Hahn v. Hahn

2018 UT App 135

THE UTAH COURT OF APPEALS

RANDY R. HAHN,
Appellant,
v.
ADRIENNE R. HAHN,
Appellee.

Opinion
No. 20170303-CA
Filed July 6, 2018

Third District Court, Salt Lake Department
The Honorable Ryan M. Harris
Nos. 154901148 and 174100261

Randy R. Hahn, Appellant Pro Se
Kevin McGaha, Attorney for Appellee
Sean D. Reyes and Erin T. Middleton, Attorneys for
Amicus Curiae Utah Attorney General1

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES GREGORY K. ORME and DAVID N. MORTENSEN
concurred.

CHRISTIANSEN, Judge:

¶1 After a bench trial, the trial court modified the parties’
divorce decree and parenting plan, granting primary physical
custody of the parties’ minor children to Adrienne R. Hahn
(Mother) and ordering Randy R. Hahn (Father) to pay child

1. The State of Utah responded to this appeal as amicus curiae
because Appellant Randy R. Hahn raised several challenges to
the constitutionality of state statutes. We commend counsel
representing the State for providing a well-researched and
succinct amicus brief.
 Hahn v. Hahn

support. Father appeals, raising several challenges, including the
constitutionality of certain Utah Code provisions governing
custody and child support. We affirm and remand for the
purpose of determining Mother’s attorney fees incurred on
appeal, which award we limit as described below.

BACKGROUND

¶2 Mother and Father divorced in New Mexico, entering into
a marital settlement agreement and stipulated parenting plan,
eventually agreeing to the entry of a final divorce decree in 2014.
The parenting plan provided that the parties would share joint
physical and legal custody of their minor children. The decree
did not impose a child support obligation on either party.
Instead, the parties agreed that no child support would be paid
by either party for one year following entry of the decree so that
each could obtain employment. Following this deferment, the
parties agreed to calculate child support using New Mexico
Child Support guidelines.

¶3 Mother relocated to Utah and in 2015, registered the
decree, parenting plan, and related orders with the Third District
Court in Salt Lake County. She then filed a petition to modify
those orders. Father filed an answer and counter-petition
through counsel, but he subsequently filed an amended answer
pro se. Both parties asserted that a substantial material change in
circumstances justified modification of the original decree and
orders.

¶4 In his amended answer, Father also raised general
constitutional challenges to Utah’s child custody and support
statutes. Father later filed a motion for declaratory judgment in
the modification proceeding, alleging many of the same
constitutional challenges. Mother responded with a request for
temporary orders, including a request for child support of $1,680
per month and attorney fees. Father responded and argued that

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no child support should be awarded to either party and also
sought an award of attorney fees.

¶5 Following a hearing, a domestic commissioner
recommended denial of Father’s amended answer for child
support and parent-time, and denial of Father’s declaratory
judgment motion as moot. The commissioner imputed income to
Father of $10,533 per month based upon Father’s average
earnings from 2010, 2011, and 2012, 2 and ordered Father to pay
child support in the amount of $1,369 per month. The
commissioner reserved ruling on the issues of child support
arrearages and Mother’s request for attorney fees. Father
objected to the commissioner’s recommendations and requested
a hearing before the district court.

¶6 The district court heard argument on Father’s objections
and overruled them, affirming the commissioner’s temporary
orders with some modifications. The court ordered Father to pay
$1,350 per month in child support, and to pay $1,000 of Mother’s
attorney fees. The court’s award of attorney fees was related to
Father’s “instigat[ing] unnecessary proceedings or litigation, . . .
[and] mak[ing] arguments that are without merit.” Because
Father was unemployed at the time of the hearing, the court
required Father to pay a minimum of $123 per month toward the
ordered child support and apply for two jobs per week, or face
potential contempt of court proceedings. Thereafter, the case
was certified for trial on the issues of (1) physical and legal
custody of the children, (2) parenting plan, (3) child support,
(4) child support arrearages, (5) insurance coverage for the
children and premium payment, (6) right to claim the children as
dependents on taxes, and (7) attorney fees. Prior to trial, Mother
relocated to a different city in Utah, and Father relocated to
Texas from Utah.

2. Mother submitted tax documents to the domestic
commissioner, and subsequently to the trial court, showing
Father’s income over this period.

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¶7 In late January 2017, shortly before the bench trial was set
to begin, Father filed (1) a motion to continue the trial, (2) a
motion to disqualify the assigned trial judge and commissioner,
(3) a motion requesting a jury trial, and (4) a motion for
summary judgment. The presiding judge of the district court
denied the motion to disqualify the assigned trial judge. The trial
court then denied the motion to continue and motion for jury
trial, reserving time at the beginning of trial to address Father’s
summary judgment motion.

¶8 Through his motion for summary judgment, Father
sought a declaratory judgment that Utah’s custody and child
support statutes are unconstitutional. Father asserted that

Utah, like state courts across the country, has failed
to protect [fundamental] rights. Instead courts have
usurped these fundamental rights, enabled by
legislative statute, in Utah no less, that: the
government’s interest is superior to the
fundamental rights of fit parents and their
children; and the government is entitled to
determine custody and support in the “best
interests of the child” merely because parents
divorce.

Before trial began, however, Father sought to withdraw the
motion for summary judgment, submitting instead a
“Declaration of Rights.” Father also sought to withdraw the
motion to disqualify the assigned trial judge, despite the
presiding judge’s earlier denial of that motion. Father, who then,
as now, was not represented by counsel, 3 filed his documents the
morning of trial.

3. As a self-represented party in this appeal, Father is entitled to
“every consideration that may reasonably be indulged,” Allen v.
(continued…)

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 Hahn v. Hahn

¶9 Father failed to appear for trial, and the trial court, despite
significant efforts, could not reach him. In his absence, the court
denied Father’s motion for summary judgment on the merits
and proceeded to take evidence on the modification petitions. 4
Following trial, the court ordered the parties to share joint legal
custody and awarded sole physical custody of the children to
Mother. Father was designated as the “relocating parent” and
awarded visitation pursuant to statute. See generally Utah Code
Ann. § 30-3-37 (LexisNexis Supp. 2017). The court also ordered
Father to pay (1) $1,761 per month in future child support,
(2) $13,690 in child support arrearages, and (3) $3,300 for
Mother’s attorney fees in addition to the $1,000 amount
previously ordered. Father appeals.

ISSUES AND STANDARDS OF REVIEW

¶10 Father first argues that the court deprived him of his right
to a jury trial. 5 We review the question of whether Father had a

(…continued)
Friel, 2008 UT 56, ¶ 11, 194 P.3d 903 (citation and internal
quotation marks omitted), though “we will ultimately hold him
to the same standard of knowledge and practice as any qualified
member of the bar,” Robinson v. Jones Waldo Holbrook
& McDonough, PC, 2016 UT App 34, ¶ 28, 369 P.3d 119.

4. The court addressed the motion for summary judgment on the
merits and appears to have provided a basis for its denial in
open court. The court later memorialized its decision in an
abbreviated written order.

5. Father raises several other issues in this appeal. See infra
¶¶ 18–24. Our conclusion that those issues have been
inadequately briefed obviates the need to address the applicable
standards of review. See Cheek v. Clay Bulloch Constr. Inc., 2016
UT App 227, ¶ 14 n.3, 387 P.3d 611.

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right to a jury trial for correctness. Failor v. MegaDyne Med.
Products, Inc., 2009 UT App 179, ¶ 9, 213 P.3d 899. We have
stated, however, that “it is the prerogative of the judge who
actually tries the case to make the determination of whether an
issue is one in equity or one in law wherein the party can insist
on a jury as a matter of right.” Id. (quotation simplified).
Accordingly, “unless it is shown that the ruling determining the
equitable or legal nature of the issue was patently in error or an
abuse of discretion, this court will not interfere with the ruling.”
Id. (quotation simplified).

¶11 Father next asserts that the court improperly imputed
income to him in ordering him to pay prospective child support
and child support arrearages. We review the basis for and
calculation of imputed income for abuse of discretion.
Christensen v. Christensen, 2017 UT App 120, ¶ 10, 400 P.3d 1219.
Additionally, “[t]he trial court in a divorce action is permitted
considerable discretion in adjusting the financial and property
interests of the parties, and its actions are entitled to a
presumption of validity.” Rayner v. Rayner, 2013 UT App 269,
¶ 4, 316 P.3d 455 (citation and internal quotation marks omitted).
“We will not disturb a trial court’s findings of fact unless they
are clearly erroneous, that is, unless they are in conflict with the
clear weight of the evidence, or this court has a definite and firm
conviction that a mistake has been made.” Christensen, 2017 UT
App 120, ¶ 10 (citation and internal quotation marks omitted).

ANALYSIS

I. Jury Trial

¶12 Father asserts that he was entitled to have a jury
determine the factual questions at issue in this post-divorce
modification proceeding and that the court erred in denying his
request for a jury trial. We disagree and conclude that the court
properly denied Father’s motion for jury trial.

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 Hahn v. Hahn

¶13 In Utah, an original decree of divorce may include
“equitable orders relating to the children, property, debts or
obligations, and parties.” Utah Code Ann. § 30-3-5(1)
(LexisNexis Supp. 2017). The court retains continuing
jurisdiction to modify or make new orders. Id. § 30-3-5(3), (4).
Domestic cases, generally, are “equitable in nature,” Noble v.
Noble, 761 P.2d 1369, 1371 (Utah 1988), including proceedings to
modify divorce decrees, Christensen v. Christensen, 628 P.2d 1297,
1299 (Utah 1981) (“The modification of divorce decrees is a
matter of equity[.]”). “[T]here is no right to a jury trial in
domestic cases where there is a . . . mix of remedies but those
matters remain equitable.” Buck v. Robinson, 2008 UT App 28,
¶ 16, 177 P.3d 648; see also Hyatt v. Hill, 714 P.2d 299, 302 (Utah
1986) (Howe, J., concurring) (“Divorce actions existed at
statehood, were considered equitable in nature, and no right to a
jury trial existed.”).

¶14 The modification proceeding underlying this appeal
involved equitable orders largely relating to the care and
custody of the parties’ children. The court addressed physical
custody, legal custody, health care and medical expenses,
insurance, child tax exemptions, and child support. Considering
the nature of the proceedings and our precedent, the court
properly concluded that the modification matter was equitable
in nature, and consequently, that Father was not entitled to a
jury trial.

II. Imputed Income

¶15 Next, Father maintains that the court improperly imputed
income to him in determining child support. The income
imputed to a parent “shall be based upon employment potential
and probable earnings as derived from employment
opportunities, work history, occupation qualifications, and
prevailing earnings for persons of similar backgrounds in the
community.” Utah Code Ann. § 78B-12-203(7)(b) (LexisNexis
2012).

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¶16 Based upon the commissioner’s findings, the court issued
a pre-trial order in 2015, imputing monthly income to Father of
$10,533 for the purpose of calculating child support. At trial in
2017, the court reviewed the financial declaration Father had
submitted before trial, finding no indication of Father’s current
income. The declaration stated only “that [Father’s] income is
heavily garnished for child support and that [he is] barely living
month-to-month while paying down debt.” To calculate child
support, then, the court first had to determine the amount of
Father’s income. Because Father failed to provide current
financial information, failed to attend trial, and “refused to
meaningfully participate in discovery,” the trial court again
imputed income to him. 6 The trial court heard testimony and
took documentary evidence regarding Father’s historical
earnings at a previous job he had held from 2010 to 2012. The
court determined that Father had recently started a new job in
Texas and inferred that Father’s income was comparable to his
historical earnings because his previous job was “essentially the
same job he holds now.” The court ultimately imputed income to
Father at $10,533 per month, based upon Father’s three-year
average monthly income at his previous job.

¶17 We see no basis to disturb the court’s findings regarding
imputed income. Although he had taken a new job in Texas with
a similar title to his former position in New Mexico—on which
his historical earnings were based—Father provided no current
financial information and did not attend the trial. Thus, the court
properly considered historical earnings as a suitable alternative

6. The Utah Child Support Act requires that “[e]ach parent . . .
provide verification of current income.” Utah Code Ann. § 78B-
12-203(5)(b) (LexisNexis 2012); see also Cummings v. Cummings,
821 P.2d 472, 480 (Utah Ct. App. 1991) (explaining that, in part, a
party’s “failure to provide intelligible information” regarding
income supported the court’s imputation of income based on
historical earnings).

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 Hahn v. Hahn

to Father’s current income and did not err in calculating child
support based on that imputed amount.

III. Father’s Other Claims on Appeal

¶18 Father raises several other contentions, including the trial
court’s award of attorney fees and certain other claims related to
the constitutionality of Utah’s custody and support statutes.
Father has not adequately briefed these issues, however, and has
therefore failed to carry his burden of persuasion on appeal. See
Rose v. Office of Prof'l Conduct, 2017 UT 50, ¶ 64 (explaining that
“a party who fails to adequately brief an issue will almost
certainly fail to carry its burden of persuasion on appeal”
(quotation simplified)). We look to the Utah Rules of Appellate
Procedure to determine whether an argument is adequately
briefed. See Heslop v. Bear River Mutual Ins. Co., 2017 UT 5, ¶ 44,
390 P.3d 314. To properly present an issue on appeal, a party
“must explain, with reasoned analysis supported by citations to
legal authority and the record, why the party should prevail on
appeal.” Utah R. App. P. 24(a)(8). See also Bank of Am. v. Adamson,
2017 UT 2, ¶ 11, 391 P.3d 196 (“[A]n issue is inadequately briefed
if the argument merely contains bald citations to authority
without development of that authority and reasoned analysis
based on that authority.” (quotation simplified)).

¶19 At trial, the court awarded partial attorney fees to Mother,
concluding that “portions of [Father’s] presentation have been
made in bad faith.” Under Utah Code section 78B-5-825, the
“bad faith” statute, the district court must generally award fees
in a civil action “if the court determines that the action or
defense to the action was without merit and not brought or
asserted in good faith.” Utah Code Ann. § 78B-5-825(1)
(LexisNexis 2012). Father claims that the district court erred,
particularly asserting that (1) the court awarded fees “beyond
the cost of the effort and expertise expended,” (2) the court did
not take “evidence of hours spent [or] rate applied,” and (3) “it is
not bad faith for [Father] to assert his parental rights at trial
specifically for the purpose to preserve the issues for appeal.”

20170303-CA 9 2018 UT App 135
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Based upon a spate of motions Father filed one week before trial,
see supra ¶ 7, 7 the court determined that (1) Father’s motion for
jury trial was “clearly not allowed under the law,” (2) Father’s
summary judgment motion “is just a re-hash . . . of arguments
[Father has] already made,” and (3) Father’s motion to continue
trial, “made on the eve of trial,” could have been presented far
earlier. The trial court also emphasized that Father had raised
the same constitutional arguments multiple times, and noted
that the court believed that Father had already sufficiently
preserved these issues for purposes of appeal.

¶20 On appeal, Father does not explain how the court erred
regarding Mother’s counsel’s effort or expertise, or describe any
error regarding the lack of time-sheet evidence. Additionally,
Father does not contest the court’s factual findings supporting
the award of attorney fees, or present reasoned analysis
supported by legal authority. See Utah R. App. P. 24(a)(8). He
fails, for example, to contest the court’s findings regarding
Father’s several motions filed immediately before trial, or the
necessity for Mother to prepare hasty responses to these
motions. Father also does not confront the court’s determination
that Father had previously raised, multiple times, the same
constitutional arguments, and that Father continued to
“instigate[] unnecessary proceedings or litigation, . . . mak[ing]
arguments that are without merit.” Finally, Father does not
describe, with reasoned analysis and citations to legal authority,

7. A few days after filing his motions, Father presented notices to
Mother’s counsel announcing that Father was withdrawing two
of his four motions. Because of the timing, it should go without
saying that Father’s two notices were also presented only a few
days before trial. By this time, however, the presiding judge of the
district court had already decided one of the two motions. At
trial, the trial court considered the merits of the second because,
like Father himself, Father’s withdrawal notices had failed to
appear.

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 Hahn v. Hahn

why he should prevail on this issue on appeal. Id. Accordingly,
Father’s challenge to the court’s award of attorney fees to
Mother is inadequately briefed and we decline to address it
further.

¶21 With respect to Father’s constitutional arguments, we first
note the high bar appellants face when challenging the
constitutionality of statutes. On review, we presume “legislative
enactments . . . to be constitutional,” Christensen v. Rolfe, 2014 UT
App 223, ¶ 7, 336 P.3d 40 (citation and internal quotation marks
omitted), and, consequently, “the party challenging a statute’s
constitutionality bears a heavy burden of proving its invalidity,”
Jones v. Utah Board of Pardons & Parole, 2004 UT 53, ¶ 10, 94 P.3d
283.

¶22 In sweeping fashion, Father invites us to opine on the
constitutionality of conceptual standards written into statute,
including the “best interests of the child” standard, child support
ordered beyond the child’s minimal needs, and the
preponderance of the evidence standard applicable to a “best
interests” determination in custody and divorce proceedings.
Father also generally argues that Utah’s custody and child
support statutes violate the due process protections as outlined
in Mathews v. Eldridge, 424 U.S. 319, 334 (1976). 8

¶23 Despite his reliance on Eldridge, Father expressly limits
this appeal to Utah law, “particularly the Due Process and
Uniform Operations of Laws clauses of the Utah Constitution.”
Although he provides some citation to Utah constitutional
provisions, Father presents no reasoned analysis in his briefing
of these issues on appeal. There is no fixed formula for framing

8. The Supreme Court in Eldridge considered “whether the Due
Process Clause of the Fifth Amendment requires that prior to the
termination of Social Security disability benefit payments the
recipient be afforded an opportunity for an evidentiary hearing.”
Mathews v. Eldridge, 424 U.S. 319, 323 (1976).

20170303-CA 11 2018 UT App 135
 Hahn v. Hahn

constitutional challenges on appeal, but adequate “analysis must
begin with the constitutional text and rely on whatever
assistance legitimate sources may provide in the interpretive
process.” State v. Tiedemann, 2007 UT 49, ¶ 37, 162 P.3d 1106.
Father’s opening brief contains no development of authority and
no meaningful application of precedent to the facts of this case.
For example, Father asserts that the court “erred in failing to
apply procedural and substantive Due Process and Equal
Protection rights and safeguards and strict scrutiny of state
action as it relates to infringement or deprivation of fundamental
parental rights in the ‘care, custody, and control’ of children.”
He points to no part of the record and no particular process,
however, in which the divorce decree modification procedures
failed to meet constitutional requirements.

¶24 Accordingly, the overall analysis of Father’s constitutional
challenges is “so lacking as to shift the burden of research and
argument to the reviewing court.” State v. Thomas, 961 P.2d 299,
305 (Utah 1998). Because Father has not adequately briefed the
attorney fee and constitutional arguments, he has not carried his
burden of persuasion, and we decline to further address them. 9

9. In his opening brief, Father presents several additional
challenges. He asserts that (1) the court did not give full faith
and credit to the stipulated New Mexico joint custody order;
(2) the threshold standard for modification—requiring a
substantial and material change in circumstances—is
unconstitutional; (3) the court failed to declare that Mother
exercised undue influence upon him in New Mexico; (4) the
court failed to declare that the Utah Legislature granted
executive power to its judiciary in divorce proceedings; and
(5) the court failed to declare that Father has never stipulated to
child support. Father provides scant development and analysis
of these issues, and he offers no citation to authority on any of
these arguments. Because these issues are also inadequately
briefed, we do not consider them.

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IV. Request for Attorney Fees on Appeal

¶25 Mother seeks an award of attorney fees for defending, on
appeal, the trial court’s award of fees under the bad faith statute.
See Utah Code Ann. § 78B-5-825 (LexisNexis 2012). Generally,
“when a party who received attorney fees below prevails on
appeal, the party is also entitled to fees reasonably incurred on
appeal.” Utah Dep't of Social Services v. Adams, 806 P.2d 1193,
1197 (Utah Ct. App. 1991). Our supreme court “has interpreted
attorney fee statutes broadly so as to award attorney fees on
appeal where a statute initially authorizes them.” Valcarce v.
Fitzgerald, 961 P.2d 305, 319 (Utah 1998) (plurality opinion)
(citation and internal quotation marks omitted). We have
previously applied Valcarce to appellate challenges of attorney
fee awards under the bad faith statute. See Warner v. Warner,
2014 UT App 16, ¶ 63, 319 P.3d 711. Because Mother has
prevailed on appeal, we award Mother her attorney fees
incurred in defending against Father’s appeal of the bad faith
attorney fee award. Accordingly, we remand to the district court
to determine the “amount of fees reasonably incurred and
properly allocable to this one issue.” Id.

CONCLUSION

¶26 Father was not entitled to a jury trial in the parties’
divorce decree modification proceedings and the trial court
properly denied his request for one. The court did not err by
imputing income to Father in determining the amount of child
support. Father’s other arguments on appeal are inadequately
briefed. We remand for the district court to determine the
amount of attorney fees Mother reasonably incurred defending
the bad faith attorney fees award. Affirmed.

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