Reller v. Argenziano

• Decision Date: 17 September 2015
• Docket Number: No. 20140736–CA.,20140736–CA.
• Citation: 360 P.3d 768,2015 UT App 241
• Parties: Karine RELLER, Appellant, v. Francis ARGENZIANO, Appellee.
• Court: Utah Court of Appeals

360 P.3d 768

2015 UT App 241

Karine RELLER, Appellant,

v.Francis ARGENZIANO, Appellee.

No. 20140736–CA.

Court of Appeals of Utah.

Sept. 17, 2015.

Gregory W. Stevens, Salt Lake City, for Appellant.

James A. McIntyreand Richard R. Golden, Salt Lake City, for Appellee.

Opinion

CHRISTIANSEN, Judge:

¶ 1 Karine Feldman (formerly Karine Reller) appeals from the trial court's Amended Supplemental Decree of Parentage and Judgment. She challenges the trial court's order denying her motion to amend her complaint to recover retroactive child support from 2005 to 2009. In addition, Feldman claims that the trial court abused its discretion by imputing income to Francis Argenziano without first finding that he was voluntarily underemployed and by declining to hold Argenziano in contempt for failing to pay child support for January and February 2013. We affirm.

BACKGROUND

¶ 2 In 2005, Feldman gave birth to a child while married to Micah Reller. Feldman and Reller divorced in 2006 via a default decree. See Reller v. Reller,2012 UT App 323, ¶ 2, 291 P.3d 813. That divorce decree identified that the parties had one child during the marriage. Id.At the time the decree was entered, Feldman had sole physical custody of the child and Reller had visitation rights. Id.In 2007, Reller petitioned the court to modify the custody arrangement. Id.Feldman opposed the petition to modify, and filed her own petition to modify, “wherein she asserted for the first time that [Reller] was not actually the father of her child.” Id.Feldman then sought to join Argenziano in the divorce case so that he could be adjudicated as the father of the child. Id.¶ 3. Through genetic testing, Reller was excluded as the child's father. Id.In March 2009, the district court in the divorce case “entered a stipulated partial decree of divorce, effectively divorcing [Reller] and [Feldman] and setting forth findings adequate to rebut the parental presumption as to [Reller], excluding him as the father of the child born during the marriage.” Id.

¶ 3 In September 2009, the State of Utah commenced a child-support and paternity action against Argenziano on behalf of Feldman. The complaint requested that child support be awarded both prospectively and retroactively from March 2009.

¶ 4 In September 2010, Feldman and Argenziano attempted to resolve the child-support issue by mutual agreement. In a written stipulation, Argenziano and Feldman agreed that Argenziano would pay Feldman “$26,000.00 representing 13 months of retroactive child support from July 1, 2009 to August 1,2010.”

¶ 5 The trial court declined to approve the stipulation because it was only a partial settlement and Feldman was not a party to the child-support case. In December 2010, the trial court ordered that Feldman be substituted as the petitioner in the child-support case in place of the State, stating that the underlying complaint would remain.

¶ 6 After she was joined in the case, Feldman filed a motion for “Temporary Orders and an Order Enforcing the Settlement Agreement,” seeking orders regarding child support, retroactive child support “pursuant to the parties' stipulated agreement,” parent-time, and health insurance. A domestic relations commissioner held a hearing on the motion, entered temporary orders, and reserved for trial the issues of child support and retroactive child support. At a review hearing one month later, the commissioner recommended that Argenziano pay child support prospectively from November 2010 in the amount of $3,017.30 per month and reserved “any prior claims” for trial.

¶ 7 Following the commissioner's recommendation, the trial court denied Feldman's renewed motion to enforce the settlement agreement. Regarding child support, the court ordered Argenziano to pay Feldman child support in the amount recommended by the commissioner. The court based this determination on Feldman's imputed gross monthly income of $1,257.00 and Argenziano's adjusted gross monthly income for 2010 of $41,815.45. The court did not enter any orders regarding retroactive child support, stating that “the issue of whether or not the Respondent should be ordered to pay to Petitioner support prior to November 2010 is reserved for trial.”

¶ 8 Argenziano's income changed significantly before trial. As a result, he moved to reduce his temporary support obligation. The court denied Argenziano's request to reduce his temporary child support from $3,017.30 to $920.00 based on his claimed change in income. The court did, however, reduce his temporary child support obligation to $2,724.00 based on credits for having a minor child in his home and medical insurance premiums for that minor child.

¶ 9 On November 18, 2012, Feldman's counsel sent an email to Argenziano's counsel, stating, “As I am sure you have assumed, our position will be for support from September, 2005, per the statute.” Discovery closed on March 21, 2013. The parties filed their trial briefs on August 21, 2013. In her trial brief, Feldman stated,

Utah Code Ann. § 78B–15–109allows the Court to make the child support order retroactive four years prior to the filing of the petition. Here, the petition was filed on September 3, 2009. There is no reason not to require [Argenziano] to support his child as far back as the statute allows. Thus, the Court should make the support order retroactive to September 3, 2005.

We refer to Feldman's claim for retroactive child support extending back to 2005 as the “Retroactive Support Claim.”

¶ 10 A pretrial hearing was held on August 28, 2013. At the pretrial hearing, Argenziano raised a number of evidentiary objections but did not object to the Retroactive Support Claim. The court then directed the parties to identify before trial any exhibits to which there were objections and concluded the hearing. On the morning of trial, Argenziano objected to the Retroactive Support Claim. Argenziano also objected to the admission of any tax returns for years predating the filing of the action because “they would not be relevant to child support.” Argenziano claimed that the complaint, which sought retroactive child support only from March 2009 to September 2009, was “the basis [the parties have] litigated the entire lawsuit and now, in the trial brief for the first time, the issue of child support back to 2005 is being raised. That's improper and that denies [Argenziano] due process of law.” In response, Feldman made an oral motion to amend the complaint, claiming that the petition was filed by the State, not Feldman, and that she “did not see [the complaint].” Argenziano then stated that, had Feldman moved to amend her complaint to add the Retroactive Support Claim, he “would have objected” and “now to move to amend [the complaint] on the day of trial is certainly prejudicial to [Argenziano].” The court took the motion under advisement and told both parties that it would conditionally accept evidence relating to child support for the years 2005 through 2009 and would rule on the motion and evidence once it received supplemental briefing from the parties after trial. After receiving the supplemental briefing, the court denied the motion to amend, finding that it was untimely and prejudicial to Argenziano and that there was no justification for Feldman's delay in filing the motion.

¶ 11 In its findings of fact and conclusions of law entered after trial, the trial court imputed $6,443.33 in monthly income to Argenziano “[b]ased on all of the evidence, [the] uncertainty with respect to [Argenziano's] employment, and the [Bureau of Labor Statistics's] average median wage in the New York area” for financial specialists working in investment banking and securities dealing. The trial court also denied Feldman's request to hold Argenziano in contempt for failing to pay child support in January and February 2013 because Argenziano “did not have the ability to pay.”

¶ 12 Feldman filed a motion for new trial, arguing, among other things, that the trial court erred by not treating the Retroactive Support Claim as having been tried by consent. The trial court denied the motion, explaining that it could not deem the Retroactive Support Claim to have been tried by consent, because Argenziano objected before trial to Feldman's attempt to try the issue. Feldman now appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 13 Feldman argues that the trial court should have determined that the Retroactive Support Claim was tried by express or implied consent pursuant to rule 15(b) of the Utah Rule of Civil Procedure. “We review for correctness a district court's determination that rule 15(b)is inapplicable.” McCollin v. J.D.F. Props., LLC,2014 UT App 75, ¶ 13, 324 P.3d 662.

¶ 14 Next, Feldman argues that by denying her motion to amend, the court “effectuated a waiver” of the Retroactive Support Claim in violation of Utah Code section 78B–12–109. Whether Utah Code section 78B–12–109applies “is a matter of statutory interpretation, which presents a question of law.” See Vorher v. Henriod,2013 UT 10, ¶ 6, 297 P.3d 614(citation and internal quotation marks omitted). We review the trial court's interpretation of the statute for correctness. See id.And we will not disturb a trial court's denial of a motion to amend pleadings absent an abuse of discretion. See Fishbaugh v. Utah Power & Light,969 P.2d 403, 405 (Utah 1998).

¶ 15 Feldman claims that the court erred in imputing income to Argenziano “when it concluded, albeit implicitly, that Mr. Argenziano is not voluntarily underemployed” and that the court erred “as a matter of law when it imputed income to him based solely on general data from the [Bureau of Labor Statistics].” Because trial courts have broad discretion to award child support, “we will not disturb such decisions absent an abuse of discretion.” Roberts v. Roberts,2014 UT App 211, ¶ 7, 335 P.3d 378. “That means that ‘as long as the court exercise[d] its discretion within the bounds and under the standards we have set and has supported its decision with adequate findings and...