Pulham v. Kirsling
427 P.3d 261
Utah Ct. App.2018Background
- Pulham and Kirsling divorced after a bench trial resolving custody, child support, past-due support, and unreimbursed child-care expenses; the court awarded joint legal and physical custody, named Pulham primary custodial parent, and gave Pulham final say on school choice.
- The court increased Kirsling’s parent-time above the statutory standard but limited travel time to avoid long commutes for the child.
- The court calculated child support using the parties’ stated monthly gross incomes (listing Pulham as $30/month and Kirsling as $4,580/month) and ordered Kirsling to pay $548/month plus reimbursements for past-due support, ORS fees, and unpaid child-care expenses.
- Kirsling moved for a new trial under Utah R. Civ. P. 59 (claiming newly discovered evidence re: a cashed money order, and contesting imputation of Pulham’s income and deviation from the custody evaluator). The court denied the motion.
- While that appeal (First Appeal) was pending, Kirsling petitioned to modify the decree based on a relocation closer to Pulham; the trial court denied the petition and Kirsling filed a second appeal (Second Appeal).
Issues
| Issue | Plaintiff's Argument (Kirsling) | Defendant's Argument (Pulham) | Held |
|---|---|---|---|
| Whether the court erred by calculating Pulham’s income at $30/month for child-support | The $30 finding was unsupported or showed improper imputation; income should be higher | The court used the parties’ stipulated incomes; Pulham was unemployed and caring for children | Court affirmed: even if $30 lacked an evidentiary record, any error did not prejudice Kirsling and imputation was not required on this record |
| Whether denial of a new trial for newly discovered evidence (cashed money order) was erroneous | Post-trial obtained cashed money order would change amounts owed; moved with diligence | The purported affidavit was unsigned/unsworn and did not show why evidence couldn’t be found earlier or that outcome would differ | Court affirmed: trial court did not abuse discretion—claim lacked proper affidavit and proof of diligence/outcome effect |
| Whether the court erred by deviating from the custody evaluator without specific on-record findings | Court failed to explain on record why it departed from evaluator’s recommendations | Court articulated reasons in its findings and exercised discretion on custody and travel concerns | Not reached on merits—this issue was outside the scope of the notice of appeal and thus not before the court |
| Whether the trial court erred in denying modification of parent-time after Kirsling’s relocation | Move to Stansbury Park (closer) eliminated commute and warranted 50/50 parent-time under a lower parent-time modification standard | Pulham: move didn’t change custodial functioning; court wary of transient relocation and motive to manufacture a change | Court affirmed: it considered merits, found the move insufficient (and possibly transient/motivated), and did not apply an improper heightened standard; argument also unpreserved |
Key Cases Cited
- Goggin v. Goggin, 267 P.3d 885 (Utah 2011) (whether appellate jurisdiction exists is a question of law)
- Jensen v. Intermountain Power Agency, 977 P.2d 474 (Utah 1999) (notice of appeal must advise which judgment is appealed)
- Kilpatrick v. Bullough Abatement, Inc., 199 P.3d 957 (Utah 2008) (liberal construction of notice of appeal when opposing party not prejudiced)
- Haslam v. Haslam, 657 P.2d 757 (Utah 1982) (different thresholds for modifying custody versus parent-time)
- Jones v. Jones, 374 P.3d 45 (Utah Ct. App. 2016) (parent-time modifications require a lesser showing than custody modifications)