2024 UT App 31
THE UTAH COURT OF APPEALS
BRUCE RAY MCFARLAND,
Appellee,
v.
NICOLE S. MCFARLAND,
Appellant.
Opinion
No. 20221044-CA
Filed March 14, 2024
Second District Court, Farmington Department
The Honorable David J. Williams
No. 084701533
Angilee K. Dakic, Attorney for Appellant
Jacob K. Cowdin, Attorney for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and
DAVID N. MORTENSEN concurred.
HARRIS, Judge:
¶1 This domestic dispute between Bruce Ray McFarland
(Bruce) and Nicole S. McFarland (Nicole) comes before us for a
second time. This time, we are asked to assess the propriety of two
aspects of the district court’s most recent set of orders: the court’s
decision to modify the parties’ divorce decree and award the
house in which the parties lived while they were married (the
Home) to Bruce instead of to Nicole, and the court’s decision to
require Nicole to pay Bruce’s attorney fees incurred in litigating
the petition to modify. We see no reversible error in the court’s
award of the Home to Bruce, and we therefore affirm on that
issue. But we agree with Nicole that the court erred in awarding
attorney fees to Bruce, and we therefore reverse that fee award.
McFarland v. McFarland
BACKGROUND
¶2 In our previous opinion, we set forth many of the relevant
facts underlying the parties’ dispute. See McFarland v. McFarland,
2021 UT App 58, ¶¶ 2–18, 493 P.3d 1146. In the interest of brevity,
we recite in this opinion only those facts necessary to our decision.
¶3 Bruce and Nicole’s divorce decree (the Decree) was entered
in 2009 following a negotiated settlement. As relevant here, the
Decree required Bruce to pay Nicole $1,700 per month in alimony,
and it awarded the Home to Nicole “subject to” her “assumption”
of the mortgage, tax, and insurance obligations associated with
the Home as well as “a judicial lien in the sum of $12,034.24
payable to” Bruce. According to the Decree, Nicole was to pay
Bruce the lien amount on the occurrence of the first of these
events: (1) when Nicole remarries or cohabits; (2) when the Home
is sold or rented; (3) when Nicole “moves from” the Home or no
longer uses it as her primary residence; or (4) when the parties’
youngest child graduates from high school. Several of those
events have long since occurred; indeed, the district court later
found that Nicole “abandoned” the Home in 2010. At no point did
Nicole ever make any of the mortgage, tax, or insurance payments
on the Home, nor did she ever pay Bruce the lien amount.
¶4 Instead, after a brief period in which he did not live in the
Home, Bruce moved back into the Home in 2009 and has lived
there at all times since. And after entry of the Decree, Bruce—
rather than Nicole—has made all mortgage, tax, and insurance
payments on the Home, and he has also maintained and made
improvements to the Home. But other than one single payment in
January 2009, Bruce paid no alimony to Nicole. Thus, soon after
the Decree was entered, both parties began to ignore many of the
Decree’s important provisions. But for the next seven years,
neither party seemed bothered by the other’s noncompliance, and
neither sought to modify or enforce the terms of the Decree.
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¶5 In 2017—apparently motivated by a desire to refinance the
Home—Bruce filed a petition to modify (Bruce’s Petition), asking
the court to modify the Decree to (among other things) award him
the Home. Nicole responded not only by resisting Bruce’s
Petition, but also by filing two motions asking the court to hold
Bruce in contempt for (among other things) failing to pay alimony
and for “willfully occup[ying Nicole’s] property,” namely, the
Home. Concerning the Home, Nicole asked that the court
“immediately restore[]” her “to the use and possession of” the
Home. Later, in 2019, the court found Bruce in contempt for
failing to pay alimony, and it ordered Bruce to pay Nicole over
$150,000 in unpaid alimony. But the court declined to find Bruce
in contempt for occupying the Home. The court made no ruling
on Bruce’s Petition, however, because that matter had apparently
not yet been certified for trial. But the court allowed Bruce to
continue living in the Home “on a temporary basis” until the
matter was finally resolved.
¶6 Both parties appealed several aspects of the court’s 2019
rulings and, in this case’s first trip to this court, we affirmed the
court’s alimony award to Nicole and remanded “the case for
further proceedings” regarding (among other things) Bruce’s
Petition. Id. ¶¶ 46–47.
¶7 Following remand, the district court held a hearing to
consider matters regarding the Home. Bruce asserted that any
claim Nicole might make regarding possession of the Home was
barred by several equitable doctrines, including waiver and
laches. In particular, Bruce claimed that Nicole had waived any
claim to the Home by moving out in 2010 and taking no action in
the intervening years to challenge Bruce’s possession of it, and
that Nicole’s claim was barred by laches because her “delay in
bringing her claim” was “unreasonable” and “prejudicial to
Bruce.” Nicole resisted all of these arguments and, in addition,
claimed that Bruce’s Petition was barred by res judicata.
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¶8 At the conclusion of the hearing, the court made an oral
ruling granting Bruce’s Petition and denying Nicole’s motion
regarding the Home. The court later issued a written ruling
setting forth its findings and conclusions. In that ruling, the court
found that Nicole’s abandonment of the Home in 2010 constituted
“a material and substantial change in circumstances.” The court
also rejected Nicole’s claim that Bruce’s Petition was barred by res
judicata. And the court determined that modification of the
Decree to award Bruce the Home was appropriate; the court
found merit in several of Bruce’s equitable arguments.
Specifically, the court determined that Nicole had waived any
claim to the Home by moving out and failing to make any
payments related to the Home since the Decree was entered. And
the court concluded that laches also barred Nicole’s claim to the
Home because she had delayed bringing any such claim and her
delay had prejudiced Bruce because Bruce had made payments
and improvements on the Home in the intervening years. The
court noted that Bruce had also delayed in bringing his petition,
but it found that Nicole had not been prejudiced by Bruce’s delay.
¶9 Bruce asked the court to award him attorney fees incurred
in litigating his petition. As the district court interpreted it, this
request was grounded not in the attorney fees statute found in the
family law code, see Utah Code § 30-3-3, but, instead, in Utah’s
bad-faith attorney fees statute, see id. § 78B-5-825. The court
granted Bruce’s request, but it made no specific finding that
Nicole’s claims and defenses regarding the Home had been
“without merit.” It did make an express finding that “Nicole’s
effort to pursue an award of [the Home] roughly eight (8) years
after abandoning [it] was an act of bad faith” that Nicole
undertook with a “retaliatory” motive in reaction to the filing of
Bruce’s Petition. And the court noted that, during the intervening
years, Nicole “had not satisfied the conditions in the Decree that
allowed her to take possession of” the Home. Based on these
findings, the court concluded that “law and equity call for an
award of attorney fees in Bruce’s favor as it relates to the issue of”
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the Home. The court later quantified that attorney fee award,
ordering that Nicole pay Bruce $7,390.67 for attorney fees he
incurred litigating issues related to the Home.
ISSUES AND STANDARDS OF REVIEW
¶10 Nicole appeals two aspects of the court’s rulings. First, she
challenges the court’s order modifying the Decree to award the
Home to Bruce. “In this context, we review the district court’s
underlying findings of fact, if any, for clear error,” and we review
“its ultimate determination regarding the petition to modify[] for
an abuse of discretion.” Myers v. Myers, 2023 UT App 20, ¶ 19, 526
P.3d 1253. Whether the court chose and applied the correct legal
standard is a question of law “that we review for correctness.”
Peeples v. Peeples, 2019 UT App 207, ¶ 11, 456 P.3d 1159.
¶11 As discussed below, our analysis on this point focuses on
the court’s application of the doctrine of laches and, in particular,
on its determination that Bruce was prejudiced by Nicole’s delay
in asserting a right to possession of the Home. “The application of
laches to a particular set of facts and circumstances presents a
mixed question of law and fact.” Peterson v. Pierce, 2019 UT App
48, ¶ 9, 440 P.3d 833 (quotation simplified). While “[l]aw-like
mixed questions are reviewed de novo,” mixed questions that are
more “fact-like” are “reviewed deferentially.” Sawyer v.
Department of Workforce Services, 2015 UT 33, ¶ 11, 345 P.3d 1253.
For the reasons discussed more fully later, see infra ¶¶ 18–21, we
conclude that a district court’s prejudice determination made in
the laches context is more fact-like than law-like and, therefore,
calls for a more deferential standard of review.
¶12 Second, Nicole challenges the court’s award of attorney
fees to Bruce under the bad faith statute. “We review a trial court’s
grant of attorney fees under the bad faith statute as a mixed
question of law and fact.” Outsource Receivables Mgmt., Inc. v.
Bishop, 2015 UT App 41, ¶ 11, 344 P.3d 1167 (quotation simplified).
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“A finding of bad faith is a question of fact and is reviewed by this
court under the ‘clearly erroneous’ standard,” but a “‘without
merit’ determination is a question of law” that we review “for
correctness.” Id. (quotation simplified).
ANALYSIS
I
¶13 We first address Nicole’s challenge to the district court’s
grant of Bruce’s Petition and its accompanying order modifying
the Decree to award the Home to Bruce. The court based its ruling
on several distinct legal doctrines, including waiver and laches.
Nicole challenges the application of these doctrines, asserting that
none of them apply to the facts at hand. For the reasons discussed,
we conclude that the court did not abuse its discretion when it
concluded that Bruce was prejudiced by Nicole’s delay in
asserting her claim to the Home, and that therefore the doctrine
of laches operates to bar Nicole’s claim. Because we affirm the
court’s laches determination, we need not reach the question of
whether the court erred in its application of waiver or any other
legal or equitable doctrine.
¶14 “Laches” is an equitable doctrine “founded upon
considerations of time and injury.” Insight Assets, Inc. v. Farias,
2013 UT 47, ¶ 17, 321 P.3d 1021 (quotation simplified). The thing
that the doctrine is concerned about “is not mere delay, but delay
that works a disadvantage to another.” Id. (quotation simplified).
“In Utah, laches traditionally has two elements.” Fundamentalist
Church of Jesus Christ of Latter-Day Saints v. Horne, 2012 UT 66, ¶ 29,
289 P.3d 502. First, the party claiming laches must demonstrate
that the other party “unreasonably delayed in bringing” a claim.
See Veysey v. Nelson, 2017 UT App 77, ¶ 8, 397 P.3d 846 (quotation
simplified), cert. denied, 400 P.3d 1046 (Utah 2017). Second, the
party claiming laches must demonstrate that it “was prejudiced
by that delay.” Id. (quotation simplified); see also Laches, Black’s
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Law Dictionary (11th ed. 2019) (defining “laches” as “[t]he
equitable doctrine by which a court denies relief to a claimant who
has unreasonably delayed in asserting the claim, when that delay
has prejudiced the party against whom relief is sought”).
¶15 Nicole concedes that the first element of the laches test—
unreasonable delay—is met here, given her eight-year delay in
objecting to Bruce’s possession of the Home. Because of this
concession, we need concern ourselves only with the second
element of the laches test: whether Bruce was prejudiced by
Nicole’s unreasonable delay.
¶16 On that point, the district court made a specific finding that
Bruce would suffer “clear prejudice” if Nicole were allowed to
claim possession of the Home. The court observed that Bruce had
raised the parties’ children in the Home, had made
“improvements” to the Home, and had taken care of “all financial
obligations related to” the Home since 2009. In light of these
undisputed facts, the court determined that Bruce would be
prejudiced if Nicole were allowed to assert, after all these years, a
right to exclusively use and possess the Home.
¶17 Nicole challenges the court’s prejudice determination,
asserting that her delay in asserting her rights to the Home was
actually “a benefit to Bruce” because it gave him a place to live
and because he was able to take “significant amounts of equity
out of” the Home “on multiple occasions.” But before we can
address Nicole’s challenge to the court’s prejudice determination,
we must first determine the appropriate standard of review.
¶18 As previously mentioned, see supra ¶ 11, a district court’s
“application of laches to a particular set of facts and circumstances
presents a mixed question of law and fact.” Peterson v. Pierce, 2019
UT App 48, ¶ 9, 440 P.3d 833 (quotation simplified). “Mixed
questions fall somewhere in the twilight between deferential
review of findings of fact and searching reconsideration of
conclusions of law.” In re adoption of Baby B., 2012 UT 35, ¶ 42, 308
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P.3d 382. The level of deference afforded to district courts in such
situations thus depends on whether the determination at issue is
more law-like or fact-like. See Sawyer v. Department of Workforce
Services, 2015 UT 33, ¶ 11, 345 P.3d 1253. We must therefore assess
whether a determination regarding prejudice, in the laches
context, is more fact-like than law-like. As far as we are aware, no
Utah court has yet rendered a specific ruling on this question.
¶19 When considering whether a question “should be deemed
law-like or fact-like, we evaluate the marginal costs and benefits
of conducting either a searching de novo review or a deferential
review of a lower tribunal’s resolution of the mixed question.” Id.
¶ 12 (quotation simplified). To that end, our supreme court has
instructed us to consider three relevant factors:
(1) the degree of variety and complexity in the facts
to which the legal rule is to be applied; (2) the degree
to which a trial court’s application of the legal rule
relies on facts observed by the trial judge, such as a
witness’s appearance and demeanor, relevant to the
application of the law that cannot be adequately
reflected in the record available to appellate courts;
and (3) other policy reasons that weigh for or
against granting discretion to trial courts.
Id. (quotation simplified).
¶20 The first two factors compare “the relative competencies”
of “a fact-finding tribunal” and that of “an appellate court.” Id.
¶ 13. District courts and other fact-finding tribunals “are in a
superior position to weigh facts that depend upon credibility
determinations, the direct observation of witness testimony, and
other evidence not fully captured in a written appellate record.”
Id. On the other hand, appellate courts are in a better position to
fashion “broad rules that can create a greater degree of
consistency and predictability to future cases involving a
particular mixed question.” Id. An inquiry that is highly “fact-
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intensive” is not one that “lend[s] itself to consistent resolution by
a uniform body of appellate precedent.” Carbon County v.
Workforce Appeals Board, 2013 UT 41, ¶ 7, 308 P.3d 477 (quotation
simplified). Thus, a district court is “entitled to deference” where
its determinations are “fact-intensive” because an appellate court
“would be in an inferior position to review the correctness” of
such a decision. Id. (quotation simplified).
¶21 Assessing whether a litigant’s unreasonable delay in
bringing a claim has caused another party to sustain prejudice is
a case-specific, fact-bound inquiry that will depend on the
particular circumstances at hand, as well as—at least in many
cases, including this one—on the district court’s perception of the
progression of the litigation. Indeed, for this very reason, Utah
appellate courts have concluded, in a number of analogous
contexts, that appellate review of a district court’s prejudice
determination should be deferential. See State v. De La Rosa, 2019
UT App 110, ¶ 9, 445 P.3d 955 (reviewing deferentially a district
court’s “substantial adverse effect” determination, made in the
context of assessing whether a new trial was warranted, “due to
[the district court’s] advantaged position to judge the impact of
legal errors on the total proceedings” (quotation simplified)); see
also State v. Maestas, 2012 UT 46, ¶ 325, 299 P.3d 892 (stating that
district courts “have discretion in granting or denying a motion
for a mistrial . . . because of the[ir] advantaged position . . . to
determine the impact of events occurring in the courtroom on the
total proceedings” (quotation simplified)); Butler v. Mediaport Ent.
Inc., 2022 UT App 37, ¶¶ 32, 48, 508 P.3d 619 (stating that “we
review a district court’s harmlessness determination,” made in
the discovery and disclosure context, deferentially “for abuse of
discretion” because “a district court will almost always have a
better vantage point than we do to make such a call”). We also
observe that laches is an equitable doctrine, see Insight Assets, 2013
UT 47, ¶ 17, and “equitable inquiries are designed to be flexible,
taking into account all relevant factors in light of the particular
circumstances,” Jones v. Layton/Okland, 2009 UT 39, ¶ 17, 214 P.3d
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859. “Because of the fact-intensive nature of equitable doctrines,”
we generally grant district courts “broader discretion in applying
the law to the facts.” Volonte v. Domo, Inc., 2023 UT App 25, ¶ 28,
528 P.3d 327 (quotation simplified). For all of these reasons, we
conclude that a district court’s determination that a litigant has (or
has not) sustained prejudice as a result of another party’s
unreasonable delay in bringing a claim is entitled to deference
from appellate courts and is a determination that should be
reviewed for abuse of discretion.
¶22 We discern no abuse of discretion in the district court’s
determination that Bruce sustained prejudice as a result of
Nicole’s eight-year delay in asserting her right to the Home. The
court’s ruling was well-reasoned and supported by evidence in
the record. As noted, the court relied on the fact that Bruce had
lived in the Home the entire time, raised the parties’ children
there, and—perhaps most importantly—had taken care of all
financial obligations related to the Home, including all
maintenance and improvements.
¶23 We acknowledge Nicole’s point that Bruce enjoyed certain
advantages as a result of living in the Home. As Nicole points out,
Bruce would have had to pay for housing whether he lived in the
Home or elsewhere, and Bruce was apparently able to take
advantage of the equity in the Home. These facts could have led
the district court to make a different determination with regard to
whether Bruce was prejudiced by Nicole’s delay. But the presence
of conflicting evidence does not compel reversal here. Given the
applicable standard of review, the relevant question is not
whether we would have made the same determination had we
been sitting as the assigned trial-level arbiters in this case; rather,
the relevant question is whether we discern an abuse of discretion
in the decision the assigned judge made. See Stichting Mayflower
Mountain Fonds v. United Park City Mines Co., 2017 UT 42, ¶ 49, 424
P.3d 72 (stating that “[t]he question presented is not whether we
would have granted” the motion in question, but instead
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“whether we find an abuse of discretion in the district judge’s
decision to deny the motion”). Where the court’s decision is
supported by evidence in the record and free from legal error, we
will not disturb it. And that is the case here.
¶24 Nicole resists this conclusion on three additional grounds.
First, she points out that Bruce also delayed in asserting a right
to the Home, and she complains that the district court applied
the principles of laches in an uneven manner. But on this point,
the district court made a specific determination that, although
Bruce delayed the invocation of his claim to the Home, Nicole did
not sustain any prejudice as a result of Bruce’s delay. The court
noted that, during the time between her “abandonment” of the
Home and the filing of Bruce’s Petition, Nicole “did not have to
satisfy any financial obligations related to” the Home, “including
those required by the Decree.” The court’s determination was
therefore supported by evidence in the record and, while a
different judge might have reached a different conclusion on these
facts, we cannot say that the court’s ruling was an abuse of its
discretion.
¶25 Second, Nicole asserts that Bruce should not be able to take
advantage of equitable doctrines such as laches because, in her
view, Bruce had “unclean hands” due to his failure to pay
alimony and child support, as required by the terms of the Decree,
during the years he lived in the Home. See Goggin v. Goggin, 2013
UT 16, ¶ 60, 299 P.3d 1079 (“The doctrine of unclean hands
expresses the principle that a party who comes into equity for
relief must show that his conduct has been fair, equitable, and
honest as to the particular controversy in issue.” (quotation
simplified)). But while Nicole (successfully, as it turned out)
asked the district court to award her back alimony and child
support, she never asked the district court to apply the doctrine
of unclean hands, and her arguments in this regard are therefore
unpreserved for appellate review. See State v. Johnson, 2017 UT 76,
¶ 18, 416 P.3d 443 (“A failure to preserve an issue in the trial court
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generally precludes a party from arguing that issue in an
appellate court, absent a valid exception.”).
¶26 Nicole does not explicitly ask us to utilize any of the
exceptions to our preservation requirement, but she does assert
that the district court erred by failing to “sua sponte” apply the
unclean hands doctrine. Certainly, a court may invoke that
doctrine without being asked to do so. See 30A C.J.S. Equity § 116
(2023) (“A defense of unclean hands need not be pleaded. The
doctrine may be applied by the court sua sponte.”). But the fact
that a court may invoke the doctrine in a sua sponte manner does
not relieve a party of its otherwise-applicable obligation to
preserve issues for appellate review. Indeed, construed liberally,
Nicole’s argument—that the district court erred by failing to sua
sponte invoke the unclean hands doctrine—is an assertion that the
court plainly erred by not concluding that Bruce’s unclean hands
barred him from accessing equitable doctrines like laches. But this
assertion fails because plain error review no longer exists in civil
cases like this one. Kelly v. Timber Lakes Prop. Owners Ass’n, 2022
UT App 23, ¶ 44, 507 P.3d 357. Because plain error review is
unavailable, and because Nicole does not ask us to employ any
other exception to our preservation requirement, the fact that her
“unclean hands” argument is unpreserved requires us to reject
her argument without reaching its merits.
¶27 Finally, Nicole asserts that Bruce’s Petition was barred by
the doctrine of res judicata. Essentially, she asserts that, because
the parties already litigated the issue of entitlement to the Home,
and because the Decree awarded the Home to her, Bruce is barred
from relitigating that issue now. Nicole correctly asserts that res
judicata is not categorically inapplicable in divorce cases. See
Throckmorton v. Throckmorton, 767 P.2d 121, 123 (Utah Ct. App.
1988) (“The doctrine of res judicata applies in divorce actions.”).
But “[i]n the family law context, our legislature has given district
courts the authority to revisit many of the provisions contained in
a typical divorce decree, including provisions pertaining to child
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custody, child support, alimony, property distribution, and debts.”
See Robertson v. Stevens, 2020 UT App 29, ¶ 7, 461 P.3d 323
(emphasis added); see also Utah Code § 30-3-5(5). In this context, a
party may seek post-judgment modification of the property
distribution provisions of a divorce decree, but in order to succeed
in that endeavor the party “must demonstrate that a substantial
change in circumstances has occurred since the entry of the
decree.” See Toone v. Toone, 952 P.2d 112, 114 (Utah Ct. App. 1998)
(quotation simplified); see also Throckmorton, 767 P.2d at 123
(“[T]he application of res judicata is unique in divorce actions
because of the equitable doctrine which allows courts to reopen
alimony, support, or property distributions if the moving party
can demonstrate a substantial change of circumstances since the
matter was previously considered by the court.”).
¶28 Thus, modification of the Decree’s property distribution
provisions is appropriate—even post-judgment and even taking
into account principles of res judicata—so long as Bruce can
demonstrate that, since entry of the Decree, there has been a
substantial change of circumstances that would justify the court
taking a second look at the terms of the distribution. And on that
point, Nicole raises no challenge; indeed, in her reply brief on
appeal she makes clear that she “is not arguing lack of changed
circumstance,” and she affirmatively acknowledges that, in this
case, “there have been changed circumstances.” Thus, the court
had the authority to revisit the property distribution provisions of
the Decree, and we reject Nicole’s argument to the contrary.
¶29 For these reasons, we perceive no abuse of discretion in the
district court’s determination that Bruce was prejudiced by
Nicole’s unreasonable delay in asserting her right to possess the
Home. Because Nicole does not contest the other element of
laches—unreasonable delay—both elements are met. We
therefore affirm the district court’s determination that the
equitable doctrine of laches barred Nicole’s claim to the Home,
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and on that basis we affirm the court’s grant of Bruce’s Petition
and its accompanying order awarding the Home to Bruce.
II
¶30 Next, we address Nicole’s challenge to the court’s award of
attorney fees to Bruce, incurred in connection with litigating
issues related to the Home. On this point, we find merit in Nicole’s
arguments, and we therefore reverse the court’s fee award.
¶31 Bruce’s fee request was grounded in Utah’s bad-faith
attorney-fees statute, which empowers courts to “award
reasonable attorney fees to a prevailing party if the court
determines that the action or defense to the action was without
merit and not brought or asserted in good faith.” See Utah Code
§ 78B-5-825(1). Before awarding fees under this section, a district
court—in addition to determining that the requesting party is the
“prevailing party”—must make specific findings that the
opposing party’s claim is (1) “without merit” and (2) “not brought
or asserted in good faith.” Rocky Ford Irrigation Co. v. Kents Lake
Reservoir Co., 2020 UT 47, ¶ 76, 469 P.3d 1003 (quotation
simplified). These two findings “must be made independently”
from one another. Still Standing Stable, LLC v. Allen, 2005 UT 46,
¶ 12, 122 P.3d 556. Nicole asserts that the court failed to make a
specific finding that her claims and defenses regarding the Home
were without merit, and she maintains that the fee award was
therefore improper. We agree with Nicole.
¶32 While the court made a specific finding that Nicole’s claims
and defenses regarding the Home were asserted in “bad faith”
and on a “retaliatory” basis, it made no specific finding that
Nicole’s claims were without merit. Bruce acknowledges the lack
of an express finding on this point, but he asserts that we can infer
such a finding from (a) the fact that the court rejected Nicole’s
claims on their merits (i.e., that she lost) and (b) the court’s specific
bad-faith finding. We see the matter differently.
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¶33 First, a determination that a party lost on the merits is not
equivalent to a determination that the party’s claims were without
merit for purposes of the bad-faith statute. “Without merit” in this
context means something worse than just having a losing claim.
Indeed, our supreme court has stated that the term “without
merit,” as used in the bad-faith statute, “implies bordering on
frivolity,” with the term “frivolous” meaning “of little weight or
importance having no basis in law or fact.” Cady v. Johnson, 671
P.2d 149, 151 (Utah 1983) (quotation simplified); see also Migliore
v. Livingston Fin. LLC, 2015 UT 9, ¶ 31, 347 P.3d 394 (“To determine
whether a claim is without merit, we look to whether it was
frivolous or of little weight or importance having no basis in law
or fact.” (quotation simplified)). And on at least one occasion, our
supreme court has concluded that a losing claim was not “without
merit,” because the claim—even though it was not the prevailing
claim—involved a question of “first impression” and “had a basis
in law and fact.” See In re Olympus Constr. LC, 2009 UT 29, ¶ 31,
215 P.3d 129. We therefore may not infer, merely from the district
court’s rejection of Nicole’s claims on their merits, that the court
considered those claims to be so meritless as to be “bordering on
frivolity.” See Cady, 671 P.2d at 151.
¶34 Nor may we draw that inference from the court’s “bad
faith” finding. As noted already, the two separate findings—
without merit and bad faith—“must be made independently”
from one another. Still Standing Stable, 2005 UT 46, ¶ 12. And this
makes sense, because the two elements of the statutory test are
aimed at two different things. The first element (“without merit”)
is concerned with the objective quality of the claim itself, see
Migliore, 2015 UT 9, ¶ 31, while the second element (“bad faith”)
is concerned with the party’s subjective motivation for bringing
it, see Blum v. Dahl, 2012 UT App 198, ¶ 9, 283 P.3d 963 (“A finding
of bad faith turns on a factual determination of a party’s subjective
intent.” (quotation simplified)). Both elements must be met before
a court may award attorney fees under the bad-faith statute. And
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the presence of one element does not necessarily imply the
presence of the other.
¶35 For instance, a party may have a completely frivolous
claim that lacks any basis in law or fact, but that party may not be
aware of the claim’s lack of merit at the time it was filed. In that
situation, the first element of the test is met but, depending on the
circumstances, the second might not be. Conversely, a party may
have a solid (albeit losing) claim that has a basis in both law and
fact, but the party might be bringing that claim for abusive or
improper reasons. In that situation, the second element might be
met but the first one wouldn’t be. In the case at hand, our review
of the record indicates that this might be the situation: Nicole had
in her corner a provision in the Decree awarding her the Home,
and Bruce had not taken any action to seek modification of that
provision in eight years. Given these facts, it is certainly not
obvious to us that Nicole’s claims and defenses regarding the
Home were “bordering on frivolity,” see Cady, 671 P.2d at 151,
even if we take at face value the court’s finding that Nicole
brought the claims in a bad-faith effort to retaliate against Bruce.
¶36 Accordingly, we conclude that the absence of any specific
finding that Nicole’s claims were without merit renders the
district court’s attorney fees award improper. 1
CONCLUSION
¶37 We discern no abuse of discretion in the district court’s
determination that laches barred Nicole’s claims and defenses
regarding the Home, and on that basis we affirm the district
1. Again invoking the bad-faith statute, Bruce asks us to award
him attorney fees he incurred on appeal. We must reject this
request because we have reversed the award of attorney fees in
the district court. Moreover, we do not consider Nicole’s appellate
arguments to have been brought in bad faith.
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court’s grant of Bruce’s Petition and its accompanying order
awarding the Home to Bruce. But due to the absence of any
finding that Nicole’s claims and defenses were without merit, we
reverse the court’s award of attorney fees to Bruce pursuant to the
bad-faith statute, and we vacate the part of the court’s judgment
that required Nicole to pay $7,390.67 in fees to Bruce.
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