remained roughly the same.
Accordingly, Husband has also failed to carry his burden on this
issue.
III. Change in the Medical Needs of the Children
¶15 Husband also contends that a change in the medical
needs—as expressed in reduced expenses—of the two oldest
children justifies a decrease in the amount of child support he
owes. The Act allows a parent to petition the court to adjust the
amount of child support for “material changes in the medical
needs of the child.” Utah Code Ann. § 78B-12-210(9)(b)(v)
(LexisNexis 2018). Husband’s contention here fails because he
has not shown any change in the medical needs of the children.
¶16 The Child Support Obligation Worksheet stated, “The
increased amount [of $7,629] is based on the ongoing medical
needs of two of the children born to this marriage. Both parties
have determined this amount to be fair and necessary.” This
amount of child support was subsequently incorporated in the
Decree of Divorce and Judgment. Thus, the parties’ own
negotiations at the time of the divorce showed that the deviated
amount was based on the medical needs, not the medical
expenses, of the children.
¶17 “The primary objective of statutory interpretation is to
ascertain the intent of the legislature. Since the best evidence of
the legislature’s intent is the plain language of the statute itself,
we look first to the plain language of the statute.” Bagley v.
Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000 (cleaned up). “We
therefore look first to the plain language of the statute,
presuming that the legislature used each word advisedly, and
when we can ascertain the intent of the legislature from the
statutory terms alone, no other interpretive tools are needed, and
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our task of statutory construction is typically at an end.” Dole v.
Dole, 2018 UT App 195, ¶ 15, 437 P.3d 464 (cleaned up).
¶18 Husband makes the fatal error of conflating medical
expenses with medical needs. The two are conceptually distinct.
If the legislature had wanted to use the word “expenses,” it
would have done so. Instead the legislature allows a parent to
petition to adjust child support based on changes to the medical
“needs” of the child. Medical expenses refer to the actual cost of
medical care. Medical needs concern underlying medical
conditions. Obviously, a child’s medical needs will likely result in
medical expenses, but the two are not necessarily equivalent. In a
nutshell, medical needs are conditions attended to, while
medical expenses are bills to be paid. See Hansen v. Hansen, 2009
UT App 152U, para 3 (“Mother remains liable for the support of
the child, including the responsibility to pay school fees, buy
clothing, transport her to doctor and counseling appointments,
attend to her medical needs, and pay her medical expenses.”),
aff'd, 2012 UT 9, 270 P.3d 531. Indeed, courts in other
jurisdictions have recognized this distinction between medical
needs and medical expenses. See In re Harrelson, 311 B.R. 618, 621
(Bankr. M.D. Fla. 2004) (“[A]lthough [debtor] has only minimal
current medical expenses, her future medical needs are
unknown.”); Poberesky v. Poberesky, 897 N.Y.S.2d 401, 402 (App.
Div. 2010) (stating that “special medical needs” may require
additional spousal support for “medical expenses or health
insurance coverage”).
¶19 Husband does not address medical needs. Rather, he
addresses only out-of-pocket medical costs. But a decline in
Wife’s out-of-pocket expenditures for the medical treatment of
her children is not necessarily evidence that the children’s
overall medical needs have changed. The record contains no
evidence, or even mere argument, that the underlying medical
conditions—the needs—have improved. Husband asserts only
that Wife’s out-of-pocket costs have declined. But this fact alone
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cannot carry the day for Husband, because it does not address
the actual medical needs and conditions of the two oldest
children. 9 Indeed, Husband himself admitted at trial that the two
oldest children’s medical conditions are serious and have not
substantially changed since the time of divorce. 10 Thus,
Husband’s contention in this regard is without merit because he
failed to show any material change in the children’s medical
needs on which the upward deviation was premised.
IV. Attorney Fees
¶20 Because we affirm the trial court’s ruling, Wife remains
entitled to the award of attorney fees she received in the
proceedings below. Wife requests that she also be awarded her
fees and costs on appeal when this court enters its affirmation of
the trial court’s ruling. While not opining on the propriety of the
trial court’s use of the “substantially prevailed” standard, a point
not assailed on appeal, see supra note 5, as we have substantively
affirmed all the trial court’s rulings appealed from, we award
Wife attorney fees on appeal and remand to the trial court to
calculate the reasonable amount of fees and costs she incurred in
connection with this appeal.
9. In reality, it is likely that the medical expenses of the children
have not changed either. What has changed is how those
expenses are paid (e.g., private insurance, out-of-pocket,
Medicaid).
10. In fact, Husband testified that he regarded the children’s
medical conditions as “very severe.” Husband stated that he was
unaware of a material change in the older son’s medical
condition since the time of the divorce. Nor does Husband
dispute that the younger of the two sons has a serious medical
condition.
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CONCLUSION
¶21 We conclude that the trial court properly determined that
there had not been a substantial material change in Wife’s
income, in the parties’ relative wealth, or in the medical needs of
the children. Having affirmed the trial court’s decision, we also
award Wife attorney fees incurred on appeal and remand for a
determination of those fees.
¶22 Affirmed.
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