Fernstrom v. James

----ooOoo----

Kim Devey Fernstrom,
Appellee and Cross-appellant,

v.

Kevin Regan James,
Appellant and Cross-appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990839-CA

F I L E D
Arpil 5, 2001 2001 UT App 107 -----

Fourth District, Provo Department
The Honorable Gary D. Stott

Attorneys:
Richard S. Nemelka, Salt Lake City, for Appellant
John H. Jacobs, American Fork, for Appellee

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Before Judges Jackson, Bench, and Billings.
JACKSON, Associate Presiding Judge:

Appellant and Cross-appellee Kevin Regan James (James) and Appellee and Cross-appellant Kim Devey Fernstrom (Fernstrom) both appeal from an order modifying a decree of divorce.

We first address James's arguments. James first argues that the trial court erred by retroactively awarding child support to Fernstrom for the three months before he received notice of modification. "Typically, this court reviews a trial court's modification determination for an abuse of discretion. However, in this case, we are presented with a question of law" regarding how far back the trial court may retroactively modify a child support order, which we review for correctness. Toone v. Toone, 952 P.2d 112, 114 (Utah Ct. App. 1998).

James argues that the trial court erroneously relieved Fernstrom of her child support obligation prior to service of Fernstrom's petition to modify.(1) We agree. The trial court "is prohibited from retroactively applying its modified order beyond the time [James] received notice of [Fernstrom's petition]." Ball v. Peterson, 912 P.2d 1006, 1011 (Utah Ct. App. 1996); see also Utah Code Ann. § 78-45-9.3(4) (Supp. 2000) (formerly codified as Utah Code Ann. § 30-3-10.6) ("[C]hild . . . support payment[s] under a child support order may be modified with respect to any period [during] which a modification is pending, but only from the date of service of the pleading . . . ."). Accordingly, we reverse the trial court's ruling that Fernstrom's obligation to pay child support terminated on June 1, 1998.

Fernstrom argues that even if we reverse the trial court's child support order, Utah Code Ann. § 78-45-7.11(1) (Supp. 2000)(2) reduces her child support obligation by fifty percent from June 1, 1998 to the filing of her petition to modify.(3) The trial court found that the children were with Fernstrom, the then noncustodial parent, beginning May 30, 1998, until Fernstrom filed her petition to modify. However, nothing in the record indicates that the children were with Fernstrom "by order of the court or by written agreement" of the parties. See id. Thus, section 78-45-7.11 does not entitle Fernstrom to a reduced child support obligation for the time period in question.

Second, James contends that the trial court "abused its discretion by modifying imputed wages and support obligations" because Fernstrom did not show a sufficient change of circumstances. "A parent . . . may at any time petition the court to adjust the amount of a child support order if there has been a substantial change of circumstances." Utah Code Ann. § 78-45-7.2(7)(a) (Supp. 1997). "[A] substantial change in circumstances may include: i) material changes in custody." Id. § 78-45-7.2(7)(b). The trial court found that there had been a material change in custody. Thus, the threshold event of a substantial change of circumstances had occurred.

James nevertheless argues that because Fernstrom's "financial circumstance did not change," "the circumstances surrounding [Fernstrom] should not have risen to the substantiality required for modification."(4) Counsel for James attempted to clarify this proposition at oral argument. He vaguely contended that the trial court violated Utah Code Ann. § 78-45-7.5(7)(b) (Supp. 2000), which requires a trial court imputing income to enter specific findings "based upon employment potential and probable earnings as derived from work history, occupation qualifications, and prevailing earnings for persons of similar backgrounds in the community." Utah Code Ann. § 78-47-7.5(7)(b). However, "these findings [can be] 'necessarily implied by the nature of the work [she] had regularly performed [in the past].'" Mancil v. Smith, 2000 UT App 378,¶20, 18 P.3d 509 (second and third alterations in original) (quoting Reese v. Reese, 1999 UT 75,¶15, 984 P.2d 987). The supreme court in Mancil stated: Explicit findings concerning "occupational qualifications" and "prevailing earnings of persons of similar backgrounds in the community" were not necessary, as [Fernstrom's] qualifications, background, and actual past earnings were not in dispute. Therefore, there was an adequate factual basis supporting the trial court's decision to impute income to [Fernstrom] at [minimum wage]. Id. at ¶21. Because the trial court imputed a minimum wage income to Fernstrom based on her previous employment experience and her current lack of employment, the specific findings in question can be "necessarily implied by the nature of the work" she had previously performed. Id. at ¶20 (internal quotations and citation omitted). Thus, the trial court's findings were sufficient, and we affirm its ruling as to Fernstrom's imputed income.

We now turn to the issues Fernstrom raises in her cross-appeal. First, Fernstrom argues that the trial court "abused its discretion when calculating child support by deducting $992.00 from [James's] 'adjusted gross income' for children in [James's] home." Fernstrom contends that Utah Code Ann. § 78-45-7.2(4) and (5) (Supp. 1997) prevent the court from making such a deduction because section 78-45-7.2(5) prevents the deduction if it results in a decrease in the award.(5) While it is true that "consideration of natural or adoptive children other than those in common to both parties . . . may not be applied to justify a decrease in the award," such consideration "may be applied to mitigate an increase in the award." See Utah Code Ann. § 78-45-7.2(5) (Supp. 1997). Because the trial court switched the child support award from James to Fernstrom, the court's deduction did not decrease an existing award, but mitigated an increase in a new award. Accordingly, the trial court did not abuse its discretion, and we affirm the amount awarded in its child support order.

Finally, Fernstrom challenges the trial court's findings "that [James] has met his burden of proof and established his income to be $5,105 per month," and that Fernstrom "failed to establish that she had insurance from June 1995 until [James] was ordered to cover the children in May of 1997." However, Fernstrom has "failed to marshal the evidence supporting [either of] the trial court's findings and then to show that the findings are unsupported." Moon v. Moon, 1999 UT App 12,¶24, 973 P.2d
431. Accordingly, we accept as true the trial court's findings regarding James's income and Fernstrom's insurance coverage.(6) See id.

Affirmed in part and reversed in part.
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge -----

WE CONCUR:
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
Judith M. Billings, Judge

1. Fernstrom admits that "the law will not allow retroactive modification prior to the date a petition to modify is filed." Nevertheless, she argues that we should affirm the trial court's ruling under a theory of equitable estoppel. We find her argument unpersuasive for two reasons. First, Fernstrom could have terminated her child support obligation in two ways: she could have entered into a court-approved stipulation which addressed child support rather than changing the children's custody informally, and she could have filed her petition to modify earlier. Second, Utah Code Ann. § 78-45-7.11(1) (Supp. 2000) already contemplates Fernstrom's circumstances and provides a remedy.

2. This statute has been amended since custody of the children changed. See Utah Code Ann. § 78-45-7.11 (Supp. 2000). Because those amendments are not material to the analysis of this case, we rely on the most recent version of the statute.

3. Section 78-45-7.11(1) provides:

The child support order shall provide that the base child support award be reduced by 50% for each child for time periods during which the child is with the noncustodial parent by order of the court or by written agreement of the parties for at least 25 of any 30 consecutive days.

Utah Code Ann. § 78-45-7.11(1) (Supp. 2000) (emphasis added).

4. In his brief, the last sentence of James's argument cursorily asserts that the trial court's order modifying Fernstrom's imputed income is "seemingly barred under res judicata" because a previous order had ruled on the matter. James "fails to cite relevant legal authority or provide any meaningful analysis regarding" this proposition. State v. Shepherd, 1999 UT App 305,¶27, 989 P.2d 503. "This court has clearly stated that [a] reviewing court is entitled to have the issues clearly defined with pertinent authority cited and is not simply a depository in which [a party] may dump the burden of argument and research." Ellis v. Swensen, 2000 UT 101,¶17, 16 P.3d 1233 (alterations in original) (internal quotations and citation omitted). Accordingly, we decline to address this argument. See id.

5. Fernstrom also baldly asserts that the trial court erred in calculating the child support award by failing to make four specific findings, including a finding as to the number of other children in her home. However, Fernstrom "fails to cite relevant legal authority or provide any meaningful analysis" to support her assertion, and we are aware of no requirement that the trial court make the findings she mentions. Shepherd, 1999 UT 305 App at ¶27. Thus, we do not address this argument. See id.

6. In addition, Fernstrom's challenges to the trial court's findings fail because she neglected to provide us with a transcript of the proceedings below. As a result, we are unable to review the evidence presented and thus cannot determine whether the trial court's challenged findings were based on sufficient evidence. [Fernstrom] bears the burden of "providing us with an adequate record to preserve [her] arguments for review." Absent such a record, we will "'presume that the judgment was supported by sufficient evidence.'" Push v. North Am. Warranty Servs., Inc., 2000 UT App 121,¶11, 1 P.3d 570 (citations omitted).