Bell v. Bell , 312 P.3d 951 ( 2013 )

2013 UT App 248_________________________________________________________
THE UTAH COURT OF APPEALS
JOHN BELL,
Petitioner and Appellee,
v.
STEPHANIE WADSWORTH BELL,
Respondent and Appellant.
Opinion
No. 20110716‐CA
Filed October 18, 2013
Second District Court, Farmington Department
The Honorable Robert Dale
No. 094701611
Stephanie Wadsworth Bell, Appellant Pro Se
Terry R. Spencer, Attorney for Appellee
SENIOR JUDGE RUSSELL W. BENCH authored this Opinion, in
which JUDGES CAROLYN B. MCHUGH and
MICHELE M. CHRISTIANSEN concurred.1
BENCH, Senior Judge:
¶1 Stephanie Wadsworth Bell (Wife), pro se, appeals from the
trial court’s Findings of Facts and Conclusions of Law and Order
Granting Decree of Divorce. We affirm in part and reverse and
remand in part.
1
The Honorable Russell W. Bench, Senior Judge, sat by
special assignment as authorized by law. See generally Utah Code
Jud. Admin. R. 11‐201(6).
Bell v. Bell
BACKGROUND
¶2 John Bell (Husband) and Wife were married in 1984. The
parties have five grown children and two minor children. The two
minor children are C.E.B., who has cerebral palsy, and N.B.
¶3 Husband filed a complaint for divorce seeking physical
custody of the minor children.2 On May 24, 2011, the guardian ad
litem (the GAL) filed a motion for an order to show cause. The
GAL alleged that Wife had willfully violated an earlier court order
by refusing to take N.B. to the therapist chosen by the GAL.
¶4 On June 20, 2011, the trial court entered its findings of fact
and conclusions of law. The court determined that Wife should be
awarded sole physical custody of the minor children and awarded
the parties joint legal custody. The court found that Husband
earned $5,212.76 in monthly income from the State of Utah. The
court imputed an additional $1,200 per month to Husband for his
part‐time employment with Eagle Gate College. The trial court also
imputed income of $1,260 per month to Wife.
¶5 In calculating child support, the trial court considered
Husband’s income from his employment with both the State of
Utah and Eagle Gate College “in light of the high expenses,
including toiletries and supplements, incurred by the parties’
minor child, C.E.B., due to his handicaps.” The court determined
that Husband should pay child support in the amount of $1,202.88
per month. The court also determined that child support for C.E.B.
should be terminated when he turns eighteen years of age to allow
C.E.B. to obtain the Social Security and Medicaid benefits for which
he will then be eligible. The court clarified that termination of child
support for C.E.B. was premised upon C.E.B. receiving such
2
At the time of the complaint, three of the parties’ children
were minors. In addition to N.B. and C.E.B., Husband sought
custody of the parties’ daughter H.A.B.
20110716‐CA 2 2013 UT App 248Bell v. Bell
benefits at age eighteen. The court further determined that each
party be allowed to claim one minor child as a dependent each year
until the oldest child, C.E.B., is no longer eligible to be claimed as
a dependent for tax purposes.
¶6 The court determined that Husband’s expenses, after
payment of child support but before alimony, were $2,500 per
month and Wife’s expenses, including mortgage payments, were
$3,700 per month. The court awarded alimony to Wife, stating,
The Court finds, applying the Jones factors and taking
into consideration the tax treatment of alimony
payments, that it is fair and equitable that [Wife]
should be awarded $1,800 per month alimony,
payable directly by [Husband] to [Wife] in two equal
payments to be made on or before the 10th and 25th of
each month, respectively.
¶7 The trial court awarded the marital home valued at $190,000
to Wife, which award included the equity of $94,000 and mortgage
obligations. In light of this award to Wife, the court awarded
Husband $119,000 from his 401(k) and 457 accounts. The court also
awarded Wife her Woodward share of Husband’s retirement
pension plan with the State of Utah. See generally Woodward v.
Woodward, 656 P.2d 431 (Utah 1982). The court determined that
Husband should pay $4,000 toward Wife’s attorney fees in addition
to a previously ordered $375 fee award.
¶8 The trial court also determined that Wife had violated the
court’s earlier order for therapy by intentionally interfering with
N.B.’s counseling with the therapist selected by the GAL. The court
ordered Wife to serve five days in jail for contempt. The court
stayed the jail sentence based upon counsel’s representation that
Wife would heed the order in the future.
20110716‐CA 3 2013 UT App 248Bell v. Bell
ISSUES AND STANDARDS OF REVIEW
¶9 Although Wife attempts to assert multiple issues in her
brief, this case turns on the merits of the following issues.3
¶10 Wife first argues that the trial court erred in awarding the
parties joint legal custody when neither party filed the requisite
parenting plan. We review custody determinations under an abuse
of discretion standard, Hudema v. Carpenter, 1999 UT App 290, ¶ 21,
989 P.2d 491, giving the trial court broad discretion to make an
initial custody award, see Black v. Hennig, 2012 UT App 259, ¶ 10,
286 P.3d 1256.
¶11 Wife next argues that the trial court erred in its child support
determination by imputing income to her for purposes of
calculating child support without determining her ability to
produce income and by failing to consider the extraordinary
expense of caring for C.E.B. “We review a trial court’s child
support order for an abuse of discretion.” Connell v. Connell, 2010
UT App 139, ¶ 7, 233 P.3d 836.
¶12 Wife asserts that the trial court erred in its division of the
marital estate. “Trial courts have considerable discretion in
determining . . . property distribution in divorce cases, and [their
decisions] will be upheld on appeal unless a clear and prejudicial
abuse of discretion is demonstrated.” Trubetzkoy v. Trubetzkoy, 2009
UT App 77, ¶ 8, 205 P.3d 891 (omission and alteration in original)
(citation and internal quotation marks omitted). “Indeed, the trial
court’s discretion is so broad that its actions enjoy a presumption
of validity.” Id. (citation and internal quotation marks omitted).
¶13 Wife also asserts that the trial court erred by failing to award
sufficient attorney fees. “[W]e review a trial court’s decision
regarding attorney fees in a divorce proceeding for an abuse of
3
Husband also asserts that the court erred in several
particulars, but he filed no cross‐appeal.
20110716‐CA 4 2013 UT App 248Bell v. Bell
discretion.” Connell, 2010 UT App 139, ¶ 6 (citation and internal
quotation marks omitted).
ANALYSIS
I. Joint Custody
¶14 Wife maintains, and Husband agrees, that the trial court
erred in awarding joint legal custody of the minor children to the
parties in this matter because neither party filed a parenting plan
as required by Utah Code section 30‐3‐10.2(1). In support of her
argument, Wife cites Trubetzkoy v. Trubetzkoy, 2009 UT App 77, 205
P.3d 891, a case that she argues requires the filing of a parenting
plan by one or both parties as a prerequisite to an award of joint
legal custody. See id. ¶ 13 (“Reading the statutory provisions as a
whole, we conclude that the legislature unambiguously provided
that joint legal custody is available ‘if one or both parents have filed
a parenting plan . . . and [the trial court] determines that joint legal
custody . . . is in the best interest of the child.’ [Utah Code Ann.]
§ 30‐3‐10.2(1). Because neither party filed a parenting plan, joint
legal custody was unavailable.” (omissions in original) (emphasis
omitted)).
¶15 Although Wife may not have adequately preserved this
argument below, we are generally “unwilling to disregard
controlling authority that bears upon the ultimate resolution of a
case solely because the parties did not raise it below.” Patterson v.
Patterson, 2011 UT 68, ¶ 18, 266 P.3d 828; see also id. ¶ 13 (“Our
preservation requirement is self‐imposed and is therefore one of
prudence rather than jurisdiction. Consequently, we exercise wide
discretion when deciding whether to entertain or reject matters that
are first raised on appeal.”). The Trubetzkoy case Wife cites is
controlling authority for the proposition that the court may not
award joint legal custody to the parties absent the filing of a
parenting plan. The parties concede that neither filed a parenting
plan. Because neither party filed a parenting plan, the trial court
20110716‐CA 5 2013 UT App 248Bell v. Bell
exceeded its discretion in awarding joint legal custody to the
parties. As a result, we reverse the trial court’s custody award and
remand this issue to the court.
II. Child Support/Imputation of Income
¶16 Wife next argues that the trial court erred in its child support
determination by imputing income to her for purposes of
calculating child support. She asserts that the court’s imputed
monthly income determination to her of $1,260 is not adequately
supported by the evidence. Husband argues that Wife has failed to
marshal the evidence. “‘[T]o properly discharge the [marshaling]
duty . . . , the challenger must present, in comprehensive and
fastidious order, every scrap of competent evidence introduced at
trial which supports the very findings the appellant resists.’”
Oneida/SLIC v. Oneida Cold Storage & Warehouse, Inc., 872 P.2d 1051,
1053 (Utah Ct. App. 1994) (second alteration and omission in
original) (quoting West Valley City v. Majestic Inv. Co., 818 P.2d 1311,
1315 (Utah Ct. App. 1991)).
¶17 Wife attempts to meet her marshaling burden by setting
forth some of the evidence in support of the trial court’s imputation
of income determination. Wife provides the following facts in
support of that determination: Wife has an advanced education;
Wife worked sporadically throughout the marriage; Wife, at times,
babysat or taught music lessons in her home; Wife has taught as
many as five or six students; and Wife testified that she thought she
could make considerable money teaching music.
¶18 Our review of the record reveals some additional evidence
pertaining to Wife’s ability to earn income. For instance, Wife
testified that most recently she had three music students, with each
paying her just under $20 per week or around $65 per month.
Additionally, Husband testified that Wife has a bachelor’s degree
in education and a master’s degree in viola performance and that
Wife has gone back to school to get additional education in
American Sign Language and special education instruction.
20110716‐CA 6 2013 UT App 248Bell v. Bell
Husband further testified that Wife could make around $44,300
annually as a special education teacher, with a typical starting
salary of $27,900. The parties’ adult son, who was living with Wife
at the time of the trial, testified that since the case began he has
watched C.E.B. daily for approximately three to five hours. Wife
testified that she had at one time worked half‐days as an aide at a
special education elementary school and that during that time she
had a babysitter for C.E.B. Wife also testified that C.E.B. did well
with the babysitters, who did not typically charge but were not able
to watch C.E.B. for a long period of time such as a full day.
¶19 The court found that
Although currently unemployed, . . . [Wife]
has a Master’s Degree and a teaching certificate. The
Court further finds that while [Wife] is the primary
caregiver for C.E.B., which takes a significant amount
of time, she is presently capable of and in a position
to, e.g., teach some music lessons. The Court
therefore finds that it is fair and equitable to impute
income to [Wife] of $1,260.00 per month, gross, while
[Wife] is the primary caretaker for C.E.B.
The evidence pertaining to Wife’s ability to teach music in her
home demonstrates that she is capable of earning approximately
$65 per month per student. The evidence does not, however, reveal
the length or the number of lessons Wife would be required to
teach each student to earn $65 a month. Therefore, it is unclear how
many students Wife would have to teach, how many hours she
would have to work per week, and whether it would be feasible
given her responsibilities as the primary caregiver for a severely
disabled child.4 As such, without the benefit of the reasoning and
additional findings by the trial court, we conclude that the trial
4
The evidence at trial reveals that C.E.B. requires a signifi‐
cant amount of care—C.E.B. quite often has seizures, and it takes
a considerable amount of time to feed, bathe, and care for him.
20110716‐CA 7 2013 UT App 248Bell v. Bell
court’s findings are inadequate to support its imputation of income
determination, and we remand the child support matter to the trial
court.5
III. Division of the Marital Estate
¶20 Wife contends that the trial court erred in its division of the
marital estate. Wife asserts that the court did not divide the marital
property equally and failed to make adequate findings to support
its unequal distribution of the parties’ marital property.
¶21 In its property distribution determination, the trial court
must consider several issues, as follows:
First, the court must identify the property in dispute
and determine whether each item is marital or
separate property. Next, the trial court should
consider whether there are exceptional circumstances
that overcome the general presumption that marital
property be divided equally between the parties. The
5
On remand, the court should also review its decision to
base the termination of C.E.B.’s child support on his ability to
receive Social Security and Medicaid benefits in amounts cur‐
rently unknown, which may or may not be sufficient to support
C.E.B. after the age of majority. See Utah Code Ann. § 78B‐12‐
105(1) (LexisNexis 2012) (“Every mother and father shall support
their children.”); id. § 78B‐12‐102(7)(c) (“‘Child’ means . . . a son
or daughter of any age who is incapacitated from earning a
living and, if able to provide some financial resources to the
family, is not able to support self by own means.”); see also Kiesel
v. Kiesel, 619 P.2d 1374, 1377 (Utah 1980) (holding that the trial
court was justified in continuing support payments to a child
beyond her twenty‐first birthday where child lacked the capacity
to earn a living (citing Utah Code Ann. § 78‐45‐1, ‐2 (1953) (pro‐
viding a definition of the term “child” similar to that used by the
current statute))).
20110716‐CA 8 2013 UT App 248Bell v. Bell
trial court is then required to assign values to each
item of marital property so that the distribution
strategy, whether equal or weighted in favor of one
party, can be implemented. Finally, the court must
distribute the items of marital property in a manner
consistent with that distribution strategy, with a view
toward allowing each party to go forward with his or
her separate life.
Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 15, 176 P.3d 476(citations omitted). In addition, the trial court must make findings
on those issues, as summarized by the Utah Supreme Court in
Gardner v. Gardner, 748 P.2d 1076 (Utah 1988):
Failure of the trial court to make findings on all
material issues is reversible error unless the facts in
the record are clear, uncontroverted, and capable of
supporting only a finding in favor of the
judgment. . . . The findings of fact must show that the
court’s judgment or decree follows logically from,
and is supported by, the evidence. The findings
should be sufficiently detailed and include enough
subsidiary facts to disclose the steps by which the
ultimate conclusion on each factual issue was
reached.
Id. at 1078 (omission in original) (citations and internal quotation
marks omitted).
¶22 The trial court made the following findings on the
distribution of the parties’ property:
24. The parties stipulated that the marital
home, . . . has a current appraised value of $190,000.
The home has approximately $94,000 of equity.
20110716‐CA 9 2013 UT App 248Bell v. Bell
25. The Court finds that the marital home
should be awarded to [Wife], together with all its
equity and the mortgage obligation.
....
28. The Court finds that all the parties’ musical
instruments should be awarded to [Wife].
29. [Wife] should return the antique ironing
board to [Husband] within ten days from entry of the
Decree.
30. [Husband] should return the leaf blower to
[Wife] within ten days from entry of the Decree.
31. All other personal property should remain
with the party currently in possession of that
property.
....
38. In light of the Court’s award of the marital
home, together with all equity therein, and other
personal property, to [Wife], [Husband] should be
awarded his 401(k) and 457 accounts (in the
approximate amount of $119,000.00), free and clear of
any claim by [Wife].[6]
6
We note that the trial court did not provide any oral
rulings as it took the matter under advisement. The court did,
however, enter a First Amended Supplemental Decree of Di‐
vorce. In the amended decree, the trial court made the same
findings as previously articulated, albeit with slightly different
language, but did not make any further substantiative findings
(continued...)
20110716‐CA 10 2013 UT App 248Bell v. Bell
Unfortunately, these findings provide this court with neither
enough detail nor enough subsidiary facts to disclose the steps by
which the ultimate property distribution was reached.
¶23 In particular, the trial court assigned no value to the musical
instruments awarded to Wife. In addition, it did not provide any
explanation for the apparent unequal property division which
awards $94,000 in home equity to Wife but $119,000 of 401(k) and
457 accounts to Husband. Nor did the court list what, if any,
exceptional circumstances the court considered that were sufficient
to overcome the general presumption that marital property be
divided equally between the parties. See Stonehocker, 2008 UT App
11, ¶ 15; see also Bradford v. Bradford, 1999 UT App 373, ¶ 27, 993
P.2d 887 (holding that where exceptional circumstances exist, they
must be “memoralize[d] in . . . detailed findings” (citation and
internal quotation marks omitted)). As such, we are unable to
determine whether the court erred in its unequal property
distribution determination. As a result, we remand the matter to
the trial court.
IV. Attorney Fees
¶24 Wife argues that the trial court erred by failing to award her
sufficient attorney fees. Specifically, Wife argues that she should
have been awarded all the attorney and legal fees she has incurred
from the divorce proceeding because she is unemployed,
impecunious, and in desperate need of assistance. Husband agrees
that the court erred in its award of attorney fees and failed to make
the proper findings. Based on Husband’s concession of error and
Wife’s pro se status, we look past any potential preservation
problems and address Wife’s argument. Cf. Nelson v. Jacobsen, 669
P.2d 1207, 1213 (Utah 1983) (“[B]ecause of [the pro se litigant’s] lack
6
(...continued)
or include any explanation or reasoning for its property distribu‐
tion determination.
20110716‐CA 11 2013 UT App 248Bell v. Bell
of technical knowledge of law and procedure [a layman acting as
his own attorney] should be accorded every consideration that may
reasonably be indulged.” (third alteration in original) (citation and
internal quotation marks omitted)).
¶25 The trial court awarded attorney fees to Wife based on the
following findings,
The Court finds, in light of all the relevant
financial and other circumstances, including an
application of the factors set forth in Rule 102, Utah
Rules of Civil Procedure, that it is fair and equitable
under all the circumstances that [Husband] should
pay $4,000.00 of [Wife’s] attorney’s fees incurred, in
addition to the $375.00 [Husband] was previously
ordered to pay in the Court’s May 10, 2011 Order. In
making this finding, the Court has reviewed the
Affidavit of Attorney’s Fees filed by [Wife’s] counsel
and has taken into consideration the arguments of
the parties both for and against an award of fees.
“[T]he trial court’s award or denial of attorney fees must be based
on evidence of the financial need of the receiving spouse, the ability
of the other spouse to pay, and the reasonableness of the requested
fees.” Leppert v. Leppert, 2009 UT App 10, ¶ 25, 200 P.3d 223(alteration in original) (citation and internal quotation marks
omitted).
¶26 Here, the trial court simply ordered attorney fees “in light
of all the relevant financial and other circumstances.” The court
failed to include specific findings on the financial need of Wife and
the ability of Husband to pay. Because the trial court does not
provide us with the requisite findings pertaining to the extent of
Wife’s need and Husband’s ability to pay, we are unable to
20110716‐CA 12 2013 UT App 248Bell v. Bell
determine whether Wife was awarded sufficient attorney fees
below. As such, we remand the matter.7
V. Remaining Issues
¶27 Even though appellate courts are generally lenient with pro
se litigants, those litigants must still follow the appellate rules. See
Lundahl v. Quinn, 2003 UT 11, ¶¶ 3–4, 67 P.3d 1000. Although we
give Wife every reasonable indulgence due to her pro se status, her
brief fails to meet even lenient standards for briefing, as explained
below, on Wife’s arguments pertaining to the court’s alimony
decision, contempt of court finding, visitation determination,
bifurcation ruling, and child tax exemption decision. As such, we
decline to consider these arguments.
¶28 Wife contends that the trial court erred in its alimony
determination by failing to consider that Wife directly contributed
to an increase in Husband’s skill by allowing him to attend school
7
Wife also seeks her attorney fees incurred on appeal.
Throughout the majority of this appeal, Wife has appeared pro
se and would not be entitled to attorney fees associated with
such representation. See Jones, Waldo, Holbrook & McDonough v.
Dawson, 923 P.2d 1366, 1374 (Utah 1996) (providing that the
general rule is that “pro se litigants should not recover attorney
fees for successful litigation” (citation and internal quotation
marks omitted)). We do, however, note that Wife was repre‐
sented by counsel during the early stages of her appeal until
counsel’s withdrawal on February 1, 2012.
Wife’s appellate counsel filed the notice of appeal, notice
of transcript request, various motions to extend time to file a
docketing statement, and a docketing statement. Because Wife
has prevailed on several of the issues on appeal, we award Wife
such reasonable appellate attorney fees as she actually incurred
and remand the matter to the trial court for calculation of those
fees.
20110716‐CA 13 2013 UT App 248Bell v. Bell
during the marriage. Wife does not, however, provide this court
with either a citation to the record showing that this issue was
preserved below or a statement of the grounds for seeking review
of her alimony issue. See Utah R. App. P. 24(a)(5)(A)–(B). We are
unable to find a point in the record at which Wife raised this
argument or indicated to the trial court that it failed to consider her
contribution to Husband’s increased skills. Thus, we decline to
consider Wife’s alimony argument. See 438 Main St. v. Easy Heat,
Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (“Issues that are not raised at
trial are usually deemed waived.”).8
¶29 Wife also contends that the trial court erred in finding her in
contempt of court without permitting her the statutory time period
to respond. Again, Wife does not provide this court with either a
citation to the record showing that this issue was preserved in the
trial court or a statement of grounds for seeking review of this
issue. Based on our review of the record, we determine that Wife
did not inform the court that she was entitled to or needed more
time to reply. Instead, after the GAL filed the contempt motion on
May 24, the parties proceeded with the trial on May 31, and the
court heard arguments pertaining to the contempt issue on June 8,
the last day of trial. Thereafter, the court took the matter under
advisement and issued its decision including its contempt finding
on June 20. Because Wife proceeded to address the contempt issues
without notifying the trial court of a need for additional time, we
decline to consider this issue further.
¶30 Wife asserts that there is insufficient evidence to support the
trial court’s finding that she violated its order by intentionally
interfering with N.B.’s counseling. Wife’s argument essentially
8
Wife also notes in her brief that Husband is paying only a
portion of the monthly alimony awarded to Wife and argues that
Husband should be required to pay the full amount. Any efforts
to enforce the provisions of the decree of divorce must be ad‐
dressed first to the trial court.
20110716‐CA 14 2013 UT App 248Bell v. Bell
reargues the facts that were before the trial court. “However, a
party challenging a trial court’s factual finding must do more than
merely reargue the evidence supporting his or her position; rather,
the party is required to first marshal the evidence in support of the
finding.” Hi‐Country Estates Homeowners Ass’n v. Bagley & Co., 2008
UT App 105, ¶ 19, 182 P.3d 417 (citation and internal quotation
marks omitted). Because Wife does not marshal the evidence, we
affirm the trial court’s contempt findings and conclusions.
¶31 Lastly, we decline to address Wife’s arguments pertaining
to the trial court’s visitation determination, bifurcation
determination, and child tax exemption decision for inadequate
briefing. Rule 24(a)(9) of the Utah Rules of Appellate Procedure
requires that the argument section of a brief “contain the
contentions and reasons of the appellant with respect to the issues
presented, . . . with citations to the authorities, statutes, and parts
of the record relied on.” Utah R. App. P. 24(a)(9); see also State v.
Green, 2004 UT 76, ¶ 13, 99 P.3d 820 (“Implicitly, rule 24(a)(9)
requires not just bald citation to authority but development of that
authority and reasoned analysis based on that authority.” (citation
and internal quotation marks omitted)).
¶32 Wife’s entire analysis concerning the court’s visitation ruling
consists of her assertion that Husband sexually abused the minor
children. In so arguing, Wife fails to address the evidence
indicating that no abuse occurred, i.e., the children’s denial that
any abuse occurred and the investigating detective’s testimony that
he closed the investigation because there was no evidence to
support the allegations of sexual abuse. Because Wife fails to
provide any reasoned analysis on the visitation issue, we conclude
that she has failed to demonstrate any error in the trial court’s
visitation ruling.
¶33 Regarding the trial court’s bifurcation ruling and child tax
exemption determination, Wife recites the facts and states her
desired outcome. Wife does not, however, provide any authority
to explain the legal basis for that desired outcome. Because Wife
20110716‐CA 15 2013 UT App 248Bell v. Bell
fails to provide any legal authority or analysis for her argument
that the court erred in its bifurcation ruling and child tax
exemption determination, we decline to consider these issues
further.
CONCLUSION
¶34 Because neither party filed a parenting plan, joint legal
custody was unavailable. As such, the trial court exceeded its
discretion in awarding joint legal custody to the parties in this
matter. Thus, we reverse the trial court’s joint legal custody ruling
and remand this issue to the court.
¶35 In light of the trial court’s failure to make adequate findings
or otherwise explain the basis for its imputation of income, marital
property distribution, and attorney fees determinations, we cannot
say that the trial court acted within its discretion in its
determinations. We therefore reverse the court’s imputation of
income, marital property, and attorney fees rulings and remand
those issues.
¶36 We decline to address Wife’s arguments pertaining to the
trial court’s alimony decision, contempt of court finding, division
of the marital estate, visitation determination, bifurcation ruling,
and child tax exemption decision based on her failure to meet the
briefing and preservation standards. As a result, we affirm the
court’s decision on each of these issues.
¶37 Affirmed in part and reversed and remanded in part.
20110716‐CA 16 2013 UT App 248