Nix v. Nix, 2022 UT App 83

Podcast Interviews and Other Sources

Podcast Interviews

Oral Argument

Briefing Documents

Plura pertinentia mox sequentur. Quaeso, redi mox.

Coverage

Facts

Divorce Petition and Pleadings

• Jill filed for divorce in August 2017, asserting “adultery committed by Roland during the marriage” as a ground for dissolution and asserting cruelty as an alternative ground. (¶ 4)
• The cruelty ground was never further litigated, the district court never ruled on it, and neither party raised it on appeal. (¶ 4)
• Roland denied Jill’s asserted grounds in his answer, but because he did not wish to remain married, he counter-petitioned for divorce on the ground of irreconcilable differences. (¶ 5)

The Deposition Exchange

• At Roland’s deposition, Jill’s counsel asked whether he had “had any sexual relations with someone other than Jill since the marriage.” Roland responded that it was “none of your business,” and his counsel objected on relevance grounds, stating that adultery had not been alleged in the pleadings. (¶ 6)
• Roland added that the parties were separated and that the matter was “none of their business.” After a break and further objections, Roland referred somewhat vaguely to a woman with whom he apparently had a relationship. (¶ 6)
• When asked shortly afterward whether he had “engaged in sexual relations with this person,” Roland answered “Yes.” (¶ 6)
• At no point in the deposition was Roland asked when any extramarital sexual relations occurred. (¶¶ 17–18)

Settlement and Memoranda Procedure

• The parties settled most aspects of the divorce but could not agree on the ground for divorce. Although Jill’s counsel requested a trial on that issue, the parties and the court agreed at a scheduling conference to resolve it through written memoranda followed by oral argument. (¶ 7)
• Jill asked the court to draw “an adverse inference” from Roland’s non-response that he had committed adultery subsequent to the marriage, and she also relied on his express admission. (¶ 8)
• Roland responded that, under Vrontikis, post-filing adultery cannot constitute a ground for divorce, and that Jill had offered no evidence of adultery before she filed. (¶ 9)
• Jill also submitted an alimony check from Roland embossed with a picture of Roland and another woman, which identified the woman’s last name as “Nix.” The check was dated September 2019, after Jill filed for divorce. (¶ 19)

District Court Ruling

• The district court accepted the Vrontikis framework: post-filing adultery does not constitute fault, but evidence of it may lend weight to evidence of pre-filing adultery. (¶ 10)
• The court found that Roland’s express admission related only to adultery after the petition was filed but before the divorce was finalized. Neither party challenged that temporal finding on appeal. (¶ 10 & n.2)
• The court concluded that Roland’s non-response to the “since the marriage” question was an adoptive admission under rule 801(d)(2)(B) of the Utah Rules of Evidence, and treated it as proof both that Roland committed adultery and that his adultery “caused the divorce,” i.e., occurred before filing. The court awarded Jill a decree of divorce on the ground of adultery. (¶ 11)

Post-Judgment Motion and Appeal

• Roland moved for a new trial or to alter the judgment under rule 59 of the Utah Rules of Civil Procedure, challenging the ruling on procedural fairness, misapplication of the adoptive-admission standard, and insufficiency of the evidence. The court denied the motion, and Roland timely appealed. (¶ 12)

Issues of the Case

• Divorce — Grounds for Divorce

  1. Sufficiency of the Evidence of Pre-Filing Adultery

  Claim on Appeal: Roland argued that, even if his deposition non-response were treated as an adoptive admission, nothing in the record showed that he committed adultery before Jill filed her divorce petition. Jill relied on the express admission, the check, and the deferential standard of review.

  Holding: — Reversed and Remanded. Because neither the deposition question nor any other evidence addressed when Roland’s extramarital sexual relations occurred, there was not even a scintilla of evidence of pre-filing adultery as Vrontikis requires. (¶¶ 16–21)

  Statutory Authority: Utah Code § 81-4-405(1)(b) (Formerly: § 30-3-1(3)(b)) (adultery committed by the respondent subsequent to marriage as a ground for divorce).

  Standard of Review:

  • Discretion — a district court ordinarily has some discretion in deciding whether to grant a new trial under rule 59. (¶ 14)
  • Sufficiency of the evidence — where a rule 59 challenge rests on insufficiency, the court reverses only if, viewing the evidence in the light most favorable to the prevailing party, the evidence is insufficient to support the verdict. (¶ 14)
  • “No evidence” challenge — the appellee need only point to a scintilla of credible evidence supporting the finding to defeat the challenge. (¶ 20)

  Controlling Cases:

  • Vrontikis v. Vrontikis, 358 P.2d 632 (Utah 1961) (post-filing adultery is inadmissible to establish grounds for divorce but may corroborate evidence of prior acts)
  • Hansen v. Stewart, 761 P.2d 14 (Utah 1988) (rule 59 discretion and sufficiency review)
  • In re Estate of Anderson, 2016 UT App 179, 381 P.3d 1179 (sufficiency standard on review of new-trial denial)
  • Wilson Supply, Inc. v. Fraden Mfg. Corp., 2002 UT 94, 54 P.3d 1177 (scintilla standard for “no evidence” challenges)
  • State v. Pullman, 2013 UT App 168, 306 P.3d 827 (reviewing courts stretch the evidence but may not make a speculative leap across a gap)

  Why It Matters: The opinion confirms that Vrontikis imposes a temporal element on the adultery ground: the proponent must produce evidence that the adultery occurred before the petition was filed. Evidence of undated or post-filing infidelity cannot carry the burden alone, however favorably it is viewed. The decision also illustrates that the highly deferential sufficiency standard is not insurmountable when a critical element is supported by no evidence at all.

• Evidence — Adoptive Admission

  2. Adoptive Admission Under Utah R. Evid. 801(d)(2)(B)

  Claim on Appeal: Roland argued that the district court erred in treating his refusal to answer the deposition question as an adoptive admission.

  Holding: — Not Reached. The court assumed without deciding that the non-response qualified as an adoptive admission, because even so it said nothing about timing. (¶ 16)

  Statutory Authority: None; governed by Utah R. Evid. 801(d)(2)(B).

  Controlling Cases:

  • Vrontikis v. Vrontikis, 358 P.2d 632 (Utah 1961) (framework rendering the adoptive-admission question non-dispositive)

  Why It Matters: Whether a party’s refusal to answer a deposition question, accompanied by a relevance objection from counsel, can constitute an adoptive admission remains unresolved by this opinion. Practitioners should not read Nix as endorsing or rejecting the district court’s evidentiary theory; the court simply held that, even if accepted, the admission could prove no more than the question asked.

• Civil Procedure — Procedural Fairness

  3. Procedural Fairness of the Ruling Below

  Claim on Appeal: Roland asserted, as he had in his rule 59 motion, that the manner in which the district court resolved the grounds issue was procedurally unfair. The opinion does not describe this argument in further detail.

  Holding: — Not Reached. The court resolved the appeal on sufficiency grounds and found it unnecessary to address Roland’s remaining challenges. (¶ 13)

  Statutory Authority: None cited.

  Why It Matters: The court’s decision to resolve the appeal on the narrowest available ground reflects its customary practice of avoiding unnecessary rulings. Litigants who agree to resolve a contested issue on memoranda in lieu of a trial should recognize that any procedural objection to that format remains open for another case.

• Divorce — Grounds for Divorce

  4. Request for Appellate Modification to Irreconcilable Differences

  Claim on Appeal: Roland asked the Court of Appeals not only to reverse but to “alter the Ruling” itself and grant him a divorce on the ground of irreconcilable differences.

  Holding: — Declined. Roland cited no authority establishing the court’s ability to modify the order in that manner, and neither party competently briefed whether Jill may continue litigating her alternative cruelty ground on remand. (¶ 21 n.3)

  Statutory Authority: None cited.

  Why It Matters: A request for affirmative appellate relief beyond reversal must be supported by authority establishing the court’s power to grant it. Because the alternative cruelty ground was never adjudicated, the ground on which the divorce will ultimately be entered remains an open question for the district court on remand.

• Attorney Fees — Appellate Fees

  5. Appellee’s Request for Attorney Fees on Appeal

  Claim on Appeal: Jill requested her attorney fees incurred on appeal under Utah R. App. P. 24(a)(9).

  Holding: — Denied. Jill was not the prevailing party on appeal. (¶ 22 n.4)

  Statutory Authority: None cited; request made under Utah R. App. P. 24(a)(9).

  Why It Matters: The ruling is a routine application of the principle that appellate fees in this posture follow success on appeal. A party whose trial-level victory is reversed cannot recover fees for defending that victory.

Rules of Evidence

Utah Codes

Rules of Civil Procedure

Utah Code of Judicial Administration

Utah Rules of Appellate Procedure

Utah Rules of Professional Conduct

Case Cited

Litigation and Appellate Strategy

Reversal Predictor

• The fault-ground finding rests on evidence that is undated or temporally ambiguous.
• The only admission (express or adoptive) is to a question that encompasses both pre- and post-filing periods.
• Supporting documentary evidence post-dates the filing of the petition.
• The district court’s own findings limit the express admission to post-filing conduct.
• The appellee relies principally on the deferential standard of review rather than on specific record evidence addressing the missing element.

Mandatory Factor Checklist

To grant a divorce on the ground of adultery under Utah Code § 81-4-405(1)(b), as construed in Vrontikis and Nix, the court must find evidence establishing:

• The respondent engaged in sexual relations with a person other than the petitioner.
• The conduct occurred subsequent to the marriage.
• The conduct occurred before the petitioner filed for divorce.
• Any evidence of post-filing conduct is used only to corroborate independent evidence of pre-filing acts, not as the sole basis for the finding.

Signal Cluster (High-Risk Appeal Profile)

• A contested fault ground was resolved on memoranda and argument rather than a full evidentiary trial.
• The finding depends on an inference from silence or refusal to answer.
• The record contains no testimony, document, or witness fixing the conduct before the filing date.
• The court’s findings on the express admission are temporally limited and unchallenged.
• When these factors converge, the adultery finding is vulnerable to a “no evidence” reversal regardless of the deferential standard of review.

Strategy Insight

• Nix demonstrates that a sufficiency challenge succeeds when it is framed as a gap in the record on a discrete legal element rather than as a disagreement about weight or credibility. Roland did not ask the court to reweigh evidence of infidelity; he showed that no evidence addressed the element Vrontikis Appellants should identify the precise element the law demands, demonstrate that the record is silent on it, and invoke the principle that courts may not bridge an evidentiary gap through speculation.

Teaching Value

Nix is a concise illustration of how a single phrase in a deposition question — “since the marriage” — can determine the outcome of a fault-based divorce. It is well suited for teaching deposition technique, the relationship between substantive elements and evidentiary proof, and the practical limits of the scintilla standard.

Insights

Utah-Only Jurisprudence

• The opinion relies exclusively on Utah authority: one Utah Code provision, rules of Utah civil, evidentiary, and appellate procedure, and five Utah appellate decisions. No out-of-state or federal authority is cited.
• The controlling substantive rule derives from a single 1961 Utah Supreme Court decision, Vrontikis, which the court applied without extension, qualification, or reexamination.

Doctrinal Anchors (Utah Supreme Court)

• Vrontikis v. Vrontikis, 358 P.2d 632 (Utah 1961).
  • Established: Adultery occurring after the divorce complaint is filed is inadmissible to establish the ground for divorce, though it may be admitted to lend weight to and corroborate testimony regarding prior acts.
  • Role in Nix: Supplied the temporal requirement that doomed the adultery-based decree; the case turned entirely on the absence of evidence of pre-filing conduct.
• Hansen v. Stewart, 761 P.2d 14 (Utah 1988).
  • Established: District courts have some discretion on new-trial motions, but challenges resting on insufficiency are reviewed to determine whether the evidence supports the verdict.
  • Role in Nix: Framed the standard of review for Roland’s appeal from the denial of his rule 59 motion.
• Wilson Supply, Inc. v. Fraden Mfg. Corp., 2002 UT 94, 54 P.3d 1177.
  • Established: An appellee defeats a “no evidence” challenge by pointing to a scintilla of credible record evidence supporting the finding.
  • Role in Nix: Defined the low threshold Jill needed to meet, and her failure to meet even that threshold confirmed the reversal.

The Most Important Holding

• An admission of adultery, whether express or adoptive, establishes only what the question asked. Where the question and answer are silent on timing, they cannot support a finding that adultery occurred before the petition was filed, and a court may not infer the missing timing element by speculation. (¶¶ 17, 21)
• Put differently, Vrontikis converts the adultery ground into a time-bound element, and the proponent must affirmatively prove the “when,” not merely the “whether.”

Reversal Based on Legal Error vs. Factual Error

• The reversal rests on evidentiary insufficiency — a factual failure — rather than on a misstatement of law. The district court correctly articulated the Vrontikis rule but found a fact (pre-filing adultery) that no evidence supported.
• This is a comparatively rare form of reversal: sufficiency challenges ordinarily fail under the deferential standard. Roland succeeded because he framed the issue as a “no evidence” challenge targeting a discrete element rather than as a dispute over how evidence should be weighed.
• Notably, the court avoided the more legally complex adoptive-admission question, demonstrating that a narrow sufficiency argument can be more effective than a broader evidentiary-error argument.

The Deposition Question Controls the Admission

• The adoptive-admission theory failed not because of the evidentiary rule but because of how the question was phrased. “Since the marriage” encompassed both pre- and post-filing conduct, so an adoption of that proposition proved nothing about the pre-filing period.
• Had counsel asked whether Roland engaged in sexual relations with someone other than Jill after the marriage but before August 2017, a refusal or affirmative answer might have supplied the missing element.

Unchallenged Findings Bind the Appellee Too

• The district court limited Roland’s express admission to post-filing conduct, even though Roland himself never drew that chronological line in the deposition. (¶ 10 n.2)
• Because Jill did not challenge that temporal limitation on appeal, she could not rely on the express admission to prove pre-filing adultery. (¶ 18) Appellees who wish to defend a judgment on alternative grounds must contest adverse subsidiary findings rather than accept them.

Remand Uncertainty and the Unlitigated Alternative Ground

• The court declined to decide whether Jill may pursue her alternative cruelty ground on remand or whether a decree should enter on irreconcilable differences, citing inadequate briefing on both sides. (¶ 21 n.3)
• Parties who plead alternative grounds should either litigate them to decision or expressly address their status, so that a reversal does not leave the ground for divorce unresolved.

Recodification Note

• The adultery ground formerly codified at Utah Code § 30-3-1(3)(b) now appears at § 81-4-405(1)(b), effective September 1, 2024, with the operative “subsequent to marriage” language carried forward. The Vrontikis pre-filing requirement is a judicial construction rather than statutory text, so practitioners should continue to cite Vrontikis and Nix alongside the recodified section.

Practitioner Takeaways

Trial Lawyers

• Plead and prove the date range of alleged adultery. Frame deposition questions, requests for admission, and interrogatories expressly around the petition filing date.
• When a witness refuses to answer, follow up with a time-limited question and, where appropriate, seek an order compelling an answer rather than relying on an adoptive-admission inference.
• Scrutinize the dates on documentary evidence. Post-filing items such as the September 2019 check can only corroborate, never independently establish, the ground for divorce.
• If an adultery-based decree matters to the client, consider whether a full evidentiary hearing rather than a memoranda-only procedure will better develop the record on timing.
• Litigate alternative grounds to decision or preserve them expressly, so a reversal does not strand the case.

Appellate Lawyers

• When a finding rests on a missing element, frame the challenge as a “no evidence” claim. The scintilla standard is deferential, but it still requires some evidence on every element.
• Lead with the narrowest dispositive argument; the court may resolve the appeal on that ground and avoid more contestable evidentiary questions.
• As appellee, challenge adverse subsidiary findings you may need to defend the judgment, or be prepared to be bound by them.
• Support any request for affirmative appellate relief, such as entry of a decree on a different ground, with authority establishing the court’s power to grant it.

Family Law Clients

• Pursuing a fault-based divorce requires proof of when misconduct occurred, not merely that it occurred. Conduct after separation or after the petition is filed will not by itself support an adultery ground.