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Wallace v. Wallace, 2024 UT App 164

Case Source

James Douglas Wallace and Joanna June Wallace were married in 2001, share four children (two of whom were still minors at the time of the appeal), and divorced in early 2017 pursuant to a stipulated divorce decree. Less than two years after the divorce, both parties filed motions to modify the decree. After a contentious four-day bench trial in late 2021 and early 2022, the trial court entered a modified divorce decree and later an amended modified divorce decree addressing custody, parent-time, child support, non-disparagement, a special master for legal custody decisions, and attorney fees. Joanna appeals from the amended modified divorce decree, raising four issues: (1) whether the non-disparagement provision violated her First Amendment rights; (2) whether child support was properly calculated; (3) whether the week-on/week-off summer parent-time schedule was proper; and (4) whether the trial court erred in denying her attorney fees. All issues were affirmed, with the First Amendment issue dismissed as unpreserved and the special master-custody warning dismissed as unripe.

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Briefing Documents

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Facts

The Stipulated Divorce Decree (2017)

  • James and Joanna divorced in early 2017 pursuant to a fully stipulated decree; both were represented by counsel.
  • The decree awarded joint physical and legal custody of all four children, designated Joanna as the primary physical custodian and primary for education and medical decisions, and provided James parent-time under a statutory schedule.
  • For their eldest child, EPW, who has special needs, the parties agreed to augment child support by $500/month and that child support (including the augmented amount) would continue until EPW reached age 21.
  • The decree included a broad mutual non-disparagement provision prohibiting negative, disparaging, or derogatory comments to or about each other through any communication channel — including text, email, phone, voice message, or face-to-face — and to third parties, as well as communications about past marital incidents, past blame, or personal attacks.

Post-Decree Motions and Incidents

  • In August 2018, James filed a petition to modify, asserting substantial changes in circumstances, including changed children’s needs and Joanna’s new ability to enter the workforce after working two nearly full-time volunteer positions.
  • Also in 2018, James filed a motion to enforce claiming Joanna violated the non-disparagement provision by posting negative comments about him on social media, which caused strangers to threaten him online. Joanna argued social media was not specifically addressed. The trial court ruled the broad language encompassed social media posts “to third parties” and directed Joanna to remove the referenced posts, but declined to hold her in contempt as she had not made further posts.
  • In August 2019, the parties stipulated to appointment of a special master; the order required each party to pay half the retainer. The special master withdrew in November 2019. James filed another motion to enforce alleging Joanna failed to pay her share.
  • In April 2020, EPW (who has special needs) began living full-time with James after two incidents in which Joanna called police on EPW; following the second incident, Joanna told EPW he could not live with her. Afterward Joanna called and texted EPW “hundreds” of times and repeatedly contacted police for welfare checks despite no evidence of safety concerns. James obtained a temporary stalking injunction—later dismissed—listing all four children as protected parties. The trial court later found James had no good-faith reason to list the three other children.
  • In May 2020, James filed an amended petition seeking sole custody of EPW and joint physical custody of the remaining three children. Joanna counter-petitioned seeking sole legal and physical custody of all children.

The Four-Day Bench Trial (Late 2021 / Early 2022)

  • The trial court described this as “one of the most difficult cases [it] has ever had.”
  • The court found both parties clung to anger and resentment, clouding their judgment and interfering with prioritizing the children’s needs, causing the children stress, anxiety, and depression.
  • The court made extensive findings about the parties’ lack of insight into their own roles in conflicts, refusal to cooperate, inability to communicate appropriately, disparagement of each other (including Joanna’s continued social media posts after the 2018 order to remove them), and involvement of the children in their disputes.
  • A private guardian ad litem (PGAL) was appointed to represent the children’s best interests and made recommendations the court largely adopted.

Modified Divorce Decree (April/May 2022) – Key Provisions

  • Custody of LW (age 17 at trial): Joanna awarded sole physical and legal custody; James ordered eventual parent-time to be developed incrementally through therapy rather than by set schedule per the PGAL’s recommendation.
  • Custody of two youngest children: Joint physical and legal custody continued, with equal parent-time (182 overnights each); PGAL’s recommended week-on/week-off summer schedule adopted; a special master with binding decision-making authority appointed for disputes, each party responsible for half the fees; the court warned that failure to pay special master fees may result in a change in legal custody.
  • Child support: Initially set at $1,607/month based on imputed incomes and hybrid sole/joint custody calculation (110 overnights for James with LW, 182 with younger two; 255 for Joanna with LW, 183 with younger two).
  • EPW child support credit: The court found EPW’s $500/month augmented support ended when EPW moved in with James full-time in April 2020, and credited James $6,000 for overpayments made thereafter.
  • Non-disparagement: Clarified to extend to all social media platforms, email, and any future communication technology.
  • Attorney fees: Denied to both parties.

Amended Modified Divorce Decree (August 2022)

  • Child support increased to $1,998/month: $1,068/month for LW (sole custody rate for three children), $465/month for each of the two youngest children (joint custody rate for three children).
  • Summer parent-time: Week-on/week-off schedule maintained; court found the schedule did not prevent Canada trips and that protecting children from conflict outweighed Joanna’s desire for two consecutive weeks.
  • Attorney fees: Denied; court noted Joanna failed to demonstrate actual need, particularly given her new husband’s active involvement in the case as her attorney.
  • Non-disparagement: For the first time (post-trial), Joanna raised a First Amendment challenge; the court held no constitutional provision prohibits parties from voluntarily agreeing to non-disparagement provisions and declined to amend.
  • Special master custody-change warning: Retained; court explained failure to pay implicates legal custody factors including ability to prioritize children’s welfare, co-parenting skills, and willingness to protect children from conflict.

 

Issues of the Case

Rules of Evidence

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Utah Codes

Rules of Civil Procedure

Utah Code of Judicial Administration

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Utah Rules of Appellate Procedure

Case Cited

  • State v. Johnson, 2017 UT 76, 416 P.3d 443 (preservation rule – issue must be specifically raised, timely, and supported by evidence and authority; unpreserved issues not reached absent valid exception)
  • Donjuan v. McDermott, 2011 UT 72, 266 P.3d 839 (preservation requirement applies even to constitutional claims)
  • Sandusky v. Sandusky, 2018 UT App 34, 417 P.3d 634 (issues not raised at trial are usually deemed waived)
  • Levy ex rel. B.L. v. Mahanoy Area School Dist., 964 F.3d 170 (3d Cir. 2020) (Third Circuit authority cited by Joanna for standard of waiver of First Amendment rights; not addressed on merits)
  • Pankhurst v. Pankhurst, 2022 UT App 36, 508 P.3d 612 (abuse of discretion standard for child support; heavy appellate burden)
  • Lay v. Lay, 2018 UT App 137, 427 P.3d 1221 (broad discretion in establishing parent-time; abuse of discretion standard)
  • Tober v. Tobler, 2014 UT App 239, 337 P.3d 296 (parent-time schedule in best interest of child)
  • Nakkina v. Mahanthi, 2021 UT App 111, 496 P.3d 1173 (parent-time findings must be sufficiently detailed, logical, supported, and not clearly erroneous)
  • Gardner v. Gardner, 2019 UT 61, 452 P.3d 1134 (abuse of discretion standard for attorney fees under § 30-3-3)
  • Lobendahn v. Lobendahn, 2023 UT App 137, 540 P.3d 727 (three-prong test for attorney fees; discretionary award)
  • Connell v. Connell, 2010 UT App 139, 233 P.3d 836 (if fees awarded, detailed findings on each prong required)
  • Tilleman v. Tilleman, 2024 UT App 54, 549 P.3d 65 (different standards for § 30-3-3(1) needs-based and § 30-3-3(2) sanctions-based fee requests)
  • Fadel v. Deseret First Credit Union, 2017 UT App 165, 405 P.3d 807 (prevailing party who received fees below is generally entitled to appellate fees; James denied because not awarded fees below)
  • Allen v. Allen, 2021 UT App 20, 483 P.3d 730 (cited by Joanna on overpayment credit; distinguished – here a final order existed and the case was decided on the merits)
  • Silcox v. Silcox, 2002 UT App 416U (cited by Joanna on overpayment/fault; inapplicable because trial court made no fault findings)
  • Salt Lake County v. State, 2020 UT 27, 466 P.3d 158 (ripeness – issues ripe only where legal determination can be applied to facts of a particular controversy)
  • Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Lindberg, 2010 UT 51, 238 P.3d 1054 (ripeness – not ripe if only a difference of opinion on hypothetical future application; conflict must have sharpened into actual or imminent clash)
  • Zavala v. Zavala, 2016 UT App 6, 366 P.3d 422 (lesser showing required to modify a stipulated decree than a litigated one; cited in trial court’s findings)
  • Elder v. Elder, 2024 UT App 68, 550 P.3d 488 (motion to enforce terminology under URCP 7B)

Litigation and Appellate Strategy

Reversal Predictor:

The following case characteristics are most likely to produce reversal or remand under the Wallace framework:

  • Trial court deviated from Utah Code § 30-3-35.2(5)(a)’s two-consecutive-week summer guideline without entering sufficiently detailed findings explaining how the deviation serves the children’s best interest.
  • Trial court denied attorney fees under § 30-3-3(1) by applying the wrong legal standard (e.g., treating the needs analysis as mandatory rather than a threshold for discretionary exercise) or by failing to make findings addressing financial need, ability to pay, and reasonableness.
  • Trial court ordered hybrid custody child support using a methodology that is internally inconsistent, ignores the existence of other children, or produces a result lower than the sole-custody obligation for a single child when the facts would clearly support a higher amount.
  • Constitutional challenge to a court-enforced stipulated provision that was timely, specifically, and evidentially raised at trial but the trial court failed to address the waiver issue with findings.

Mandatory Factor Checklist:

Courts must address the following in cases involving these issues:

  • Parent-time deviation from statutory guidelines: detailed findings on (1) why deviation is in children’s best interest, (2) what specific conflicts or risks motivate the deviation, (3) how the children’s interests are served by the alternative schedule, and (4) why the statutory schedule is less appropriate than the court’s chosen schedule.
  • Attorney fees under § 30-3-3(1): findings on (1) recipient’s actual financial need, (2) payor’s ability to pay, and (3) reasonableness of the requested fees. If denied, the court need not make detailed findings but should explain the basis for the discretionary denial.
  • Hybrid custody child support: acknowledge the absence of a prescribed statutory method; explain the chosen calculation method with per-child or per-custody-type analysis; ensure the result is internally consistent and supported by the income worksheets.
  • Child support overpayment credits: identify the triggering event (change in residence, change in legal obligation), the amount overpaid, the basis in the decree or statute for the original obligation, and whether the credit amount is limited to the augmented portion or includes base support.

Signal Cluster (High-Risk Appeal Profile):

The following combination of facts presents the highest appellate viability under the Wallace framework:

  • A First Amendment challenge to a non-disparagement clause that was timely and specifically raised at trial, supported by testimony on the voluntary and knowing nature of the waiver at the time of the decree, and decided by the trial court on the merits — producing a ruling the appellate court could evaluate.
  • A parent-time deviation without corresponding findings on why the specific deviation (as opposed to other alternatives) serves the children’s best interest, particularly where the PGAL’s recommendation was not adopted and no independent expert evidence supports the deviation.
  • Attorney fee denial where the record shows uncontradicted evidence of financial need, significant fee differential between the parties, and findings that misstated the legal standard or failed to address the payor’s ability to pay.

Strategy Insight:

Wallace illustrates a recurring strategic failure in Utah family law appeals: challenging the result of an exercise of discretion without engaging with the specific evidentiary and factual findings the trial court made. In every contested issue in this case, Joanna’s appellate argument offered an alternative outcome or method but failed to explain why the trial court’s specific reasoning was legally or factually deficient. The lesson is that in discretionary-standard appeals, the appellate brief must be written as a response to the trial court’s findings — not as a brief to a different finder of fact. Identify each finding that supports the trial court’s ruling, and either show it is clearly erroneous (with record citations) or show that the legal framework the court applied was wrong. Abstract argument that a different result would have been reasonable — without engaging the actual findings — will not succeed under the heavy-burden abuse-of-discretion standard Utah applies in family law appeals.

 

Insights

Utah-Only Jurisprudence:

Wallace is grounded almost entirely in Utah authority. The one out-of-state citation — the Third Circuit’s Levy decision on the standard for waiver of First Amendment rights — was cited by the appellant and never addressed on the merits due to the preservation bar. The opinion’s analytical framework draws exclusively on Utah Supreme Court and Utah Court of Appeals precedents on preservation, child support discretion, parent-time, and attorney fees. This makes Wallace particularly useful as a standalone Utah authority without any need to trace the persuasive value of non-Utah cases.

Doctrinal Anchors (Utah Supreme Court):

  • State v. Johnson, 2017 UT 76, 416 P.3d 443 – The supreme court’s definitive formulation of the preservation rule: issue must be specifically raised, timely, and supported by evidence and relevant legal authority. Wallace applies this standard directly to a constitutional claim, reinforcing that Utah’s preservation doctrine has no constitutional carve-out.
  • Gardner v. Gardner, 2019 UT 61, 452 P.3d 1134 – The foundational authority for the abuse-of-discretion standard governing attorney fee awards under § 30-3-3. Cited here to establish the review framework for Joanna’s fee claim.

The Most Important Holding: Preservation of First Amendment Claims in Family Law:

The most significant doctrinal contribution of Wallace is the clean application of State v. Johnson’s preservation rule to a First Amendment challenge to a stipulated non-disparagement provision. The opinion confirms that constitutional claims in family law — including free speech challenges to court-enforced contractual speech restrictions — must be raised at trial in a timely, evidentiary, and legally supported manner. Raising a constitutional challenge for the first time in a post-trial motion to amend, without requesting a hearing, does not preserve it. The case also implies, without deciding, that parties may voluntarily waive First Amendment rights in stipulated divorce decrees negotiated with the assistance of counsel — a significant practical point for family law practitioners drafting or challenging such provisions. The merits of whether and how a knowing/voluntary waiver analysis applies to divorce decree non-disparagement clauses remains unresolved in Utah.

Non-Disparagement Clauses in Divorce Decrees: A Practitioner’s Guide:

Wallace represents one of the few Utah appellate decisions to address the intersection of non-disparagement clauses and First Amendment rights in the divorce context, even if only procedurally. Based on the trial courts’ rulings (which the Court of Appeals did not disturb), the following practical framework emerges: (1) Broadly worded non-disparagement provisions expressly covering “third parties” will be read to encompass social media posts, even if social media is not specifically named. (2) Courts will enforce these provisions and extend them by clarification to new communication platforms without necessarily treating the extension as a new restraint requiring fresh constitutional analysis. (3) A party who challenges the provision’s scope or constitutionality must do so at trial—not in a post-trial motion. (4) The First Amendment waiver issue remains open on the merits in Utah: future litigants who timely and properly preserve the challenge may obtain a ruling on whether such waivers require knowing/intelligent/voluntary consent with clear and compelling evidence.

 Hybrid Custody Child Support – No Mandatory Formula:

Wallace confirms that Utah provides courts with wide latitude to devise child support calculations in non-standard hybrid custody arrangements (here, sole custody of one child and joint custody of two others for the same parent). The trial court’s per-child approach — applying the sole-custody rate for one child and the joint-custody rate for two others — was upheld as “not unreasonable,” even though it yielded a total obligation lower than what some alternative methods would produce. Practitioners should be aware that in hybrid-custody child support disputes, there is no “correct” formula to point to; the argument must demonstrate that the court’s chosen method is one that no reasonable person would adopt.

Reversal Based on Legal Error vs. Factual Error:

Wallace was affirmed in full (on the two issues addressed on the merits). Both the First Amendment issue and the special master issue were dismissed on procedural grounds (preservation and ripeness, respectively). The four substantive issues — child support, EPW credit, summer parent-time, and attorney fees — all failed on abuse-of-discretion review. None of Joanna’s merits arguments identified a legal error; all challenged the trial court’s weighing of evidence or its exercise of discretion in situations where deference was compelled. The most common failure pattern in Wallace is a challenge to an exercise of discretion without engaging with the court’s specific findings and reasoning — something the appellate court noted repeatedly (summer parent-time, EPW credit, attorney fees).

The PGAL as an Appellate Shield:

In both the summer parent-time and the sole-custody-of-LW rulings, the trial court adopted the PGAL’s recommendations and expressly noted them. On appeal, the court’s deference to the PGAL’s recommendation — combined with the court’s own detailed findings on the children’s best interest — effectively insulated those rulings from reversal. Practitioners on appeal should identify whether the challenged ruling tracks a PGAL recommendation; if so, the record will likely contain independent, expert-level findings that are difficult to overcome on abuse-of-discretion review.

Practitioner Takeaways

Trial Lawyers:

  • Non-disparagement provisions: If you believe a non-disparagement clause in a stipulated decree is unconstitutionally broad — or if your client disputes its scope — raise that argument at trial with evidence, legal authority, and a specific request for findings. A post-trial motion is too late. The same rule applies to challenges to judicial extensions of the provision’s scope (e.g., to social media).
  • Hybrid custody child support: In atypical custody arrangements, propose a specific, well-explained calculation method at trial and ensure the proposed methodology is supported by the applicable statutory worksheets. Acknowledge that no statutory formula exists and walk the court through the reasoning step by step. This creates a record that the trial court considered your approach and either adopted or rejected it with findings.
  • Attorney fees: Satisfy all three prongs of the needs-based test (§ 30-3-3(1)) with evidence, and anticipate arguments about how the payor’s spouse’s representation as counsel affects actual financial need. If your client’s spouse is also her attorney, be prepared to show actual out-of-pocket obligation for fees.
  • Summer parent-time: If the statutory two-consecutive-week entitlement matters to your client, present specific evidence at trial about how the alternative schedule would actually harm the children (not just inconvenience the requesting parent), and distinguish conflict-protection interests from the value of the requested schedule change.

Appellate Lawyers:

  • Before briefing any issue, confirm it was preserved at trial with the required specificity: raised, timely, supported by evidence and legal authority. Constitutional claims — including First Amendment claims — receive no special exemption from the preservation requirement in Utah.
  • Engage with the trial court’s specific findings and stated reasoning in every issue. Multiple issues in Wallace were rejected not because the court disagreed with Joanna’s abstract argument, but because she failed to address the trial court’s actual rationale. This is a recurring pattern that is wholly avoidable with careful record review.
  • When challenging an exercise of discretion, articulate the standard (no reasonable person would take the view adopted) and then explain specifically why the court’s approach is outside that range. Merely showing that an alternative calculation or schedule would have been equally reasonable or more favorable to your client is insufficient.
  • Ripeness: Be cautious about appealing provisions that contain permissive, contingent, or future-event-dependent language. The special master fee/custody warning in Wallace was not ripe because it would only be triggered by a chain of speculative future events.

For Clients in High-Conflict Custody Disputes:

  • Court-ordered non-disparagement provisions are broadly interpreted and rigorously enforced. Social media posts that reference or implicitly target the other parent will likely be found to violate such provisions, even if social media is not explicitly named. Violations may trigger contempt proceedings and negatively affect custody findings.
  • Failure to pay special master fees on time may ultimately be treated by the court as evidence bearing on legal custody factors, including the ability to prioritize the children’s welfare and co-parenting maturity. Non-payment is therefore a litigation risk, not merely a billing issue.

Majority Opinion

2024 UT App 164

THE UTAH COURT OF APPEALS

JAMES DOUGLAS WALLACE,
Appellee,
v.

JOANNA JUNE WALLACE,
Appellant.
Opinion
No. 20220559-CA
Filed November 15, 2024
Third District Court, Salt Lake Department
The Honorable Laura S. Scott
No. 194904789

S. Mark Barnes, Attorney for Appellant
Alison Satterlee and Virginia Sudbury,
Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES RYAN D. TENNEY and AMY J. OLIVER concurred.
ORME, Judge:
¶1 Less than two years after James Douglas Wallace and
Joanna June Wallace1 divorced pursuant to a stipulated divorce
decree, both parties filed motions to modify the decree. After
contentious litigation, the trial court entered a modified divorce
decree and later an amended modified divorce decree.

1. Since divorcing James, Joanna has remarried. She now goes by
Joanna June Smith. Her new husband, S. Mark Barnes, represents
her on appeal and represented her in the proceedings before the
trial court.

Wallace v. Wallace

20220559-CA 2 2024 UT App 164
¶2 On appeal, Joanna makes several arguments.2 She first
contends that the trial court erred in ruling that the
non-disparagement provision she agreed to in the stipulated
divorce decree did not violate her First Amendment right to free
speech. She also challenges various provisions of the amended
modified divorce decree: the child support award, the summer
parent-time schedule, and a warning that failure to pay the special
master fees may result in a change in legal custody. She also
disputes the court’s denial of her request for attorney fees. For the
reasons set forth below, we affirm.

BACKGROUND
Stipulated Divorce Decree

¶3 James and Joanna got married in 2001 and share four
children—two of whom are still minors.3 In early 2017, the parties,
both represented by counsel, divorced pursuant to a stipulated
divorce decree. The parties agreed to joint physical and legal
custody of the children. They designated Joanna as the primary
physical custodian and the “primary for purposes of education
and medical decisions,” with James having parent-time pursuant
to a statutory schedule.

2. Because the parties share the same last name, we refer to them
hereafter by their first names, with no disrespect intended by the
apparent informality.
3. At the time of divorce, all four children were minors. During
litigation on the parties’ petitions to modify, their eldest child
reached majority, and a second child reached majority during the
pendency of this appeal.

Wallace v. Wallace

20220559-CA 3 2024 UT App 164
¶4 The parties also agreed that James would pay Joanna
monthly child support. Concerning their eldest child (EPW), they
agreed to the following provision:
EPW has special needs. The parties shall augment
child support in the amount of $500 per month.
Child support for EPW (including the augmented
amount) shall continue until EPW achieves the age
of 21. At the time EPW is 21 the parties will review
EPW’s medical evaluations and work cooperatively
together to make a plan for his support into
adulthood.
¶5 The decree also included the following stipulation
concerning non-disparagement:

In an effort to keep a peaceful co-parenting
relationship, both parties shall be mutually enjoined
and restrained from making negative, disparaging
or derogatory comments to or about each other. This
provision includes all communication between the
parties or to third parties, whether by text message,
email, direct phone calls, voice messages or
face-to-face communication.
. . . Both parties shall be mutually enjoined
and restrained from communications about or
involving past marital incidents, past blame, or
other personal attacks. This type of communication
shall be deemed as harassment, breaching personal
boundaries and in violation of the parties’
agreement. . . .

Modified Divorce Decree

¶6 In August 2018, James filed a petition to modify the
stipulated divorce decree, asserting substantial changes in

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20220559-CA 4 2024 UT App 164
circumstances. In relevant part, he claimed that the children’s
needs had changed; that Joanna, having worked two nearly
full-time volunteer positions, was now able to enter the
workforce; and that she had failed to abide by certain terms in the
stipulated divorce decree. Joanna’s new husband, S. Mark Barnes,
an attorney, represented her in the ensuing litigation. In opposing
the petition, Joanna argued that James had not met his burden of
showing a substantial change in circumstances and that he was
merely upset with what he now considered “a bad deal.”
¶7 Also in 2018, James filed what is now called a motion to
enforce. See Utah R. Civ. P. 7B(a), (j); Elder v. Elder, 2024 UT App
68, ¶ 14 n.3, 550 P.3d 488 (explaining that “[u]nder a rule that
became effective in May 2021 and that remains in place, a motion
for an order to show cause in a domestic relations action is now
referred to as a motion to enforce”) (quotation simplified). In the
motion, James claimed that Joanna failed to abide by the
stipulated divorce decree’s non-disparagement provision by
consistently posting negative comments about him on social
media. In his supporting declaration, James asserted that because
of Joanna’s posts, he had been threatened online by complete
strangers. Joanna responded that the non-disparagement
provision did not specifically prohibit the parties from posting
about each other on social media. She also contended that her
posts were not intended to be disparaging and that she was
“simply sharing her experiences and supporting those who have
suffered through difficult marriages and divorces.” The trial court
ruled that Joanna’s social media posts were “publicly made” and
that due to the non-disparagement provision’s broad language,
“it is proper to interpret social media postings as postings made
to third parties” in violation of the non-disparagement provision.
Nevertheless, because Joanna had not made any further posts at
that time, the court did not hold her in contempt, but it directed

Wallace v. Wallace

20220559-CA 5 2024 UT App 164
her to take down all the social media posts that James referenced
in his filings.4
¶8 In August 2019, based on the stipulation of the parties, the
trial court entered an order appointing a special master. The order
also directed that the parties each pay half of the special master’s
retainer fee and that the special master “may suspend services
based upon the failures of either party to maintain their financial
obligations.” In November 2019, the special master withdrew.
James subsequently filed another motion to enforce, asking the
court to find, among other things, that Joanna failed to comply
with the court’s order to pay her half of the special master fee and
seeking appointment of another special master. Joanna responded
that she timely paid all amounts the special master requested and
that the special master never communicated to her that she had
an outstanding balance.5
¶9 In April 2020, EPW began living with James full-time
following two incidents in which Joanna called the police on EPW.
After the second incident, Joanna told EPW that he could not live
with her. After EPW moved in with James, Joanna texted and
4. The judge who ruled on this motion to enforce was not the
judge who ruled on the later 2019 motion to enforce and
conducted the bench trial on the parties’ motions to modify the
stipulated divorce decree.
5. Following the bench trial on the parties’ later motions to modify
the divorce decree, the court addressed the issue of the special
master and ordered that a new one be appointed. See infra ¶ 14. In
its subsequent findings of fact and conclusions of law, the court
declined to impose sanctions on either party for various pending
motions to enforce, holding that neither party had persuaded the
court that sanctions were warranted even if contempt were
shown.

Wallace v. Wallace

20220559-CA 6 2024 UT App 164
called “hundreds” of times and contacted police several times to
conduct welfare checks on EPW even though she had no reason
to believe he was not safe with James. James then obtained a
temporary stalking injunction against Joanna, which prevented
her from contacting EPW and awarded him temporary custody of
all the children. But the temporary injunction was later dismissed
after a hearing. And following the bench trial in the matter
currently before us, the trial court found that regardless of
whether James was justified in obtaining the temporary injunction
to give EPW “some time to process and heal,” James had “no good
faith reason” to list the other three children as “protected parties”
under the injunction.
¶10 In May 2020, James filed an amended petition to modify
the stipulated divorce decree, now seeking sole custody of EPW,
joint physical custody of the remaining three children, and
requesting that he be granted “the tie-breaking vote for legal
custody decisions.” Joanna filed a counter-petition to modify
seeking, in relevant part, sole legal and physical custody of all the
children, with James having parent-time, and requesting that
child support be recalculated based on the parties’ current gross
monthly incomes. Due to the contentious nature of the litigation,
a private guardian ad litem (the PGAL) was appointed to
represent the children’s best interest.
¶11 In late 2021 and early 2022, the trial court held a four-day
bench trial on the competing motions to modify. In April 2022, the
court issued findings of fact and conclusions of law, and it entered
a modified divorce decree the following month.
¶12 The court indicated that this case was “one of the most
difficult cases [it] has ever had.” It noted that the parties “appear
to be clinging to their anger and resentment towards each other,
which is clouding their judgment and interfering with their ability
to put the needs of the Children above their own,” resulting in the
children “experiencing stress, anxiety, and depression.” The court

Wallace v. Wallace

20220559-CA 7 2024 UT App 164
then entered extensive findings regarding certain incidents
(including those that led to EPW living full-time with James and
the subsequent application for a temporary stalking injunction),
as well as the parties’ lack of insight concerning their own roles in
conflicts, their refusal to give each other the benefit of the doubt,
their refusal to cooperate with each other, their inability to
communicate appropriately, their disparagement of each other,
and their involvement of the children in their disputes. In
addressing disparagement, the court found, in relevant part, that
Joanna made social media posts alleging that James “abus[ed] her
and attempt[ed] to ‘infiltrate progressive and feminist spaces’”
and that he refused to help EPW, who she claimed was “in
danger” and ”not safe.”6 The court also found that Joanna had
continued to post about James on social media even after the prior
order to take down her earlier posts, which order was entered in
response to James’s 2018 motion to enforce.
¶13 Due to the immense conflict that had arisen from the initial
custody arrangement, which conflict had negatively impacted the
children, the court concluded that substantial material changes in
circumstances warranted a change in physical and legal custody
of the three children who remained minors—EPW having turned
18 at that point.7 The court granted Joanna sole physical and legal
6. Regarding Joanna’s concerns that EPW was in danger after he
went to live with James full-time, the court found that Joanna
“was actually concerned about . . . the danger to her relationship
to [EPW], not to [EPW] himself.”
7. The trial court noted that because the original divorce decree
was entered pursuant to the parties’ stipulation, and thus custody
was being adjudicated for the first time on the parties’ competing
petitions to modify, a lesser showing than a material and
substantial change in circumstances applied. See Zavala v. Zavala,
2016 UT App 6, ¶ 17, 366 P.3d 422. Nevertheless, the court stated
(continued…)

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custody of the elder of those three children (LW), with James
having eventual parent-time with her. But because LW, who was
17 at the time, had a strained relationship with James, on the
recommendation of the PGAL the court clarified that it was “not
ordering parent-time and overnights as a schedule per se.”
Instead, the court ordered that the parties and LW, together with
a therapist, work on taking “small, incremental steps toward
parent-time” with James.
¶14 Regarding the two youngest children, the court held that
the parties should continue to share joint legal and physical
custody but that modification to parent-time and final
decision-making authority was warranted. The court awarded
each party equal parent-time with the youngest children. On the
PGAL’s recommendation, the court ordered that the parties’
summer parent-time be on a week-on/week-off schedule but that
the parties may agree in writing to change the summer
parent-time schedule. As for legal custody, the court held that it
was in the children’s best interest to appoint a special master
“who will have binding authority to make decisions on behalf of
[the youngest children] if the parties are unable to agree.” The
court ordered that each party is responsible for half of the special
master fees, and it indicated that “[t]he Court may . . . change legal
custody of the Children” if a party failed to pay his or her share
of the fees.
¶15 In addressing child support, the court noted that “[t]here is
no statutorily sanctioned method for hybrid joint/sole child
support calculations.” The court based its child support
determination on the parties’ imputed incomes, James having 110
overnights with LW and 182 overnights with the two youngest
that “even if the higher standard applied, based on the above
findings,” sufficient material and substantial changes had
occurred to warrant a change in legal and physical custody of the
children.

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children, and Joanna having 255 overnights with LW and 183
overnights with the youngest children. The court adopted
Joanna’s proposed method of calculating child support, but it
made adjustments given its imputation of a higher income to
Joanna than she had proposed and given its award of equal
parent-time for the youngest children. This resulted in James
having a $1,607 monthly child support obligation.
¶16 The court also noted that James’s $500 monthly child
support obligation for EPW ended in April 2020, when EPW
began living with him full-time. Accordingly, the court
determined that James had overpaid child support by $6,000,
which amount it credited against his future child support
obligation. The court also ordered that neither party was
obligated to pay child support for EPW—who had not yet turned
21—going forward.
¶17 Turning to Joanna’s social media posts, the court clarified
“that the non-disparagement provisions of the [stipulated divorce
decree] extend to all social media platforms, email, and any other
future mode of communication and/or information sharing
technology or method as may arise.” It further directed that “each
party is restrained from posting about the other party, any spouse
or significant other of the other party, or any relative of the other
party on any social media platform of any kind.” Lastly, the court
declined to award either party attorney fees.
Amended Modified Divorce Decree

¶18 Joanna subsequently filed a motion to amend the modified
divorce decree. Among other things, she sought amendment of
the court’s directives regarding summer parent-time,
non-disparagement, child support, consequences for
non-payment of the special master fees, and attorney fees. James
opposed the motion, but neither party requested a hearing on the
matter.

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¶19 In August 2022, the court issued a written ruling on the
motion. First, the court declined to amend the summer
parent-time schedule. Joanna had argued that pursuant to Utah
Code section 30-3-35.2,8 the modified decree should incorporate
two consecutive, uninterrupted weeks of parent-time during the
summer. She had indicated that she normally visited family in
Canada with the children during that two-week period. The court
noted that the PGAL had recommended the week-on/week-off
summer schedule, and the court held that the schedule was in the
children’s best interest. The court stated that “the parent-time
schedule needs to be very clear with little or no flexibility” due to
“the parties’ refusal to cooperate with each other, their
inflexibility regarding parent-time, their inability to
communicate, their involvement of the Children in their disputes,
and their struggles to comply with court orders.” The court also
noted that the current schedule did not prevent the children from
visiting Canada and that “protecting the Children from conflict
and lessening their overall stress and anxiety outweighs
[Joanna’s] desire to have two consecutive weeks because of the
travel time to Canada.”
¶20 The court also declined to amend its determination to
credit James $6,000 for his overpayment of EPW’s child support.
It disagreed with Joanna’s characterization that James “took”
EPW from her in April 2020, much less that he did so
“unlawfully” or “contemptuously.” The court also pointed to the
stipulated divorce decree, in which the parties specifically agreed
to “augment child support in the amount of $500 per month” and

8. Our Legislature recently either repealed or renumbered all the
provisions contained in Title 30, Chapter 3 of the Utah Code,
which governed divorce. The statutes governing divorce are now
located in Title 81, Chapter 4 of the Utah Code. But in this opinion,
we cite the statutes in effect at the relevant time and not those
currently in effect.

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that “[c]hild support for EPW (including the augmented amount)
shall continue until EPW reaches the age of 21.” The court further
noted that it ordered only reimbursement of the augmented
amount—and not the base amount as well.
¶21 Nevertheless, the court did amend its child support award.
It first reiterated, as it had in its prior ruling on the first motion to
modify, that “[t]here is no statutorily sanctioned method for
hybrid joint/sole custody child support calculations.” The court
then held that its prior adoption of Joanna’s proposed method of
calculating child support was inequitable because it did not
properly account for the fact that LW was not having any
overnights with James. The court also stated that Joanna’s newly
proposed child support calculation was also inequitable “because
it uses the sole custody amount for [the youngest children] instead
of the joint custody amount for them.” Instead, the court
determined that, based on the parties’ imputed incomes, monthly
child support for joint custody of three children was $465 per
child and for sole custody of three children was $1,068 per child.
The court thus ordered James to pay $465 per month for each of
the two youngest children, and $1,068 per month for LW, totaling
$1,998 per month. The court further directed that when LW’s child
support terminated upon her turning 18, James’s child support
obligation for the youngest children would be “based on the child
support obligation worksheet for joint physical custody of two
children.”
¶22 Turning to attorney fees, the court noted that an award
under Utah Code section 30-3-3 is discretionary and added that
Joanna had not persuaded the court “that she had an actual need
for attorney fees, especially given [her new husband’s] active
involvement in the case.” Pointing to specific paragraphs, the
court also indicated that its findings and conclusions were
“replete with findings that support its decision to not award
attorney fees to” Joanna or James. Accordingly, the court declined
to amend its denial of attorney fees to Joanna.

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¶23 The court next declined to remove its warning that a
party’s failure to pay the special master fees may result in a
change in legal custody of the youngest children. The court
indicated that it had ordered appointment of a special master due
to the parties’ inability to communicate appropriately or to reach
shared decisions regarding the children and because the court
feared one party would weaponize decision-making authority
against the other. The court further noted that “the parties have a
history of not paying the professionals who have been employed
to assist their Children when they disagree with them” and that
failure to timely pay the special master fees, resulting in the
special master’s withdrawal, would implicate several legal
custody factors, “including the ability to give first priority to the
welfare of the Children, co-parenting skills, maturity, willingness
to protect the Children from conflict, and other relevant factors.”
Based on these considerations, the court held that the challenged
provision was “appropriate and necessary in this case.”
¶24 Lastly, the court addressed the non-disparagement
provision. In her motion to amend, Joanna argued for the first
time that the stipulated divorce decree’s non-disparagement
provision, particularly the court’s determination that it extended
to social media posts, infringed on her First Amendment right to
free speech. She asserted that the “Court lacks constitutional
authority to deny [her] right to free speech” because the directive
that each party not disparage the other to third parties on social
media “represents too extreme of a restriction.” But the court
ruled that “there is nothing in the United States Constitution or
the Utah Constitution that prohibits the parties from voluntarily
entering into non-disparagement provisions that limit the parties’
right to free speech.” And here, Joanna voluntarily agreed not to
disparage James to third parties, and she did not specifically
exempt social media posts from the “very broad
non-disparagement provision.” Accordingly, the court declined
“to alter or amend” the stipulated divorce decree or the modified

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divorce decree “in any way that would suggest that [Joanna] is no
longer bound by the restraints that she voluntarily agreed to in
the” stipulated decree. The court further held that its “clarification
that such communication includes social media posts does not
violate [Joanna’s] right to free speech.”
¶25 The court subsequently entered an amended modified
divorce decree that incorporated these rulings. Joanna appeals.

ISSUES AND STANDARDS OF REVIEW

¶26 Joanna first argues that the non-disparagement provision,
particularly the trial court’s later clarification regarding social
media posts, infringes on her First Amendment right to free
speech. For the reasons discussed in Part I below, this issue is not
preserved, and we therefore do not reach the merits of this
argument. See State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443
(“When a party fails to raise and argue an issue in the trial court,
it has failed to preserve the issue, and an appellate court will not
typically reach that issue absent a valid exception to
preservation.”).
¶27 Second, Joanna asserts that the court miscalculated James’s
monthly child support obligation. “We review the district court’s
decisions regarding child support . . . under the abuse of
discretion standard.” Pankhurst v. Pankhurst, 2022 UT App 36,
¶ 13, 508 P.3d 612 (quotation simplified). Under this standard,
“appellants bear a heavy burden, and we can properly find abuse
only if no reasonable person would take the view adopted by the
trial court.” Id. (quotation simplified).
¶28 Third, Joanna challenges the court’s determination that it
was in the two youngest children’s best interest to deviate from
the statutory guidelines and to set their summer parent-time on a
week-on/week-off basis. “We generally will not disturb the

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district court’s parent-time determination absent a showing that
the court has abused its discretion.” Lay v. Lay, 2018 UT App 137,
¶ 4, 427 P.3d 1221.
¶29 Lastly, Joanna argues that the court erred in declining to
award her attorney fees under Utah Code section 30-3-3. “We
review a district court’s decision to award attorney fees pursuant
to this statute for an abuse of discretion.”9 Gardner v. Gardner, 2019
UT 61, ¶ 16, 452 P.3d 1134.

9. Joanna also argues that the warning in the modified divorce
decree and the amended modified divorce decree that failure to
pay the special master fees may result in changes to legal custody
of the youngest children was improper. But this argument is not
ripe for review.
“[I]ssues are ripe for adjudication only where the legal
determination can be applied to the facts of a particular
controversy[.]” Salt Lake County v. State, 2020 UT 27, ¶ 20, 466 P.3d
158. Thus, an issue is not ripe “if there exists no more than a
difference of opinion regarding the hypothetical application of a
provision to a situation in which the parties might, at some future
time, find themselves.” Fundamentalist Church of Jesus Christ of
Latter-Day Saints v. Lindberg, 2010 UT 51, ¶ 40, 238 P.3d 1054
(quotation simplified). Here, the modified divorce decree
provided, with our emphasis, that “[t]he Court may . . . change
legal custody of the Children” if a party failed to pay his or her
half of the special master fees. And in declining to amend that
provision, the court reasoned that failure to pay the fees was
relevant to several legal custody factors. As such, if either party
failed to pay, resulting in withdrawal of the special master who
currently has final decision-making authority for the two
youngest children, the court would necessarily have to revisit
legal custody—particularly if it decided against the appointment
of a third special master. In such a situation, the court would need
(continued…)

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20220559-CA 15 2024 UT App 164

ANALYSIS

I. The Non-Disparagement Provision

¶30 The modified divorce decree and the amended modified
divorce decree both included sections clarifying that the
non-disparagement provision that the parties agreed to in the
stipulated divorce decree, which expressly included “all
communication . . . to third parties,” “extend[ed] to all social
media platforms.” Joanna contends that the non-disparagement
provision—particularly the later clarification pertaining to social
media posts—violates her First Amendment right to free speech
because she “has the right to express her opinions, particularly if
they do not rise to defamation.” She further argues that although
free speech rights may be waived, the waiver “requires clear and
compelling evidence, as well as proof that it was voluntary,
knowing, and intelligent.” See Levy ex rel. B.L. v. Mahanoy Area
School Dist., 964 F.3d 170, 192 (3d Cir. 2020) (“All rights, including
free speech rights, can be waived. But waivers must be voluntary,
knowing, intelligent, and established by clear and compelling
evidence.”) (quotation simplified). And she asserts that in this
case, “[t]hat evidence simply does not exist.” But Joanna’s
argument is unpreserved.
¶31 “An issue is preserved for appeal when it has been
presented to the district court in such a way that the court has an
opportunity to rule on it.” State v. Johnson, 2017 UT 76, ¶ 15, 416
P.3d 443 (quotation simplified). “To provide the court with this
to assess the legal custody factors, possibly taking the failure to
pay into account. But all of this is entirely speculative, depending
on various future facts that are impossible to anticipate. For these
reasons, the “conflict over the application of [the] provision has
[not] sharpened into an actual or imminent clash of legal rights
and obligations between the parties,” and this issue is therefore
not ripe for adjudication. Id. (quotation simplified).

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opportunity, the issue must be specifically raised by the party
asserting error, in a timely manner, and must be supported by
evidence and relevant legal authority.” Id. (emphasis added;
quotation simplified). Absent a valid exception to our
preservation rule, appellate courts will not reach the merits of an
unpreserved issue, id., even if the issue implicates a constitutional
right, Donjuan v. McDermott, 2011 UT 72, ¶ 21, 266 P.3d 839.
¶32 Joanna raised her First Amendment claim for the first time
in her motion to amend the modified divorce decree—after the
trial in the matter had concluded and after the trial court had
entered the modified divorce decree. She also did not request a
hearing on her motion. If she had timely raised the free speech
claim at trial, the parties could have presented evidence, and the
trial court could have entered findings regarding the waiver issue.
It is for this reason that “issues that are not raised at trial are
usually deemed waived.” Sandusky v. Sandusky, 2018 UT App 34,
¶ 37, 417 P.3d 634 (quotation simplified). Although there was no
opportunity to present evidence on waiver due to her failure to
timely raise the issue before the trial court, Joanna now seeks
reversal on the ground that no clear and compelling evidence
exists that she knowingly, voluntarily, and intelligently waived
her free speech rights.
¶33 Moreover, the specific social media aspect of the
non-disparagement provision was one that Joanna certainly could
have raised at trial. Over a year prior to trial and entry of the
modified divorce decree, the trial court ruled on James’s motion
to enforce related to Joanna’s social media posts. In the ruling, the
court held that Joanna’s challenged social media posts were
“publicly made” and that based on the non-disparagement
provision’s broad language, “it is proper to interpret social media
postings as postings made to third parties.” In light of this adverse
ruling, Joanna could have readily raised that issue at trial, or even
earlier.

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¶34 Because Joanna did not raise her First Amendment
challenge to the non-disparagement provision in a timely fashion,
the issue is not preserved for appeal, and we do not address it on
the merits. Johnson, 2017 UT 76, ¶ 15.
II. Child Support

¶35 Joanna contends that the trial court erred in calculating
James’s child support obligation. Although she acknowledges
that “this is not your standard child support calculation because
of the difference in custody held by the parties with regard to
differing children,” she asserts that because the computation for
having sole physical custody of LW alone based on the parties’
imputed incomes is $1,810 per month, James’s obligation for three
children “cannot be less than his obligation would be for the one
over which [she] has sole custody.”10 She next suggests an
alternate method that the court should have used in calculating
child support, which would have resulted in a monthly obligation
of $2,136.72.
¶36 As an initial matter, in response to Joanna’s motion to
amend, the trial court increased James’s child support obligation
from $1,607 to $1,998 per month. His obligation is therefore not
lower than what his obligation would be for LW alone.
Additionally, the $1,810 figure used by Joanna does not appear to
account for the existence of the two youngest children. The trial
court determined that based on the parties’ imputed incomes, the
monthly child support obligation for sole custody of three
10. Joanna also challenges the trial court’s calculations contained
in its findings and conclusions and reflected in the modified
divorce decree. But the amended modified divorce decree
provided for an amended child support award which, as
discussed below, the court imposed upon using a different
calculation method that Joanna does not address in briefing. See
infra ¶ 36.

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20220559-CA 18 2024 UT App 164
children is actually $1,068 per child. Joanna’s argument does not
address this figure, much less why LW should be treated as an
only child for child support purposes. The court next determined
that the child support obligation for equal parent-time of three
children is $465 per child—which figure Joanna likewise has not
addressed. The court thus ordered James to pay $1,068 per month
for LW, and $465 per month for each of the two youngest children,
resulting in a total child support obligation of $1,998 per month.
¶37 This method of addressing the atypical custody situation
presented in this case is not unreasonable. The trial court clearly
showed its work in reaching the $1,998 figure, and we cannot say
that Joanna has met her “heavy burden” of showing that no
reasonable person would adopt the trial court’s approach in
calculating child support. See Pankhurst v. Pankhurst, 2022 UT App
36, ¶ 13, 508 P.3d 612 (quotation simplified). We therefore affirm
the court’s child support award.
¶38 Joanna also argues that the trial court erred in ordering that
James be credited $6,000 toward his future support payments,
representing the amount he overpaid in child support for EPW
after EPW began living with him full-time in April 2020. She
asserts that EPW “had been erroneously removed from [her]
home” and that “[t]he correct date for ending the $500 additional
support for EPW would have more appropriately been the date
he reached the age of majority”—not when he turns 21—resulting
in an overpayment amount of only $1,500. But Joanna does not
address the court’s finding that following the second incident
with EPW in which she called the police, she “conveyed to [EPW]
that he could not live with her.” And although the court also
found that neither party behaved commendably in the events
surrounding EPW’s move, the court expressly rejected Joanna’s
contention that James “took” EPW away from her.
¶39 Joanna likewise does not address the parties’ agreement in
the stipulated divorce decree that, due to EPW’s special needs,

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“[c]hild support for EPW (including the augmented amount [of
$500]) shall continue until EPW achieves the age of 21.” Joanna
also does not deny that since April 2020, James paid her $6,000 in
child support attributable to EPW. Accordingly, even assuming
that the child support should have more appropriately ended
when EPW turned 18, this does not change the fact that James
overpaid child support. To the contrary, this would only bolster
the conclusion that James overpaid child support, and Joanna has
not argued why she should be entitled to the windfall. Also of
note, the court ordered that James be reimbursed only the
additional augmented amount of $500 per month—and not also
the base child support amount attributable to EPW that he paid.
Nor did the court order that Joanna pay James child support for
the time EPW lived full-time with him—it merely ordered that
James be reimbursed the amount of the augmented child support
that he paid Joanna for the time that EPW resided with him.
¶40 Because Joanna has not provided persuasive argument on
why she should be allowed to keep the augmented child support
for EPW from the time when he no longer resided with her, we
likewise affirm the trial court’s order that James be credited
$6,000.11

11. Joanna’s citations to two cases in support of her position are
unpersuasive. First, she cites Allen v. Allen, 2021 UT App 20, 483
P.3d 730, cert. denied, 496 P.3d 714 (Utah 2021), in support of her
assertion that Utah “appellate courts have declined to address
claims of overpayment during a time where a final order has not
yet been entered altering the child support payment.” But here
there was, in fact, a final order: the modified divorce decree, and
later the amended modified divorce decree. Furthermore, Allen is
distinguishable. In that case, this court declined to address the
appellant’s argument because he failed to address the trial court’s
rationale for declining to give him “credit” for the child support
(continued…)

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20220559-CA 20 2024 UT App 164

III. Summer Parent-Time

¶41 Joanna argues that the trial court erred in setting summer
parent-time for the two youngest children on a week-on/week-off
schedule. She asserts that this schedule fails to allow for the
consecutive two-week period of parent-time provided for by Utah
Code section 30-3-35.2(5)(a), which was in effect at the relevant
time and addressed equal parent-time schedules, and stated that
“[e]ach year, a parent may designate two consecutive weeks to
exercise uninterrupted parent-time during the summer when
school is not in session.”
¶42 But the trial court was not required to strictly comply with
section 30-3-35.2(5)(a). Utah Code section 30-3-34(1) directed that
“[i]f the parties are unable to agree on a parent-time schedule, the
court may . . . establish a parent-time schedule” or “order a
parent-time schedule described in,” among others, section
30-3-35.2.12 Accordingly, “district courts are generally afforded
broad discretion to establish parent-time,” Lay v. Lay, 2018 UT
payments he made prior to entry of temporary orders. See id. ¶ 35.
It was not a resolution on the merits.
She next cites Silcox v. Silcox, 2002 UT App 416U, in support of
her contention that “where overpayments were faulted to both
parties to some degree, the appellate courts have affirmed no
award of overpayments.” But here, the trial court did not make
any findings regarding fault, so Silcox is inapplicable.
12. Utah Code section 30-3-35 set “a default minimum parent-time
schedule to which the noncustodial parent and the child who is
between five and eighteen years old shall be entitled, unless the
court determine[d] that Section 30-3-35.1 should apply or a parent
[could] establish that more or less parent-time should be
awarded.” Lay v. Lay, 2018 UT App 137, ¶ 6, 427 P.3d 1221
(quotation simplified). This is not at issue here, where the trial
court awarded equal parent-time for the youngest children.

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20220559-CA 21 2024 UT App 164
App 137, ¶ 16, 427 P.3d 1221 (quotation simplified), that is in the
best interest of the children, Utah Code Ann. § 30-3-34(5)
(LexisNexis 2022); Tober v. Tobler, 2014 UT App 239, ¶ 24, 337 P.3d
296. The trial court was thus not required to strictly follow section
30-3-35.2(5)(a)’s guidelines so long as the court concluded that it
was in the children’s best interest to do otherwise and the court
provided sufficiently detailed findings supporting its conclusion.
See Nakkina v. Mahanthi, 2021 UT App 111, ¶ 20, 496 P.3d 1173
(stating that the parent-time schedule “must be firmly anchored
on findings of fact that (1) are sufficiently detailed, (2) include
enough facts to disclose the process through which the ultimate
conclusion is reached, (3) indicate the process is logical and
properly supported, and (4) are not clearly erroneous”) (quotation
simplified).
¶43 Here, the trial court entered extensive findings regarding
“the parties’ refusal to cooperate with each other, their
inflexibility regarding parent-time, their inability to
communicate, their involvement of the Children in their disputes,
and their struggles to comply with court orders.” The court
further found that these conflicts resulted in the children
“experiencing stress, anxiety, and depression.” Additionally, the
PGAL, who recommended the week-on/week-off summer
schedule to the court, expressed concern that the parties’
high-conflict relationship would likely render it extremely
difficult for them to select and agree on their two consecutive
weeks each summer. Accordingly, the court determined that “the
parent-time schedule needs to be very clear with little or no
flexibility,” and it adopted the PGAL’s recommended summer
schedule. Later, in response to Joanna’s motion to amend, the
court also found that “protecting the Children from conflict and
lessening their overall stress and anxiety outweighs [Joanna’s]
desire to have two consecutive weeks because of the travel time
to Canada.”

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20220559-CA 22 2024 UT App 164
¶44 Joanna does not engage with the trial court’s findings or
reasoning for setting the week-on/week-off summer schedule.
Instead, she asserts that not allowing for two weeks of
uninterrupted parent-time in the summer is against the children’s
best interest because it denies them the opportunity to spend time
with their extended family in Canada. But Joanna does not
address the court’s determination that the current summer
schedule would not, in fact, prevent the children from visiting
Canada—albeit on a shorter basis. She also has not addressed how
visiting Canada for two weeks—as opposed to one week—
outweighs the children’s interest in avoiding additional conflict
between their parents. Absent discussion of any inadequacies in
the court’s findings and reasoning behind the summer schedule,
see id., Joanna’s argument is insufficient to show that the summer
schedule constitutes an abuse of discretion.
IV. Attorney Fees

¶45 Utah Code section 30-3-3(1),13 which was in effect at the
relevant time, provided that
in any action to establish an order of custody,
parent-time, child support, alimony, or division of
property in a domestic case, the court may order a
party to pay the costs, attorney fees, and witness
13. Joanna’s appellate argument generally references Utah Code
section 30-3-3, which has since been renumbered as Utah Code
section 81-1-203, without specifying the subsection on which she
based her attorney fee request. See generally Tilleman v. Tilleman,
2024 UT App 54, ¶¶ 74–76, 549 P.3d 65 (discussing the different
standards for attorney-fee requests made under subsection
30-3-3(1) and subsection 30-3-3(2)), cert. denied, Sept. 12, 2024 (No.
20240842). But her focus on the receiving spouse’s needs, the other
spouse’s ability to pay, and the reasonableness of the fees indicate
that her argument implicates section 30-3-3(1). See id. ¶ 74.

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20220559-CA 23 2024 UT App 164
fees, including expert witness fees, of the other
party to enable the other party to prosecute or
defend the action.
“[T]he party to be awarded attorney fees under this [subsection]
has the burden to prove (1) that the payee spouse has a financial
need, (2) that the payor spouse has the ability to pay, and (3) that
the fees requested are reasonable.” Lobendahn v. Lobendahn, 2023
UT App 137, ¶ 44, 540 P.3d 727. The decision whether to award
attorney fees under this subsection is discretionary with the trial
court. Id. But “[s]hould the trial court decide to award fees, it must
make detailed findings of fact supporting its determination,”
specifically concerning the payee spouse’s financial need, the
payor spouse’s ability to pay, and the reasonableness of the
requested fees. Connell v. Connell, 2010 UT App 139, ¶ 27, 233 P.3d
836.
¶46 Here, in declining to award attorney fees under section
30-3-3, the trial court emphasized that the decision to award
attorney fees under that statute is discretionary. The court then
stated that Joanna had not persuaded it “that she had an actual
need for attorney fees, especially given [her new husband’s] active
involvement in the case.” The court further added that its findings
of fact and conclusions of law “are replete with findings that
support its decision to not award attorney fees to” Joanna or
James, and it then referenced several paragraphs in the findings
and conclusions by number.
¶47 Joanna argues that the court erred in denying her
request for attorney fees because the evidence presented at trial
was sufficient to meet subsection 30-3-3(1)’s criteria. But, as
discussed above, regardless of whether the criteria are satisfied,
section 30-3-3(1) stated, with our emphasis, that “the court may
order a party to pay . . . attorney fees”—it did not mandate that
attorney fees be awarded. See Lobendahn, 2023 UT App 137, ¶ 44.
And Joanna has not argued how the court’s decision not to award

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20220559-CA 24 2024 UT App 164
her attorney fees was an abuse of discretion, i.e., a decision that
no reasonable person would make. Pankhurst v. Pankhurst, 2022
UT App 36, ¶ 13, 508 P.3d 612 (“Appellants bear a heavy burden,
and we can properly find abuse only if no reasonable person
would take the view adopted by the trial court.”) (quotation
simplified).
¶48 Joanna also contends that “[t]here is no authority that
indicates that a party’s spouse should not be afforded fees under
the needs-based analysis.” She also indicates that she at one point
had to hire outside counsel due to the allegations of abuse James
made in his application for the temporary stalking injunction,
regarding which her new husband was a necessary witness. But
the court did not rule that she was not entitled to fees solely on
the basis that her husband represented her. Instead, the court
expressly considered her new husband’s representation in the
context of addressing her need for the attorney fees. It was not
unreasonable for the court to consider whether she actually
incurred an obligation to pay attorney fees in addressing that
prong. Additionally, Joanna does not address the several findings
the court pointed to in support of its decision to deny her attorney
fees that were independent of the fact that her husband acted as
her attorney.
¶49 For these reasons, the trial court did not abuse its discretion
when it denied Joanna’s request for attorney fees.14

14. James also seeks an award of attorney fees incurred on appeal.
“Generally, when a party who received attorney fees below
prevails on appeal, the party is also entitled to fees reasonably
incurred on appeal.” Fadel v. Deseret First Credit Union, 2017 UT
App 165, ¶ 38, 405 P.3d 807 (quotation simplified), cert. denied, 409
P.3d 1047 (Utah 2017). But because James was not awarded
attorney fees below, we deny his request.

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20220559-CA 25 2024 UT App 164

CONCLUSION

¶50 We do not reach the merits of Joanna’s challenges to the
non-disparagement provision or to the provision warning that
failure to pay the special master fees may result in a change of
legal custody—the former because her argument was not
preserved and the latter because it is not ripe for review. We reject
Joanna’s remaining challenges to the amended modified divorce
decree on the merits.15
¶51 Affirmed.