author: HARRIS, Judge:

text:
    MUDDY BOYS, INC., Petitioner, v. DEPARTMENT OF COMMERCE, DIVISION OF OCCUPATIONAL AND PROFESSIONAL LICENSING, Respondent.
    No. 20170938-CA
    Court of Appeals of Utah.
    Filed March 7, 2019
    David R. Nielson and Michael D. Lichfield, Salt Lake City, Attorneys for Petitioner
    Sean D. Reyes and Brent A. Burnett, Salt Lake City, Attorneys for Respondent
    Judge Ryan M. Harris authored this Opinion, in which Judges Michele M. Christiansen Forster and Kate Appleby concurred.
    Opinion
   HARRIS, Judge:

¶1 In this case, we are asked to decide whether a contractor who successfully defends itself in an administrative enforcement action brought against it by the Utah Division of Occupational and Professional Licensing (DOPL) may as the "prevailing party" recover attorney fees and costs from DOPL. See Utah Code Ann. § 58-55-503(5)(d) (LexisNexis 2016). In administrative decisions, DOPL and the Department of Commerce (the Department) each interpreted the governing statute as forbidding such fee awards. Muddy Boys, Inc. (Muddy Boys) challenges those decisions and, although we acknowledge that the statute is not entirely clear, we think the Department has the better of the arguments. Accordingly, we decline to disturb the Department's decision.

BACKGROUND

¶2 Muddy Boys is a drywall contractor that on occasion subcontracted work to a then-licensed company known as ITY LLC (ITY1). Unbeknownst to Muddy Boys, ITY1 lost its contractor's license, and its principal formed a new company known as ITY of Texas LLC (ITY2), but the new company was unable to obtain a contractor's license. ITY2 nevertheless falsely assured Muddy Boys that it was licensed, and offered as proof a state certificate that resembled a license. Muddy Boys apparently fell for the ploy and, under the impression that ITY2 was licensed, continued to subcontract work to the new entity on multiple projects.

¶3 In November 2015, DOPL filed an administrative action against Muddy Boys, accusing it of hiring an unlicensed subcontractor on fifty-eight separate projects, which DOPL contended was a violation of Utah Code section 58-55-501(3), and asserting that Muddy Boys should be assessed a $2,000 fine for each violation, pursuant to Utah Code section 58-55-503(4)(h). In total, DOPL sought to impose a $116,000 fine on Muddy Boys, and also asked for an order placing Muddy Boys's contractor license on probation. As the proceeding progressed, DOPL took the position that these violations were strict liability offenses, and that it did not matter that Muddy Boys may have been unaware that it was hiring an unlicensed subcontractor. DOPL also took the position that Muddy Boys had committed similar offenses before, which increased the fine from $1,000 per occurrence to $2,000 per occurrence. See Utah Code Ann. § 58-55-503(4)(h) (LexisNexis 2016). Muddy Boys maintained that it had never committed any such violations in the past.

¶4 After substantial motion practice, Muddy Boys prevailed on both of these preliminary issues: (1) DOPL eventually conceded that it needed to prove that Muddy Boys intentionally, knowingly, or recklessly hired an unlicensed subcontractor, and (2) the administrative law judge (ALJ) assigned to the case ruled that any violation in this case would be Muddy Boys's first. After these issues were decided, the case went to trial in November 2016 before the ALJ. Following several hours of testimony, the ALJ ordered a lunch recess and, upon returning from lunch, DOPL made a unilateral motion to dismiss the case with prejudice, which the ALJ granted. At the time, DOPL offered no reason for its motion, although Muddy Boys contends in its brief that DOPL made its motion because it "finally recognized that it could not prove recklessness."

¶5 Soon after the case was dismissed, Muddy Boys filed a motion before the ALJ, pursuant to a briefing schedule set by the ALJ, seeking to recover more than $80,000 of attorney fees and costs it incurred in defending against DOPL's action. In response, DOPL did not challenge the amount or reasonableness of the proposed fees, but opposed the motion on legal grounds, asserting that attorney fees were not recoverable at all under the relevant statute. In January 2017, after briefing was complete, Muddy Boys submitted the matter to the ALJ for decision. But the ALJ did not issue a decision on Muddy Boys's motion. Instead, more than five months later, in June 2017, the director of DOPL (the Director) issued a lengthy order denying Muddy Boys's motion on the ground that the applicable statute, which authorized "courts" to award fees, did not allow fee awards by administrative tribunals. See Utah Code Ann. § 58-55-503(5)(d) (LexisNexis 2016).

¶6 After the Director issued his decision, and concerned about whether DOPL had communicated ex parte with the ALJ about the motion and whether the ALJ had drafted (but not issued) a recommended decision, Muddy Boys on two separate occasions asked DOPL to produce copies of any communications it might have had with the ALJ about the motion. DOPL refused.

¶7 Muddy Boys appealed the Director's decision to the Department. In addition to appealing the merits of that decision, Muddy Boys also asked the Department to address two peripheral issues: (a) whether the Director had a conflict of interest, based on the fact that his agency would have had to pay any fee award out of budgeted funds, such that the Director should not have rendered a substantive decision on its motion; and (b) whether DOPL should be compelled to produce any communications it may have had with the ALJ.

¶8 In November 2017, the Department issued an order affirming the Director's decision declining to award fees, but reached that conclusion on completely different grounds, determining that the attorney fees provision in question applied only to proceedings brought pursuant to subsection (5) of Utah Code section 58-55-503, and not to proceedings brought pursuant to subsection (4). In its order, the Department expressly "decline[d] to address" either of the peripheral issues Muddy Boys raised.

ISSUE AND STANDARD OF REVIEW

¶9 Muddy Boys asks us to review the Department's order, and argues that both the Department and the Director erred in concluding that the applicable statute, Utah Code section 58-55-503(5)(d), does not allow Muddy Boys to recover attorney fees and costs. A party's challenge to an administrative agency's analysis of a statute presents an issue of statutory interpretation that we review for correctness. Cook v. Department of Commerce , 2015 UT App 64, ¶ 12, 347 P.3d 5.

ANALYSIS

¶10 The main issue presented here is whether Muddy Boys is entitled to recover the attorney fees and costs it incurred in successfully defending against DOPL's administrative action. "In Utah, attorney fees are awardable only if authorized by statute or contract." R.T. Nielson Co. v. Cook , 2002 UT 11, ¶ 17, 40 P.3d 1119 (quotation simplified). Muddy Boys asserts that it has a statutory entitlement to recover such fees and costs pursuant to the 2014 version of Utah Code section 58-55-503(5)(d), which provides that, "[i]n an action brought to enforce the provisions of this section, the court shall award reasonable attorney fees and costs to the prevailing party." Utah Code Ann. § 58-55-503(5)(d) (LexisNexis 2016).

¶11 Section 503 is comprised of five subsections, each discussing different kinds of penalties, sanctions, and citations that may be imposed for violations of other sections of title 58, part 55. See id. § 58-55-503. Relevant here, subsection (4), among other things, allows DOPL's director to issue administrative citations for certain violations. Id. § 58-55-503(4). Subsection (4) envisions administrative hearings regarding alleged violations, which hearings may be initiated either by DOPL, id. § 58-55-503(4)(a) (giving DOPL the option of requiring an alleged violator to "appear before an adjudicative proceeding" conducted under Utah's Administrative Procedures Act (UAPA) ), or by the alleged violator, id. § 58-55-503(4)(b)(ii) (allowing any person receiving a citation to "contest the citation at a hearing conducted under" UAPA). Subsection (4)(h) authorizes DOPL's director to impose fines of "up to $1,000" for first violations, and "up to $2,000" for subsequent violations. Id. § 58-55-503(4)(h). Subsection (5) states:

(a) A penalty imposed by the director under Subsection (4)(h) shall be deposited into the Commerce Service Account created by Section 13-1-2.
(b) A penalty that is not paid may be collected by the director by either referring the matter to a collection agency or bringing an action in the district court of the county in which the person against whom the penalty is imposed resides or in the county where the office of the director is located.
(c) A county attorney or the attorney general of the state is to provide legal assistance and advice to the director in any action to collect the penalty.
(d) In an action brought to enforce the provisions of this section, the court shall award reasonable attorney fees and costs to the prevailing party.

Id. § 58-55-503(5). The question presented here is whether a party who prevailed in administrative proceedings initiated pursuant to subsection (4) is entitled to recover attorney fees under subsection (5)(d), or whether the attorney fees provision is more limited in scope.

¶12 The question presented is one of statutory interpretation, and when faced with such a question, "our primary goal is to evince the true intent and purpose of the Legislature." State v. Stewart , 2018 UT 24, ¶ 12, 438 P.3d 515 (quotation simplified). "The best evidence of the legislature's intent is the plain language of the statute itself." Id. (quotation simplified). "[A]bsent a contrary indication," we assume "that the legislature used each term advisedly according to its ordinary and usually accepted meaning." Marion Energy, Inc. v. KFJ Ranch P'ship , 2011 UT 50, ¶ 14, 267 P.3d 863. "Wherever possible, we give effect to every word of a statute, avoiding any interpretation which renders parts or words in a statute inoperative or superfluous." Stewart , 2018 UT 24, ¶ 12, 438 P.3d 515 (quotation simplified). Additionally, we "presume that the expression of one term should be interpreted as the exclusion of another, and we seek to give effect to omissions in statutory language by presuming all omissions to be purposeful." Id. ¶ 13 (quotation simplified). However, individual words and subsections cannot be viewed in isolation, but rather must be "construed in connection with every other part or section so as to produce a harmonious whole." Id. (quotation simplified).

¶13 Interpreting the statute at issue, the Department and the Director each reached the same conclusion-that Muddy Boys was not entitled to attorney fees-but they reached that conclusion on different grounds.

In concluding that the statute did not authorize recovery of fees incurred in defending actions before administrative tribunals, the Director focused on the statutory language stating that the "court" shall award fees, and determined that an administrative tribunal is not a court. The Department took a different tack, determining that the provision-despite its use of the term "section" and not "subsection"-authorized fee awards only for actions brought pursuant to subsection (5), and not actions brought pursuant to subsection (4). As it must in order to prevail here, Muddy Boys takes issue with both approaches, asserting that neither is consonant with what it views as the plain meaning of the statutory language.

¶14 For the purposes of our analysis, we assume-without reaching the merits of the question-that the Department's analysis was incorrect, and that the legislature's use of the words "section" and "action" in the first clause of subsection (5)(d) signals an intent that the attorney fees provision could at least potentially apply to all "actions" brought pursuant to any of section 503's various subsections. Even if this is the case, however, Muddy Boys is entitled to recover attorney fees as the prevailing party only if the entity positioned to award them is a "court." See Utah Code Ann. § 58-55-503(5)(d) (authorizing "the court" to award attorney fees).

¶15 Muddy Boys correctly points out that it was the Director-and not the Department-that espoused the position, during the administrative proceedings, that administrative tribunals are not "courts," and that therefore, under subsection (5)(d), no party may recover attorney fees incurred in administrative proceedings (as opposed to court proceedings). Despite having already once passed on adopting that position, the Department now defends it, and argues that the legislature's use of the word "court" makes clear that no administrative agency is authorized to award attorney fees, even to the prevailing party. Muddy Boys disagrees, and argues that the term "court," as used in subsection (5)(d), is broad enough to encompass administrative tribunals.

¶16 As with any question of statutory interpretation, we begin here with an examination of the statutory text. The legislature used the word "court" to describe the entity that is authorized to award fees. Unfortunately, that term is not defined in the relevant statute. Had it been, the definition would have been controlling. See O'Hearon v. Hansen , 2017 UT App 214, ¶ 24, 409 P.3d 85. Where a statutory term is undefined, we must endeavor to determine its plain and ordinary meaning. See Stewart , 2018 UT 24, ¶ 12, 438 P.3d 515. Dictionaries, other sections of the Utah Code, judicial opinions, and treatises may be useful tools in this endeavor. See John Kuhni & Sons Inc. v. Labor Comm'n , 2018 UT App 6, ¶ 15, 414 P.3d 952 ("When the applicable statute contains no definition of a relevant term, we may look to case law to see if courts have provided a definition."); O'Hearon , 2017 UT App 214, ¶ 25, 409 P.3d 85 ("A starting point for a court's assessment of ordinary meaning is the dictionary." (quotation simplified) ); id. ¶ 26 ("When a term is not defined within a particular section of the Utah Code, courts may also look to other sections of the Utah Code to see whether the same term is defined elsewhere."); see also Summit Water Distribution Co. v. Utah State Tax Comm'n , 2011 UT 43, ¶ 16, 259 P.3d 1055 (using a treatise to aid in interpreting constitutional language).

¶17 Muddy Boys points hopefully to certain dictionary definitions of "court," which it contends are broad enough to encompass both judicial courts and administrative tribunals. See, e.g., Court , Black's Law Dictionary (10th ed. 2014) (defining "court" as "[a] tribunal constituted to administer justice," or a "governmental body consisting of one or more judges who sit to adjudicate disputes"); Court , Merriam-Webster, https://www.merriam-webster.com/dictionary/court [https://perma.cc/S485-46CE] (defining "court" as "an official assembly for the transaction of judicial business" or "a place (such as a chamber) for the administration of justice" or "a judge or judges in session" or "an assembly or board with legislative or administrative powers"); Court , Bouvier's Law Dictionary (1934) (defining "court" as "[a] body in the government to which the public administration of justice is delegated").

¶18 But these are not the only definitions of the word "court." Some sources define the term by reference to its possession of inherent judicial powers. See Baumgaertel v. Salt Lake County , 560 P.2d 325, 327 (Utah 1977) (stating that "[t]he term 'court' connotes a governmental institution in which is vested the judicial power of the State"). For example, as has long been recognized, "the power to punish for contempts is inherent in all courts." Chambers v. NASCO, Inc. , 501 U.S. 32, 44, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (quotation simplified). But administrative tribunals do not possess judicial power, including contempt power. See, e.g. , A-Z Int'l v. Phillips , 179 F.3d 1187, 1192 n.5 (9th Cir. 1999) (stating that "only courts of law are empowered to punish contempt committed before an administrative tribunal," and that "most administrative agencies [have] not been vested with contempt powers"); 20 Am. Jur. 2d Courts § 1 (2019) (stating that "administrative agencies do not have the power to punish contempts"). Other sources relatedly define the term "courts" by reference to their placement within our governmental framework. Courts are part of the judicial branch of government, but "administrative agencies are part of the executive branch of government." Barrett v. Tennessee Occupational Safety & Health Review Comm'n , 284 S.W.3d 784, 789 (Tenn. 2009). These distinctions are especially relevant here, because the statute at issue acknowledges that DOPL-an administrative agency-may assess a fine in administrative proceedings, see Utah Code Ann. § 58-55-503(4)(h), but that, due to the inability of administrative tribunals to issue binding judgments or punish contempts, any collection of unpaid fines or penalties must occur in district court, see id. § 58-55-503(5)(b).

¶19 Accordingly, we do not view this as a case in which we can easily glean the answer to our statutory interpretation question from dictionary definitions. See GeoMetWatch Corp. v. Utah State Univ. Research Found. , 2018 UT 50, ¶ 21, 428 P.3d 1064 ("The dictionary alone is often inadequate [in statutory interpretation] because different definitions may support different interpretations." (quotation simplified) ). For assistance in choosing among the competing definitions of the term "court," we look to the specific context in which the term is used here, as well as to judicial opinions, both inside and outside Utah, that have directly grappled with-rather than merely mentioned the term in passing-the meaning of the word "court" in other contexts.

¶20 When examination of the term itself yields inconclusive results, examination of its context often can be helpful. See Stewart , 2018 UT 24, ¶ 13, 438 P.3d 515 (stating that individual words and subsections cannot be viewed in isolation, but rather must be "construed in connection with every other part or section so as to produce a harmonious whole" (quotation simplified) ). In this instance, the term "court" is used in section 503 only in subsection (5), the subsection that discusses the debt-collection actions that are to be filed in district court. When describing the procedure used to establish that a licensee is in violation of a statute and whether a fine or penalty should be imposed, the legislature used the phrase "adjudicative proceeding conducted under" UAPA. Utah Code Ann. § 58-55-503(4). But when describing the procedure for collecting any imposed fines and penalties, the legislature stated that the director could bring "an action in the district court." Id. § 58-55-503(5)(b). And just two subsections later, it vested in the "court"-not the "director" or the "tribunal"-the authority to award reasonable attorney fees and costs to the prevailing party.

Id. § 58-55-503(5)(d). As noted above, the use of the term "court" in this context is potentially significant, given that the proceeding discussed in subsection (5)(b)-one for collection of an unpaid fine or penalty-can be usefully held only in a court possessing judicial power.

¶21 In addition to the clues we can derive from the context in which the term "court" is used in section 503, we also are constrained by our supreme court's opinion in Frito-Lay v. Utah Labor Commission , 2009 UT 71, 222 P.3d 55. In that case, the court confronted the issue of whether the Utah Rules of Civil Procedure apply to administrative adjudications under UAPA, the same statute that governed the administrative proceedings in this case. At issue was a state constitutional provision that limited judicial rulemaking power to rules applicable to " 'the courts of the state.' " Id. ¶ 17 (quoting Utah Const. art. VIII, § 4 ). The court determined that administrative tribunals were not "courts of the state," and therefore concluded that judicially created rules of procedure are not applicable to "administrative adjudications [unless] the governing statute or regulations so provide." Id. ¶ 18 (quotation simplified); see also id. ¶ 17 ("We are powerless to impose our court rules on proceedings outside of state and local courts."); cf. Baumgaertel , 560 P.2d at 327 (stating that "[t]he term 'court' connotes a governmental institution in which is vested the judicial power of the State").

¶22 The Utah Supreme Court's determination, in Frito-Lay , that administrative tribunals are not "courts" is a conclusion almost uniformly shared by courts in other jurisdictions and by legal commentators who have directly addressed the issue. Leading legal encyclopedias state it as a matter of hornbook law that "an administrative tribunal is not a court." See 16A Am. Jur. 2d Constitutional Law § 256 (2019) ; see also 73 C.J.S. Public Administrative Law and Procedure § 35 (2019) (stating that "administrative agencies are not courts, judges, judicial bodies, or officers, and their proceedings are not judicial"). And because of the inherent differences between courts and administrative agencies in terms of judicial power and governmental placement, almost all courts that have directly confronted the issue have rejected the broad definition offered here by Muddy Boys, and have concluded-in many different contexts-that the plain language meaning of the term "court" does not include administrative tribunals.

¶23 Important to this analysis is the fact that administrative agencies are part of the executive (and not the judicial) branch, and do not generally possess judicial power. See, e.g. , Quinton v. General Motors Corp. , 453 Mich. 63, 551 N.W.2d 677, 684-85 (1996) (concluding that the doctrine of separation of powers is not violated when the legislature reopens or sets aside an order entered by an administrative tribunal because "[a]n administrative tribunal is not a court-it is not part of the judicial branch of government"); State ex rel. Stenberg v. Murphy , 247 Neb. 358, 527 N.W.2d 185, 193 (1995) ("Although it is not always clear whether a state agency is part of the executive or legislative department, it is clear that a state agency is not part of the judicial department of government. Administrative agencies are not courts."). Federal courts have determined, for instance, that litigants cannot remove administrative proceedings to federal court because the federal removal statute, 28 U.S.C. § 1441(a), only authorizes removal of cases pending in a "state court" and, using a plain language analysis, the term "state court" does not include administrative tribunals. See Oregon Bureau of Labor & Indus. ex rel. Richardson v. United States W. Commc'ns, Inc. , 288 F.3d 414, 418 (9th Cir. 2002) ("It is undisputed that [the Oregon Bureau of Labor and Industries] is not a court. ... [It] is an administrative agency, albeit one that, like many others, conducts court-like adjudications."); Smith v. Detroit Entm't, LLC , 919 F.Supp.2d 883, 886-87 (E.D. Mich. 2013) (using a plain language analysis to conclude that an administrative agency is not a "state court," and that therefore removal was not allowed). Similarly, courts have also determined, in other statutory contexts, that administrative tribunals do not fall within the ambit of the word "court." See Sierra Club v. Two Elk Generation Partners, Ltd. P'ship , 646 F.3d 1258, 1278 (10th Cir. 2011) ("All but two of the more than thirty courts asked to rule that an administrative tribunal is a 'court' for the purposes of preclusion under the [Clean Air Act] or similar statutes have refused to do so." (quotation simplified) ); Bud Antle, Inc. v. Barbosa , 45 F.3d 1261, 1271 (9th Cir. 1994) (recognizing that the federal Anti-Injunction Act limits a "federal court's power to enjoin proceedings in a State court ," but not "in any other entity of state government, such as a state administrative agency" (quotation simplified) ); Narey v. Dean , 32 F.3d 1521, 1524-25 (11th Cir. 1994) (concluding that the Rooker-Feldman doctrine, which prohibits a federal district court from reviewing a final state court judgment, "applies only to state court decisions, not to state administrative decisions").

¶24 Muddy Boys resists the conclusion to which these authorities point by arguing that administrative tribunals must be "courts" because litigants-and even courts-sometimes colloquially refer to them as such. In support of its point, Muddy Boys refers us to certain instances in this case in which DOPL's counsel referred to the administrative tribunal as a "court" or addressed the administrative law judge as "your honor." Similarly, Muddy Boys directs our attention to a number of unpublished cases in which courts, in passing and without analysis, sometimes refer to administrative tribunals as "courts." See, e.g. , Callister Nebeker & McCullough v. United States , No. 2:14-CV-919-TC, 2015 WL 5918494, at *8 n.11 (D. Utah Oct. 9, 2015) ("The court assumes, without deciding, that an agency administrative court decision may be used to collaterally bar an issue raised in federal district court."); In re Bryon D. Peterson , No. 2:10-CV-741, 2011 WL 772664, at *1 (D. Utah Feb. 28, 2011) (referring in passing to "an Article I administrative court"); Desai v. Panguitch Main St., Inc. , No. 2:04-CV-691DAK-PMW, 2009 WL 54291, at *1 (D. Utah Jan. 8, 2009) (discussing a pending "administrative court decision"); Peterson v. Provo City , 2002 UT App 430U, para. 1, 2002 WL 31839178 (referring to the finding of an administrative body as "the Provo administrative court's finding").

¶25 The manner in which citizens-or even judges-use words in common parlance can certainly play a role in evaluating the definition and interpretation of those words, especially where dictionary definitions fail to supply a conclusive definition. See State v. Rasabout , 2015 UT 72, ¶ 57, 356 P.3d 1258 (Lee, J., concurring) (urging courts to employ "corpus linguistics," a method of interpretation which involves "access[ing] large bodies of real-world language to see how particular words or phrases are actually used in written or spoken English"). But one of the chief benefits of a corpus-linguistics-style analysis is that it offers a systematic, non-random look at the way words are used across a large body of sources. See id. ¶ 84 (Lee, J., concurring) (suggesting that, if corpus linguistics principles are employed, large databases of language usage should be examined, rather than a small sampling, in order to guard against biased selection of sources).

¶26 Here, Muddy Boys offers us only a small, hand-picked sampling of offhand cultural uses of the word "court," and makes no effort to supply us with systematic corpus linguistics data on the topic. Certainly, the Department has not had a chance to respond to any such systematic analysis. And we are uncomfortable engaging any such analysis sua sponte. See id. ¶ 37 (Durrant, J., concurring) (stating that corpus linguistics analysis "may be a useful addition to our traditional methods of statutory construction," but that "it would be best employed by us, or by other judges, only after the parties have raised it and argued it"). In any event, we do not doubt that people sometimes casually refer to administrative tribunals as "courts." After all, those tribunals are often presided over by administrative law judges, to whom respect is owed, and are often asked to adjudicate important issues. But a few examples of this kind of in-passing usage are nowhere near enough to overcome near-unanimity among courts-including our own supreme court in Frito-Lay -that have actually considered the question of whether the word "court," in various statutory and constitutional contexts, was intended to include administrative tribunals.

¶27 Although we acknowledge that the statute is not entirely clear on this point, we conclude that the legislature, in this context, intended to use the term "court" in its narrower and more conventional sense: that "court" refers to the courts that are part of the judicial branch of government and that possess the full array of judicial power, including the power to issue binding orders and judgments and hold violators in contempt. Accordingly, even if the first clause of the attorney fees provision signals its application to potentially the entire section, only "courts"-and not administrative agencies-are empowered to make attorney fee awards.

CONCLUSION

¶28 We are not without sympathy to Muddy Boys's plight. The company was inaccurately accused of committing administrative violations, and threatened not only with sanctions against its contractor license but also with imposition of a six-figure fine. It required the expenditure of over $80,000 in attorney fees, and two significant pre-hearing rulings, for DOPL to realize that it could not and should not proceed with its case. If this were just a question of fairness, we would have no trouble concluding that Muddy Boys should be entitled to recover its attorney fees so that it could be made whole.

¶29 But the question before us is not one of fairness. It is one of statutory interpretation. The statute upon which Muddy Boys rests its claim for attorney fees authorizes only "the court" to award attorney fees, and in this context we conclude that the legislature did not intend the term "court" to include administrative agencies. Accordingly, we decline to disturb the Department's conclusion that Muddy Boys is not entitled to recover the attorney fees it incurred in successfully defending itself against DOPL's administrative prosecution.

      Muddy Boys also asks us to review the two peripheral issues that the Department declined to decide: (a) whether the Director had a conflict of interest that should have prevented him from issuing a decision on the merits of Muddy Boys's motion, and (b) whether DOPL should have been compelled to produce copies of any communications it had with the ALJ, including a copy of any un-issued draft order. Because we conclude that Muddy Boys was not entitled to recover attorney fees under the governing statute, we need not reach these issues.

      In 2017, this statute was substantively amended, and the pertinent subsection was renumbered to Utah Code section 58-55-503(7)(d). Throughout this opinion, we cite the statute in effect at the time of the administrative proceedings, which both parties agree is the provision that applies in this case. We also note that the 2017 amendment contains language that is substantially different from the 2016 version of the statute, which language would have made Muddy Boys's arguments much more difficult. See Utah Code Ann. § 58-55-503(7)(d) (LexisNexis Supp. 2018) (stating that, "[i]n an action brought to collect a penalty" referenced in subsection (7)(a), which action must be brought in "district court" pursuant to subsection (7)(b), "the court shall award reasonable attorney fees and costs to the prevailing party").

      In this case, however, examination of other sections of the Utah Code is unhelpful, because we find conflicting definitions and uses of the term "court." On one occasion, in UAPA itself, the legislature uses the term in a way that makes clear that it was not intended to include administrative tribunals. See Utah Code Ann. § 63G-4-103(1)(b) (LexisNexis 2018) (defining "agency" as "a board, commission, department, division, officer, council, office, committee, bureau, or other administrative unit of this state," but specifically excluding "the Legislature, the courts , the governor, any political subdivision of the state" (emphasis added) ). On another occasion, however, the legislature uses the term "court" in a much broader way that clearly includes administrative tribunals. See id. § 58-67b-117(2) (stating that "[a]ll courts shall take judicial notice of the Compact and the rules in any judicial or administrative proceeding").

      Muddy Boys argues that the legislature's use of the word "court"-rather than "district court"-in subsection (5)(d) signals a more expansive use of the term "court." We are not persuaded. Given the close proximity between subsection (5)(b) and subsection (5)(d), it was not necessary for the Legislature to say "district court" in the second reference to the word "court." Indeed, it appears likely that the use of the single word "court" in subsection (5)(d) was meant as a shorthand reference to the immediately preceding phrase "district court" used in subsection (5)(b). This resort to shorthand references is something the legislature is known to do in other sections of the code. See , e.g. , id. § 63G-4-501 (using "district courts" in subsection (1)(a), and then "court" in three following subsections); id. § 63G-4-402 (using "district courts" in subsection (1)(a), and then "court" in subsequent subsections).


source: Caselaw Access Project

license: Public Domain

text:
    In the INTEREST OF C.C.W. and Z.C.W., Persons Under Eighteen Years of Age.
    R.D.T. and Guardian Ad Litem, Appellants, v. C.L.W., Appellee.
    No. 20170360-CA
    Court of Appeals of Utah.
    Filed March 7, 2019
    Troy L. Booher, Julie J. Nelson, Erin B. Hull, and Shane A. Marx, Salt Lake City, Attorneys for Appellant R.D.T.
    Martha Pierce, Salt Lake City, Attorney for Appellant Guardian ad Litem
    David Pedrazas, Salt Lake City, Attorney for Appellee
    Judges Ryan M. Harris and Michele M. Christiansen Forster jointly authored this Opinion. Judge Gregory K. Orme concurred in the result.
    Opinion
   HARRIS and CHRISTIANSEN FORSTER, Judges:

¶1 R.D.T. (Mother) petitioned the juvenile court to terminate the parental rights of her ex-husband, C.L.W. (Father), as to their children, C.C.W. and Z.C.W. (collectively, the Children). After Mother presented her case-in-chief, Father asked the court to dismiss Mother's petition. The court granted the motion on the ground that-although Father had abandoned the Children and had twice been incarcerated for violently attacking Mother and, later, another woman-it was not in the Children's best interest to terminate Father's parental rights. Mother and the Guardian ad Litem (the GAL) appeal, contending that the court misapplied the law to the facts. In one significant respect, we agree, and therefore vacate the juvenile court's determination and remand for further proceedings consistent with this opinion.

BACKGROUND

¶2 Mother and Father married in September 2005. Z.C.W. was born in August 2006 and C.C.W. in January 2009. Shortly after C.C.W. was born, and when Z.C.W. was three years old, Father brutally attacked Mother and threatened to kill her at gunpoint after the two had an argument about Father's infidelity. Father was charged with aggravated kidnapping and two counts of aggravated assault, and ultimately pled guilty to kidnapping and aggravated assault. The court presiding over his criminal case sentenced him to prison, where he was incarcerated from April 2010 to March 2013.

¶3 While Father was incarcerated, Mother filed for divorce, and a divorce decree was entered in 2010 that awarded Mother sole physical custody of the Children. Mother and Father have each remarried thereafter.

¶4 In 2014, one year after his release from prison, Father violated his parole by leaving the state, attacked another woman in Missouri, and later pled guilty to domestic assault. For this crime, he was incarcerated in Missouri from May 2014 to December 2016.

¶5 In October 2016, just before Father was released from prison for the second time, Mother petitioned the juvenile court to terminate Father's parental rights. Mother filed the petition because she believed, among other things, that Father had abandoned the Children, and because she believed that reintroducing Father into the Children's lives would be disruptive and potentially violent. The case proceeded to trial.

¶6 After Mother presented her case-in-chief, but before he put on any evidence of his own, Father asked the court to dismiss Mother's petition. The juvenile court granted Father's motion and entered findings of fact and conclusions of law, wherein it found that Father had abandoned the Children but that Mother had not shown that it was in the Children's best interest to terminate Father's parental rights.

¶7 The juvenile court first found that there were grounds for termination because Father did not attempt to communicate at all with the Children beginning in 2012, during his first incarceration, and through 2016 when Mother filed her termination petition. Significantly, Father did not attempt to communicate with the Children during the year between his two terms of incarceration, even though an order of therapeutic reintroduction had been entered to reestablish Father's relationship with the Children. The court found that, rather than take advantage of this opportunity, Father left the state, violated his parole, and committed another assault. As a result of Father's neglect of his parental responsibilities, the court found that he destroyed the parent-child relationship. Accordingly, the court found that Father had abandoned the Children.

¶8 The court also found that Mother's testimony regarding Father's attack on her was credible. In the court's words, "Father's crimes were extremely violent, and they caused his victims, [Mother] in particular, unthinkable physical and emotional injuries." Notwithstanding this determination, the court found that Father's history of violence toward women did not make him an unfit parent because those acts were against adults, not children. In particular, the juvenile court stated that, while Father's "crimes may have made him a terrible husband, ... assaulting your spouse or another person[ ]

does not necessarily mean that you are unable to fulfill your duties as a parent." The court found it significant that "[t]here is no evidence that [Father] is an inherently violent person or that he has been violent with his own or other children."

¶9 Having found that there were grounds for termination-namely, abandonment-the court began its best-interest analysis. The court found that under Mother's care, the Children were good students, excelled in extracurricular activities, and enjoyed "security and stability." Somewhat contradictorily, the court then stated that Mother "has not necessarily had consistently stable relationships in her own life which [h]as resulted in some instability or inconsistency in the [C]hildren's lives." The court added that the Children "have experienced a changing landscape of parental figures during their entire lives, and two of these significant changes have nothing to do with [Father]." The court stressed that, at the time, there was no plan for Mother's current spouse to adopt the Children, and therefore "there is no other individual, step-parent or otherwise, available to take over that legal parental role." However, the court also found that Mother's spouse was "developing a parent relationship" with the Children.

¶10 The court found that the Children have not asked about Father and "have no information" about him. But the court expressed its view that "Father's circumstances are different now." Although Father suffers from post-traumatic stress and bipolar disorders, he "obtained treatment for his mental health needs while incarcerated and he currently receives therapy and medication management" through the federal government's Department of Veterans Affairs. Since being released from prison, Father has been "a coach and a mentor to other children." Father now resides with his second wife and two stepchildren. He has also maintained contact with his older daughter who is the Children's half-sister and whom the Children know. The court stressed that Father "does not have the ability to ever assume full custody of the [C]hildren," that he is willing to participate in reunification services, and that he "desires the opportunity to provide love, support and guidance to the [C]hildren." The court specifically found that, if the reunification process were "done properly, Father could be a positive person in the [C]hildren's lives .... There are adequate and protective measures built into the reunification process that take into consideration the [C]hildren's needs." The court concluded that "[t]here is insufficient evidence that [Father] exercising parent-time with the [C]hildren would cause significant harm or risk of harm to the [C]hildren's physical, mental or emotional well-being."

¶11 Also, during its best-interest determination, the court found it significant that the Children might be eligible to receive support payments from the federal government as a result of Father's military service. While Father was incarcerated, Mother was able to apply for an apportionment of his benefits to be used as support for the Children. During Father's incarcerations, the Children obtained approximately $38,000 in support. The court found that these payments amounted to child support.

¶12 After considering all of its findings, the court concluded that there were no "compelling reasons to terminate [Father's] parental rights and that it [was] not strictly necessary to terminate [Father's] parental rights."

ISSUE AND STANDARD OF REVIEW

¶13 Mother and the GAL contend that the juvenile court erred in granting Father's motion to dismiss, asserting that Mother presented clear and convincing evidence that Father's parental rights should be terminated. A court may grant such a motion "if (1) the claimant has failed to introduce sufficient evidence to establish a prima facie case, or (2) the trial court is not persuaded by that evidence." In re J.A. , 2018 UT App 29, ¶ 26, 424 P.3d 913 (quotation simplified).

¶14 In this case, although the juvenile court determined that statutory grounds existed to terminate Father's parental rights, the court granted Father's motion on best-interest grounds, concluding that the evidence Mother presented in her case-in-chief did not provide "compelling reasons" to terminate Father's rights. Because termination decisions "rely heavily on the [trial] court's assessment and weighing of the facts in any given case," its decision "should be afforded a high degree of deference." In re B.R. , 2007 UT 82, ¶ 12, 171 P.3d 435. For us "to overturn the [trial] court's decision the result must be against the clear weight of the evidence or leave [us] with a firm and definite conviction that a mistake has been made." Id. (quotation simplified).

ANALYSIS

¶15 Mother and the GAL contend that the juvenile court misapplied the law to the facts. While expressing no opinion on the ultimate decision to be made in this case, we agree that the juvenile court's analysis was materially flawed and that remand is therefore required.

¶16 Under Utah law, before terminating a parent-child relationship, a court must find (1) that there are grounds for termination and (2) that terminating parental rights is in the child's best interest. Utah Code Ann. § 78A-6-506(3) (LexisNexis 2018). There is no dispute that the juvenile court properly found that, as a result of Father's abandonment of the Children, there were grounds for termination. The dispute solely concerns the court's best-interest analysis.

¶17 Mother first argues that it "is well settled" that where grounds for termination are established, it is "almost automatically" in the child's best interest to terminate parental rights. Because the juvenile court found that Father had abandoned the Children, she asserts that the court should have automatically concluded that it was in the Children's best interest to terminate Father's parental rights.

¶18 We have indeed previously stated that "where grounds for termination are established, the conclusion that termination will be in a child's best interest follows almost automatically ." In re G.J.C. , 2016 UT App 147, ¶ 25, 379 P.3d 58 (emphasis added) (quotation simplified), abrogated by In re B.T.B. , 2018 UT App 157, 436 P.3d 206. But, as we recently concluded in In re B.T.B. , our "almost automatically" line of cases was not supported by statutory language or Utah Supreme Court case law, and we disavowed all of our cases that had relied upon the concept. 2018 UT App 157, ¶ 44 & n.12, 436 P.3d 206. We noted that the "almost automatically" characterization had gone too far, and that the " 'best interest' inquiry requires courts to examine all of the relevant facts and circumstances surrounding the child's situation, not just the specific statutory grounds for termination." Id. ¶ 55. We therefore determined that "the 'best interest' inquiry should be applied in a more thorough and independent manner than some of our cases might suggest." Id. ¶ 2. We therefore reject Mother's contention that, after determining there were grounds for termination, the juvenile court should have automatically concluded that it was in the Children's best interests to terminate Father's parental rights.

¶19 It does not follow, however, that Mother's appeal is unsuccessful. In particular, we are troubled by the juvenile court's treatment of Father's history of domestic violence. Although it recognized that "Father's crimes were extremely violent, and they caused his victims, [Mother] in particular, unthinkable physical and emotional injuries," the juvenile court concluded that "assaulting your spouse or another person[ ] does not necessarily mean that you are unable to fulfill your duties as a parent," and that "when assessing the issue of unfitness to parent ... the focus is on the parent's interactions with children" rather than on the parent's interactions with other adults. While it is true that a history of domestic violence does not necessarily lead to parental termination in every case, we nevertheless find the juvenile court's statements problematic, and emphasize that-even where there is no evidence of violence toward children-it is inappropriate to completely separate or compartmentalize a parent's history of domestic violence toward other adults from the best-interest inquiry regarding that parent's child.

¶20 Such compartmentalization conflicts with the statutory view that a history of violent behavior has relevance, especially when committed against "the other parent of the child." See Utah Code Ann. § 78A-6-316(2)(iv) ; cf. id. § 76-5-109.1 (criminalizing actions of domestic violence committed "in the presence of a child," even if the child is not the direct victim). And both common sense and expert opinion indicate that a parent's acts of domestic violence can have adverse impacts on a child, even if that child is not the direct object of such violence, and even if the child does not directly witness the violence. See Winston J. v. State Dep't of Health & Social Services, Office of Children's Services , 134 P.3d 343, 348 (Alaska 2006) (concluding that a father's acts of domestic violence against his children's mother, coupled with his history of violence against other women, created a substantial risk of harm even though the children had not yet been born when the acts occurred); In re V.V. , 349 S.W.3d 548, 555 (Tex. Ct. App. 2010) (en banc) (concluding that a parent's history of domestic violence, even if not directed at his child, provided support for the trial court's termination decision because this conduct placed his child in jeopardy); Marjory D. Fields, The Impact of Spouse Abuse on Children and Its Relevance in Custody and Visitation Decisions in New York State , 3 Cornell J.L. & Pub. Pol'y 221, 228 (1994) ("Studies show that violence by one parent against another harms children even if they do not witness it."). Indeed, numerous studies clearly show that violence directed at a parent-even where not directed at the children-can have a significant impact on the abused parent's children, especially when the abused parent is the children's primary caretaker. See Michal Gilad, Abraham Gutman & Stephen P. Chawaga, The Snowball Effect of Crime and Violence: Measuring the Triple-C Impact , 46 Fordham Urb. L.J. 1, 4, 9-10 (2019) ; Karen Czapanskiy, Domestic Violence, The Family, and the Lawyering Process: Lessons from Studies on Gender Bias in the Courts , 27 Fam. L.Q. 247 (1993) ; see also Naomi R. Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions , 44 Vand. L. Rev. 1041, 1055-56 (1991) (stating that, "even if they are not physically harmed, children suffer enormously from simply witnessing the violence between their parents," and that "children of abusive fathers are likely to be physically abused themselves"). These notions are not new; more than three decades ago, health professionals were making efforts to tell judges about the potential impact a parent's domestic violence could have on children, emphasizing that children who are exposed to abuse may be taught that violence is an acceptable way to handle issues with loved ones:

Children learn several lessons in witnessing the abuse of one of their parents. First, they learn that such behavior appears to be approved by their most important role models and that the violence toward a loved one is acceptable. Children also fail to grasp the full range of negative consequences for the violent behavior and observe, instead, the short term reinforcements, namely compliance by the victim. Thus, they learn the use of coercive power and violence as a way to influence loved ones without being exposed to other more constructive alternatives.
....
Spouse abuse results not only in direct physical and psychological injuries to the children, but, of greatest long-term importance, it breeds a culture of violence in future generations. Up to 80 percent of men who abuse their wives witnessed or experienced abuse in their family of origin. Abused children are at great risk of becoming abusive parents.

Patricia Ann S. v. James Daniel S. , 190 W.Va. 6, 435 S.E.2d 6, 18 (1993) (Workman, C.J., dissenting) (quoting L. Crites & D. Coker, What Therapists See That Judges May Miss, The Judges' Journal, 9, 11-12, (Spring 1988) ).

¶21 When a parent whose parental rights are subject to being terminated has a history of violence, particularly domestic violence, trial courts should carefully weigh the potential impact of that violence on the children as part of considering whether termination of the parent's rights would be in the best interest of the children, even if the parent has not visited any of that violence directly upon the children. See In re B.T.B. , 2018 UT App 157, ¶ 47, 436 P.3d 206 (stating that "the 'best interest' inquiry is broad, and is intended as a holistic examination of all of the relevant circumstances that might affect a child's situation"); see also In re K.K. , 2017 UT App 58, ¶ 4, 397 P.3d 745 (per curiam) (explaining that Mother's "unresolved domestic violence issues" made it "unsafe for the children to be around her"); In re R.T. , 2013 UT App 108, ¶ 7, 300 P.3d 767 (per curiam) (concluding that it was in the children's best interest to terminate their father's parental rights given his history of violence and anger issues).

¶22 In this case, Father not only attacked two women, but he brutally beat Mother, choked her to the point of momentary unconsciousness, and threatened to kill her at gunpoint. Yet in its findings, the juvenile court brushed aside Father's violent history and the risk that Father's conduct might pose to the Children, emphasizing the fact that there was no evidence that Father had ever been violent toward children. We find such compartmentalization troubling, especially given the fact that individuals prone to domestic violence tend to reoffend. See United States v. Bryant , --- U.S. ----, 136 S.Ct. 1954, 1959, 195 L.Ed.2d 317 (2016) ("As this Court has noted, domestic abusers exhibit high rates of recidivism, and their violence 'often escalates in severity over time.' ") (quoting United States v. Castleman , 572 U.S. 157, 160, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014) ); see also Linell A. Letendre, Beating Again and Again and Again: Why Washington Needs a New Rule of Evidence Admitting Prior Acts of Domestic Violence , 75 Wash. L. Rev. 973, 977-78 (2000) (stating that a person's past violent behavior is "the best predictor of future violence," because "studies demonstrate that once violence occurs in a relationship, the use of force will reoccur in 63% of these relationships," and that "even if a batterer moves on to another relationship, he will continue to use physical force as a means of controlling his new partner" (quotation simplified) ).

¶23 Of course, not every parent who has committed an act of domestic violence deserves to have his or her parental rights terminated. Each case must be judged on its own merits, and in appropriate cases a trial court might reasonably find, among other things, that the domestic violence issues in the case are not sufficient to counsel in favor of termination; that the parent in question has taken meaningful steps to change his or her life and make amends; that under the circumstances presented there is no significant risk of continued violence; or that, even when all incidents of past violence are fully considered, the children would be better off with the parent still playing an active role in their lives than they would be if the parent's rights were terminated. But the trial court must carefully explain its reasons for so finding, and it is not sufficient to say, as the juvenile court essentially did here, that acts of domestic violence are not relevant in a termination case simply because none of the violence was directly visited upon the Children.

¶24 Again, we recognize that the juvenile court made these comments in the context of assessing Father's fitness as a parent under statutory grounds. While the juvenile court did not repeat these comments in the "best interest" portion of its analysis, and while the juvenile court did make general findings that Father's "circumstances are different now" because, among other things, Father has "obtained treatment for his mental health needs" and "currently receives therapy," the juvenile court never directly grappled with Father's violent history in its best interest analysis. It may be that the juvenile court espouses the view that, in this case, the steps Father has taken to address his situation have ameliorated any risk that his violent past might pose to his successful reintroduction into the Children's lives. But the juvenile court did not expressly explain why it believes this is so and, evaluated against the backdrop of the compartmentalizing comments it made in the course of its "fitness" analysis, we cannot construe the juvenile court's best-interest discussion as containing adequately articulated reasons for its decision.

CONCLUSION

¶25 Accordingly, we conclude that the juvenile court's best-interest determination was materially flawed, because the court did not appropriately consider what effect, if any, Father's history of domestic violence might have on his efforts to reestablish a relationship with the Children. We therefore vacate the juvenile court's order dismissing Mother's petition, and remand for proceedings consistent with this opinion. We do not, however, make any effort to urge the juvenile court to reach one conclusion or another upon reconsideration. Given the juvenile court's superior position and specialized training and experience in matters involving children, supported factual findings from the juvenile court on remand, entered after adequately considering all of the proper factors, are, of course, always entitled to deference by appellate courts.

      While the juvenile court's finding is accurate, it lacks detail and uses relative terms. Mother's testimony regarding the attack, credited by the juvenile court, bears fuller explication. The attack lasted over two hours, during which Father (1) grabbed Mother by the neck and threw her against a wall "from one place to the other," denting the sheetrock; (2) repeatedly choked Mother to the point that she could not breathe, causing her to gasp for air and briefly lose consciousness; (3) ordered her to the basement, where he interrogated her at gunpoint; (4) punched, slapped, and hit Mother in the face and head with a gun; (5) threatened to kill Mother with the gun; (6) smothered Mother's face in a pillow, causing Mother to gasp for air, and pressed the gun against the pillow and asked, "Now that you think you're going to die, are you finally going to tell me the truth?"; and (7) after leaving the house in a car with Mother to take formula and diapers to Mother's parents who were watching the Children, threatened to kill Mother if she left the car.

      At the time he made his motion, Father cited rule 41(b) of the Utah Rules of Civil Procedure. A previous version of that rule stated that, "[i]n a bench trial, after the plaintiff 'has completed the presentation of [her] evidence, the defendant ... may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.' " See In re J.A. , 2018 UT App 29, ¶ 26, 424 P.3d 913 (quoting the 2015 version of rule 41 of the Utah Rules of Civil Procedure ). As we noted in In re J.A. , rule 41(b) was amended in 2016, and now speaks only of motions to dismiss for failure to prosecute. Id. ¶ 26 n.4 ; see also Utah R. Civ. P. 41(b). Under the current version of the rules, it is rule 52(e) of the Utah Rules of Civil Procedure that allows a party to move for dismissal at the close of the other side's evidence. See Utah R. Civ. P. 52(e) ; see also id. advisory committee note (stating that "the 2016 amendments move a provision found in Rule 41(b) to this rule"). In this case, the parties and the juvenile court appear to have been applying the 2015 version of the rules in making and adjudicating the motions at issue. But in any event, the standard of review is the same, regardless of whether the motion is grounded in rule 41(b) or rule 52(e).

      The briefing and argument in this case took place prior to the issuance of our opinion in In re B.T.B. , 2018 UT App 157, 436 P.3d 206. After that opinion issued, the GAL filed a motion (which Mother joined) for "emergency relief" asking us to stay proceedings in this case "pending resolution" of petitions for rehearing in In re B.T.B. We decline that invitation, and hereby deny the motion.

      In the context of assessing the severity of Father's violent acts toward Mother, the juvenile court also mentioned that, after Father assaulted Mother, Father "continued to reside in the family home with" Mother and the Children for another few weeks, and that even after their separation, Father and Mother "continued in a sexual and/or romantic relationship" for a while, and noted that "[a]t no time" during this period did Mother "prohibit [Father] from taking the [C]hildren" or "seek a child protective order prohibiting" Father from exercising parent-time. We caution trial courts to avoid unnecessarily drawing negative inferences from a battered spouse's decision to maintain a relationship with the batterer, or from a battered spouse's decision to decline to immediately seek help. In many instances, victims of domestic violence stay in abusive relationships, at least for a time, because they may not feel like they have any other option, or because they may feel they are at least partly to blame for the violence. See Mary Ann Dutton, Understanding Women's Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome , 21 Hofstra L. Rev. 1191 (1993) ; Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation , 90 Mich. L. Rev. 1, 6 (1991).

      We recognize that the juvenile court made these comments in the context of analyzing whether Father was "unfit" to parent the Children, which is one of the statutory grounds for termination, Utah Code Ann. § 78A-6-507(1)(c) (LexisNexis 2018), rather than in the context of analyzing whether termination of Father's parental rights would be in the Children's best interest. The juvenile court was incorrect in refusing to take Father's history of domestic violence into account when considering Father's fitness to parent the Children, because our legislature expressly requires courts to consider a parent's "history of violent behavior" against anyone-not just children-in assessing a parent's fitness. See id. § 78A-6-508(2)(f) (mandating that, "[i]n determining whether a parent ... [is] unfit ... the court shall consider ... [the parent's] history of violent behavior"); see also, e.g. , In re A.C.M. , 2009 UT 30, ¶ 27, 221 P.3d 185 (affirming a juvenile court's decision to take into account a parent's violence toward his "domestic partner[s]," even though there was no evidence of violence toward children); In re K.C. , 2014 UT App 8, ¶ 4, 318 P.3d 1195 (per curiam) (affirming a juvenile court's decision to take into account a parent's commission of "domestic violence in the presence of the children," even though no mention was made of violence toward the children themselves). But in addition, for the reasons we explain herein, a parent's history of domestic violence, even against other adults, is a factor that the court should consider as part of the "best interest" analysis, even if that history might also be relevant to one or more of the statutory grounds for termination. Cf. , e.g. , In re B.T.B. , 2018 UT App 157, ¶ 55, 436 P.3d 206 (stating that "[t]he 'best interest' inquiry requires courts to examine all of the relevant facts and circumstances surrounding the child's situation").

      Relevant literature indicates that men who saw their mothers abused are more than twice as likely to abuse their spouses as adults, and that women who saw their mothers abused are twice as likely to be victimized as adults. See Matthew Robins, State of Fear: Domestic Violence in South Carolina , 68 S.C. L. Rev. 629, 661 (2017) (citing Charles L. Whitfield et al., Violent Childhood Experiences and the Risk of Intimate Partner Violence in Adults , 18 J. Interpersonal Violence 166, 178 (2003) ); see also Michal Gilad, Abraham Gutman & Stephen P. Chawaga, The Snowball Effect of Crime and Violence: Measuring the Triple-C Impact , 46 Fordham Urb. L.J. 1, 10 (2019) ("The rattling presence of violence in the home can also lead to erroneous beliefs: the conceptualization that aggression is a functional and legitimate part of intimate relationships and family dynamics, and the belief that men are intrinsically dominant and privileged.") (citing Sandra A. Graham-Bermann & Victoria Brescoll, Gender, Power and Violence: Assessing the Family Stereotypes of the Children of Batterers , 14 J. Fam. Psychol. 600, 605 (2000) ).

      In this case, as noted above, Father did reoffend, and did so within one year of his release from prison on his first offense.

      Mother raises two other potential flaws with the juvenile court's analysis. First, she asserts that the juvenile court focused too heavily on Mother's fitness as a parent, in violation of our earlier pronouncement that "the best interests prong of the termination statute does not anticipate an evaluation of a parent whose fitness has not been challenged by a cross-petition to terminate parental rights." See In re A.M. , 2009 UT App 118, ¶ 23, 208 P.3d 1058. At issue in that case was an effort by the parent whose rights were at issue to subpoena the other parent's "health records" in an effort to prove her unfitness. Id. ¶¶ 18, 21. We affirmed the juvenile court's order quashing that subpoena, on the grounds that those health records were irrelevant because the other parent's fitness was not at issue. Id. ¶ 23. That case is easily distinguishable from this one, in that here, the juvenile court's discussion of Mother's living situation came in the context of assessing whether the Children were "stable," and in evaluating Mother's own argument that adding Father back into their lives would affect their stability. Taking such things into account as part of the holistic "best interest" inquiry is entirely proper, and a far cry from, for instance, giving the respondent in a termination case access to the petitioner's health records.
      Second, Mother asserts that the juvenile court relied too heavily on the possibility that termination of Father's parental rights might result in the Children losing any right to receive any of Father's veterans' benefits. This issue was not well briefed by the parties from a legal standpoint, and its resolution also depends upon factual issues not specifically found by the juvenile court, which phrased its findings on this issue in hypothetical, conditional terms (e.g., the Children "would potentially" lose veterans' benefits because Father "could object" to their receiving them). To the extent this issue remains relevant on remand, the juvenile court may invite the parties to explore it in a more meaningful way.


author: HAGEN, Judge:

text:
    Heather MARROQUIN, Appellant, v. Renson Amilicar MARROQUIN, Appellee.
    No. 20170454-CA
    Court of Appeals of Utah.
    Filed March 14, 2019
    Steve S. Christensen and Clinton R. Brimhall, Salt Lake City, Attorneys for Appellant
    James H. Woodall and Deborah L. Bulkeley, South Jordan, Attorneys for Appellee
    Judge Diana Hagen authored this Opinion, in which Judges Kate Appleby and Jill M. Pohlman concurred.
    Opinion
   HAGEN, Judge:

¶1 In 2005, Heather and Renson Marroquin were married. Prior to the marriage, Renson owned and operated a vending machine business. After Heather filed for divorce in 2014, the value of that business became a central question in valuing the marital estate and distributing its assets. On appeal, Heather challenges the district court's valuation of the business, its failure to impose a due date or interest rate for payment of her half of the marital assets, and its denial of her motion to amend its findings and for a new trial. Because we conclude the district court did not exceed its discretion with respect to any of the issues raised by Heather on appeal, we affirm.

BACKGROUND

¶2 Before marrying Heather in 2005, Renson founded Deluxe Vending LLC and now owns a 99% interest in that company. Deluxe Vending operates eighty-seven vending machines and three "micro-markets" in numerous locations throughout Salt Lake City, Utah. For the first year of their marriage, and two summers following that, Heather helped Renson stock the vending machines throughout the day and count the money collected. Once she completed her education, Heather obtained other employment, but she continued to "help [Deluxe Vending] sporadically as needed or as requested."

¶3 Renson managed and conducted all of Deluxe Vending's business operations and had no other employees. He established personal relationships with the property owners, which allowed him to continue to operate his vending machines and micro-markets at their respective locations. Most of Deluxe Vending's contracts are on a month-to-month basis and can be replaced by other vendors at any time after the monthly contract ends.

¶4 In 2014, Heather filed for divorce. The primary issue at the parties' divorce trial was the value of Deluxe Vending and division of its assets. Each party obtained his or her own expert to testify to the business's value. Heather's expert is a certified public accountant who had "no credentials in the area of business valuation." Heather's expert initially valued Deluxe Vending between $725,000 and $900,000 but increased "his estimate to a range of $1,229,317 to $1,530,803" just before trial by using an "income approach to value the business," which includes "goodwill associated with the business." At trial, Heather's expert reduced his estimated value of Deluxe Vending to $700,000.

¶5 Renson's expert is a certified public accountant, with accreditations in business valuation and as a senior appraiser. He "devotes approximately 75% of his practice to performing business valuations and testifying as an expert." Following accepted industry practices of using the net asset approach, Renson's expert valued Deluxe Vending at $152,937. The value was determined by subtracting the fair market value of liabilities from the fair market value of assets and then subtracting "between a 5 and 10 percent marketability discount." In this case, Renson's expert "went on the low end and took [a] 5 percent" discount. Renson's expert opined that Deluxe Vending did not have any "institutional goodwill," but only personal or professional goodwill attributed solely to Renson. The expert explained that, "without the relationships that exist for the places where the vending machines are located, there is no potential for goodwill. There's no income earning capacity that would be in excess of the value of the assets." At trial, Renson's expert testified that Heather's expert was unreliable and opined that he "failed to follow accepted industry practices, that he relied on inaccurate information, and that he made unreasonable assumptions."

¶6 In its findings of fact, the court rejected Heather's expert's valuation and found Renson's expert to be more credible. It found that the business was worth $152,937, awarded Deluxe Vending to Renson, and ordered him to pay Heather "one-half of the value, or $76,468.50." The court also awarded alimony to Heather and divided the equity of certain personal property in half. The court entered the divorce decree consistent with those findings of fact.

¶7 Heather filed a motion to amend the court's findings of fact or for a new trial (the post-judgment motion). In the post-judgment motion, Heather argued that the court erred in determining the value of Deluxe Vending because Renson testified at trial that some of the business's liabilities had been paid off since Renson's expert prepared the valuation report. Relatedly, she argued that the court should amend its findings to account for the institutional goodwill of the business rather than attribute the goodwill solely to Renson. Heather asked the court to set a date for Renson's payment to Heather for one-half the value of Deluxe Vending and the personal property award. She also asked the court to make findings "regarding Renson's dissipation of marital funds." Finally, she requested a new trial "because the court's method of ruling was irregular and surprising."

¶8 The court found that the post-judgment motion was Heather's "attempt[ ] to modify and add additional terms that were not presented as evidence at trial nor were they presented when [she] was given an additional opportunity to provide information to the Court due to lack of information and evidence at trial." Based on her "failure to provide the information as directed within the time frames set, the Court was left with only the information provided at trial upon which to make a determination." The court therefore denied the post-judgment motion.

¶9 Heather appeals.

ISSUES AND STANDARDS OF REVIEW

¶10 Heather raises three principal issues on appeal. First, Heather claims that the district court's valuation of Deluxe Vending was clearly erroneous in two respects. She contends the court erroneously determined that any goodwill associated with Deluxe Vending was personal to Renson. Relatedly, she contends the court erred in accepting the appraisal value assigned by Renson's expert to Deluxe Vending several months before trial given that Renson testified at trial that the liabilities had been reduced. A district court is "entitled to a presumption of validity in its assessment and evaluation of evidence," and we defer to the district court's "findings of fact related to property valuation and distribution unless they are clearly erroneous." Taft v. Taft , 2016 UT App 135, ¶ 63, 379 P.3d 890 (quotation simplified). We "will not disturb a court's distribution of marital property unless it is clearly unjust or a clear abuse of discretion." Id. ¶ 32.

¶11 Second, Heather contends the court erred when it failed to set a due date or impose an interest rate on Renson's payment to Heather for one-half the value of Deluxe Vending and the one-half interest award of personal property. District courts "have considerable discretion in determining property distribution in divorce cases," Stonehocker v. Stonehocker , 2008 UT App 11, ¶ 8, 176 P.3d 476 (quotation simplified), and we will not disturb the district court's determination absent a clear abuse of discretion, Taft , 2016 UT App 135, ¶ 59, 379 P.3d 890.

¶12 Third, Heather contends the district court erred in denying the post-judgment motion because "the transcript showed that the district court had halted or interfered with [her] attempts to elicit testimony regarding dissipation of marital assets." We will reverse a district court's denial of a motion for a new trial or to amend the findings and judgment for abuse of discretion. Bergmann v. Bergmann , 2018 UT App 130, ¶ 12, 428 P.3d 89. "To the extent that our review turns on facts presented at trial, we defer to the trial court's underlying findings of fact, which shall not be set aside unless clearly erroneous." Id. (quotation simplified).

ANALYSIS

I. The Value of Deluxe Vending

¶13 Heather contends the district court made two errors when calculating the value of Deluxe Vending. First, she argues that the court should have included institutional goodwill in its calculation. Second, she argues the court's calculations of the value of the company should have taken into consideration Renson's testimony regarding the reduction in liabilities of Deluxe Vending. We address each argument in turn and conclude that the court did not err when calculating the value of Deluxe Vending.

A. Goodwill of Deluxe Vending

¶14 Heather contends the district court "should have included goodwill value in its calculations" of the value of Deluxe Vending. "In a divorce proceeding, determining and assigning values to marital property is a matter for the trial court and this court will not disturb those determinations absent a showing of clear abuse of discretion." Dunn v. Dunn , 802 P.2d 1314, 1317 (Utah Ct. App. 1990) (quotation simplified). "Marital property is ordinarily all property acquired during marriage and it encompasses all of the assets of every nature possessed by the parties, whenever obtained and from whatever source derived." Id. at 1317-18 (quotation simplified). Here, Renson does not dispute that Deluxe Vending is marital property subject to division. See id.

¶15 When valuing a business in marriage dissolution cases, district courts must consider whether goodwill is institutional or personal to one spouse. See Sorensen v. Sorensen , 839 P.2d 774, 775 (Utah 1992) (agreeing with "jurisdictions that do not treat [personal] goodwill as a marital asset to be divided"). Institutional, or enterprise, goodwill "is based on the intangible, but generally marketable, existence in a business of established relations with employees, customers and suppliers, and may include factors such as a business location, its name recognition and its business reputation."See DeSalle v. Gentry , 818 N.E.2d 40, 47 (Ind. Ct. App. 2004). Personal goodwill is based on an individual's "reputation for competency" and is not subject to distribution upon divorce. Sorensen , 839 P.2d at 775-76 ; see also Stonehocker v. Stonehocker , 2008 UT App 11, ¶ 44, 176 P.3d 476 ("There can be no good will in a business that is dependent for its existence upon the individual who conducts the enterprise and would vanish were the individual to die, retire or quit work." (quotation simplified) ).

¶16 Here, the district court concluded that the only goodwill associated with Deluxe Vending was personal to Renson. The court found that Deluxe Vending was the type of sole proprietorship where the owner's goodwill is not a marital asset subject to division. Accordingly, the court did not consider Renson's personal goodwill in calculating the value of Deluxe Vending.

¶17 Heather argues that Deluxe Vending is distinguishable from the type of sole proprietorship where goodwill is not subject to division. For example, she cites Sorensen , in which the district court valued a sole-practitioner dental practice at $100,060 and determined that $62,560 of that value represented the personal "goodwill" of the husband. 839 P.2d at 775. The husband appealed the district court's decision, arguing that it "should not have included [personal] goodwill and reputation in its valuation of his dental practice." Id. Our supreme court determined that "the goodwill of a sole practitioner is nothing more than his or her reputation for competency." Id. "It may well be that if the sole practitioner retires at the time of a divorce and his or her practice is actually sold and an amount is realized over and above the value of the tangible assets, the full amount should be viewed as marital property." Id. But where no actual sale of the business takes place, personal goodwill "should not be treated differently from a professional degree or an advanced degree," and requiring the sole practitioner to pay the spouse "part of the value ascribed to the [personal] goodwill" would be inequitable. Id. at 775-76.

¶18 Relying on Sorensen , Heather asserts the district court made "no findings about [Renson] having a reputation that matters to the business's operation." Both the district court's oral and written findings of fact refute this assertion. The court specifically found that "the goodwill of Deluxe Vending is solely attributable to Renson's work, his efforts, and his reputation for competency" based on Renson "being the face of the business" and the "personal relationships" he has made with the property owners that have allowed him to continue to conduct business, largely on a month-to-month basis.

¶19 Deluxe Vending is more akin to the car dealership at issue in Stonehocker . In that case, the district court determined that a used car dealership formed by the husband during the course of the marriage was "in reality a sole proprietorship" and the success of the used car dealership was "solely attributable to [the husband's] personal, professional reputation." Stonehocker , 2008 UT App 11, ¶¶ 6, 40, 43, 176 P.3d 476. This court agreed that the used car dealership was "essentially [the husband's] sole proprietorship," because the wife had "only token involvement" in the business, and its success was "the product of [the husband's] reputation, goodwill, and sole efforts." Id. ¶¶ 40-42 (quotation simplified). The district court therefore correctly concluded that the value of the used car dealership "did not include any amount for goodwill." Id. ¶ 43.

¶20 Here Renson owns 99% of Deluxe Vending and is the only employee of the business. He remains in contact with the entities that continue to allow Deluxe Vending to operate vending machines and micro-markets on the properties on a month-to-month basis. Heather's involvement in the business was minimal and limited to stocking the machines and counting the money at the beginning of the marriage. Thus, Renson is akin to the sole proprietor in Stonehocker and Heather had "only token involvement" in Deluxe Vending's operations. See id. ¶¶ 40-41 (quotation simplified).

¶21 Heather asserts that "anybody could step into [Renson's] shoes and carry on with the business under its name and with its assets," but she has not marshaled any record evidence that would support that assertion. See id. ¶ 9 (explaining that when a party challenges the findings of fact, the party "must first marshal the evidence in support of the findings and then demonstrate that the findings are unsupported by substantial evidence" (quotation simplified) ). We therefore conclude that the district court did not exceed its discretion when it did not include institutional goodwill in calculating the value of Deluxe Vending.

B. Decreased Liabilities of Deluxe Vending

¶22 Heather contends the district court erred by basing its valuation of Deluxe Vending on the expert reports created prior to trial. Heather argues that the court should have valued the business as of the exact date of the divorce by accounting for Renson's trial testimony that he had further paid down the business's liabilities in the intervening months.

¶23 "Determining and assigning values to marital property is a matter for the trial court, and [we] will not disturb those determinations absent a showing of clear abuse of discretion." Ebbert v. Ebbert , 744 P.2d 1019, 1023 (Utah Ct. App. 1987). Because Heather did not argue at trial that the district court should adjust the appraised value of Deluxe Vending based on a reduction in its liabilities, she cannot show an abuse of discretion.

¶24 Here, both parties submitted expert reports regarding the value of Deluxe Vending several months before trial. A valuation is necessarily a snapshot in time and both parties relied on the experts' valuations when preparing for trial. Similarly, the district court relied on those expert reports and determined that Renson's expert's valuation was more credible. In the post-judgment motion, Heather cited portions of Renson's testimony, noting that some of Deluxe Vending's loans had been paid off or reduced. Heather argued that the court "should amend its findings consistent with the evidence at trial" by increasing the value of Deluxe Vending to account for the decrease in liabilities. Raising this factual issue for the first time in a post-judgment motion to amend the court's findings of fact did not give Renson the opportunity to present evidence as to whether there were other changes that affected the valuation of Deluxe Vending, such as a decrease in assets. And Heather has failed to demonstrate that she could not have requested the court consider evidence outside of the experts' valuation reports at trial. Cf. Hudema v. Carpenter , 1999 UT App 290, ¶ 40, 989 P.2d 491 (affirming the district court's denial of a post-judgment motion for a new trial because "the evidence offered [in the post-judgment motion] could have been produced at trial with reasonable diligence"). Indeed, Heather elicited the testimony from Renson, but never asked the court to consider it when calculating the value of Deluxe Vending.

¶25 Heather cannot establish that the district court erred by not reducing the appraised value of Deluxe Vending, sua sponte, based on trial testimony regarding decreased liabilities. Nor has she shown that the district court abused its discretion in denying her post-judgment motion to amend its findings on grounds not presented at trial.

II. Failure to Set Due Date or Interest Rate for Heather's Award of Marital Assets

¶26 Heather contends the district court "should have included an interest rate or due date" for her award of marital assets. Heather asserts that the court's failure to do so places her "at such a disadvantage" that it amounts to "an abuse of discretion." We disagree.

¶27 When the district court assigns a value to an item of marital property, the court must equitably distribute it "with a view toward allowing each party to go forward with his or her separate life." Stonehocker v. Stonehocker , 2008 UT App 11, ¶¶ 13, 15, 176 P.3d 476. We will not disturb the district court's payment determination absent a clear abuse of discretion. Taft v. Taft , 2016 UT App 135, ¶ 59, 379 P.3d 890 ; see also Stonehocker , 2008 UT App 11, ¶ 8, 176 P.3d 476.

¶28 Heather relies exclusively on Taft to support her argument. In Taft , the district court granted the husband "discretion to pay [the] judgment all at once or in monthly installments for a period of time." 2016 UT App 135, ¶ 57, 379 P.3d 890 (quotation simplified). The court did not order any minimum payment and provided that if the husband chose to make monthly payments, he "shall begin equal monthly payments, and the duration of such monthly installment payments shall not exceed a period of ten years, whereupon the balance shall be paid to [the wife] in one final balloon payment." Id. (quotation simplified). On appeal, the wife argued that this payment strategy was inequitable because it allowed the husband "to receive full immediate enjoyment of the assets awarded to him as well as the full use of [the wife's] share of the assets while [the wife was] deprived of meaningful access to her award." Id. ¶ 58 (quotation simplified). This court agreed, determining that the husband was "given nearly complete discretion regarding the payment to [the wife] of her share of the marital property over a ten-year period" at a low interest rate and that the wife, who had "been granted a substantial judgment in token of her share of the marital real property," had "no ability to collect, access, or substantially enjoy until ten years pass[ed], unless [the husband] decide[d] otherwise." Id. ¶ 59. This court therefore concluded "that the terms of [the wife's] property judgment [were] inequitable and that the trial court exceeded its discretion by structuring the terms of [the wife's] property judgment as it did." Id. ¶ 62.

¶29 This case is distinguishable from Taft . The district court in Taft gave the husband discretion to delay payment to the wife in an inequitable way. Unlike the spouse in Taft , Heather does not lack the "ability to collect, access, or substantially enjoy" her award of marital property. See id. ¶ 59. Instead, she can collect on the judgment just as any other judgment creditor. See Utah R. Civ. P. 62(a) (providing that "[n]o execution or other writ to enforce a judgment may issue until the expiration of 14 days after entry of judgment, unless the court in its discretion otherwise directs"). Heather acknowledges this ability in her brief on appeal, stating that Renson "can hold onto the assets and reap the benefits while [Heather] waits for payment or expends time, effort, and money to enforce the divorce decree ." (Emphasis added.) Because Heather has not yet attempted to enforce the divorce decree, she cannot show that she has been deprived of meaningful access to her award or prevented from going forward with her separate life. We therefore conclude the district court did not abuse its discretion when it did not impose a due date or interest rate for the payment of Heather's award of marital assets.

III. Irregularity of Proceedings

¶30 Finally, Heather contends the district court erred in denying her motion for a new trial based on an irregularity of the proceedings. Heather argues that she attempted to establish a claim that Renson dissipated marital assets, but the court declined to address it and "cut off [Heather's] attempts to elicit testimony on the subject."

¶31 Following a bench trial, "a new trial may be granted to any party on any issue" if, among other circumstances, "there was an "irregularity in the proceedings ... or abuse of discretion by which a party was prevented from having a fair trial." Utah R. Civ. P. 59(a)(1). "Because the grant of a new trial is ordinarily left to the sound discretion of the trial court, we will review the court's decision in this regard under an abuse of discretion standard." Child v. Gonda , 972 P.2d 425, 429 (Utah 1998). And "absent a showing by the appellant that the trial outcome would have differed, every reasonable presumption as to the validity of the [judgment] below must be taken as true upon appeal." Id.

¶32 Here, Heather asserts that the district court, "on several occasions ... cut off [Heather's counsel's] questioning" of Renson regarding the claim of dissipation of marital assets. She claims that, on one occasion, Heather's counsel was "attempting to elicit testimony related to [Renson's] credibility and the finer details of the evidence," but the court "cut off the questioning" and "asked [Renson] point blank if he was hiding money." Heather argues that this was "uniquely harmful" because it "was an unfair boon to [Renson]" and that the effect was to "shield[ ]" Renson "from questions about his waste of marital assets." We disagree.

¶33 When determining "whether a party should be held accountable for the dissipation of marital assets," there are "a number of factors that may be relevant," including (1) "how the money was spent, including whether funds were used to pay legitimate marital expenses or individual expenses";

(2) "the parties' historical practices"; (3) "the magnitude of any depletion"; (4) "the timing of the challenged actions in relation to the separation and divorce"; and (5) "any obstructive efforts that hinder the valuation of the assets." Rayner v. Rayner , 2013 UT App 269, ¶ 19, 316 P.3d 455. "While marital assets are generally valued as of the date of the divorce decree, where one party has dissipated an asset, hidden its value or otherwise acted obstructively, the trial court may, in the exercise of its equitable powers, value a marital asset at some time other than the time the decree is entered, such as at separation." Parker v. Parker , 2000 UT App 30, ¶ 13, 996 P.2d 565 (quotation simplified).

¶34 Our review of the record shows that Heather's counsel asked questions about spending money, but never directly asked Renson whether the money came from either the company account or a joint checking account. See id. Instead, Heather's counsel asked questions about where, when, and how much money Renson spent. The court interjected, stating, "Let's just cut to the chase, do you have any other squirrel holes or nest eggs that you've been hiding or putting money in ... that you didn't report in your financial declarations and did not disclose to [c]ounsel?" Renson said he did not. Heather's counsel then pursued a different line of questioning. When Heather's counsel attempted to ask Renson again about where and when he spent his money, Renson's counsel objected as to relevance, arguing that "unless [Heather] ties it to a business expense that's been improperly claimed, he can spend his money on anything he wants." See id. Heather's counsel argued that it was relevant to the court's consideration regarding attorney fees. The court sustained the objection and explained that "what people do with their income and how they spend it" is irrelevant. Cf. Rayner , 2013 UT App 269, ¶ 19, 316 P.3d 455.

¶35 Because Heather never asked the court to find that Renson's personal spending decreased the value of the company or any other marital asset, the questions did not go to a material issue or fact in dispute. Heather had the opportunity at trial, on numerous occasions, to direct the court to specific assets that had been dissipated by Renson's spending, but she did not. Heather therefore cannot show that she did not have the opportunity to present the issue to the district court or that she was denied a fair trial. See Utah R. Civ. P. 59(a)(1). Accordingly, the district court did not abuse its discretion when it denied her motion for a new trial based on an irregularity in the proceedings.

IV. Attorney Fees

¶36 Renson seeks attorney fees incurred on appeal under rule 33 of the Utah Rules of Appellate Procedure, arguing that Heather's appeal was "frivolous or for delay." Rule 33 allows for the sanction of "just damages, which may include ... reasonable attorney fees" to the prevailing party if an appeal "is not grounded in fact, not warranted by existing law, ... not based on a good faith argument ... or [if taken] for the purpose of delay." Utah R. App. P. 33(a),(b). "The sanction for bringing a frivolous appeal is applied only in egregious cases, lest there be an improper chilling of the right to appeal erroneous lower court decisions." Maughan v. Maughan , 770 P.2d 156, 162 (Utah Ct. App. 1989) (quotation simplified). Although Heather has not been successful on appeal, her arguments were "worthy of consideration and should not be subject to the chilling effect" of rule 33 sanctions. See id.

CONCLUSION

¶37 We conclude the district court did not exceed its discretion when it calculated Deluxe Vending's value without including institutional goodwill and when it did not recalculate the value of Deluxe Vending based on testimony elicited at trial regarding a reduction of liabilities. We further conclude the court did not exceed its discretion by not imposing a deadline on or interest rate for Renson's payment to Heather where there are no limitations on her ability to enforce the judgment. And because Heather failed to show an irregularity in the proceedings, we conclude the court did not exceed its discretion when it denied the post-judgment motion for a new trial. Accordingly, we affirm.

      Because both parties share the same surname, we refer to them by their first names with no disrespect intended by the apparent informality.

      Heather is not the 1% interest owner of Deluxe Vending.

      Deluxe Vending's micro-markets are "self-serve kiosks" that allow patrons to access food and beverage items from a cooler and then scan the item at the kiosk and pay with either a credit or debit card or with cash.

      Heather also contends the district court "abused or entirely failed to exercise its discretion when it declined to factor dissipation of marital assets into its division of the parties' marital assets." This argument is unpreserved. "[P]arties are required to raise and argue an issue in the trial court in such a way that the court has an opportunity to rule on it." State v. Johnson , 2017 UT 76, ¶ 18, 416 P.3d 443 (quotation simplified). Failure to do so "precludes a party from arguing that issue in an appellate court, absent a valid exception," such as plain error, ineffective assistance of counsel, or exceptional circumstances. Id. ¶¶ 18-19. Here, Heather never alleged at trial or in the post-judgment motion that the value of the marital assets should be adjusted to account for money Renson spent on non-marital assets. Nor did she identify Deluxe Vending's bank account as the asset depleted or suggest that the money Renson spent on non-marital expenses was taken from the joint checking account. Instead, Heather asked the court to consider the alleged dissipation only with respect to attorney fees and alimony. Because Heather failed to raise this issue before the district court and she has failed to argue that an exception to preservation applies, see id. , we decline to address it.