Nave-Free v. Free

• Decision Date: 16 May 2019
• Docket Number: No. 20170751-CA,20170751-CA
• Citation: 444 P.3d 3
• Parties: Linda Lee NAVE-FREE, Appellee, v. Wenlock Duane FREE Jr., Appellant.
• Court: Utah Court of Appeals

444 P.3d 3

Linda Lee NAVE-FREE, Appellee,

v.Wenlock Duane FREE Jr., Appellant.

No. 20170751-CA

Court of Appeals of Utah.

Filed May 16, 2019

Russell W. Hartvigsen, Salt Lake City, 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.

Opinion

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.

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 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.

¶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 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

¶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 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, 98 P.3d 1178 (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 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

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...