McFarland v. McFarland
2021 UT App 58
Utah Ct. App.2021Background
- Parties divorced in 2009 by stipulated decree: Bruce ordered to pay $1,700/month alimony (terminates on remarriage/cohabitation/etc.); Nicole awarded the marital home and mortgage obligation; custodial schedule granted Bruce ~24 overnights/month (Nicole ~6). Child support was set by using the sole-custody worksheet but paid to Nicole as a stipulated amount (~$739.73/month initially).
- After the decree, both parties violated its terms: Nicole made no mortgage payments; Bruce paid mortgage, made only minimal alimony/child-support payments, moved back into the home, and cohabited with Nicole Sept 2009–Apr 2010.
- Nicole enlisted in the military in Apr 2010; Bruce thereafter provided nearly all childcare and household support through 2017; Nicole remarried in 2015.
- In 2017 Bruce sought modification (terminate alimony, award him sole custody and child support from Nicole, and award him the home); Nicole sought contempt for Bruce’s alleged unpaid alimony, unpaid child support, occupying/refinancing the home.
- The district court found Bruce in contempt for failing to pay alimony (concluding cohabitation did not terminate alimony), computed large arrearages through Nicole’s 2015 remarriage, declined contempt on child support (applying §78B-12-108 “support follows the child”), and declined contempt regarding the home.
- On appeal, the court affirmed the alimony contempt (applying Scott) but reversed the child-support ruling, holding §78B-12-108 inapplicable because there was no legal change in physical custody and because the original decree effectively awarded Bruce sole custody.
Issues
| Issue | Plaintiff's Argument (Bruce / Nicole) | Defendant's Argument | Held |
|---|---|---|---|
| Whether cohabitation in 2009–2010 terminated Bruce’s alimony obligation under the alimony statute | Bruce: cohabitation terminated alimony; no arrears | Nicole: termination requires timely petition during cohabitation (Scott) | Held: Alimony did not terminate by statute — Bruce’s petition was untimely under Scott; contempt for unpaid alimony affirmed |
| Whether the statutory phrase “cohabitating with another person” excludes the payor spouse (i.e., cohabitation with the payor cannot terminate alimony) | Nicole: "another person" excludes the payor; so cohabitation with Bruce does not terminate alimony | Bruce: (argues termination by cohabitation generally) | Held: Court did not decide this question on appeal (Scott timeliness ground dispositive) |
| Whether §78B-12-108 ("support follows the child") redirected child support to Bruce retroactively (to 2009) without a modification | Bruce: §108 allows redirection because children lived primarily with him | Nicole: §108 requires a legal change in physical custody and excludes joint-custody cases; no legal custody change here | Held: §108 inapplicable — no legal change in physical custody (custody was already sole to Bruce); district court erred; child-support relief to 2009 reversed; remand for further contempt proceedings regarding child support |
| Whether Bruce could obtain child-support arrears from Nicole dating to 2009 | Bruce: (sought affirmative arrears claim) | Nicole: Bruce made no timely affirmative claim; statutory retroactivity limits apply | Held: Bruce did not plead an affirmative arrears claim pretrial; §108 does not permit retroactive award here, so no award to Bruce |
Key Cases Cited
- Scott v. Scott, 423 P.3d 1275 (Utah 2017) (interpreting alimony statute to require filing while cohabitation is ongoing)
- Hansen v. Hansen, 270 P.3d 531 (Utah 2012) (§78B-12-108’s “support follows the child” is limited: redirection requires legal change in physical custody and subsection (2)’s prerequisites)
- Myers v. Myers, 266 P.3d 806 (Utah 2011) (identifies hallmarks of cohabitation)
- Ross v. Ross, 447 P.3d 104 (Utah Ct. App. 2019) (distinguishes custody categories and explains when schedule changes constitute custody change vs parent-time)