REBECCA ELLEN ALLEN v. KENT DARIUS ALLEN
No. 20190369-CA
THE UTAH COURT OF APPEALS
February 25, 2021
2021 UT App 20
Third District Court, Salt Lake Department
The Honorable Amber M. Mettler
No. 154906438
Sara Pfrommer and Kathleen McConkie, Attorneys for Appellant
Russell Yauney, Attorney for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.
¶1 Kent Darius Allen appeals the district court‘s supplemental divorce decree in his divorce from Rebecca Ellen Allen. Kent1 contends that the court erred in finding him in contempt and in its determinations regarding alimony, child support, and child custody. We reject his arguments and affirm.
¶2 Kent and Rebecca were married in 2004 and have five minor children. They separated in September 2014, when Rebecca moved to Utah with the children and Kent stayed in Texas. During this time, Rebecca worked part-time and provided full-time care for the children, while Kent did not work but received disability payments based on a 100% disability rating from the United States Department of Veterans Affairs (VA).
¶3 Rebecca filed for divorce in Utah in October 2015. Kent moved to Utah in the spring of 2016. Early in the litigation, in July 2016, Rebecca moved for an award of half of retroactive benefits Kent received from the VA. Rebecca claimed she was entitled to $56,171 of those benefits as rehabilitative spousal support. In responding to the motion, Kent filed a declaration in which he did not dispute receipt of the VA benefits. And in his August 2016 financial declaration, Kent acknowledged receiving around $89,900 as a “VA Disability Settlement minus attorney fees.”
¶4 A domestic relations commissioner conducted a hearing in August 2016. The commissioner recommended, among other things, that Kent and Rebecca have temporary joint legal custody of their children and that Rebecca have temporary physical custody. The commissioner also recommended that Kent pay Rebecca $44,500 from the VA benefits and around $1,200 in monthly child support. These recommendations were memorialized in a temporary order entered and counter-signed by the district court in October 2016 (the Temporary Order).
¶5 Kent objected to the Temporary Order. The district court held a hearing on November 3, 2016, in which it overruled the objection and adopted the commissioner‘s recommendation. It also ordered Kent to pay Rebecca her share of the VA benefits “within 30 days.”
¶6 On December 9, 2016, Rebecca moved for an order to show cause, asserting, among other things, that Kent was in contempt for not complying with the court‘s order to pay her portion of the VA benefits. Rebecca thus asked for a judgment against Kent in the amount of $44,500. After a hearing, the commissioner entered an order certifying the issue of contempt for Kent‘s “failure to pay the spousal support award of [$44,500]” as required by the Temporary Order. The commissioner‘s order also stated that a “judgment in the amount of [$44,500] for spousal support arrears shall enter for the period of October 28, 2016, through March 2, 2017” (the Judgment).2 The district court counter-signed the Judgment.
¶7 In May 2017, Rebecca filed another motion for an order to show cause, asserting that Kent should be held in contempt for failing to pay child support between December 2016 and April 2017. Kent responded that he had already paid $11,294 of his social security benefits to Rebecca and that those funds covered his child support obligation for the time period at issue as well as for four additional months. After hearing argument, the commissioner certified the issue of Kent‘s alleged contempt. The commissioner also ordered entry of judgment against Kent for $4,792 in past-due child support from December 2016 through May 2017. The court counter-signed the order entering judgment for $4,792.
¶8 Rebecca filed yet another motion for an order to show cause in October 2017, this time asserting that Kent had not paid child support from June to September 2017. After a hearing, the
commissioner certified the contempt issue and awarded judgment to Rebecca for $4,722 in past-due child support for the months of June through November 2017. The court counter-signed this order. Consequently, Kent had accumulated judgments against him totaling $54,014 for unpaid child support and retroactive spousal support.
¶9 Meanwhile, Kent filed various motions in which he argued that the division of his VA benefits, as ordered in the Temporary Order, was impermissible under federal law and that the $44,500 Judgment should be
¶10 The court entered a bifurcated divorce decree in August 2017. The issues of child support, custody, and contempt were tried to the bench in 2018. Additionally, at trial, Kent once again argued that the Judgment should be vacated. He proposed “two ways to fight that judgment.” First, he renewed his argument that his VA benefits were beyond the court‘s reach under federal law. Second, he objected to characterizing the $44,500 award in the Judgment as spousal support because “the court has engaged in none of the analysis required to determine a reasonable amount for spousal support or to make such [an] award.” As for Rebecca, she clarified that she was not asking for “future spousal support” but that she “expected that judgment to be enforced.”
¶11 Rebecca and Kent each testified at trial. Notably, the court found Rebecca “to be highly credible,” while it found Kent “not to be credible” based on his “testimony, conduct, and a series of inconsistencies.”
¶12 With regard to the Judgment, the court disagreed with Kent‘s argument that it was erroneous for $44,500 in spousal
support to remain in effect unless the court conducted an analysis of Rebecca‘s needs and his ability to pay. It explained,
There was a court order requiring [Kent] to pay [Rebecca] $44,500. [Kent] did not do so. Judgment was, therefore, appropriately entered against [Kent]. This Court need not undergo any sort of analysis concerning the parties’ current financial needs or [Kent‘s] ability to pay in order to permit the judgment to remain in effect.
The court also decided, in the alternative, that “[e]ven if . . . such an analysis was required,” Kent “had the ability to pay and that the needs analysis at the time of the hearing on the [motion] for temporary orders supported the $44,500 award to [Rebecca] and subsequent judgment against [Kent].” The court thus proceeded to compare, albeit briefly, Kent‘s and Rebecca‘s incomes and assets.
¶13 The court evaluated Rebecca‘s assertion that Kent was in contempt for not paying the $44,500 from the VA benefits and not paying child support from December 2016 through September 2017. As an initial matter, the court determined that the Temporary Order requiring those payments was lawful. Then, in evaluating contempt, the court first found that Kent had the ability to comply with the Temporary Order at the time it was entered and had the present ability to comply with it. In support of this finding, the court rejected Kent‘s assertion that he had spent all the VA benefits (nearly $90,000). The court also found that despite Kent‘s “disability rating and the fact that he has not held a regular job in a number of years, the evidence at trial showed that [Kent] is physically and mentally able to work, yet he chooses not to.” The court further found that Kent had “access to significant financial support from his family which support could be used to help” Kent obtain employment or pay the outstanding amounts he owed. Second, the court found that
Kent undisputedly “had knowledge of all the Court‘s orders requiring him to pay [Rebecca] $44,500 from his VA past-due benefits and to pay child support.” Third, the court found that Kent had “deliberately chose[n] not to comply” with the orders when he “personally disagree[d]” with them but was “aware—at all times—of the Court‘s orders and [its] repeated rejections of his arguments.”
¶14 The court thus held Kent in contempt, finding “beyond a reasonable doubt that, at all times, [Kent] knew what was required of him, had the ability to comply, and intentionally refused to do so.”3 Indeed, the court
¶15 As a sanction for his contempt, the court ordered Kent jailed for ten days, which sentence could be purged if Kent made certain payments toward child support and spousal support within sixty days and continued to make specified monthly payments thereafter. Additionally, the court ordered Kent to pay Rebecca‘s attorney fees incurred “in prosecuting the request for entry of judgment and motions for contempt.”
¶16 The district court also awarded Rebecca sole physical and legal custody of the minor children, while Kent was awarded parent-time. In making this decision, the court considered several factors bearing on the best interests of the children. First, it found that the parties’ past conduct and moral standards favored Rebecca. It reasoned that Kent “testified untruthfully” and had “shown contemptuous disregard of the Court‘s orders,” demonstrating that he was “willing to and ha[d] willfully disobeyed the law.” In the court‘s view, this “type of conduct suggest[ed] questionable parenting, at best.” The court also reasoned that Kent‘s “refusal—for years—to pay the spousal support award or the child support previously ordered . . . while [Rebecca] was struggling to provide for herself and the [children] demonstrate[d] a substantial indifference towards” the children. Although Kent claimed that he took care of the children “in other ways—not just financially, but physically, emotionally, and spiritually,” the court discredited his testimony on this point.
¶17 Next, the court factored in which parent was the primary caretaker and concluded that this factor also favored Rebecca, especially given that she undisputedly had been the children‘s primary caretaker since the couple separated in September 2014. In considering this factor, the court found that Kent had “no in-person contact at all with the children” for over a year after they moved to Utah despite his financial ability to see the children in person. The court further found that the children were “well-cared for” and “flourishing with [Rebecca] as their primary caretaker” and that even after Kent moved to Utah, he had displayed “remarkably limited involvement” in the children‘s lives. Next, the court considered the factor of the children‘s bond with the parents. While the court did not find Kent‘s testimony that he had “active involvement and participation” in the children‘s lives to be credible, the court found that the evidence concerning Rebecca‘s “strong relationship with the [children] was credible and
overwhelming.” The court then weighed the factor of which parent was most likely to act in the children‘s best interests in favor of Rebecca. The court based this determination on its findings that Rebecca “went out of her way not to speak negatively about” Kent at trial but that Kent made “accusations and insinuations” that Rebecca was an inattentive parent.
¶18 The court considered additional factors, including that the parties “have generally been able to cooperate with each other” even though Kent was “often unreliable.” It found that Kent was “less emotionally stable” than Rebecca and that “[Kent]—despite not being employed or in school—[had] knowingly and intentionally declined to take a more active role in the [children‘s] lives.” Indeed, the court reiterated that Kent could have taken “a more active role” in their lives “but he [chose] not to.” Considering all these factors together, the court found by a preponderance of the evidence that awarding sole legal and physical custody to Rebecca, subject to Kent‘s right to parent-time, was in the children‘s best interests.
¶19 As for child support, the court found that Kent did not owe any child support arrearages before the Temporary Order was entered—the time period from September 2014 until July 2016. The court based this finding on the fact that Rebecca expressly disclaimed entitlement to child support arrearages prior to the Temporary Order. It also relied on the evidence at trial indicating that Kent “did make some payments . . . during this time period, although the amounts were inconsistent and disputed.”
amounts Rebecca received on behalf of the children from social security beginning in August 2016. While entering judgment of $18,732 in favor of Rebecca, the court simultaneously vacated the earlier judgments for overdue child support.
¶21 The court rejected Kent‘s argument that he should be given credit for payments he made to Rebecca prior to the Temporary Order—payments he asserted would eliminate any alleged arrearages. The court reasoned that it would be “inappropriate to give [Kent] ‘credit’ for any supposed ‘overpayments’ given that (until now) there has not been a final Court order regarding child support.” It further reasoned that Kent had “an obligation to support his children and that obligation is ongoing and continuous” and that “[t]he presumption, therefore, should not be that [Kent] ‘overpaid,’ but that [Kent] paid whatever he could or desired to, given his ongoing obligation.”
¶22 On the matter of attorney fees, the court had already concluded that under
¶23 The court entered its findings of fact and conclusions of law as well as a supplemental divorce decree. Kent appeals.
ISSUES AND STANDARDS OF REVIEW
¶24 Kent raises four issues on appeal. First, he contends that the district court erroneously awarded a lump sum to Rebecca as alimony without conducting the required alimony analysis. We ultimately do not reach the merits of this issue because Kent
does not adequately challenge an independent alternative basis for the court‘s decision. See Kendall v. Olsen, 2017 UT 38, ¶ 12, 424 P.3d 12.
¶25 Second, Kent contends that the district court should have given him credit toward his child support obligation. Because district courts have “broad discretion” in awarding child support and “in determining the financial interests of divorced parties,” we “will not disturb such decisions absent an abuse of discretion.” Roberts v. Roberts, 2014 UT App 211, ¶¶ 7-8, 335 P.3d 378 (cleaned up).
¶26 Third, Kent contends that the district court erred in finding him in contempt of court for failing to pay child support and the lump sum to Rebecca. When reviewing a district court‘s decision finding a party in contempt, “we review the district court‘s findings of fact for clear error and its legal determinations for correctness.” LD III LLC v. Davis, 2016 UT App 206, ¶ 12, 385 P.3d 689 (cleaned up).
¶27 Fourth, Kent contends that the district court erred in granting sole legal and physical custody of the children to Rebecca. “In custody matters, appellate courts generally give the district court considerable discretion because the district court‘s proximity to the evidence places it in a better position than an appellate court to choose the best custody arrangement.” Dahl v. Dahl, 2015 UT 79, ¶ 155, 459 P.3d 276 (cleaned up). This broad discretion, however, “must be guided by the governing law adopted by the Utah Legislature.” Id. (cleaned up).
¶28 To the extent any of Kent‘s contentions involve challenges to the district court‘s factual findings, our “review of such findings is highly deferential, and we will reverse only if the findings are clearly erroneous.” Id. ¶ 149. “We give this deference to the district court because it stands in a superior position from which to evaluate and weigh the evidence and
assess the credibility and accuracy of witnesses’ recollections.” Id. ¶ 173 (cleaned up). A district court‘s factual findings “are clearly erroneous only if they are in conflict with the clear weight of the
ANALYSIS
I. Lump Sum as Alimony
¶29 Kent first challenges the district court‘s award of $44,500 in spousal support to Rebecca. In particular, Kent contends that the court abused its discretion by entering this award without “conduct[ing] the analysis required under Utah law to determine whether, and how much, spousal support should be” awarded.
¶30 Kent is correct that Utah law requires district courts to consider several factors, known as the Jones factors, when determining alimony. Those factors include “the financial condition and needs of the recipient spouse,” “the recipient‘s earning capacity or ability to produce income,” and “the ability of the payor spouse to provide support.”
¶31 The problem for Kent, however, is that the district court rejected his argument about the Jones analysis based on two independent grounds. And we “will not reverse a ruling of the district court that rests on independent alternative grounds where the appellant challenges only one of those grounds.” Kendall v. Olsen, 2017 UT 38, ¶ 12, 424 P.3d 12 (cleaned up).
¶32 Here, the district court first decided that because “[t]here was a court order requiring [Kent] to pay [Rebecca] $44,500” and he “did not do so,” the Judgment was “appropriately entered against [Kent]” and, as a result, the court “need not undergo any sort of analysis concerning the parties’ current financial needs or [Kent‘s] ability to pay in order to permit the judgment to remain in effect.” Second, the court decided that even if such an analysis was required, Kent “had the ability to pay and that the needs analysis at the time of the hearing on . . . [the Temporary Order] supported the $44,500 award to [Rebecca] and subsequent judgment against [Kent].”
¶33 Although the district court rejected his argument on these two independent grounds, Kent‘s appeal focuses only on the latter basis by arguing that the court inadequately analyzed the Jones factors at trial. His challenge to the former ground—that the Judgment requiring him to pay $44,500 was already appropriately entered against him—is limited to an assertion that the district court engaged in “circular reasoning” by concluding that “because Kent was ordered to pay before, there is no need to conduct the Jones analysis now.” But Kent has the burden to “identify and brief” his reasons for reversal, see id., and this terse assertion does not sufficiently address the effect of an order that had already been reduced to a judgment, nor does it show error in the court‘s treatment of the Judgment, see generally
challenged only one of the court‘s independent grounds for its ruling, and we therefore are in no position to reverse the district court. See Kendall, 2017 UT 38, ¶ 12. Accordingly, we reject Kent‘s challenge to the $44,500 award of spousal support without reaching the merits of the district court‘s decision.5
II. Child Support
¶34 Next, Kent contends that the district court abused its discretion in determining
¶35 The district court declined to give Kent “credit” for any payments he made before the Temporary Order‘s entry. In particular, the court deemed it “inappropriate” to give any credits when there had not yet been a final court order regarding child support. It explained that Kent had an “ongoing and continuous” obligation to support his children and that “[t]he presumption, therefore, should not be that [Kent] ‘overpaid,’ but that [Kent] paid whatever he could or desired to, given his ongoing obligation.” On appeal, Kent has not grappled with the court‘s rationale, and because he has left the court‘s basis for its decision unaddressed, we again conclude that he has not carried his burden to show error in that decision. See Sandusky v. Sandusky, 2018 UT App 34, ¶ 26, 417 P.3d 634 (rejecting an
argument where the appellant did not address the basis for the district court‘s decision).
¶36 As for the $11,294 paid to Rebecca in November 2016, Kent now contends that these funds were a social security benefit that should have been credited against his child support obligation.6 In support, he cites
¶37 But Kent has not shown, as he must, that he preserved this issue for appeal. To preserve an issue, it “must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue.” Taft v. Taft, 2016 UT App 135, ¶ 35, 379 P.3d 890 (cleaned up). Thus, “the issue must be specifically raised by the party asserting error, in a timely manner, and must be supported by evidence and relevant legal authority.” Warrick v. Property Reserve Inc., 2018 UT App 197, ¶ 12, 437 P.3d 439 (cleaned up). “Issues that are not raised at trial are usually deemed waived.” Wohnoutka v. Kelley, 2014 UT App 154, ¶ 3, 330 P.3d 762 (cleaned up). Further, an appellant‘s brief must contain “citation to the record showing that the issue was
preserved for review” or “a statement of grounds for seeking review of an issue not preserved.”
¶38 To demonstrate that he preserved the issue regarding the $11,294 and section 78B-12-203, Kent cites one page of his response to one of Rebecca‘s motions for an order to show cause. There, Kent quoted the statute and stated that the social security benefits Rebecca received from his employment “is all to be credited as child support payments.” But this document was filed over a year and a half before trial, and Kent did not again address section 78B-12-203 in his trial brief or in his supplemental trial brief—even when discussing the $11,294 payment. As a result, and despite an earlier attempt to raise the issue, Kent did not raise the issue in a timely manner such that the district court had an opportunity to consider it at the time the court was resolving the child support issues at trial. Kent thus did not preserve this issue regarding section 78B-12-203 and we do not consider it further.
¶39 Kent also complains that the court used the sole custody worksheet in calculating child support arrearages. He claims this calculation was erroneous because he had “joint custody” under the Temporary Order. Although the Temporary Order gave “joint legal custody” to both parties, it gave
¶40 For the foregoing reasons, Kent has not shown that the district court abused its discretion in holding him accountable for $18,732 in child support arrearages.
III. Contempt
¶41 Kent contends that the district court erred in finding him in contempt based on his failure to comply with the orders to pay child support and $44,500 to Rebecca. “A finding of contempt is proper only when the person cited for contempt knew what was required, had the ability to comply, and intentionally failed or refused to do so.” LD III LLC v. Davis, 2016 UT App 206, ¶ 13, 385 P.3d 689 (cleaned up).
¶42 Kent‘s contention on appeal centers on only one of the relevant factors: his ability to comply with the court‘s orders.7 More specifically, he focuses on the court‘s findings regarding his ability to pay. In so arguing, he maintains that “he cannot give Rebecca the ordered $44,500 because he does not have it; he used it for his own needs with respect to housing and other related items when he moved.” He also argues that the court erred in finding that he had the ability to work despite his 100% disability rating.
¶43 Kent testified that he had spent all the VA benefits (nearly $90,000) by the time of the hearing on the Temporary Order. But the district court found that this claim was “false” and contrary to Kent‘s representations to the commissioner. The court also found that Kent‘s “claim that he needed to spend all $90,000 on furnishing his new residence and other household expenses in Utah is simply not credible.” Kent asserts that the court‘s credibility determination in this regard is “based on no evidence at all” when Rebecca introduced “no evidence to counter Kent‘s testimony that he had spent” all the VA benefits. But the court was “not required to believe [Kent] simply because he presented more evidence than [Rebecca] or because [she] did not directly contradict his . . . testimony.” Sauer v. Sauer, 2017 UT App 114, ¶ 6, 400 P.3d 1204. Indeed, “we give great deference to a trial court‘s determinations of credibility based on the presumption that the trial judge, having personally observed the quality of the evidence, the tenor of the proceedings, and the demeanor of the parties, is in a better position to perceive the subtleties at issue than we can looking only at the cold record.” Id. (cleaned up). Kent has not shown that we should deviate from the considerable deference we owe to the district court‘s factual findings.
¶44 Kent also claimed in the district court that he is unable to work based on his 100% disability rating. But the court rejected this claim, finding that Kent presented “no corroborating evidence other than” hearsay statements. It also found that despite Kent‘s “disability rating and the fact that he has not held a regular job in a number of years, the evidence at trial showed that [Kent] is physically and mentally able to work, yet he chooses not to.” The court based this finding on testimony that Kent, “whatever his limitations might be, leads an active lifestyle,” including swimming, hiking, and taking jiu-jitsu classes. In Kent‘s view, the court relied
factual findings were “in conflict with the clear weight of the evidence” and does not convince us that “a mistake has been made.” See Taft v. Taft, 2016 UT App 135, ¶ 16, 379 P.3d 890 (cleaned up).
¶45 Kent also suggests that his 100% disability rating precluded the district court from finding him able to work, and he implies that the court‘s finding might jeopardize his disability benefits. But because he provides little legal authority and analysis to support these suggestions, he has not carried his burden to establish error. See
IV. Child Custody
¶46 Kent next contends that the district court erred in granting sole legal and physical custody of the children to Rebecca. In so arguing, Kent stresses that the court based its decision “in large part” on its belief and “misplaced anger” that “Kent exhibited poor moral character by failing to pay child support” as ordered. He also maintains that he overpaid on child support.
¶47 In determining custody, the court “shall consider the best interest of the child” and, in doing so, may consider any factors it deems relevant.
child,” and the “relative strength of the child‘s bond with the parent, meaning the depth, quality, and nature of the relationship between the parent and the child.”
¶48 In this case, Kent overlooks that the district court conducted a detailed analysis of many of the custody factors. See supra ¶¶ 16-18. On appeal he does not assail the majority of that analysis; instead, as stated, he limits his challenge to the court‘s inclusion of his history of nonpayment of child support. And he has not persuaded us that the court was wrong to consider his failure to pay child support in its analysis.8 Moreover, while Kent believes that the court‘s custody decision was driven by its consideration of his nonpayment, he has not established that this factor overwhelmed the rest of the custody factors. Simply put,
nothing in the court‘s analysis or Kent‘s argument persuades us that the court erred in making its custody decision.
V. Attorney Fees on Appeal
¶49 Finally, Rebecca requests that this court award her attorney fees on appeal on two grounds. First, Rebecca asserts that the district court awarded her attorney fees related to Kent‘s contempt with respect to the $44,500 and child support and that she is thus entitled to attorney fees on appeal for defending the appeal on that issue. Second,
¶50 Generally, “attorney fees are awardable only if authorized by statute or by contract.” Greyhound Lines, Inc. v. Utah Transit Auth., 2020 UT App 144, ¶ 55, 477 P.3d 472 (cleaned up). This court ordinarily will award appellate attorney fees “when a party was awarded fees and costs below and then prevails on appeal.” Tobler v. Tobler, 2014 UT App 239, ¶ 48, 337 P.3d 296. Because the district court awarded Rebecca attorney fees related to her “request for entry of judgment and motions for contempt” pursuant to statute under
¶51 As for Rebecca‘s suggestion that she could be “entitled to attorney fees for the entirety of the appeal” under
CONCLUSION
¶52 Kent has not established error in the district court‘s decisions. Accordingly, we affirm the supplemental decree, but we remand to the district court for the limited purpose of calculating Rebecca‘s attorney fees reasonably incurred on appeal, insofar as they are related to the issue of contempt.