author: DURHAM, Justice:

text:
    2000 UT 70
    STATE of Utah, Plaintiff and Appellee, v. Michael W. HELMICK, Defendant and Appellant.
    No. 990358.
    Supreme Court of Utah.
    Aug. 25, 2000.

      Jan Graham, Att'y Gen., Kenneth A. Bron-ston, Asst. Att'y Gen., Salt Lake City, Les Daroczi, Ogden, for plaintiff.
    Maurice Richards, Ogden, for defendant.
   DURHAM, Justice:

INTRODUCTION

error:; T 1 Defendant Michael W., Helmick appeals from convictions of aggravated burglary, aggravated robbery, aggravated kidnapping, aggravated assault, and unlawful taking of a motor vehicle. Helmick raises five claims of (1) the trial court failed to hold a reliability hearing before it allowed an eyewitness to testify; (i) the trial court improperly enhanced Helmick's aggravated burglary sentence because the information failed to notify him that he was subject to enhanced penalties under Utah Code Ann. § 76-3-208.1 (1999); (Hii) the trial court improperly enhanced Helmick's sentences for aggravated burglary and aggravated robbery because the court, rather than the jury, found that these crimes were committed by Helmick and two other persons; (iv) the trial court improperly enhanced Helmick's sentences for aggravated burglary and aggravated robbery without sentencing him first on the underlying offenses; and (v) Helmick's trial counsel was ineffective. We affirm in part, vacate in part, and remand.

BACKGROUND

2 On March 14, 1998, at about 4:45 a.m., Helmick and Nicholas Boccia robbed an Ogden Flying J gas station, armed with knives. In the process of taking approximately $5200 and the manager's Dodge Caravan, Boccia stabbed the manager's hands, and subsequently tied him up and left him in the cooler for a period of time. Lesa Deboer, a Flying J employee and Helmick's girlfriend, helped plan and facilitate the robbery and acted as the getaway driver. The testimony of Boc-eia's brother, John Boccia, corroborated Boc-cia's admissions regarding Helmick's, Boc-cia's, and Deboer's involvement in the crime.

T3 The Weber County Sheriffs Department found the manager's missing van less than half an hour after the incident at a Pilot gas station a quarter of a mile away from the Flying J. Shortly after 5:00 am. on March 14, Esther Montoya was at the Pilot gas station. From a distance of twenty to twenty-five feet, she saw a parked Dodge Caravan with two men leaning against it, one turned away from her, the other facing her. Although Montoya was subpoenaed to be a defense witness at trial, Helmick's lawyer dismissed her after ascertaining that she would not testify, as he had hoped, that the man she observed at the Pilot gas station on March 14 might have been Hispanic As Montoya was about to leave the court, the prosecutor suggested that she look at Hel-mick to see if he looked familiar to her. Helmick's lawyer, the prosecutor, and Montoya entered the courtroom, and Montoya identified Helmick as the man she saw standing next to the Caravan and facing her at the Pilot gas station. Following this, the prosecutor called Montoya to the stand, where she testified consistently with the identification she had made moments before. Helmick's only objections to Montoya's testimony at that time concerned suggestiveness and the method of identification, not the reliability of her testimony. However, Helmick's lawyer did cross-examine Montoya about the lighting and the distance between her and the two men.

{4 The next day Helmick's lawyer moved to strike Montoya's testimony for lack of a preliminary determination as to its reliability. The trial court denied the motion, noting that Montoya's testimony was unanticipated and unopposed, and that, in any event, striking testimony that the jury had already heard would be fruitless. The judge, however, did give a jury instruction, requested by the defense, dealing with the reliability of witness identification testimony.

T5 Helmick was charged with, among other things, aggravated burglary and aggravated robbery, as well as enhancements for both charges. Boccia pled guilty to aggravated burglary. Pursuant to his plea agreement, he testified against Helmick. Deboer pled guilty to conspiracy to commit aggravated burglary. Ultimately, the jury found Hel-mick guilty on all charges. During sentencing, the trial court discussed the application of the gang enhancement under Utah Code Ann. § 76-3-203.1 to the charges and made findings about Boccia's and Deboer's involvement in the incident. The court then sentenced Helmick to nine years to life, enhanced pursuant to Utah Code Ann. § 76-3-208.1, on both the aggravated burglary and aggravated robbery charges.

ANALYSIS

I. RELIABILITY HEARING

16 Helmick claims that he has been denied his state and federal due process rights because the trial court failed to determine the reliability of Montoya's eyewitness identification testimony before allowing her to testify. This claim, unfortunately, is not accompanied in Helmick's brief by an argument that complies with rule 24 of the Utah Rules of Appellate Procedure. The rule says that an argument "shall contain the contentions and reasons of the appellant with respect to the issues presented, including the grounds for reviewing any issue not preserved in the trial court, with the citations to the authorities, statutes, and parts of the record relied on." Utah R.App. P. 24(a)(9).

17 This court has held that " 'a reviewing court is entitled to have the issues clearly defined with pertinent authority cited and is not simply a depository in which the appealing party may dump the burden of argument and research'" State v. Thomas, 1999 UT 2, ¶ 11, 974 P.2d 269 (quoting State v. Bishop, 753 P.2d 489, 450 (Utah 1988)). "Furthermore, 'it is well established that an appellate court will decline to consider an argument that a party has failed to adequately brief?" Id. (quoting Valcarce v. Fitzgerald, 961 P.2d 305, 818 (Utah 1998)). Briefs that do not comply with rule 24 "may be disregarded or stricken, on motion or sua sponte by the court." Utah R.App. P. 24(J); see also MacKay v. Hardy, 978 P.2d 941, 948-49 (Utah 1998) (declining to address arguments because brief failed to comply adequately with rule 24). Although Helmick's brief cites to State v. Ramirez, 817 P.2d 774 (Utah 1991), and the criteria listed therein for assessing the reliability of an eyewitness identification, it does not present any meaningful analysis dealing with the application of Ramires to this case, nor does it explain how Helmick was prejudiced by the admission of this testimony.

18 Even if we were willing to overlook the absence of adequate briefing on this issue, it appears to have been waived at the trial level. See 1 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 108.11[1] (Joseph M. MceLaughlin ed., Matthew Bender 2d ed.2000) (error is waived if an objection to the admission of evidence is untimely). Under ordinary circumstances, appellate courts will not consider an issue, including a constitutional argument, raised for the first time on appeal unless the trial court committed plain error. See State v. Gibbons, 740 P.2d 1809, 1811 (Utah 1987). Although an objection was made to the trial court in this case, it came after the testimony was admitted, thus depriving the court of an opportunity to consider any potential issues regarding the testimony's reliability and ad-misgibility before it could be heard by the Jury.

19 Helmick's only remaining option regarding Montoya's testimony, therefore, is to establish plain error in its admission. See State v. Eldredge, 773 P.2d 29, 35-36 (Utah 1989). To do so, Helmick must show that: (1) an error was made; (ii) the error should have been obvious to the trial court; and (ii) the error was harmful, so that in the absence of the error, a more favorable outcome was reasonably likely. See State v. Dunn, 850 P.2d 1201, 1208 (Utah 1998). Because the independent testimony of John Boccia corroborated his brother's key admissions regarding the execution of the crime and Hel-mick's involvement, there was overwhelming evidence of Helmick's guilt and any error in admitting Montoya's testimony was harm-less. Additionally, the trial court's reasoning in denying the untimely motion to strike appears to have been entirely sound, inasmuch as the trial court noted that the testimony was not anticipated by either side, no objection under the criteria laid out in Ra-mires was raised, and the function to be performed by application of the Ramirez criteria could not be effectively accomplished after Montoya testified before the jury.

II. GANG ENHANCEMENT

A. Failure to Include Notice of Emhancement in Information Charging Aggravated Burglary

T10 Helmick argues that the trial court improperly enhanced his sentence for aggravated burglary because the amended information failed to give him notice that such enhancement might be imposed pursuant to section 76-8-208.1 of the Utah Code. Under this section, "[the prosecuting attorney ... shall ecause to be subscribed upon the . information ... in felony cases notice that the defendant is subject to the enhanced penalties provided under this section. The notice shall be in a clause separate from and in addition to the substantive offense charged." Utah Code Ann. § 76-8-203.1(2)(a).

T 11 The amended information in the ree-ord clearly states, in a clause separate from that charging aggravated burglary, that Hel-mick was subject to enhanced penalties. Therefore, we reject Helmick's claim of error and find that he was on notice that the trial court could impose an enhanced sentence on the aggravated burglary charge.

B. Imposition of Emhanced Sentences on Aggravated Burglary and Aggravated Robbery Charges Based on Trial Court's Findings |

112 Helmick next argues that the trial court improperly enhanced his sentences on the aggravated burglary and aggravated robbery charges because the judge, rather than the jury, made the requisite findings to support the enhancement under seetion 76-8-208.1 in violation of State v. Lopes, 1999 UT 24, 980 P.2d 191. With respect to the enhancement on the aggravated robbery charge, the State concedes that the trial court committed reversible error in enhance-ing Helmick's conviction because neither of the other two defendants entered guilty pleas to aggravated robbery. We agree. We therefore vacate the enhanced portion of Hel-mick's sentence for this charge.

$18 The State goes on to argue, however, that Helmick's enhanced sentence for the aggravated burglary conviction can be sustained, notwithstanding Lopes, because Boccia pled guilty to aggravated burglary and Deboer pled guilty to conspiracy to commit aggravated burglary, thus resulting in convictions that conclusively established the "in concert" element necessary for enhancement.

{14 In Lopes, this court interpreted the requirements of the gang enhancement statute holding that "since the statute creates a separate and new offense, each element must be found beyond a reasonable doubt by a jury, not the trial judge." Id. at 116 (emphasis added). It has become apparent that the application of Lopes principles, especially to cases tried before its announcement, requires some flexibility. In State v. Kohl, 2000 UT 35, ¶¶ 28-31, 999 P.2d 7, and State v. Veteto, 2000 UT 62, ¶¶ 10-12, we held that it was error for the "in concert" enhancement element to have been found by the judge, but that the error was harmless because two co-defendants were found guilty in the same trial of identical charges by the jury that convicted the defendant. Also, although no case has yet raised the issue, it seems obvious that if a defendant properly elects a bench trial rather than a jury trial, the judge may impose the enhancement as part of the fact-finding process without running afoul of Lopes. s -

115 We do not decide today the question of whether a trial judge could properly enhance the sentence of a defendant after a jury trial and conviction when two or more co-defendants have pled guilty to identical crimes. In light of our decision in Lopes, that question may never require our consideration. We do conclude, however, that it is not harmless error for a judge to rely on pleas to related, but not identical, offenses in imposing an "in concert" enhancement. The relationship between the jury function in convicting defendants of the additional element required for the enhancement and the inferences that can properly be drawn by a judge from pleas to other crimes, even conspiracy or attempt, is simply too attenuated to satisfy the concerns we articulated in Lopes.

116 We conclude, moreover, that the enhancement statute itself precludes the course the State urges in this case. The statute states that the actors must have "participated as parties to the offense," meaning the offense that they committed "in concert" with each other, not some related offense. Utah Code Ann. § 76-3-208.1(1)(b) (emphasis added). If an offense for which a defendant is convicted differs from an offense that is the subject of a plea, that plea may not, as a matter of law, form the basis for the imposition of an enhanced sentence.

T17 We therefore vacate the enhanced portion of Helmick's sentence for the aggravated burglary charge.

C. Failure to Sentence Defendant on Underlying Charges Before Enhancements

118 Finally, defendant claims that the trial court committed reversible error by failing to sentence him on the underlying aggravated burglary and aggravated robbery charges first, and only then imposing the gang enhancements, if appropriate. Under section 76-3-203.1, "[the enhanced penalties for offenses committed under this section are: ... (e) [ilf the offense is a first degree felony, the convicted person shall be sentenced to an enhanced minimum term of nine years in prison." Utah Code Ann. § 76-3-208.1(8)(e) (1999) (emphasis added).

119 This statute expressly addresses the sentence the trial judge must impose once the gang enhancement has been found proper. Nowhere does it require the trial judge to impose a sentence first on the underlying charge, and only then on the gang enhancement. To the contrary, the statute provides that only one sentence should be imposed: an enhanced minimum sentence. Thus, we conclude that the trial court acted in accordance with the statute.

CONCLUSION

120 The trial court did not commit plain error by not conducting a reliability hearing before permitting Montoya to testify at trial, and trial counsel was not ineffective for failing to raise a timely objection to the reliability of Montoya's testimony. Additionally, the information did give Helmick notice that the aggravated burglary charge was subject to enhancement. However, we vacate the enhanced penalties on the aggravated burglary and aggravated robbery charges and direct the entry of new sentences on those charges.

[ 21 Chief Justice HOWE, Associate Chief Justice RUSSON, Justice DURRANT, and Justice WILKINS concur in Justice DURHAM's opinion.

      . To aid the reader, we cite the current version of this statute and note that it has not been substantively altered since its enactment in 1990.

      . Helmick was also charged with aggravated kidnapping, aggravated assault, and unlawful taking of a motor vehicle.

      . The sentences on these charges were to run consecutively. Additionally, pursuant to Utah Code Ann. § 76-3-203.1, the trial court imposed a one-year consecutive term on both of these charges because Helmick used a dangerous weapon in the commission of these crimes.
      Moreover, the trial judge sentenced Helmick to a minimum mandatory term of ten years to life on the aggravated kidnapping charge and to zero-to-five-year terms on both the aggravated assault and unlawful taking of a motor vehicle charges. These terms were imposed to run concurrently with the sentences imposed for aggravated burglary and aggravated robbery.

      . For the same reasons, Helmick's ineffective assistance of counsel claim as it relates to his trial counsel's failure to timely object to Montoya's testimony because it lacked reliability cannot succeed.

      . Utah Code Ann. § 76-3-203.1 states, in pertinent part:
      (1)(a) A person who commits any offense listed in Subsection (4) in concert with two or more persons is subject to an enhanced penalty for the offense as provided below.
      (b) "In concert with two or more persons" as used in this section means the defendant and two or more other persons participated as parties to the offense under Section 76-2-202.
      Utah Code Ann. § 76-2-202 (1999) states:
      Every person, acting with the mental state required for the commission of an offense who directly commits the offense, who solicits, requests, commands, encourages, or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable as a party for such conduct.
      To aid the reader, we cite the current version of section 76-2-202 and note that it has not been altered since its enactment in 1973.

      . In light of our vacation of the enhanced portion of Helmick's sentences on the aggravated robbery and aggravated burglary charges, we do not address Helmick's claim of ineffective assistance of counsel with respect to the enhanced sentences, nor his claim that the trial court improperly enhanced those sentences without sentencing him first on the underlying offenses.


source: Caselaw Access Project

author: DAVIS, Judge: JACKSON, Judge

license: Public Domain

text:
    2000 Utah Ct. App. 236
    Sonia KELLEY, Petitioner and Appellee, v. Wayne KELLEY, Respondent and Appellant.
    No. 990711-CA.
    Court of Appeals of Utah.
    Aug. 3, 2000.

      Ellen Maycock, Kruse Landa & Maycock, Salt Lake City, for Appellant.
    James C. Haskins and Thomas N. Thompson, Haskins & Associates, Salt Lake City, for Appellee.
    Before Judges GREENWOOD, JACKSON, and DAVIS.
   DAVIS, Judge:

{1 Respondent Wayne Kelley appeals the trial court's orders pertaining to his relationship with petitioner Sonia Kelley. For the reasons discussed below, we affirm in part, reverse in part, and remand for further proceedings consistent with this decision.

BACKGROUND

T2 Sonia and Wayne married on May 24, 1980 and subsequently had two children. During their marriage, Wayne worked in the construction industry. Wayne founded Altex Construction in Alaska and owned a majority interest in another company, DSI. Wayne's work required him to make extended stays away from home, during which he occasional ly rented an apartment.

13 In 1994, the terms of a purchase by DSI of another company placed Wayne's personal assets at risk. To minimize this risk and protect the family home, Wayne and Sonia agreed to divorcee, transfer title to Sonia individually, but continue to live as husband and wife. Accordingly, Sonia and Wayne obtained a divorce decree entered on July 18, 1994.

14 This decree provided that Sonia was awarded primary custody of the children, Wayne was to pay child support totaling $1,000 per month, and Sonia was "awarded the sum of not less than $1,000.00 per month as alimony from [Wayne], said alimony to continue for three years, or until [Sonia] remarries, or until terminated by statute, whichever shall occur first." Among the property distributed, Sonia was awarded the marital residence in Bountiful, Utah, and two automobiles. Wayne was awarded all other real property, one automobile, and his personal effects.

T5 Following their 1994 divorcee, Wayne and Sonia made no change in their pre-divorce relationship or living arrangements. Wayne and Sonia continued to cohabit, subject to the traveling demands of Wayne's work, which included obtaining an apartment in Texas. They did not tell their children or anyone else in the community that they had divorced. Their financial relationship remained the same, with Wayne providing funds "at the same standard of living which had existed prior to the entry of the Decree of Divorce." They continued to socialize together, including attending a Christmas party in 1994 and taking a family vacation in 1995. In May 1995, Wayne gave Sonia an anniversary card indicating he loved her and wished to spend another fifteen years together.

6 In the fall of 1995, Sonia became suspicious that Wayne was romantically involved with another woman. With Wayne's assurance that the relationship was over, however, Wayne and Sonia reconciled-until a few months later. In the spring of 1996, Sonia discovered that Wayne had continued his relationship with the other woman, which precipitated a May 1996 altercation. Wayne subsequently cut off financial support for Sonia and Sonia sought legal counsel.

T7 On July 10, 1996, Sonia moved to modify the divorce decree, asserting such decree was fraudulently obtained and that "[slince the entry of the Decree of Divorce, [Wayne] has fully supported the family by paying over to [Sonia] the approximate sum of $7,500 each month" but that said support had ceased. The court entered a temporary order which provided, inter alia, that Sonia have custody of the children, Wayne make child support and alimony payments totaling $6,000 per month, and that Wayne pay $5,000 in temporary attorney fees. Also on July 10, 1996, Sonia filed a separate action to establish a common law marriage between her and Wayne effective on the day the decree was entered, July 18, 1994, and to obtain a divorce therefrom. This second proceeding was consolidated with the first. In July 1997, Sonia filed another separate action against Wayne seeking damages for fraud and other claims, which was likewise consolidated into the divorce/modification proceedings.

T8 Before the matter came for trial, on August 18, 1997, Wayne moved for partial summary judgment, arguing that there can be no establishment of a common law marriage following the 1994 divorcee because no such adjudication or determination was obtained within one year of the relationship's termination as required by section 830-1-4.5(2) of the Utah Code. See Utah Code Ann. § 80-1-4.5 (1998). The trial court agreed that no timely determination was made, but concluded that the one year time restriction was unconstitutional. Specifically, the court concluded that although the restriction did not run afoul of the Open Courts Clause, see Utah Const. art. I, § 11, it did violate the Uniform Operation of Laws Clause. See Utah Const. art. I, § 24. Consequently, the court denied Wayne's motion for partial summary judgment.

T9 The matter was addressed during a bench trial, after which the trial court made factual findings. Regarding the existence of a common law marriage, the court's findings included the following:

9. ... [Wayne] proposed that the parties should enter into a divorcee so that the home could be placed in [Sonia's] name to protect it from potential of [sic] eredi-tors.... He represented to [Sonia] that the parties were not going to be separated and that nothing would change from how they had lived before.
10. During the Spring and Summer of 1994, the parties agreed to and did enter into a divorcee action, resulting in a divorce being entered on the 18th day of July, 1994, in the District Court of Davis County.... The Court finds that the agreement between the parties to divorcee was an agreement for a non-traditional divorce which created a legal fiction only, designed to protect the residence of the parties from the threat of creditors.
11. ... Both of the parties attended a parenting class and the Court accepts the testimony of Dr. Marty Hood and finds it is credible that during the intermission halfway through the parenting class, [Wayne] approached her and told her that the divorcee the parties were going through was only a business thing and that the children would never know there was even going to be a divoree and that there was no real need for them to continue to attend the class on how to deal with the children in a divorce situation. He further told her that there was not going to be a separation....
16. Prior to the divorce the standard of living of the parties was one in which respondent would give to petitioner $7,500 a month to pay bills This arrangement had existed for some substantial period of time....
17. Following the entry of the Decree of Divorcee in July, 1994, there was no change in the relationship of the parties and in their living arrangements. The parties continued to live the same as they had prior to the divorce. Title to marital residence was not transferred until after this action was filed. The title to the Kodiak property was never transferred. The parties continued to maintain a joint checking account. The parties filed a joint 1994 income tax return, reflecting that they were husband and wife as of the end of 1994.[] The parties continued to cohabit with sexual relations. The children, who at that time were nine and three and one-half years of age, were never told about any changes in their parents' relationship.
18. In July, 1994, the parties appeared at a counseling class and told the counselor that this divorcee was only for business purposes and that the children would never know that the parties were divorced. The parties continued to socialize together; they attended a Christmas party together in December 1994, each held the other out as a married couple. No one in the community was told of the divorcee at that time. During this time, respondent maintained an apartment in Texas.
20. In May 1995, [Wayne] sent petitioner an anniversary card in which he indicated he loved her and a wish for another 15 years.... ~
21. In the summer of 1995, as part of a family vacation, the parties traveled to Mexico, shared a room{,] and had sexual relations.
24. During the entire period from the entry of the Decree of Divorcel[,] the financial relationship remained the same and [Wayne] provided [Sonia] with funds at the same standard of living which had existed prior to the entry of the Decree of Divorce.
27. The Court finds that as of the entry of the Decree of Divoree on July 18, 1994, [Sonia] knew that they would have to remarry. As of that day, the parties were unmarried. They continued their marital relationship, they continued to cohabit, they continued to treat each other as married, they had joint checking accounts, and [Wayne] maintained all of his personal property at the marital residence. The parties filed joint income tax returns for the 1994 year. [Wayne] sent [Sonia) money from which she serviced joint debts. The parties maintained joint credit cards. The parties held themselves out as married in the area of their domicile in Davis County, and in that area of the domicile had the reputation of being married. They held themselves out to their children as married. The parties continued to cohabit and hold each other out as spouse through April of 1996. The parties had a reputation in the community for being married and all of these actions arise out of a contract between two consenting parties.

The court further determined that Wayne had the current ability to produce $10,000 per month in income.

[ 10 Through its findings and conclusions and the new divorce decree, both entered July 22, 1999, the trial court concluded: (1) that Sonia's action based upon fraud must fail; (2) that the parties entered a common law marriage which "commenced immediately following the entry of the Decree of Divorce" on July 18, 1994, and terminated in June 1996; and (8) that there was a change of cireumstances since the first divorcee decree "based upon the common law marriage of the parties" warranting a modification of the first decree. The court dismissed Sonia's suit for fraud and related matters, declared the existence of a common law marriage, granted Sonia a divorce, and modified the first decree to redistribute the property. The court further awarded custody of the children to Sonia and ordered Wayne to pay $2,000 per month child support and $3,000 per month alimony. Regarding the alimony, the court ordered that "based upon the marriage of the parties from 1980 to 1996, [Sonia is entitled to alimony] for the period of 16 years or until such time as [Sonia] remarries, cohabits{,] or the death of either party." Finally, the court reduced to judgment the arrearages at that time the entry of the Temporary Order through the month of February, 1999," reflecting credit for Wayne's payments, totaling $56,151.60 for alimony and $87,434.40 for child support The court likewise reduced to judgment Sonia's attorney fees of $35,951.

11 After trial, Sonia moved the court to find Wayne in contempt for failing to pay the full amount of child support and alimony required by the temporary support order. Wayne did not dispute his failure to pay, claiming instead that he was unable to pay. During a hearing on the motion, Wayne testified to owing substantial debt and that his sole source of income was through his employment for Omega Oil at a salary of $6,000 per month. Wayne also testified that he was previously able to contribute to the support of Sonia and the children because he drew $10,000 per month as a loan from DSI and another $10,000 income per month from the Kodiak property. The court found that Wayne was aware of and failed to comply with the temporary order. Based on the evidence adduced at the hearing and its factual finding at trial, the court further found that Wayne had the ability to earn at least $10,000 per month and historically lived "far beyond that kind of income." Accordingly, the court determined that Wayne had the ability to comply with the temporary order and by clear and convincing evidence he was in contempt of court. The court stayed imposition of sanctions provided he begin to make payment on and remain current with his obligations.

1 12 Wayne appeals.

ANALYSIS

I. Non-solemnized Marriage Statute

Wayne first asserts the trial court erred in finding the time restriction of Utah Code Ann. § 80-1-4.5(2) (1998) unconstitutional and that such restriction barred the determination that there existed a valid non-solemnized marriage between Wayne and Sonia. The constitutionality and proper interpretation of a statute presents questions of law which we review for correctness. See State v. Lopes, 1999 UT 24, ¶ 6, 980 P.2d 191; Rushton v. Salt Lake County, 1999 UT 36, 1 17, 977 P.2d 1201.

14 In 1987, the Legislature adopted section 80-1-4.5 of the Utah Code to provide a mechanism by which the state will recognize a relationship as a marriage although there was no solemnization. This is commonly referred to as a common law marriage. The statute, however, restricts the time in which such a marriage may be established by providing: "The determination or establishment of a marriage under this seetion must occur during the relationship described in subsection (1), or within one year following the termination of that relationship." Utah Code Ann. § 30-1-4.5(2) (1998). In Bunch v. Englehorn, 906 P.2d 918 (Utah Ct.App.1995), this court examined the plain language of that requirement and held that, "those who wish to establish their relationship as a marriage recognized by the state must obtain 'a court or administrative order' ... within one year of the termination of the relationship." Id. at 920 (quoting Utah Code Ann. § 80-1-4.5(1)(1995)). In Bunch, because no order was entered within one year of the relationship's termination, we affirmed the dismissal of the action. See id. at 920-21.

115 The Utah Supreme Court has held that the Legislature has broad discretion to set time limits within which to bring actions, see Lee v. Gaufin, 867 P.2d 572, 576 (Utah 1993), and recognized that limits to when claims can be brought promote the legitimate goals to "suppress stale and fraudulent claims so that claims are advanced while evidence to rebut them is still fresh." Craftsman Builder's Supply, Inc. v. Butler Mfg. Co., 1999 UT 18, ¶ 14, 974 P.2d 1194. Recently, however, the Utah Supreme Court announced its decision in In re Marriage of Gonzalez, 2000 UT 28, 1 P.3d 1074 (plurality opinion). In Gonzales a majority of the supreme court concluded that notwithstanding the plain language of section 30-1-4.5(2), and this court's decision in Bunch, section 30-1-4.5's time restriction "requires only the filing of a petition for adjudication of marriage within one year after the termination of the relationship." Gonzales 2000 UT 28 at ¶ 30; see id. at ¶ 48 (Zimmerman, J., concurring).

¶16 Looking at the facts here in light of Gonzalez, we must conclude the trial court erred in its initial determination that an establishment of a common law marriage was untimely under section 30-1-4.5(2). By the court's findings, the relationship continued at least until the May 1996 altercation. Because Sonia filed her action to establish the common law marriage July 10, 1996, it was well within the time restriction of section 30-1-4.5(2) as interpreted by the Gonzalez court. See id. at 180. Consequently, although the court erred in concluding the establishment was untimely and it did not need to reach the constitutional issues, it correctly denied Wayne's motion for partial summary judgment on that basis.

¶17 In his reply brief, Wayne asserts that Bunch rather than Gonzales, applics here because Sonia sought to establish a common law marriage and a divorcee. Wayne relies on dicta in Gongales in which the court purported to distinguish, rather than overrule, Bunch because no divorcee was sought in Gonzalez. See Gonzales, 2000 UT 28 at ¶ 29 n. 7. However, we can find no support for the proposition that in enacting section 80-1-4.5, the Legislature intended to create different rules and results for cases in which an establishment and a divorce is sought, and cases in which an establishment alone is sought. Unless this court is somehow now able to write new legislation contrary to statutes governing divorce, the distinction offered in Gonzalez is meaningless, notwithstanding the supreme court's protestations to the contrary. Consequently, we have no option but to conclude that Gongales overruled Bunch and applies here notwithstanding that Sonia sought to both establish the marriage and obtain a divorce.

II. Establishment of Common Law Marriage

118 Wayne asserts next that we should reverse the establishment of a common law marriage as unsupported by sufficient findings. In substance, however, Wayne does not assail the sufficiency of the court's findings, but the sufficiency of the evidence supporting those findings. "We do not reverse a trial court's findings of fact unless they are clearly erroneous.": Young v. Young, 1999 UT 38, ¶ 15, 979 P.2d 338; accord Utah R. Civ. P. 52(a); Pennington v. Allstate Ins. Co., 973 P.2d 932, 937 (Utah 1998). Further, to determine if the findings are against the clear weight of the evidence and thus clearly erroneous, we view the facts in the light most favorable to the findings. See State v. One 1984 Oldsmobile, 892 P.2d 1042, 1043 (Utah 1995); Lefavi v. Bertoch, 2000 UT App 5, ¶ 17, 994 P.2d 817.

119 Wayne asserts that the court failed to make findings dealing with the following evidence: (1) his spending time in Texas in a home wherein another woman resided; (2) Sonia asking Wayne if he was planning to marry this other woman; and (8) testimony regarding the reputation as husband and wife was given only by Utah residents. In so doing, Wayne merely reargues his view of the evidence. He has failed to marshal the other evidence supporting the court's findings on the section 80-1-4.5(1) factors as required, see Lefavi, 994 P.2d 817, 2000 UT App 5 at ¶ 17, or demonstrate that the findings were clearly erroneous. Simply stated, we are not persuaded that the findings were against the clear weight of the evidence.

III. Modification of the Decree

120 Wayne argues the court erred in modifying the first divorce decree because there was no substantial change of circumstances. "[Allthough we generally review the determination to modify a divorce decree for an abuse of discretion, insofar as that determination is based on a question of law, we review it for correctness." Krambule v. Krambule, 1999 UT App 357, ¶ 10, 994 P.2d 210; accord Toone v. Toone, 952 P.2d 112, 114 (Utah Ct.App.1998).

121 The trial court determined there was a substantial change of circumstances based on the parties' entry into a common law marriage and Wayne's termination of support payments to Sonia. As we recently explained, "principles of res judicata require that 'a party seeking modification of a divoree decree must demonstrate that a substantial change in circumstances has occurred since the entry of the decree, and not contemplated in the decree itself"" Krambule, 994 P.2d 210, 1999 UT App 357 at ¶ 13 (citation omitted); see also Utah Code Ann. § 30-3-5(3), (7)(g)(i) (stating that the court has continuing jurisdiction to make changes to custody, support and alimony awards)(Supp.1999).

122 We conclude that remarriage and/or failure to make support payments cannot alone justify a modification. Regarding remarriage, there is simply no support for the proposition that remarriage is per se a substantial change of cireumstances. Absent explicit record support, it is hard to imagine that remarriage is unforeseen or not contemplated at the time of the divorce in virtually every case. Indeed, the divorce decree here explicitly recognized the possibility by providing that alimony would "continue for three years, or until [Sonia] remarries, or until terminated by statute, whichever shall occur first," (emphasis added) and seetion 30-3-5(8) provides that "any order of the court that a party pay alimony to a former spouse automatically terminates upon the remarriage or death of that former spouse." Utah Code Ann. § 80-8-5(8) (Supp.1999) (emphasis added). In addition, if Wayne failed to pay child support and alimony as ordered in the decree, Sonia's remedy is to enforce, not modify, the original decree when she has neither alleged nor shown a change in the position of the parties relevant to her need or Wayne's ability to pay.

1 23 We therefore hold that the trial court erred in modifying the divorce decree because there was no substantial change in cireumstances. Rather, the original decree continues in full effect.

%24 The court purported to allocate property between the parties by way of both modification of the original decree and pursuant to the second decree. While it is inappropriate to modify the original decree, the court is free to allocate property brought into and/or acquired during the common law marriage. The court must approach that allocation in accordance with our decision in Burt v. Burt, 799 P.2d 1166 (Utah Ct.App.1990).

[The court should first properly categorize the parties' property as part of the marital estate or as the separate property of one or the other. Each party is presumed to be entitled to all of his or her separate property and fifty percent of the marital property. But rather than simply enter such a decree, the court should then consider the existence of exceptional circumstances....

Id. at 1172; accord Hall v. Hall, 858 P.2d 1018, 1022 (Utah Ct.App.1993). Because the court allocated property pursuant to the decree dissolving the common law marriage without applying the Burt systematic approach or addressing exceptional cireum-stances, we reverse that part of the order and remand for further findings in accordance with Burt.

IV. Temporary Support Order

125 Wayne next argues that the court erred by imposing a temporary alimony and child support order because at that time there had been no determination that Wayne and Sonia entered a common law marriage. However, in addition to establishing her see-ond marriage to Wayne, Sonia also sought to modify the divorcee decree. In Wells v. Wells 871 P.2d 1086, 1040 (Utah Ct.App.1994), this court interpreted sections 30-3-3(3) and 30-8-5(8) and held that "trial courts have equitable powers to award temporary alimony on a petition to modify." Although the Wells court affirmed the denial of a modification petition that sought an increase in alimony, it determined that the trial court was able to make a temporary award and erred in failing to consider the petitioner's needs. Id. at 1040-41. Likewise here, Sonia sought to modify the divorce decree. Consequently, as explained in Wells, the court had the equitable authority to make a temporary order of support and reversal is not warranted on this basis.

V, Alimony

126 Next, Wayne seeks reversal of the alimony award of $3,000 per month, arguing that the court made insufficient findings, and the findings were unsupported by sufficient evidence. "In determining whether to award alimony and in setting the amount, a trial court must consider the needs of the recipient spouse; the earning capacity of the recipient spouse; the ability of the obligor spouse to provide support; and, the length of the marriage." Rehn v. Rehn, 1999 UT App 41, 16, 974 P.2d 306; see Utah Code Ann. § 30-3-5(7)(a)()-(iv) (Supp.1999). "If these factors have been considered, ' "we will not disturb the trial court's alimony award unless such a serious inequity has resulted as to manifest a clear abuse of discretion."'" Childs v. Childs, 967 P.2d 942, 946 (Utah Ct.App.1998) (omitting citations).

127 We first address the duration of the alimony award. The Utah Code provides, "Alimony may not be ordered for a duration longer than the number of years that the marriage existed unless, at any time prior to termination of alimony, the court finds extenuating civeumstances that justify the payment of alimony for a longer period of time." Utah Code Ann. § 80-8-5(7)(h) (Supp.1999); see also Rehn, 1999 UT App 041 at ¶ 14.

128 The trial court found that Sonia and Wayne entered a common law marriage that began on July 18, 1994 immediately following the entry of the divorce decree on that date. In Whyte v. Blair, 885 P.2d 791 (Utah 1994), the supreme court held that when a non-solemnized marriage is established under section 30-1-4.5, the actual duration of the relationship, predating such establishment, is recognized. See id. at 798-94. Hence, upon entry of the order establishing the marriage here, Wayne and Sonia were remarried on July 18, 1994, thereby terminating her entitlement to alimony under the first decree. Because the court made no finding of extenuating cireumstances, the time for which the court may order alimony is limited by section 80-8-5(7)(h) to the duration of the common law marriage, to wit: five years. Consequently, the court's findings were inadequate to support an alimony award for a period of sixteen years. We thus reverse its order in this respect and "remand for the entry of further findings addressing whether extenuating cireumstances exist as to satisfy section 80-8-5(7)(h)." Rehn, 1999 UT App 041 at ¶ 14.

129 We further conclude the court's additional required findings supporting the amount of the alimony award were sufficient. The court considered Sonia's needs, finding her reasonable monthly expenses to be $5,000 per month; her earning capacity, finding she was able to produce an income of $1,498 per month; and Wayne's ability to pay, finding he had the ability to produce over $10,000 and although his expenses were $10,500, a substantial portion related to a second home which was to be sold. Wayne has not shown these findings are clearly erroneous as unsupported by sufficient evidence. Accordingly, the court did not abuse its discretion in determining that the $3,000 per month is an appropriate amount of alimony.

VI. Attorney Fees

180 Wayne seeks reversal of the attorney fees award as supported by insufficient findings. "The decision to award attorney fees and the amount thereof rests primarily in the sound discretion of the trial court. However the trial court must base the award on evidence of the receiving spouse's financial need, the payor spouse's ability to pay, and the reasonableness of the requested fees." Childs, 967 P.2d at 947 (citation omitted).

[ 31 Wayne does not dispute that the court made the appropriate findings regarding the reasonableness of the attorney fees, that Sonia was unable to pay the fees, or that the court found Wayne had "a substantial ability to earn an income." Instead, Wayne relies on his earlier argument that the court erred in finding that he had an income of $10,000 per month. Just as that argument failed because Wayne did not demonstrate the finding was clearly erroneous, so must this one. Consequently, we conclude the court did not abuse its discretion in awarding attorney fees.

VII. Contempt of Court

182 Finally, Wayne argues there was insufficient evidence to support the court's finding of contempt of court. "The decision to hold a party in contempt of court rests within the sound discretion of the trial court and will not be disturbed on appeal unless the trial court's action 'is so unreasonable as to be classified as capricious and arbitrary, or a clear abuse of discretion.'" Marsh v. Marsh, 1999 UT App 014, ¶ 8, 978 P.2d 988 (quoting Bartholomew v. Bartholomew, 548 P.2d 288, 240 (Utah 1976)) cert. denied, 982 P.2d 89 (Utah 1999). "'To find contempt, the court must find from clear and convincing proof that the contemnor knew what was required, had the ability to comply, and willfully and knowingly failed and refused to do so.'" Id. at 110 (quoting Kungler v. O'Dell, 855 P.2d 270, 275 (Utah Ct.App.1998)).

133 Wayne argues the evidence was insufficient to show he had the ability to comply with the court's order-Le., that he had sufficient income to make payments in accordance with the court's temporary order. Again, Wayne merely reargues his view of the evidence. Nonetheless, the court's findings that he was able to comply with the temporary order because he had the ability to earn at least $10,000 per month and historically lived "far beyond that kind of income," is strongly supported by evidence adduced at the contempt hearing and at trial. Specifically, Wayne testified to an income from Omega Oil alone of $6,000 per month and he confirmed a pattern of characterizing income as loans, part of which he previously contributed to the support of Sonia and the children, showing an ability to earn a greater income. Consequently, we reject his argument that the court erred by finding Wayne in contempt of court.

CONCLUSION

[34 We conclude that although the trial court erred in finding the time restriction of section 30-1-4.5 unconstitutional, under the subsequent Utah Supreme Court decision In re Marriage of Gonzalez, it correctly determined that Sonia's action to establish a common law marriage was timely. Further, the evidence was sufficient to support the court's determination that Wayne and Sonia did in fact enter a common law marriage that commenced the same day as entry of the divorce decree in their first marriage.

"[ 35 Nonetheless, we further conclude that the court erred in determining there had been a substantial change of circumstances following entry of the first divoree decree. Remarriage and/or nonpayment of previously ordered support cannot alone constitute a substantial change of circumstances. Therefore, we reverse that part of the order allocating property by way of both modification of the original decree and pursuant to the second decree, and we remand for findings in accordance with the approach set forth in Burt. See Burt v. Burt, 799 P.2d at 1172. Additionally, pending resolution of the petition to modify, the court was within its discretion in entering a temporary support order.

1 36 Finally, because Wayne failed to demonstrate the court's factual findings were clearly erroneous, his challenges to the amount of alimony awarded, attorney fees, and contempt ruling necessarily fails. Nonetheless, because Sonia entered a new (common law) marriage at the time the first divoree decree was entered, the remarriage terminated her right to alimony from the first marriage. Consequently, when awarding a divorce from the second (common law) marriage, the court erred by ordering alimony for a period that exceeded the duration of that second marriage.

137 Accordingly, we reverse the trial court's determination that there were changed cireumstances allowing modification of the first decree, remand for further findings regarding the property distribution, and limit the duration of alimony under the current decree to five years.

138 I CONCUR: Pamela T. GREENWOOD, Presiding Judge.

JACKSON, Judge

(dissenting):

{39 In 1987, the Utah Legislature invited the institution of common-law marriage into the homes of this state as a means of correcting certain "man in the house" welfare problems. See Utah Code Ann. § 80-1-4.5 (1998); In re Marriage of Gonzalez, 2000 UT 28, ¶ 21, 1 P.3d 1074 (stating "apparent aim [of statute] was ... to prevent the exclusion of an alleged 'common law' spouse's income when an applicant for government benefits was made, thus preventing welfare fraud"). In Whyte v. Blair, 885 P.2d 791 (Utah 1994), the first Utah Supreme Court case dealing with the new "common-law marriage" statute, the court dutifully accepted its obligation to develop common-law marriage "on a case-by-case basis." Id. at 794 n. 8. I write separately to critique the wisdom of trekking further down this case-by-case path and conclude that our Legislature should seriously consider pointing the involved administrative agencies and the courts in a different direction.

40 Further, I would dispose of this particular case based on the rationale that the Kelleys obtained their original divorce decree through fraud on the court. Thus, I would vacate the prior decree, leaving their original solemnized marriage intact. Under my analysis, if either of the Kelleys wants to dissolve those bonds of matrimony, he or she would do so in the prescribed manner without trying to delude the courts of this state.

CRITIQUE OF COMMON-LAW MARRIAGE STATUTE

I. History of Common-Law Marriage

T41 "Common-law marriage" is a misnomer. Common-law marriage probably did not exist in England, the home of the common law. The concept arose in "English ecclesiastical courts which administered canon law, rather than in the English common-law courts." John B. Crawley, Is the Honeymoon Over for Common Law Marriage: A Consideration of the Continued Viability of the Common Low Marriage Doctrine, 29 Cumb. L.Rev. 399, 401 (1998/1999). The House of Lords concluded in Regina v. Millis, 8 Eng. Rep. 844 (1848-44), that commonlaw marriage had never been recognized in England. Despite criticism of the ruling by some historians and academicians, see Crawley, supra, at 402 n. 12, the principle of stare decisis leads me to conclude that the issue has been settled as a matter of law. Thus, at a minimum, Utah Code Ann. § 80-1-4.5 (1998) should not be labeled as a "common-law marriage" statute. Better labels or terms would be "unsolemnized" or "noncere-monial" marriage statute. '

[ 42 The recognition of unsolemnized marriages in English ecclesiastical courts, the American colonies, and the several states has an equitable basis. In medieval England and the expanding American frontier it was virtually impossible for couples wanting to marry to find authorized persons to issue marriage licenses and perform ceremonies. See Craw-ley, supra, at 408. Common-law marriage was viewed as one means of solving these procedural difficulties See id. New York was the first state to recognize unsolemnized marriages. See Fenton v. Reed, 4 Johns. 52, 53 (N.Y.Sup.Ct.1809) (per curiam). By the end of the nineteenth century a majority of states recognized unsolemnized, long-term sexual unions. See David F. Crabtree, Development, Recognition of Common-Law Marriages, 1988 Utah L.Rev. 273, 275 n. 12 (listing thirty-four states, as of 1981, recognizing common-law marriages).

$43 But from there, "common-law marriage" fell into disfavor and began to die a natural death. In modern America, the impediments to ceremonial marriage present in life on the frontier have long since disappeared. Transportation, communication, and hosts of legal administrators are readily available to help those wanting to marry. Accordingly, when Utah adopted its statute in 1987, only a dozen states still acknowledged common-law marriage. Now, Utah is one of only ten. See Mont.Code Ann. § 40-1-403 (1999); Utah Code Ann. § 80-1-4.5 (1998); Campbell's Adm'r v. Gullatt, 43 Ala. 57, 68-69 (1869); Klipfel's Estate v. Klipfel, 41 Colo. 40, 92 P. 26, 27-28 (1907), McFarland v. McFarland, 51 Towa 565, 2 N.W. 269, 2738-74 (1879); Shorten v. Judd, 60 Kan. 73, 55 P. 286, 287 (1898); Warren v. Canard, 30 Okla. 514, 120 P. 599, 600 (1911); Knecht v. Knecht, 261 Pa. 410, 104 A. 676, 678 (1918); Holgate v. United Elec. Rys. Co., 47 R.I. 337, 133 A. 243, 244 (1926); Berger v. Kirby, 105 Tex. 611, 153 S.W. 1130, 1131 (1913). Thus, in two centuries, the American "affair" with common-law marriage has shifted the legal and financial responsibility for dependent women and children either away from or towards the state, depending on whether the doctrine of common-law marriage was in favor or not. See Ariela R. Dubler, Note: Governing Through Contract: Common Low Marriage in the Nineteenth Century, 107 Yale L.J. 1885, 1920 (1998).

4 44 One could claim that Utah is now first in the vanguard of a new cycle restoring common-law marriage to American society. However, it seems more likely that Utah's statute is an anachronistic rear guard. But, because we must, both the supreme court and this court have tried to develop the doctrine of common-law marriage "on a case-by-case basis." Whyte v. Blair, 885 P.2d 791, 794 n. 8 (1994).

II. Unintended Breadth of Common Law Marriage Statute

45 The legislative history behind Utah's common-law marriage statute reveals a narrow, singular focus: preventing welfare fraud to save money for the various administrative agencies involved. See In re Marriage of Gonzalez, 2000 UT 28, ¶ 21, 1 P.3d 1074; David F. Crabtree, Development, Recognition of Common-Law Marriages, 1988 Utah L.Rev. 273, 280-81. During debate, legislators expressed concerns about the new common-law marriage statute's effect on polygamous relationships. Concern was also expressed regarding stale claims to marital status. But all these were merely peripheral considerations. Moreover, there was no debate about the substantial question of how common-law marriage might affect existing family law and marriage as an institution and might intrude in other substantive areas of the law. The Legislature and administrative agencies were mainly interested in saving an estimated $323,500 in welfare benefits by establishing 800 common-law marriages (estimating that each common-law marriage established would save about $1,080). See Crabtree, supra, at 281 n. 43.

146 This statute has injected the Utah judiciary into a debate which has raged for two centuries. However, I believe the Legislature is a better forum than the courts for debating the social and legal policy implications. See generally Ellen Kandoian, Cohabitation, Common Law Marriage, and the Possibility of a Shared Moral Life, 75 Geo. L.J. 1829, 1839 (1987) ("The question posed by the cohabitation cases is what to make of couples, in a state requiring a license and ceremony, who have obtained neither but come before a court on claims arising from their relationships.... In granting a remedy, the court thus establishes that formal marriage is not the only socially approved sexual relationship with rights and duties attaching; an alternative, informal type of marriage may also exist."); Ariela R. Dubler, Note: Governing Through Contract Common Law Marriage in the Nineteenth Century, 107 Yale L.J. 1885, 1898 (1998) (describing "social tension[ ] between the power of marriage as a containment tool (ie., marriage as a set of obligations) and its power as a social equalizer (Le., marriage as a bestow-er of social and legal rights)").

147 Aside from the social and legal policy issues raised by common-law marriage, very real questions about the fiscal sensibility of the doctrine remain. The Legislature has the oversight capability and means to audit whether the numbers of common-law marriages created by administrative fiat and the expense incurred justify this process. Has the initial monetary savings goal been attained? Is containment of man-in-the-house fraud a reasonable rationale for maintaining the statute? Should Utah courts be expected to continue spending effort and resources to develop common-law marriage case law? Does the end justify the means?

148 I now turn to a brief examination of the language of the statute and our appellate opinions to be specific about the disputes which are being generated. Strikingly, none of them involves welfare fraud.

III. Review of Utah's Common-Law Marriage Statute and Case Law

149 First, I am concerned that the complexity of the statute itself creates problems. The provisions of section 30-1-4.5 show the Legislature tried to narrowly tailor the language to limit the types and thus the numbers of relationships which would qualify as the equal of solemnized marriages. See Utah Code Ann. § 30-1-4.5 (1998). This was done by creating a laundry list of five subsections, with six elements. See id. In litigation each element becomes a source of dispute. Therefore, if the Legislature wants to keep some form of common-law marriage, a simpler scheme with fewer elements might be the better approach. After all, the essential elements of common-law marriage are actually relatively simple: "all that is required is that there should be an actual and mutual agreement to enter into a matrimonial relation, between parties capable in law of making such a contract, consummated by their cohabitation as man and wife or their mutual assumption openly of marital duties and obligations." 55 C.J.S. Marriage § 10 (1998) (citations omitted).

«[ 50 Second, the final phrase of the statute is also a cause for concern. It states that the relationship "may be proved under the same general rules of evidence as facts in other cases." Utah Code Ann. § 80-1-4.5(@) (1998). This general language results in a preponderance of the evidence standard. See Hansen v. Hansen, 958 P.2d 981, 984 (Utah Ct.App.1998). This low standard invites more people to sue for marriage recognition because they have an improved chance of winning. However, the historical eviden-tiary standard required clear and convincing evidence. The purpose of the higher standard was to limit pursuit of both stale and fraudulent claims. See 55 C.J.S,. Marriage § 57 (1998) ("A claim of common-law marriage is regarded with suspicion and will be closely scrutinized especially where one of the purported spouses is deceased and the survivor is claiming a financial interest." (footnotes omitted)). This higher evidentiary hurdle would also relieve the need for a one-year time limitation.

151 Third, I note another concern about which the statute is silent, i.e., who may file a petition to create a common-law marriage. I assume this was not mentioned so an administrative agency can instigate legal recognition of the marital relationship. At first blush, it seems this ought to be left to either one or both of the cohabiting persons. But, the object of the statute is otherwise. This statutory silence leaves an opening for other third parties to initiate a marriage recognition proceeding for the couple. Potential third parties include insurers, heirs, creditors, prosecutors, tax collectors, and those who have contractual relationships with the cohabitants. See In re Marriage of Gonzales, 2000 UT 28, ¶¶ 1-4, 1 P.3d 1074 (plurality) (involving intervention of issuer of homeowner's insurance policy in putative wife's attempt to establish common-law marriage to insured); Whyte v. Blair, 885 P.2d 791, 792 (Utah 1994) (involving participation of insurance company in case in which putative husband tried to establish common-law marriage to insured).

1 52 A review of Utah cases to date reveals that Utah's statutory common-law marriage scheme has now implicated several other substantive areas of the law. Issues touching on the ownership and transfer of real and personal property have been raised by putative common-law spouses. See Hansen, 958 P.2d at 988 (seeking establishment of common-law marriage and grant of divorcee, and requesting orders on child custody, child support, and property distribution); Walters v. Walters, 812 P.2d 64, 65 (Utah Ct.App.1991); Layton v. Layton, 777 P.2d 504, 505 (Utah Ct.App.1989); Mattes v. Olearain, 759 P.2d 1177, 1178 (Utah Ct.App.1988). Common-law marriage has also intersected with the criminal law. For instance, a convicted child sex abuser argued he had a common-law marriage to his victim's mother. See State v. Johnson, 856 P.2d 1064, 1068 (Utah 1998). In that case, the defendant tried to secure probation under a statute allowing probation in limited cireumstances for a child's stepparent. See id. at 1067-68. And, currently, a county prosecutor has filed a motion in a criminal case to establish a common-law marriage between a man and one of his polygamous wives, so that the man might be prosecuted for bigamy. See State v. Green, No. 001600036 (Utah Dist.Ct. Apr. 17, 2000).

158 Our courts have also entertained several challenges to the constitutionality of the statute and, particularly, the one-year time limit for establishing the marital relationship. In Bunch v. Englehorn, 906 P.2d 918 (Utah Ct.App.1995), we held that the putative wife failed to establish a common-law marriage because she filed a complaint within one year after the relationship ended but did not get an adjudication order within one year. See id. at 920-21. Later, the Utah Supreme Court held that the time limitation of section 30-1-4.5 "requires only the filing of a petition for adjudication of marriage within one year after the termination of the relationship." Gonzalez, 2000 UT 28 at 130. This issue is still being contested with some frequency. See Greaves v. Baker, No. 990689 (Utah Ct.App. July 14, 2000) (certified to and pending in Utah Supreme Court) (addressing issues of whether filing within one year, rather than obtaining adjudication, is sufficient and whether time limitation violates Open Courts Clause of Utah Constitution); Smarr v. Smarr, 2000 UT App 150, slip op. at 2 (May 25, 2000) (unpublished memorandum decision) (concluding Gonzalez overruled Bunch); Clark v. Clark, 2000 UT App 54 (Mar. 2, 2000) (unpublished memorandum decision) (holding petition filed within one year of relationship's termination should not have been dismissed), cert. granted, No. 20000276-SC (June 21, 2000).

IV. Conclusion to Critique of Common-law Marriage in Utah

€54 The English House of Lords ruled long ago that common-law marriage was never part of its common law. Most American states have already experimented with this doctrine. Based on their experience, all but ten have repealed common-law marriage. Utah should not recycle this great experiment. Common-law marriage is not well suited as a corrective remedy for ills afflict, ing the administrative law arena, particularly when the disease is allegedly man-in-the-house welfare fraud. Our Legislature has the ability to-and should-prescribe a different administrative law remedy for welfare fraud without harmful side effects in other areas of the law.

FRAUD UPON THE COURT

{55 The Kelleys have now told the court that their 1994 divorce decree was a collusive pretense. The trial court found that their agreed-upon divorce "created a legal fiction only, designed to protect the residence of the parties from the threat of creditors." A fiction is "(ain imaginative creation or a pretense that does not represent actuality but has been invented." American Heritage Dictionary 500 (2d ed.1985). In other words, the Kelleys' divorcee was a lie.

€56 Moreover, they made the court an unwitting participant in their deception. Thus, they " 'defile[d] the court itself " and prevented the judicial system from performing "in the usual manner its impartial task" of adjudicating cases. 12 James W. Moore, Moore's Federal Practice § 60.21[4][a]l (3d ed.1997). The Kelleys ground for divorce was an artifice to defraud creditors, not a genuine case of irreconcilable differences. In fact, they were fully reconciled; they were in complete agreement. Thus, they were not legally entitled to a divorce decree. Accordingly, I would vacate the 1994 decree and restore them to their former legal status-that of husband and wife. I will now explain the legal support for this sua sponte action.

I. Issue May Be Raised Sua Sponte

157 Fraud upon the court may be raised by the court sua sponte and an appeals court may vacate a lower court decree on this ground. See 12 James W. Moore, Moore's Federal Practice § 60.21[A][f] (3d ed.1997). This inherent equitable power existed at common law. In Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944), a fraud-upon-the-court case, the United States Supreme Court noted the tension between the rule that judgments are final and the "rule of equity ... that under certain circumstances, one of which is after-discovered fraud, relief will be granted." Id. at 244, 64 S.Ct. at 1000. This equitable rule was "fashioned to fulfill a universally recognized need for correcting injustices." Id. It should be exercised cautiously, but when the occasion demands, the power has been wielded "without hesitation" and equity can be interposed to "devitalize[ ] ... judgment[s]." Id. at 245, 64 S.Ct. 997 at 1001. In setting aside a collusive divorcee, the court restores the "status quo ante" and prevents enforcement of the illegal transaction. Martina Theatre Corp. v. Schine Chain Theatres, Inc., 278 F.2d 798, 801 (2d Cir.1960) (citing to Recent, Cases, Clean-Hands Doctrine Prevents Husband from Setting Aside Collusive Divorce and Property Settlement Induced by Wife's Fraud, 67 Harv. L.Rev. 1079 (1954)). In Utah divorcee proceedings, fraud, deceit, collusion, and perjury are "wrongs against the state and a fraud upon the court" which the state may raise on its own motion. Parsons v. Parsons, 40 Utah 602, 607, 122 P. 907, 909 (1912). Further, Rule 60(b), Utah Rules of Civil Procedure, expressly states that it has no effect on a court's inherent power to set aside a judgment procured through "fraud upon the court." Utah R. Civ. P. 60(b).

T58 When there is collusion, as in this case, neither of the parties is likely to come forward and propose to the court that they have jointly perpetrated some wrong on the court. Even so, we gave the Kelleys the chance to address this issue in supplemental briefs. Predictably, each concluded that the other had committed fraud upon the court. Their respective conclusions weigh heavily in support of my position. In Toscano v. Commissioner of Internal Revenue, 441 F.2d 980 (9th Cir.1971), the court addressed the problem of who is to initiate the process of reviewing fraud upon the court: " Surely it cannot be that preservation of the integrity of the judicial process must always wait upon the diligence of litigants. The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud"" Id. at 985 (quoting Hazsel-Atlas, 322 U.S. at 246, 64 S.Ct. at 1001).

159 This statement explains why we should act sua sponte in this case. If we do not, we cannot expect collusive subversion of the legal process to be exposed. And, if not exposed and dealt with, we can expect similar conduct in the future.

IIL. Finality of Initial Divorcee Decree

T 60 Courts and commentators caution that this doctrine is to be construed narrowly to preserve the finality of judgments and to avoid overlap with Rule 60(b)(8) of the Utah Rules of Civil Procedure and its federal counterpart. See Broyhill Furniture Indus., Inc. v. Craftmaster Furniture Corp., 12 F.3d 1080, 1085 (Fed.Cir.1993); Great Coastal Express, Inc. v. International Bhd. of Teamsters, 675 F.2d 1349, 1356 (4th Cir.1982); 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2870 (2d ed.1995). "This salutary general rule springs from the belief that in most instances society is best served by putting an end to litigation...." Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244, 64 S.Ct. 997, 1000, 88 L.Ed. 1250 (1944). But, a final judgment has never "been regarded as completely immune from impeachment." Id. Moreover, the Kelleys have chosen to engage in ongoing litigation. They are able to do so because in divorce actions the trial court "has continuing jurisdiction to make subsequent changes or new orders for the custody of the children and their support [and] maintenance ... and for distribution of the property and obligations for debts as is reasonable and necessary." Utah Code Ann. § 30-8-5(8) (Supp.1999).

1 61 Further, the record indicates that neither of the Kelleys has remarried, nor has any child been born as issue of any new marriage. So, no third party would be seriously affected by vacating the decree. Thus, I perceive little need to respect the finality of their divorce decree.

TII Analysis

162 Marriage is much more than a mere contract. Marriage is a "public institution of universal concern [whose] dissolution affect[s] the right not only of the husband and wife but of all other persons." 2 Joel P. Bishop, New Commentaries on Marriage, Divorce, and Separation § 480 (1891) (footnote omitted). As such, "the public becomes in effect a party to the proceeding." Id. at § 481. For this reason, parties cannot agree to dissolve their own marriages for convenience. See id.; Whyte v. Blair, 885 P.2d 791, 795 (Utah 1994) ("A couple may not enter and exit a marriage for simple financial convenience."); Hilton v. Roylance, 25 Utah 129, 137, 69 P. 660, 663 (1902) (stating marriages may not be dissolved at "the mere intention and pleasure of the contracting parties"). That is precisely what happened here.

T 63 The Kelleys agreed that through the artifice of a "paper divorcee" they would shield themselves from creditors but continue holding themselves out to their children, families, neighbors, friends, and the public as wife and husband. The trial court entered findings that the Kelleys carried out their deceptive scheme as planned. The court found that Mr. Kelley told Dr. Marty Hood that the divorce "was only a business thing and that the children would never know." The court also found that "neither party expected the property aspects of the divorce to be valid or implemented" and that they "continued to cohabit and hold each other out as spouse[s]" in the community.

1 64 In Karren v. Karren, 25 Utah 87, 69 P. 465 (1902), a couple conspired in a similar way. The husband told his wife that he would obtain a default divorce to induce his father to convey title to a homestead which his father refused to do if he remained married. See id. at 466. He promised that after obtaining the divorce and deed, they would remarry. See id. The wife agreed to this stratagem and did not appear or defend the divorce action. See id. The husband did not fulfill his part of the collusive bargain, married another, and was expecting a child with his new wife. See id. at 466, 467. The first Mrs. Karren then sued to vacate the decree. See id. at 466. The supreme court held that a decree of divorce obtained by any of the following conduct is a fraud upon the court: (1) collusion of the parties, (2) suppression of the facts, or (8) false testimony. See id. In the Karren case, the court declined to grant relief because of the husband's remarriage and the fact that he was expecting a child with his new wife. See id. at 466-67. Here we have no such equitable concern for either of the Kelleys. Neither has remarried and no other children are involved.

T65 The trial court's findings regarding the Kelleys' conduct brings them within the Karren definition of fraud upon the court. Indeed, they obtained their decree of divorce under a collusive agreement and by suppressing the truth.

166 In cases when courts have invoked their equitable powers to remedy fraud upon the court,

the relief granted has taken several forms: setting aside the judgment to permit a new trial, altering the terms of the judgment, or restraining the beneficiaries of the judgment from taking any benéfit whatever from it. But whatever form the relief has taken in particular cases, the net result has been the same: where the situation has required the court has, in some manner, devitalized the judgment.

Hazel-Atlas Glass Co. v. Hartford-Empire Co., 822 U.S. 288, 245, 64 S.Ct. 997, 1001, 88 L.Ed. 1250 (1944) (footnote omitted). In this case, the appropriate remedy is to vacate the decree.

      . This reflects an amount substantially greater than the amounts he was ordered to pay under the decree.

      . See LR.C. § 7703(1) (1999) ("[Thhe determination of whether an individual is married shall be 6 made as of the close of his taxable year....").

      . In determining the appropriate amount then in arrears, in the divorce decree entered July 22, 1999, the court stated that the $5,000 per month alimony and child support award shall commence as of December 1998. Further, in the immediately following paragraph, the court ordered that this amount shall be "retroactive to the date of the first Order entered by Commissioner Dillon in this action."

      . As Justice Russon explained:
      [T}he trial court did not err in dismissing Gonzalez's petition for failure to meet the jurisdictional time limitation set forth in Utah Code Ann. § 30-1-4.5. Justice Durham's opinion does not even attempt to read the statute on the basis of its plain language, but instead simply rewrites its provisions by attributing motives to the legislature. Although the requirement relating to conclusion, rather than commencement, of legal proceedings is unusual and could potentially raise constitutional concerns in certain hypothetical scenarios, this case is not one of them.
      Gonzalez, 2000 UT 28 at ¶ 52 (Russon, J., dissenting).

      . Section 30-1-4.5 sets out those factors necessary to determine the existence of a non-solemnized marriage:
      A marriage which is not solemnized according to this chapter shall be legal and valid if a" court or administrative order establishes that it arises out of a contract between two consenting parties who:
      (a) are capable of giving consent;
      (b) are legally capable of entering a solemnized marriage under the provisions of this chapter;
      (c) have cohabited;
      (d) mutually assume marital rights, duties, and obligations; and
      (e) who hold themselves out as and have acquired a uniform and general reputation as husband and wife.
      Utah Code Ann. § 30-1-4.5(1) (1998).

      . For example, Wayne showed his consent to the common law marriage by filing a joint 1994 tax return, making statements to Dr. Hood at the parenting class, continuing financial support far above the level ordered in the original decree, maintaining joint accounts with Sonia, continuing cohabitation and sexual relations with Sonia, giving Sonia an anniversary card expressing his love and desire for another fifteen years together, and failing to tell anyone in the community about the divorce. Further, because Wayne's maintaining an apartment in Texas is consistent with his pre-divorce conduct and the demands of his work, it does not necessarily rebut the proposition that he cohabited with Sonia. Finally, there was testimony of neighbors showing Wayne and Sonia had a reputation in the community for being married.

      . There has been no showing that remarriage to the former spouse should be treated materially different in this respect than remarriage to a third party.

      . Because the amounts for retroactive child support and alimony based on the second divorce decree appear to be the same as the temporary order arrearages, we do not address the impact of the reversal of the order for modification on that amount.

      . On May 3, 1999, approximately six months after the trial in this case, an amendment to section 30-3-5 became effective adding the further factors the court must consider. See Utah Code Ann. § 30-3-5(7)(a)(v)-(vii) (Supp.1999). Because these additional requirements were not in effect during the relevant period here, we do not consider them. See Wilde v. Wilde, 969 P.2d 438, 442-43 (Utah Ct.App.1998).

      . The first decree provided, "The Plaintiff is hereby awarded the sum of not less than $1000.00 per month as alimony from Defendant, said alimony to continue for three years, or until the Plaintiff remarries, or until terminated by statute, whichever shall occur first." See also Utah Code Ann. § 30-3-5(8) (Supp.1999).
      We agree with Sonia's position in her supplemental brief supporting the efficacy of the first decree that the circumstances surrounding the obtaining of the first decree do not amount to fraud on the court. The better reasoned analyses of the issue make a clear distinction between fraud on the court and other fraud or misrepresentation which may occur in the context of a proceeding.
      "[The term [fraud on the court] as used in obtaining relief from judgment must be narrowly construed to embrace only that type of conduct which defiles the court itself, or fraud which is perpetrated by officers of the court so as to prevent the judicial system from functioning in the customary manner of deciding the cases presented in an impartial manner." Serzysko v. Chase Manhattan Bank (C.A.2, 1972), 461 F.2d 699; Konigsberg v. Security Natl. Bank (S.D.N.Y.1975), 56 F.R.D. 439; Armour and Company v. Nard (N.D.Iowa 1972), 56 FRD. 610; Lockwood v. Bowles (D.D.C.1969), 46 FRD. 625; Moores Federal Practice 504, 515 Paragraph 60.33 (1975). Examples of fraud on the court justifying relief from judgment would include such 'egregious misconduct' as bribery of a judge or jury, or fabrication of evidence by counsel. Pfizer, Inc., v. Intl. Rectifier Corp. (C.A.8, 1976), 538 F.2d 180, certiorari denied 429 U.S. 1040, 97 S.Ct. 738, 50 L.Ed.2d 751, or the prevention of an opposing party from fairly presenting his case. Keys v. Dunbar (C.A.9, 1969), 405 F.2d 955, certiorari denied 396 U.S. 880, 90 S.Ct. 158, 24 L.Ed.2d 138; see, generally, Restatement of Judgments, Sections 118-124 (1942).
      Moore v. Moore, No. 3-82-19, 1983 Ohio App. LEXIS 12995, at *3-*4 (Ohio App.3d, June 23, 1983) (citation omitted); see also Davis v. Parrish, 131 Idaho 595, 961 P.2d 1198, 1200 (1998) ([Flraud upon the court will be found only in the presence of such tampering with the administration of justice as to suggest a wrong against the institutions set up to protect and safeguard the public." (quoting Compton v. Compton, 101 Idaho 328, 612 P.2d 1175, 1181 (1980))); Sargent County Bank v. Wentworth, 547 N.W.2d 753, 761 (N.D.1996) Godin v. Godin, 168 Vt. 514, 725 A.2d 904, 908 (1998).

      . The divorce decree terminating the common law marriage was entered on July 22, 1999.

      . Again, Wayne fails to marshal the evidence to show the findings are clearly erroneous, and merely reargues his view of the evidence. See Lefavi, 994 P.2d 817, 2000 UT App 5 at ¶ 17.

      . I use the term advisedly and with some reluctance, as it is not an apt description of the doctrine. Nonetheless, because the statute and most of our cases use the term "common-law marriage," I shall also. Further, my short digest is meant to quickly summarize the evolution of common-law marriage, not provide a treatise.

      . If debated today, legislators would no doubt express concern about its effect on same-sex relationships.

      . Anyone interested in improving or repealing the common-law marriage statute should read this excellent discussion predicting many of the problems we are now having with the statute.

      . The Administrative Office of the Courts could survey the trial courts to determine the number and expense of adjudications involving common-law marriage. Perhaps there are many which are not appealed.

      . Alabama has a three-element scheme:
      First, the parties must have the capacity to marry. Next, they must presently agree to enter the marriage relationship. Finally, they must consummate the marriage; that is, they must live in such a way as to gain public recognition that they are living as husband and wife. Like any other marriage, a common-law marriage can be terminated only by death or divorce. A party seeking to prove a common-law marriage must establish his claim by clear and convincing evidence.
      John B. Crawley, Is the Honeymoon Over for Common Law Marriage: A Consideration of the Continued Viability of the Common Law Marriage Doctrine, 29 Cumb. L.Rev. 399, 405 (1998/1999) (footnotes omitted). The author, a judge, asserts that this scheme works well in the Alabama courts.

      . Fraud upon the court is defined differently in the context of divorce than in traditional fraud cases, which require proof of several elements. See generally Pace v. Parrish, 122 Utah 141, 144-45, 247 P.2d 273, 274-75 (1952).

      . The text of Rule 60(b) makes it clear that fraud upon the court determinations are made outside the bounds of Rule 60. The Rule states that it "does not limit the power of a court to entertain an independent action ... to set aside a judgment for fraud upon the court." Utah R. Civ. P. 60(b).

      . Vacating the divorce decree relieves the courts from having to consider further the following issues addressed by the main opinion:
      Section I. Non-solemnized Marriage Statute
      Section II Establishment of Common-law Marriages
      Section III. Modification of the Decree
      Section IV. Temporary Support Order
      Section V. Alimony
      My colleagues' effort to untangle the issues spun by the Kelleys is commendable. However, the Kelleys were not entitled to it. "Oh, what a tangled web we weave, when first we practice to deceive." Sir Walter Scott (1771-1832). John Bartlett, Familiar Quotations 378:13 (16th ed.1992).


author: BILLINGS, Judge: BENCH, Judge

text:
    2000 Utah Ct. App. 242
    STATE of Utah, Plaintiff and Appellee, v. Ned M. HOUSTON, Defendant and Appellant.
    No. 990393-CA.
    Court of Appeals of Utah.
    Aug. 10, 2000.

      David P.S. Mack and Kent R. Hart, Salt Lake Legal Defender Association, Salt Lake City, for Appellant.
    Jan Graham, Attorney General, and Catherine McAvoy Johnson, Assistant Attorney General, Salt Lake City, for Appellee.
    Before Judges BENCH, BILLINGS, and DAVIS.
   OPINION

BILLINGS, Judge:

T1 Defendant/appellant Ned M. Houston appeals the trial court's order that he pay restitution to cover expenses incurred by Heather Lowder (Lowder) following defendant's conviction of fornication, sodomy, and trespass. We reverse.

FACTS

12 Defendant and Lowder met while working as missionaries at a Mexican orphanage in the spring of 1998. Consistent with their religious beliefs, the couple agreed not to have sexual intercourse or even kiss until they were married. Defendant returned to Utah in May 1998; Lowder returned in June 1998.

13 On July 4, 1998, following a Fourth of July celebration, defendant and Lowder accepted the invitation of Lowder's seven-and eleven-year-old cousins to sleep outside with them on the cousins' trampoline. Late that night, after everyone was asleep, defendant and Lowder engaged in vaginal and anal intercourse. According to defendant, he believed Lowder had consented to the sexual activity because she "nudged" him and did not resist or say anything when he kissed and fondled her. According to Lowder, however, she did not resist, move or say anything because she was "paralyzed" due to her memories of being sexually abused as a child.

'I 4 The next morning, defendant and Low-der drove around and talked about the events of the previous night. Lowder expressed her anger and asked defendant why he had engaged in sex without her verbal consent. Defendant explained that he believed Lowder was willing and that he would not have continued to engage in sexual relations if Lowder had expressed her unwilling ness. Defendant asked Lowder to drive him to the police station and press charges against him. She refused, telling defendant to turn himself in or "live with his guilt." When Lowder stopped at a traffic intersection, defendant jumped from the car and ran away. Lowder drove alone to her parents' home, where she called the police.

1 5 After jumping out of the car, defendant broke into a pet store, telephoned 911, and pleaded for police to arrest him. When the police arrived, defendant lay face down on the ground and asked to be taken away. Ultimately, based upon Lowder's request, the state charged defendant with rape, foreible sodomy, and burglary.

T6 At trial, defendant claimed he lacked the requisite intent for all the crimes. In particular, concerning the sex offenses, defendant argued he had "a reasonable and good faith belief that [Lowder] voluntarily consented to engage in sexual intercourse." The jury acquitted defendant of the rape, forcible sodomy, and burglary charges, but convicted him of the lesser-included offenses of fornication, sodomy, and trespass.

17 As part of defendant's sentence, the trial judge ordered that he pay restitution of $78.00 to the pet store for the glass door he broke and $165.88 to Lowder for out-of-pocket therapy and medical expenses. Defendant agreed to pay for the broken door, but appeals the order of restitution to Lowder.

ISSUE AND STANDARD OF REVIEW

T 8 Defendant argues that because fornication and sodomy criminalize consensual sexual conduct, Lowder was a "coparticipant," not a victim of crime for the purposes of restitution.

T9 "Our review of this question presents an issue of statutory interpretation, which we review for correctness, granting no deference to the trial court's ruling." W.C.P. v. State, 1999 UT App 035, ¶5, 974 P.2d 302; see also State v. Galli, 967 P.2d 930, 937 (Utah 1998). Moreover, in interpreting a statutory provision, courts must view each section "in the context of the entire [legislative] framework to give effect to the entire statutory scheme." State v. Swapp, 808 P.2d 115, 121 (Utah Ct.App.1991).

ANALYSIS

T 10 The trial judge ordered restitution as provided by Utah Code Ann. § 76-3-201(4)(a)(i) (1999) "When a person is con-viected of criminal activity that has resulted in pecuniary damages, ... the court shall order that the defendant make restitution to victims of erime...." "Pecuniary damages" are defined as "all special damages, but not general damages, which a person could recover against the defendant in a civil action arising out of the facts or events constituting the defendant's criminal activities and includes ... medical expenses." Id. § 76-3-201(1)(c) (emphasis added). "Victim" is defined as "any person whom the court determines has pecuniary damages as a result of the defendant's criminal activities," id. § 76-83-201(1)(e)(i), but "does not include any co-participant in the defendant's criminal activities" Id. § 76-3-201(1)(e)(@ii) (emphasis added).

[ 11 The trial judge did not order restitution for fornication because fornication involves consensual sexual conduct. However, the statute defining simple sodomy does not mention voluntary or consensual conduct. See id. $ 76-5-403(1). The trial court therefore declined to rule that Lowder could not be a "victim" of sodomy for restitution purposes and, accordingly, ordered restitution.

{ 12 Our supreme court has explained:

it is clear from the legislative scheme that restitution is not a 'punishment' but a civil penalty whose purpose is entirely remedial, ie., to compensate victims for the harm caused by a defendant and whose likely intent is to spare victims the time, expense, and emotional difficulties of separate litigation to recover their damages from the defendant.

Monson v. Carver, 928 P.2d 1017, 1027 (Utah 1996). An award of pecuniary damages as restitution for crime is justified because proof of a defendant's guilt beyond a reasonable doubt necessarily meets the preponderance of evidence standard establishing civil liability.

113 In the present case, had defendant been convicted of forcible sodomy, Lowder's lack of consent would have been established beyond a reasonable doubt. A fortiori, the "facts and events constituting the eriminal activity" would have supported an award of civil damages; restitution would therefore have been proper. Utah Code Ann. § 76-3-201(1)(c) (1999). However, the jury did not convict defendant of forcible sodomy. Nothing in the jury's verdict establishes lack of consent, whether beyond a reasonable doubt or by a preponderance of the evidence. Under the facts in effect found by the jury, Lowder would not be able to "recover against the defendant in a civil action." Id. § 76-8-201(1)(e). Therefore, the facts and events constituting simple sodomy do not support the award of restitution to Lowder. Accordingly, we vacate the award of restitution under the sodomy conviction.

114 I CONCUR: JAMES Z. DAVIS, Judge.

BENCH, Judge

(dissenting):

T 15 I do not agree with the majority that the jury's guilty verdict of fornication and sodomy (instead of rape and forcible sodomy) precludes, as a matter of law, any order of restitution. I therefore dissent.

116 At the outset, I feel it necessary to highlight some facts, and do so because they offer strong support for the trial court's conclusion that Lowder was a victim. First, after Lowder refused to drive defendant to the police station to allow defendant to turn himself in, defendant jumped from the car while it was stopped at an intersection. He then broke into a pet shop, called 911, and told the operator he had hurt someone and wanted to be locked up. Second, the morning after defendant committed the sexual acts, Lowder was bleeding from her anus. The nurse that examined her discovered that Lowder had an abrasion and lacerations both on the anus and between the vagina and anus, that the hymen was swollen and lacerated, and that some of the lacerations were still bleeding. The nurse stated that Lowder exhibited "acute mounting injuries," which were consistent with non-consensual intercourse.

17 The majority argues that because defendant was not convicted of the more serious crimes, a lack of consent could not be established. However, because of how this case was presented to the jury, we know precisely why defendant was not convicted of rape and forcible sodomy. Although the vie-tim undisputedly did not consent, the jury accepted defendant's position that he reasonably believed she did consent. The defense consistently took this position at trial. For example, defense counsel stated to the jury as follows:

An element or part of the crimes of rape and [forcible] sodomy is that the actor knew his partner did not consensually participate in these acts. In the case before you, this means that the State has the burden of proving beyond a reasonable doubt, that Ned Houston knew Heather Lowder did not consent to the sex they engaged in.
After hearing the evidence, if you have any reason to believe that Ned Houston thought Heather Lowder consented, then you must find Ned Houston not guilty of rape and [forcible] sodomy.

[ 18 The trial court instructed the jury, in instruction number 41, as follows:

In the crime[s] of rape and forcible sodomy, criminal intent must exist at the time of the commission of the [crimes]. There is no criminal intent if the defendant had a reasonable and good faith belief that the other person voluntarily consented to engage in sexual intercourse. Therefore if after a consideration of all of the evidence you have a reasonable doubt that the defendant had the necessary intent at the time of the sexual intercoursel[,] you must find him not guilty of rape or forcible sodomy.

In closing argument, recognizing that Low-der did not consent, defense counsel again explained defendant's position as follows:

What [jury instruction number 41] says is that Heather may not have consented. I think it is abundantly clear from her position. We now know she did not feel that she consented. There is no dispute in that. What this says is that even though she says now she did not consent, that at the time the act was occurring, you have to look into the mind of Ned Houston and determine whether, after consideration of all of the evidence, you have a reasonable doubt that he had the necessary intent at the time of the sexual intercourse. If he didn't have the intent, it doesn't matter if she didn't consent-she said she didn't consent-if he had a reasonable and good faith belief that she voluntarily consented. Mistakes happen and we are talking about a big mistake here. But it is not rape and it is not forcible sodomy.
Ned's state of mind is at issue. Was his belief reasonably held that he was engaging in a consensual behavior? ...
The question is not whether she really consented. It is whether he believed she consented. Is it reasonable?

{19 It is clear that the jury did not determine that Lowder consented, but only that defendant reasonably mistook Lowder's response, or lack thereof, for consent. Defendant's convictions of the lesser offenses could therefore have only been based on defendant's mistaken belief, and not on Lowder's actual consent.

120 Given how this case was presented to the jury, the conviction of the lesser offenses does not render Lowder a coparticipant in defendant's crimes. See Utah Code Ann. § 7T6-3-201(1)(e)(ii) (1999) (stating " '[vlictim' does not include any coparticipant in the defendant's criminal activities"). Although defendant may have lacked the mens rea to commit the greater offenses, the preponderance of the evidence clearly demonstrates that Lowder was a victim. As such, she is entitled to restitution for any pecuniary damages she suffered. See Utah Code Ann. § 76-3-201(4)(a)(G) (1999).

121 I would therefore affirm the decision of the trial court ordering defendant to pay Lowder $165.88 in restitution.

      . Utah's fornication statute provides: "Any unmarried person who shall voluntarily engage in sexual intercourse with another is guilty of {orni-cation." Utah Code Ann. § 76-7-104(1) (1999) (emphasis added).

      . The dissent suggests that although the jury did not find beyond a reasonable doubt that Lowder did not consent, Lowder was nevertheless a victim. The dissent states: "we know precisely why defendant was not convicted of rape and forcible sodomy. Although the victim undisputedly did not consent, the jury accepted defendant's position that he reasonably believed she did consent." We disagree. It is improper for us to speculate on why the jury found defendant not guilty of forcible sodomy. We may not look into the reasons behind the verdict of simple sodomy: in convicting defendant of the lesser-included offense, the jury could have believed that Lowder consented or that defendant was reasonably mistaken regarding her consent. Moreover, our appellate review of the cold record can not substitute for the evidence-weighing function of the jury. There was evidence and argument before the jury which would support a finding that Lowder did consent. For example, defendant testified that he felt Lowder nudge him. Lowder did not tell or indicate to defendant that he should stop. Lowder testified that she was able to consent to sexual relations. Defense counsel argued to the jury that Lowder may now claim she did not consent because she felt remorse for failing to keep her religious commitment of abstinence. In sum, defendant cannot be required to pay restitution based on our speculation as to what the jury concluded.

      . We do not reverse and remand for a hearing to determine if Lowder consented to sodomy as defendant would have a constitutional right to a jury in a civil action to determine if defendant tortiously caused Lowder damage. See Utah R. Civ. P. 38, 39.

      . In footnote 2 of the opinion, the majority suggests that defendant urged at trial that Lowder actually consented. That is simply not borne out by the record and, in making the argument, the majority takes the testimony out of context. Defendant has consistently maintained throughout these proceedings only that it was reasonable for him to believe that Lowder consented, not that she actually did consent.