443 P.3d 1217
Utah2019Background
- Kristen Pulham and William Kirsling divorced after child born 2008; district court entered Amended Decree (Nov. 4, 2014) reserving custody/support issues and later issued detailed findings after a 2014 bench trial.
- District court awarded joint legal/physical custody, designated Pulham primary caretaker and residence, and gave Kirsling ~40% of possible nights; ordered child support based on stipulated incomes ($30/mo for Pulham; $4,580/mo for Kirsling), resulting in $548/month support order.
- Kirsling moved for a new trial raising surprise, newly discovered evidence, insufficiency of evidence, and error of law; motion denied (June 17, 2015); he appealed but limited his notice of appeal to three paragraphs addressing child support, ORS fees/child care, and contempt (First Appeal).
- While First Appeal pending, Kirsling petitioned to modify parent-time based on a move closer to the child; district court denied the petition for insufficient change of circumstances (Feb. 25, 2016); Kirsling appealed that denial (Second Appeal).
- Utah Court of Appeals consolidated appeals, limited review in the First Appeal to the specifically listed paragraphs, and affirmed the district court on child support and on denial of modification; Utah Supreme Court granted certiorari and affirmed.
Issues
| Issue | Plaintiff's Argument (Kirsling) | Defendant's Argument (Pulham) | Held |
|---|---|---|---|
| Scope of appellate jurisdiction from notice of appeal | Notice referred to the Amended Decree and related order so appeal covers entire order denying new trial | Notice expressly lists three paragraphs; limited appeal to those parts | Notice of appeal limited appellate jurisdiction to the three specified parts; Court affirms limitation |
| Alleged erroneous finding of Pulham's $30/mo income | District court erred (no actual stipulation); insufficient evidence warrants new trial | Any error harmless; evidence showed Pulham essentially unemployed so error likely benefitted Kirsling | Any error was harmless; no reasonable likelihood of a more favorable result for Kirsling |
| Failure to impute income to Pulham under Utah Code §78B-12-203 | Court should have imputed income and held new trial for error in law | Imputation is discretionary, requires an evidentiary hearing and findings; record lacked requisite evidence and hearing | No reversible error: imputation would have been improper without a hearing and record lacked evidence to support imputation |
| Standard for modification of parent-time (change of circumstances) | District applied a substantial/material-change standard; should have applied a less stringent parent-time standard | District considered change and denied relief; Kirsling failed to preserve argument on standard | Argument unpreserved; court declines to review and affirms denial of modification |
Key Cases Cited
- Baumann v. Kroger Co., 416 P.3d 512 (Utah 2017) (standard of certiorari review of court of appeals and preservation issues)
- Drew v. Lee, 250 P.3d 48 (Utah 2011) (interpretation of procedural rules is reviewed for correctness)
- Nunley v. Stan Katz Real Estate, Inc., 388 P.2d 798 (Utah 1964) (notice of appeal must advise opposing party what is being appealed)
- Jensen v. Intermountain Power Agency, 977 P.2d 474 (Utah 1999) (Rule 3(d) requirement is jurisdictional)
- Kilpatrick v. Bullough Abatement, Inc., 199 P.3d 957 (Utah 2008) (liberal construction of notice of appeal where opposing party not prejudiced)
- Child v. Gonda, 972 P.2d 425 (Utah 1998) (harmless-error standard: reversal only if reasonable likelihood of more favorable result)
- Finch v. Fort Bend Indep. Sch. Dist., 333 F.3d 555 (5th Cir. 2003) (federal circuit principle: appeal of specified parts limits review to those parts)
- Cunico v. Pueblo Sch. Dist. No. 60, 917 F.2d 431 (10th Cir. 1990) (appellate jurisdiction limited to parts designated in notice of appeal)