Hibbens v. Hibbens

2015 UT App 278

THE UTAH COURT OF APPEALS

LISA V. HIBBENS,
Appellant,
v.
MARK H. HIBBENS,
Appellee.

Opinion
No. 20140826-CA
Filed November 19, 2015

Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 064903669

David Pedrazas, Attorney for Appellant
Platte Seth Nielson, Attorney for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGE KATE A. TOOMEY and SENIOR JUDGE RUSSELL W. BENCH
concurred.1

VOROS, Judge:

¶1 Lisa V. Hibbens (Wife) and Mark H. Hibbens (Husband)
divorced in 2006. At the time of the divorce, Wife and Husband
had three minor children. The divorce decree required, among
other things, that Husband make the payments on the second
mortgage on Wife’s parents’ house and pay child support. By
2013, Wife had retired the second mortgage on her parents’
house, and two of the three children had reached the age of 18.
Both parties asked the court to modify the decree. After a bench

1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah R. Jud.
Admin. 11-201(6).
 Hibbens v. Hibbens

trial, the trial court found a substantial and material change in
circumstances. It extinguished Husband’s obligation to make
payments on the retired mortgage, terminated his child support
obligation with respect to the adult children, increased his child
support for the minor child, and ordered Wife to repay child
support overpayments. Wife appeals. We affirm.

BACKGROUND

The Mortgage

¶2 The 2006 divorce decree (the Decree) awarded Wife the
marital home and required her to assume the mortgage on it. It
also required Husband to assume the second mortgage on Wife’s
parents’ house (the Mortgage). Wife’s parents died the following
month. She sold the marital home and moved into her parents’
house. In February 2007, Wife told Husband that she planned to
refinance the Mortgage, after which he would not have to make
payments on it. Wife refinanced the Mortgage in January 2008
but did not inform Husband of the refinance. In the meantime,
due to health issues, Husband moved in with Wife and her
partner. During this time, Husband continued to make partial
payments on the (by then retired) Mortgage, paid child support,
paid Wife some rent, and contributed to the utilities.

¶3 When Husband learned in December 2009 or January
2010 that Wife had refinanced the Mortgage, he stopped making
payments on it. From the time of the refinance until Husband
stopped making the Mortgage payments, he paid Wife $9,600
toward the Mortgage. In August 2010, Husband’s then-fiancée
exchanged Facebook messages with Wife. Wife acknowledged
that she told Husband he did not have to pay the Mortgage:

[Husband] was court ordered to pay off the
loan . . . on my parents’ house . . . . The payment
was $575.00 with a balance of $45,000. I told

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[Husband] he does not have to pay that off, I will.
He accepted and no longer has to make that
payment.

Wife testified at trial that she only intended to relieve Husband
of his obligation to pay the Mortgage temporarily. In December
2010, Wife emailed Husband and asked if he would ‚resume
paying the $575 mortgage payment.‛ Husband replied, ‚What
mortgage payment, it got rolled into the refinance. You said once
you did that I was no longer responsible.‛

¶4 The trial court found that a substantial and material
change in the parties’ circumstances had occurred since entry of
the Decree. The court concluded that the ‚parties did not
anticipate an assumption of the [Mortgage] by the party who
had not previously been ordered to pay.‛ The court found
Husband’s testimony regarding the Mortgage credible and
found Wife’s testimony regarding the Mortgage not credible.
The court explained that the message Wife sent to Husband’s
then-fiancée made no qualifications regarding Husband’s
obligation for the Mortgage and did not support her testimony.
In light of these facts, the court ordered that Husband ‚is no
longer required to pay any sums to [Wife] relating to the
[Mortgage].‛

Child Support

¶5 At the time of their divorce, Wife and Husband had three
minor children. Wife’s average monthly income was $1,925.21;
Husband’s average monthly income was $4,158.33. The Decree
required Husband to ‚pay $962.00 per month in child support in
conformance with the Utah Child Support guidelines.‛ The
Decree also provided that Husband’s child support obligation
would continue ‚until all children are no longer attending
college.‛ Husband and Wife both acknowledged at trial that they
were unaware of this provision at the time of the divorce.

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¶6 By the time the court issued its decision on the parties’
petitions to modify, only one of the three children remained a
minor. The other two children had turned 18 and graduated
from high school. Neither had attended college. One had
married, and neither had any special needs.

¶7 Since the divorce, Wife had become permanently
disabled. As a result, the trial court found that Wife had a
monthly income of $895 per month. Thus, the trial court found
Wife’s monthly income suffered a 53% decrease, constituting a
material change under Utah law. The trial court also found that
Wife’s disability constituted a permanent condition, ‚which
materially changes her employment potential and her ability to
earn income.‛ Finally, the trial court concluded that because the
Decree contemplated that the children would attend college, the
fact that neither of the adult children had attended college
constituted a substantial and material change in circumstances.

¶8 Based on these changes in the parties’ circumstances, the
trial court modified Husband’s child support obligation. The
court first determined that ‚[t]he child support provision in the
Decree is unusual and constitutes a ‘deviated’ child support
order.‛ The trial court terminated Husband’s child support
obligations with respect to the two adult children. The court
increased Husband’s child support for the minor child to $517
and ordered that obligation to continue until the child turns 18
or graduates from high school, whichever occurs later. The court
made its child support modifications effective as of February
2013, the date the parties filed their cross-petitions. Accordingly,
it awarded Husband $7,565, ‚representing the overpayment of
child support from February 2013 through June 2014.‛

ISSUES ON APPEAL

¶9 Wife raises two issues on appeal. First, she contends that
the trial court erred in relieving Husband of his obligation to pay

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the Mortgage. Second, she contends that the trial court erred in
modifying Husband’s child support obligation.

ANALYSIS

I. The Mortgage

¶10 Wife contends that the trial court erred in terminating
Husband’s obligation to pay the Mortgage. Specifically, she
argues that the trial court could terminate Husband’s obligation
to pay the Mortgage only if the court found that Wife
‚intentional[ly] and distinctly‛ waived her right to receive
payments. Husband responds that the trial court’s ruling ‚was
not dependent on the trial court’s application of the law on
waiver. It was based upon the normal standard applied in
divorce modification cases—whether a substantial change in
circumstances has occurred since the entry of the decree that
supports a modification of the decree.‛

¶11 We agree with Husband. This round of litigation arose
from the parties’ cross-petitions to modify the Decree based on a
substantial change in circumstances. The trial court did find that
Wife told Husband that he no longer had to make payments on
the second mortgage. But, as explained below, the court based its
modification of the Decree not on waiver, but on a finding of a
substantial and material change in the parties’ circumstances.
Accordingly, we consider whether a substantial change in
circumstances supports the trial court’s modification of the
Decree.

¶12 ‚To succeed on a petition to modify a divorce decree, the
moving party must first show that a substantial material change
of circumstances has occurred since the entry of the decree and
not contemplated in the decree itself.‛ Bolliger v. Bolliger, 2000 UT
App 47, ¶ 11, 997 P.2d 903 (emphasis, citation, and internal
quotation marks omitted). ‚The determination of the trial court

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that there [has or has not] been a substantial change in
circumstances . . . is presumed valid, and we review the ruling
under an abuse of discretion standard.‛ Id. ¶ 10 (alteration and
omission in original) (citation and internal quotation marks
omitted). An appellate court ‚can properly find abuse [of
discretion] only if no reasonable person would take the view
adopted by the trial court.‛ Goggin v. Goggin, 2011 UT 76, ¶ 26,
267 P.3d 885 (citation and internal quotation marks omitted).

¶13 Here, the trial court found that ‚[t]he parties did not
anticipate an assumption of the [Mortgage] obligation by the
party who had not been previously ordered to pay the debt.‛
Further, the trial court found Wife’s ‚refinance of the [Mortgage]
obligation constitutes a substantial and material change since the
entry of the [D]ecree which supports modification of the
[D]ecree.‛ Thus, the trial court ruled that Husband ‚should no
longer be obligated to pay [Wife] on the [Mortgage] obligation,
or to reimburse her for payments she made on the refinance of
that obligation.‛

¶14 The court also believed Husband’s testimony that Wife
had told him she planned to refinance the Mortgage, after which
he would no longer have to pay the Mortgage; the court
disbelieved Wife’s testimony that she intended to relieve
Husband of his obligation to pay the Mortgage only temporarily.
While these findings might lend support to a finding of waiver,
in context they demonstrate that the parties themselves viewed
the sale of the house and the payoff of the Mortgage as material
circumstances justifying a modification of Husband’s mortgage
obligation. Wife challenges none of these findings on appeal;
accordingly, ‚we accept these findings as true in our analysis on
appeal.‛ See D’Elia v. Rice Dev., Inc., 2006 UT App 416, ¶ 24, 147
P.3d 515.

¶15 Based on the trial court’s factual findings, we conclude
that the trial court did not abuse its discretion in concluding that
a material and substantial change occurred justifying a

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modification of the Decree. Accordingly, we affirm the trial
court’s order terminating Husband’s obligation to pay the
Mortgage.

II. Child Support

¶16 Wife contends that ‚the trial court’s modification of
[Husband’s] child support obligation was incorrect.‛ She
challenges the trial court’s modification in two respects. First,
she challenges the termination of Husband’s child support
obligation with respect to the two older children. She argues that
‚the Court failed to make any findings sufficient [to] justify[] a
modification of the child support termination date based upon a
change in circumstances and in the best interests of the child.‛
Second, Wife challenges the amount of Husband’s new child
support obligation. She argues that ‚modifying child support in
this case by lowering child support based upon [her] reduction
in income based upon her disability is unconscionable and not in
the best interest of the child.‛

¶17 ‚In reviewing child . . . support proceedings, we accord
substantial deference to the trial court’s findings and give it
considerable latitude in fashioning the appropriate relief. We
will not disturb that court’s actions unless the evidence clearly
preponderates to the contrary or there has been an abuse of
discretion.‛ Woodward v. Woodward, 709 P.2d 393, 394 (Utah 1985)
(per curiam).

A. The Adult Children

¶18 The Utah Child Support Act defines child generally as an
unemancipated son or daughter under 18, in high school or
incapacitated from earning a living:

‚Child‛ means:
(a) a son or daughter under the age of 18
years who is not otherwise emancipated, self-

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supporting, married, or a member of the armed
forces of the United States;
(b) a son or daughter over the age of 18
years, while enrolled in high school during the
normal and expected year of graduation and not
otherwise emancipated, self-supporting, married,
or a member of the armed forces of the United
States; or
(c) 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.

Utah Code Ann. § 78B-12-102(7) (LexisNexis 2012). Consistent
with this definition, the Act provides that, unless a child support
order provides otherwise, when a child turns 18 or graduates
from high school, the child support obligation ‚automatically
adjust[s],‛ excluding that child from the calculation:

When a child becomes 18 years of age or graduates
from high school during the child’s normal and
expected year of graduation, whichever occurs
later . . . the base child support award is
automatically adjusted to the base combined child
support obligation for the remaining number of
children due child support . . . unless otherwise
provided in the child support order.

Id. § 78B-12-219(1). However, if ‚the order deviates from the
guidelines, automatic adjustment of the order does not apply
and the order will continue until modified by the issuing
tribunal.‛ Id. § 78B-12-219(3).

¶19 Furthermore, ‚courts in divorce actions may order
support to age 21.‛ Id. § 15-2-1 (2013). Thus, the court ‚‘has
power to order continued support until age 21 when it appears
to be necessary and when the court makes findings of any

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special or unusual circumstances to justify the order.’‛ Thornblad
v. Thornblad, 849 P.2d 1197, 1199 (Utah Ct. App. 1993) (quoting
Harris v. Harris, 585 P.2d 435, 437 (Utah 1978)).

¶20 Here, because the Decree provided that child support
‚shall continue until all of the children are no longer attending
college,‛ the trial court determined this to be ‚a ‘deviated’ child
support order.‛ Thus, under Utah law, the order would not
automatically adjust as the children became emancipated; rather,
it would ‚continue until modified by the issuing tribunal.‛ Utah
Code Ann. § 78B-12-219(3).

¶21 The issuing tribunal in this case modified the child
support order with respect to the parties’ adult children. The
trial court found that these children are not under the age of 18
years, that one is married, and that ‚[n]either of the two
emancipated children is disabled or struggling with any special
needs that would justify extended child support for them . . .
beyond high school graduation or turning 18 years of age.‛
Accordingly, neither qualifies as a child as defined by the Utah
Child Support Act. In addition, the court found that neither had
ever attended college.

¶22 Given these findings, we cannot conclude that the trial
court failed to make required findings or otherwise abused its
discretion in terminating Husband’s obligation to pay child
support for the two adult children. The children both turned 18
and no longer qualified as children under the Act. The court had
power to order support to continue until age 21 based on finding
‚special or unusual circumstances to justify the order.‛
Thornblad, 849 P.2d at 1199 (citation and internal quotation marks
omitted). But the court found no such special or unusual
circumstances, and Wife presented no evidence to support such
a finding. Finally, we cannot agree that the trial court’s order
was not in the best interest of any children. As explained above,
the adult children at issue here are not, for purposes of the Utah
Child Support Act, children.

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¶23 Accordingly, we affirm the trial court’s order terminating
Husband’s child support obligation for his adult children.

B. The Minor Child

¶24 Under the Utah Child Support Act, ‚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 in
circumstances.‛ Utah Code Ann. § 78B-12-210(9)(a) (LexisNexis
2012). A substantial change in circumstances may include,
among other things, ‚material changes of 30% or more in the
income of a parent,‛ or ‚material changes in the employment
potential and ability of a parent to earn.‛ Id. § 78B-12-
210(9)(b)(iii)–(iv).

¶25 Taking the best interests of the child into account, a court
tasked with reviewing a petition to modify the amount of a child
support order first determines whether a substantial change has
occurred. Id. § 78B-12-210(9)(c)(i). Then, if a substantial change
has occurred, the court determines ‚whether the change results
in a difference of 15% or more between the payor’s ordered
support amount and the payor’s support amount that would be
required under the guidelines.‛ Id. § 78B-12-210(9)(c)(ii). Next, if
‚there is a difference of 15% or more‛ and ‚the difference is not
of a temporary nature,‛ the court shall adjust the child support
amount in conformance with the guidelines. Id. § 78B-12-
210(9)(c)(iii). ‚Finally, when explaining the outcome of a
modification petition, the court must make findings on all
material issues, and its failure to delineate what circumstances
have changed and why the changes support the
modification . . . constitutes reversible error unless the facts in
the record are clear, uncontroverted and only support the
judgment.‛ Diener v. Diener, 2004 UT App 314, ¶ 7, 98 P.3d 1178
(citation and internal quotation marks omitted).

¶26 The trial court followed these requirements to the letter.
In considering an adjustment in the amount of child support for

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the minor child, the court found Wife’s income changed from
$1,925 per month to $895 per month. The court found the change
in Wife’s income amounted to a 53% decrease and thus
constituted a substantial change—i.e., a change of more than
30% in income. The court also found that Wife’s disability
constituted a ‚permanent condition which materially changes
her employment potential and her ability to earn income.‛ This
too, the court concluded, constituted a substantial change under
Utah law.

¶27 The court next determined that Wife’s change in income,
together with the emancipation of two of the children, resulted
in a 15% or more change in Husband’s child support obligation.
See Utah Code Ann. § 78B-12-210(9)(c)(ii). Given the difference of
at least 15%, and given the court’s finding that the decrease in
Wife’s income was not temporary, the court adjusted Husband’s
child support obligation. Husband’s child support obligation for
the minor child effectively increased under the court’s order.
Because the trial court followed the statute to the letter and
clearly delineated the facts underlying the change in
circumstances, we cannot agree that it abused its discretion in
increasing Husband’s child support obligation for the minor
child.

¶28 Nevertheless, Wife argues that the trial court’s order
‚modifying the child support amount failed to consider the best
interests of the children.‛ Wife continues, ‚‘Clearly a decrease in
child support from the guideline amount has an obvious
potential to negatively affect the best interest of the child.’‛
(Quoting Cantrell v. Cantrell, 2013 UT App 296, ¶ 14 n.5, 323 P.3d
586.) Wife goes on to assert that ‚modifying child support in this
case by lowering child support based upon [her] reduction in
income . . . [and] disability is unconscionable and not in the best
interest of the child.‛

¶29 If the trial court had actually reduced the child support
obligation with respect to the minor child or otherwise deviated

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from the guidelines, we might agree. But it did not do so. True,
the Husband’s total child support obligation decreased from
$962 (for three children) to $517 (for one child). But the court
based the overall decrease not on Wife’s ‚reduction in income,‛
as she now claims, but on the two older children’s emancipation.
We have already concluded that the trial court did not abuse its
discretion by discontinuing child support for the adult children.
See supra ¶¶ 20–23. And we similarly cannot say that the court
abused its discretion by setting the remaining minor child’s
support in conformance with the guidelines.2

¶30 Finally, Wife argues that the trial court failed to consider
‚the best interests of the child and/or make findings of a
substantial change in circumstances to justify a modification of
the termination date of the child support obligation.‛
Specifically, she asserts that ‚[t]he court failed to consider
whether it was in the best interest of the children to modify[] the
termination date of the child support and whether the youngest
child would be attending college.‛ Again, we do not agree.

¶31 The trial court found that ‚[t]he Decree does not address
the intent of the parties regarding payment for college expenses
for any of the children.‛ Thus, the trial court concluded ‚[t]he
parties are left to resolve between themselves as to the extent
they will help their children with college expenses or with
support beyond the age of 18 and the graduation from high
school.‛ Further, our supreme court has explained ‚that the

2. To the extent Wife’s argument challenges the sufficiency of the
trial court’s findings with respect to the best interests of the
child, we reject her argument as unpreserved. See 438 Main St. v.
Easy Heat, Inc., 2004 UT 72, ¶¶ 50–51, 99 P.3d 801 (declining to
consider the appellant’s sufficiency challenge where the
appellant raised the sufficiency issue for the first time on
appeal).

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court has power to order continued [child] support until age 21
when it appears to be necessary and when the court makes findings of
any special or unusual circumstances to justify the order.‛ Harris v.
Harris, 585 P.2d 435, 437 (Utah 1978) (emphasis added).

¶32 Here, the court’s findings do not reveal any necessity or
special or unusual circumstances that would have justified
extending the minor child’s child support beyond the age of 18.
The fact that Husband might have been obligated to pay child
support for the adult children had they chosen to attend college
does not constitute such a circumstance. As a result, we cannot
conclude the trial court abused its discretion, and we
accordingly affirm.

CONCLUSION

¶33 Because the trial court did not abuse its discretion in
terminating Husband’s obligation to pay the Mortgage, or in
modifying Husband’s child support obligations, we affirm.

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