author: HARRIS, Judge:

text:
    Amelia Gayatree LEFEVRE, Appellee, v. Casey Lee MACKELPRANG, Appellant.
    No. 20171006-CA
    Court of Appeals of Utah.
    Filed March 28, 2019
    Van Mackelprang, Kanab, and Julie J. Nelson, Attorneys for Appellant
    Douglas L. Neeley, Manti, Attorney for Appellee
    Judge Ryan M. Harris authored this Opinion, in which Judges Michele M. Christiansen Forster and Kate Appleby concurred.
    Opinion
   HARRIS, Judge:

¶1 Casey Lee Mackelprang (Father) asked the trial court to modify the governing divorce decree (the Decree) to install him as the primary custodial parent or, at least, change the parent-time schedule to increase the number of nights his daughter (Child) spent at his house. After a trial, the court denied his request, and in addition ordered him to pay the full cost of a custody evaluation. Father now asks us to review the trial court's conclusions, and we agree with Father that those conclusions were infirm. Accordingly, we vacate the trial court's order and remand the case for further proceedings.

BACKGROUND

¶2 After nearly six years of marriage, Father and Amelia Gayatree LeFevre (Mother) divorced in August 2014. They had one child-Child-together, who was five years old at the time of the parties' divorce.

¶3 For the first few years of their marriage, the couple lived in Cedar City, Utah with Child, who had some medical issues and required extra attention. According to Mother, she provided nearly all care for Child during this time period, even though she was taking classes at a university, and even though Father was not employed full-time. She maintained that Father often refused to help with child care, and when she needed someone to care for Child so that she could attend classes, she found it necessary to call upon her sister, her parents, and even a few friends, because Father was unwilling to do so himself. By the time Child was three, Father had never spent a night alone with Child and was not comfortable doing so.

¶4 Mother and Father separated in April 2012. At that point, both Mother and Father left Cedar City to live with family: Mother and Child moved to Boulder, Utah, and Father moved to Kanab, Utah. A few months later, however, in the late summer of 2012, Mother returned to Cedar City to begin work on a master's degree. Father also soon returned to Cedar City, but the parties lived in separate residences. At that point, while Mother continued to act as Child's primary caregiver, the parties worked out an informal parent-time arrangement in which Mother would take Child over to see Father on occasion but, because Father was still not entirely comfortable with caring for Child on his own, Mother was often present during these visits. Most of these visits were daytime visits for a few hours, although Father did care for Child overnight on a handful of occasions.

¶5 Mother filed for divorce in August 2012 and, in September 2013, the parties entered into a stipulated settlement agreement that designated Mother as Child's primary physical custodian. The agreement ordered parent-time for Father every other weekend and every other Wednesday evening, a schedule that (although it did not mention the statute) was similar to the one set forth in Utah Code section 30-3-35. Nearly a year later, in August 2014, the trial court signed the Decree, incorporating the parties' agreed-upon custody and parent-time arrangement.

¶6 During this period, Father and Mother each lived in Cedar City during the week, but on most weekends Mother traveled to Boulder to visit family and to work. Mother always took Child with her to Boulder for the weekends, even on the alternating weekends on which Father would have otherwise been entitled to parent-time, and at the time Father voiced no objection. Father also was not in the habit of exercising the regular mid-week visits to which he was entitled, instead depending on Mother to bring Child over to his house for many short weekday visits as her class schedule allowed. And Father did not exercise his right to a multi-week summertime visit in 2014, even though the stipulation entitled him to do so.

¶7 After nearly three years in Cedar City, Mother and Child moved back to Boulder in April 2015, and at this point Father began to regularly exercise the weekend parent-time and the multi-week summertime visits to which the Decree entitled him. Although Father did not exercise his mid-week visits due to the distance between Cedar City and Boulder, he began to make significant efforts to travel to Boulder to participate in important events in Child's life, such as school programs and dance competitions, even when such events did not occur during his weekend. After a while, Father was of the view that things were going so well with his parent-time that he asked Mother if she would agree to increasing the number of overnights he had with Child, but Mother did not agree.

¶8 In November 2015, Father filed a petition to modify the Decree, requesting that the court alter the custody arrangement to designate him, rather than Mother, as the primary physical custodian. In the petition, among other things, Father argued that a modification was warranted because Mother's move to Boulder in April 2015 constituted a substantial and material change in circumstances because Father was no longer able to see Child as often as he had when Mother was living in Cedar City. Father also argued that Mother was not spending a substantial amount of her parent-time with Child because she was working two jobs that required her to leave Child in the primary care of Child's maternal grandmother. Mother opposed Father's petition, and eventually filed a counter-petition requesting that the Decree be modified to remove redundant material, clarify issues, and make minor alterations to the parent-time schedule.

¶9 In November 2016, while the competing petitions were pending, Mother notified Father that she intended to relocate with Child to Las Vegas, Nevada. Mother proposed that the parties continue to follow the parent-time schedule set forth in the Decree until her move, at which point they should adopt the parent-time schedule found in Utah Code section 30-3-37(6). Father opposed Mother's request, and asked the court to hold a hearing to consider Mother's proposed move. Father also asked the court to appoint a custody evaluator to assess the parties' situation, a request Mother opposed on the ground that no such evaluation was necessary. Mother argued, in the alternative, that if the court did appoint an evaluator, it should order Father to pay all costs associated with the evaluation.

¶10 In early February 2017, Mother and Child relocated to Las Vegas. Shortly thereafter, the court appointed a custody evaluator (Evaluator) and ordered Father to front the costs associated with the appointment, but stated that it would make a final allocation of costs at a later date. The court also postponed any hearing on Mother's relocation to Las Vegas until after the completion of the custody evaluation. Around this same time, in early 2017, in addition to regularly exercising his weekend and summertime parent-time-which he had been doing since April 2015-Father began to travel to Las Vegas once a week to exercise regular mid-week parent-time with Child.

¶11 Over the next few months, Evaluator conducted a number of interviews with Father, Mother, and Child, as well as home studies during which she observed Child. On November 1, 2017, Evaluator issued her report, in which she recommended-with one important qualification-that the status quo should continue, with Mother acting as the primary residential parent and with Father exercising parent-time on alternating weekends and Wednesdays during the school year. The important qualification was that, if Father were to move to Las Vegas so as to be geographically closer to Mother and Child, she would alter her recommendation and urge the court to adopt the alternative parent-time schedule specified in Utah Code section 30-3-35.1 (section 35.1), which would result in Father having the right to five overnights (instead of two) in every two-week period.

¶12 After learning of Evaluator's recommendations, Father almost immediately moved to Las Vegas. Just a few weeks later, in mid-November 2017, the court held a trial on the competing petitions to modify. Evaluator testified about her report and evaluation, and recommended that, because Father had relocated to Las Vegas, the court should implement a custody and parent-time arrangement based on section 35.1. She opined that adopting section 35.1 would have a positive impact on Child and the proposed schedule would not hurt the bond Child has with Mother, but would strengthen the bond Child has with Father by providing Child an opportunity to develop a structure and routine with him during the additional mid-week and weekend overnights. Evaluator further opined that the proposed schedule would help reduce communication problems the parties had been experiencing under the current schedule because drop-offs during the school year would occur at school. She also offered her observation that Father was a good parent who since April 2015 had made significant efforts to spend quality time with Child, and opined that Father's parenting actions over the past two-and-a-half years were more relevant than his actions during the first six years of Child's life.

¶13 Evaluator also recommended that Father's summertime parent-time should occur in one large block to reduce both the number of transitions between the parents as well as the amount of time Child spends in the car traveling back and forth from Las Vegas to Utah. Finally, in an effort to reduce the frequency of Father's requests for virtual parent-time, Evaluator recommended that Father's video or phone chats with Child should be held at scheduled times three days per week, and that the parties' email communications regarding Child be restricted to a particular day per week to facilitate more predictable and reliable communication.

¶14 At the conclusion of the trial, and after hearing directly from both Father and Mother, the trial court took the matter under advisement. A few days later, the court issued a written ruling on the petitions to modify, making a few changes to the parties' Decree. Among other alterations, the court ordered that Father's summertime parent-time be exercised in one large block and that Father exercise virtual parent-time only during three half-hour periods scheduled during the week. The court denied all of Father's other requests to alter the custody and parent-time schedule, including Father's request that parent-time during the school year be implemented according to section 35.1.

¶15 On that point, the court determined that the four prerequisites for implementation of the section 35.1 schedule were not met, and made factual findings in support of that conclusion, including the following: that Father "did not participate actively in [Child's] life until the last couple of years"; that Father's "plan to accomplish effective communication is to have a designated email answering day per week" and that Father's "plan ... does not appear to be adequate"; and that Father "presented no evidence other than his hope" that increased parent-time would be in Child's best interest. From these findings, the court made legal conclusions that Father "has not adequately been involved in [Child's] life"; that Father "has failed to present a plan to accomplish effective communication"; and that Father "has failed to present evidence that it will be in [Child's] best interest to have increased overnight visits." Because it considered the statutory prerequisites unsatisfied, the trial court declined Father's invitation to award him additional parent-time under section 35.1.

¶16 The court also ordered Father to pay all costs related to Evaluator's report. Although it did not provide reasons for its decision, it did note that Father "asked for the child custody evaluation with the hope that somehow it would find in his favor and it did not, so he should pay its entire cost."

ISSUES AND STANDARDS OF REVIEW

¶17 Father now appeals the trial court's ruling on his petition to modify, and asks us to review two aspects of that ruling. Father's main complaint is with the court's decision not to implement a parent-time arrangement based on section 35.1. We review a trial court's custody and parent-time determination for abuse of discretion, and review any underlying factual findings for clear error. See Vaughan v. Romander , 2015 UT App 244, ¶¶ 7-8, 360 P.3d 761. "A finding is clearly erroneous only if the finding is without adequate evidentiary support or induced by an erroneous view of the law." Hale v. Big H Const., Inc. , 2012 UT App 283, ¶ 9, 288 P.3d 1046 (quotation simplified).

¶18 Second, Father argues that the trial court abused its discretion in ordering him to pay the entire cost of the custody evaluation. When reviewing a court's decision to allocate costs pursuant to Utah Code section 30-3-3, "we use an abuse of discretion standard." Peterson v. Peterson , 818 P.2d 1305, 1310 (Utah Ct. App. 1991).

ANALYSIS

I

¶19 The main issue presented on appeal is whether the trial court erred by concluding that the statutory prerequisites set forth in Utah Code section 30-3-35.1(2) were not met. We find infirmities in the trial court's conclusions, and therefore determine that remand is necessary.

¶20 "In all custody determinations, the [trial] court's primary focus must be on the best interests of the child." Pingree v. Pingree , 2015 UT App 302, ¶ 7, 365 P.3d 713 (quotation simplified). Our legislature has determined that each divorced parent "is entitled to and responsible for frequent, meaningful, and continuing access with the parent's child consistent with the child's best interests." Utah Code Ann. § 30-3-32(2)(b)(ii) (LexisNexis Supp. 2018). Relevant statutes prescribe a default minimum parent-time schedule "to which the noncustodial parent and the child shall be entitled," id. § 30-3-35(2), unless either (a) "the court determines that Section 30-3-35.1 should apply" or (b) a parent can establish "that more or less parent-time should be awarded," id. § 30-3-34(2). Under the default minimum parent-time schedule set forth in section 30-3-35, "the noncustodial parent is entitled to parent-time with the child during one weekday evening and on alternating weekends, which include Friday and Saturday overnights." Lay v. Lay , 2018 UT App 137, ¶ 6, 427 P.3d 1221. This default statutory schedule affords the noncustodial parent two overnights in a typical two-week period, and approximately ninety overnights during a typical calendar year (after holiday and summertime parent-time are accounted for).

¶21 As noted above, section 35.1 "provides an alternative statutory parent-time schedule" that-by extending weekend overnights by one night, and affording one weeknight overnight each week-offers the noncustodial parent the opportunity to enjoy five overnights in every two-week period, resulting in approximately 145 overnights in a typical calendar year See id. ¶ 7 ; see also Utah Code Ann. § 30-3-35.1(1)(a) (stating that the alternative schedule "is 145 overnights").

¶22 A trial court may implement the alternative section 35.1 schedule only if "the parties agree or the noncustodial parent can demonstrate" the presence of at least four factual circumstances: (a) that "the noncustodial parent has been actively involved in the child's life"; (b) that either (i) "the parties are able to communicate effectively regarding the child," or (ii) "the noncustodial parent has a plan to accomplish effective communications regarding the child"; (c) that "the noncustodial parent has the ability to facilitate the increased parent-time"; and (d) that "the increased parent-time would be in the best interest of the child." Utah Code Ann. § 30-3-35.1(2). If all four of these elements are present, then the trial court may-but is not required to-implement the parent-time schedule set forth in section 35.1. See id. (stating that "the court may consider" the alternative schedule if the required factual elements are present); see also Lay , 2018 UT App 137, ¶ 13, 427 P.3d 1221 (stating that "the noncustodial parent's demonstration of the enumerated factors gives the court the discretion to consider the increased parent-time schedule, but there is no language in the statute making the court's consideration of that schedule-much less its adoption-mandatory").

¶23 In this case, the trial court determined that three of the four statutory prerequisites were not present, and therefore decided not to alter the parties' parent-time arrangement to afford Father additional parent-time. Father argues that the trial court's determination is incorrect, and that all of the necessary prerequisites were in fact present on the facts presented at trial. In the discussion that follows, we examine each of the three remaining statutory prerequisites and, for the reasons set forth, we agree with Father that the trial court's analysis was infirm.

A

¶24 The first of the three statutory requirements is that "the noncustodial parent has been actively involved in the child's life." Utah Code Ann. § 30-3-35.1(2)(a) (LexisNexis Supp. 2018). Father contends that he presented evidence conclusively demonstrating his active involvement in Child's life. We agree.

¶25 At the outset of the discussion, it is important to note that the trial court did not actually make a finding or a conclusion to the contrary. The court's specific finding was that Father "did not participate actively in [Child's] life until the last couple of years ," implying that Father did participate actively in Child's life during the "couple of years" prior to trial. (Emphasis added.) Indeed, the evidence presented to the court was overwhelming that, starting in approximately April 2015, Father exercised regular weekend and summertime parent-time according to the ordered schedule, and that he made extra effort as necessary to attend Child's school functions and other celebrations in her life, even when those occurred outside his customary scheduled parent-time.

¶26 From this evidence, however, the trial court concluded that Father "has not adequately been involved in" Child's life. In our view, this conclusion is not supported by the evidence presented, and is in any event not the conclusion required by the statute. Indeed, the word "adequately" does not appear in the statute, which instead asks the court to determine whether Father has been "actively" involved in Child's life. See id. As noted above, at least for the thirty months prior to trial, Father was actively involved in Child's life, as the trial court impliedly found.

¶27 The only sensible explanation for the trial court's conclusion is that the court was looking primarily at Father's actions during the first six years of Child's life, a period in which Father was not nearly as involved in Child's life as he was during the thirty months leading up to trial. The relevant statute does not indicate whether a court should weigh recent behavior more heavily, and we certainly acknowledge that a parent who-in true "deathbed repentance" fashion-has been active in his child's life for only a few days or weeks before trial may comfortably be considered to have not been actively involved in his or her child's life, when that life is examined as a whole. But a parent who has-even in the eyes of his ex-spouse-been actively involved in his daughter's life for the thirty-month period leading up to trial has clearly been "actively involved" in her life, and any finding or conclusion to the contrary is clearly erroneous and an abuse of discretion.

¶28 Accordingly, we agree with Father that he satisfied the first statutory prerequisite.

B

¶29 Next, the statute requires that Father demonstrate either (i) that "the parties are able to communicate effectively regarding the child," or (ii) that he "has a plan to accomplish effective communications regarding the child." Utah Code Ann. § 30-3-35.1(2)(b) (LexisNexis Supp. 2018). The trial court found that "[t]here is little meaningful communication between the parties," and concluded that "[t]he parties do not communicate effectively." Father does not challenge these determinations, and thereby concedes that he cannot meet the first statutory alternative. However, Father asserts that he presented a plan to address the parties' communication issues, and argues that he can therefore meet the second statutory alternative. We agree.

¶30 The relevant statute requires only that Father present a plan for improved communication to the court; it does not require that Father's plan be foolproof or even that Father's plan-or any part of it-be adopted by the court. The statutory language requires only that the parent present a "plan to accomplish effective communication," see id. § 30-3-35.1(2)(b), and Father did so here.

¶31 At trial, Father adopted and advocated for the communication plan recommended by Evaluator, which included several features designed to address the communication problems that the parties were experiencing. Among those were (a) limiting email communication between the parties to a "designated email day" on which both parents would be available to electronically express and respond to concerns regarding Child; (b) limiting Father's virtual parent-time to three designated half-hour periods scheduled throughout the week, thereby limiting any ad hoc demands Father might make to speak with Child; and (c) maximizing the number of pickups and drop-offs that would occur at Child's school rather than at Mother's residence, thereby reducing the number of times Mother and Father saw each other.

¶32 The trial court ended up adopting one of these three recommendations in its ruling, in that it limited Father's virtual parent-time to three scheduled half-hour periods each week. The court did not adopt the other two parts of this plan, perhaps in part because Mother expressed dislike for the "designated email day" idea, but the fact that the court declined to adopt Father's plan in total does not mean that he did not have one. Indeed, the trial court itself referred to "[Father's] plan" in its findings, later judging that plan to be inadequate. But an inadequate plan is still a plan, and the statute imposes no requirement that the plan be found by the court to be adequate. See id.

¶33 Under these circumstances, the trial court abused its discretion by concluding that Father "failed to present a plan to accomplish effective communication." Father presented a plan for improved communication to the trial court, and thereby satisfied the second statutory prerequisite.

C

¶34 Finally, the statute requires that implementation of the alternative parent-time schedule would be "in the best interest of the child." Utah Code Ann. § 30-3-35.1(2)(d) (LexisNexis Supp. 2018). Ordinarily, we afford a high degree of deference to a trial court's "best interest" determination. See Vaughan v. Romander , 2015 UT App 244, ¶ 8, 360 P.3d 761 (stating that a trial court "has the discretion to establish parent-time in the best interests of the children," and that a trial court's "parent-time order" is reviewed for abuse of discretion (quotation simplified) ). But here, the trial court did not engage in a traditional "best interest" analysis by weighing the evidence presented by each side and coming to a decision. Instead, the trial court stated flatly that Father had "presented no evidence other than his hope" that increased parent-time would benefit Child, and concluded that Father "failed to present evidence that it will be in [Child's] best interest to have increased overnight visits."

¶35 These statements are simply incorrect. Father presented quite a bit of evidence supporting his view that increased parent-time would be in Child's best interest. Most significantly, Father presented the expert testimony of Evaluator, who offered her reasoned professional opinion that the best thing for Child-now that Father had relocated to Las Vegas and was closer to Mother and Child-would be for the court to implement the alternative parent-time schedule set forth in section 35.1. In addition, Father offered his own testimony along those same lines, and even cajoled Mother into acknowledging that Father was "a good father" and that she was in favor of Father and Child spending more time together (with the proviso that she preferred that the extra parent-time take place in the summertime, to cut down on the number of exchanges during the school year).

¶36 The trial court was certainly free to decline to credit Father's evidence, and to give it less weight than Mother's evidence. Had it done so here, and articulated supported reasons for its decision, we undoubtedly would have affirmed that determination. But a trial court is not free to completely ignore a litigant's evidence by making a "finding" that there is no such evidence when in fact there is.

¶37 Under these unique circumstances, we are not yet able to determine whether Father can (or cannot) satisfy the fourth statutory prerequisite. But the trial court's stated reasons for rejecting Father's position are unsupported, and are clearly erroneous and an abuse of discretion. We therefore must remand the case for further proceedings on this point, and specifically for the trial court to consider all of the evidence presented and to make a determination as to whether increased parent-time as per section 35.1 would be in Child's best interest. Because all of the other prerequisites are met, if the trial court finds, on remand, that the "best interest" prerequisite is also met, the trial court will then be permitted to exercise its discretion, if it so chooses, to implement the alternative parent-time schedule. See Utah Code Ann. § 30-3-35.1(2) (stating that, if the statutory prerequisites are met, the court "may consider" the increased parent-time schedule); see also Lay v. Lay , 2018 UT App 137, ¶ 13, 427 P.3d 1221. (stating that, even where all of the statutory prerequisites are met, a trial court is not required to implement the alternative schedule, but may do so in its discretion).

II

¶38 The second issue Father raises on appeal is whether the trial court abused its discretion in ordering him to pay the entire cost of Evaluator's report. In a case like this one, in which one party brings an action to establish an order of custody or parent-time, the trial court is statutorily authorized to make an award of costs. See Utah Code Ann. § 30-3-3(1) (LexisNexis 2013) (stating that "in any action to establish an order of custody [or] parent-time, ... the court may order a party to pay the costs, ... including expert witness fees, of the other party to enable the other party to prosecute or defend the action"). We have previously recognized that the relevant statute "is worded so as to afford divorce litigants a broader award of reimbursement, if need be, for the expenses of litigation, than those reimbursements authorized in other civil cases" in which costs are allocated according to who prevailed. Peterson v. Peterson , 818 P.2d 1305, 1310 (Utah Ct. App. 1991) (quotation simplified). This rule is particularly appropriate in family law cases where many of the costs, including the cost of custody evaluations, relate to the best interests of the child and enable the court to make a reasoned determination on these important issues. See id.

¶39 While section 30-3-3(1)"empowers a court to use its sound discretion in determining whether to award costs based on need and ability to pay," id. , "the award or denial of such fees must be based on evidence of the financial need of the receiving spouse, the ability of the other spouse to pay, and the reasonableness of the requested fees," Wilde v. Wilde , 969 P.2d 438, 444 (Utah Ct. App. 1998) (quotation simplified). "Failure to consider these factors is grounds for reversal on the fee issue." Id.

¶40 Here, the trial court ordered each party to pay their own attorney fees and costs, but ordered Father to pay the entire cost of the custody evaluation. However, there is no indication in the court's order that it considered the factors identified in Wilde , see id. , including the parties' financial ability to pay; indeed, the court gave no reasons at all for its decision to require Father to pay the entire cost of Evaluator's report, other than to note that Father "asked for the child custody evaluation with the hope that somehow it would find in his favor and it did not, so he should pay its entire cost."

¶41 This conclusion is both inaccurate and contrary to the governing statute. Although Evaluator did not recommend that primary physical custody be changed from Mother to Father, Evaluator did recommend that Father be awarded additional parent-time if he moved to Las Vegas, which he did prior to trial. Accordingly, Evaluator's recommendation at trial was that a parent-time schedule in accordance with section 35.1 should be implemented, which recommendation was in line with Father's ultimate request at trial. In addition, the court's conclusion that Father should pay the entire cost of the custody evaluation because the evaluation did not "find in his favor" is inconsistent with a proper subsection (1) analysis. As discussed above, while subsection (1) gives the trial court discretion in determining whether to award the costs of expert witness fees, an award of such fees must be based upon the parties' ability to pay and the reasonableness of the fees, and not upon which party ultimately prevails. See Utah Code Ann. § 30-3-3(1) ; Wilde , 969 P.2d at 444. But instead of applying these factors, see Wilde , 969 P.2d at 444, the trial court appears to have erroneously allocated the cost of the custody evaluation by applying the "substantially prevailed" standard found in subsection (2), which is applicable only in actions to enforce-but not to establish-custody or parent-time arrangements, see Utah Code Ann. § 30-3-3(2).

¶42 Here, there is no indication that the trial court considered the appropriate factors. The absence of any such findings prevents a meaningful review of the trial court's ruling, and we therefore remand the issue for further analysis. See Wilde , 969 P.2d at 444 (remanding the issue of fees and costs for reconsideration in light of the trial court's failure to consider the needs of the parties and their ability to pay).

CONCLUSION

¶43 The trial court incorrectly-and prematurely-concluded that the statutory prerequisites to considering the section 35.1 parent-time schedule were not met in this case. The first three statutory prerequisites were in fact met, and the trial court's ruling to the contrary was clearly erroneous. Also, the court incorrectly found that Father had submitted "no evidence" in his favor with regard to the fourth prerequisite. In addition, the trial court's decision to order Father to pay all costs associated with Evaluator's report appears to have been grounded in an inaccurate factual assumption as well as made pursuant to the incorrect statutory subsection. The trial court's ruling with regard to parent-time and costs is hereby vacated, and this matter is remanded for further proceedings consistent with this opinion.

      Neither party contests the trial court's continuing exercise of jurisdiction over this case, even after both parties relocated to Nevada. See Utah Code Ann. §§ 78B-13-201(1), 202, 207 (LexisNexis 2018); see also In re S.W. , 2017 UT 37, ¶ 10, 424 P.3d 7 (noting that a court that originally has exclusive and continuing jurisdiction over a child custody matter may dismiss a case on jurisdictional grounds if it finds, after certain criteria are met, that it is "an inconvenient forum," but may do so "only once a child custody proceeding has been commenced in another state" (quotation simplified) ). Even if we were to assume that the statutory criteria are met here given both parents' relocation, see Utah Code Ann. § 78B-13-202(1)(b), the trial court made no finding that it was an inconvenient forum, and there is no indication, on the record before us, that any child custody proceeding involving these parties has been initiated in Nevada.

      The statutory list of elements is not intended to be exhaustive. Indeed, the statute itself proclaims that the court may take into account "any other factor the court considers relevant." Utah Code Ann. § 30-3-35.1(2)(e) (LexisNexis Supp. 2018).

      All parties, as well as the trial court, agreed that Father has the ability to facilitate the increased parent-time, and that therefore the third statutory prerequisite is satisfied. See id. § 30-3-35.1(2)(c).

      Subsection (3) of section 35.1 provides factors that courts "shall consider" in determining whether a parent has been actively involved in a child's life. See id. § 30-3-35.1(3). Those factors include whether the parent has "demonstrated responsibility in caring for the child"; whether the parent has "involvement in day care"; whether the parent has a "presence or volunteer efforts in the child's school and at extracurricular activities"; whether the parent assists the child with homework, and whether the parent is involved in "preparation of meals, bath time, and bedtime for the child"; and whether the parent has a strong bond with the child. Id. In this case, the trial court's findings reveal no effort to apply these factors. In any event, as noted, the evidence clearly supports the conclusion that these factors weigh in favor of Father, at least for the thirty-month period prior to trial: Father had a strong bond with Child, demonstrated responsibility for Child's care, and had a presence at Child's extracurricular and school activities.

      But if a trial court declines to adopt the recommendation of a custody evaluator, "the court is expected to articulate some reason for rejecting that recommendation." Zavala v. Zavala , 2016 UT App 6, ¶ 44, 366 P.3d 422 (quotation simplified).

      This standard also differs from the standard for awarding costs and fees in actions brought "to enforce" an already-established order in a domestic case. See Utah Code Ann. § 30-3-3(2) (LexisNexis 2013). In enforcement cases, the standard is similar to the one ordinarily used in civil cases: courts are authorized to award fees to "the party [that] substantially prevailed upon the claim or defense." Id. In such cases, a trial court "may disregard the financial need of the moving party" because awards under this subsection "serve no equalizing function but allow the moving party to collect fees unnecessarily incurred due to the other party's recalcitrance." Connell v. Connell , 2010 UT App 139, ¶¶ 28, 30, 233 P.3d 836 (quotation simplified). Thus, the "guiding factor" when awarding costs under subsection (2) is "whether the party seeking an award of fees substantially prevailed on the claim [or defense]." Id. ¶ 28.

      We do not mean to suggest that a court, when deciding how to allocate the costs of a custody evaluation, is forbidden from taking into account the identity of the party who asked for the evaluator to be appointed. In many cases, potentially including this one, that fact might be relevant to any determination about whether the costs are "reasonable." See Wilde v. Wilde , 969 P.2d 438, 444 (Utah Ct. App. 1998). In appropriate cases, a court may even condition the grant of a motion to appoint a custody evaluator upon the movant paying the entire cost of the evaluation. In this case, however, that does not appear to be what the trial court did.


source: Caselaw Access Project

author: ORME, Judge:

license: Public Domain

text:
    COUGAR CANYON LOAN, LLC, Appellee, v. THE CYPRESS FUND, LLC; Cypress Management, LLC; Olympus Capital Alliance, LLC; Cypress Capital III, LLC; Robert N. Baxter; and Blair M. Walker, Appellants.
    No. 20170413-CA
    Court of Appeals of Utah.
    Filed March 28, 2019
    Troy L. Booher, Clemens A. Landau, and Michael J. Teter, Salt Lake City, Attorneys for Appellants
    Jefferson W. Gross and S. Ian Hiatt, Attorneys for Appellee
    Judge Gregory K. Orme authored this Opinion, in which Judges Kate Appleby and Jill M. Pohlman concurred.
    Opinion
   ORME, Judge:

¶1 Following a complicated series of transactions involving bridge lending, Cougar Canyon Loan, LLC (Cougar) brought suit against The Cypress Fund, LLC; Cypress Management, LLC; Olympus Capital Alliance, LLC; Cypress Capital III, LLC; Robert N. Baxter; and Blair M. Walker (collectively, Cypress). Cougar alleged, among other things, violations of the Utah Uniform Securities Act, see Utah Code Ann. §§ 61-1-1 to -206 (LexisNexis 2018), and breach of the implied covenant of good faith and fair dealing. Following a jury verdict in Cougar's favor on both counts, Cypress moved for a new trial, asserting that the verdict was "contrary to law," see Utah R. Civ. P. 59(a)(7), which motion the trial court denied. We affirm the trial court's denial of Cypress's motion for a new trial and further conclude that it did not err in holding Robert N. Baxter in contempt for transferring funds in violation of the court's order.

¶2 To make a long story short, Cypress approached Cougar in 2009 about participating as co-lender on a loan associated with a real estate development project in Trinidad, Colorado (the Trinidad Project). Cypress had committed to loan $ 4.8 million for the funding of the Trinidad Project, and Cougar eventually agreed to finance half of that sum in exchange for a note from Cypress in the principal amount of $ 2.8 million. However, of the $ 4.8 million that Cypress had agreed to extend for the funding of the Trinidad Project, the project ultimately received only $ 1.7 million-$ 1.5 million of which Cougar funded. The Trinidad Project borrower eventually defaulted on the loan and, following a sequence of events, Cougar initiated the current action against Cypress on October 17, 2013, asserting securities fraud and other claims.

¶3 In bringing its claim for securities fraud against Cypress, Cougar alleged that Cypress "made untrue statements of material facts regarding the value and nature of the collateral that would be pledged" to secure Cougar's loan and "made untrue statements of material facts regarding [Cougar's] approximately 50/50 participation in the [Trinidad Project loan]."

¶4 Following a four-day trial in 2017, the jury returned a special verdict in favor of Cougar on its securities fraud and breach-of-the-implied-covenant claims, awarding $ 4 million and $ 1 million in damages, respectively. Because the damage awards were duplicative, the trial court entered judgment in favor of Cougar in the sum of $ 4 million, plus postjudgment interest, costs, and attorney fees. Cypress subsequently filed post-trial motions seeking judgment notwithstanding the verdict, a new trial, and to set aside the judgment. See Utah R. Civ. P. 50, 59, 60(b). The trial court denied the motions, and Cypress appeals.

¶5 At oral argument, Cypress's appellate counsel, who was not trial counsel, astutely recognized that the briefing in this case was unfocused and unduly complex. Counsel accordingly repackaged Cypress's position on appeal to showcase a single potentially dispositive argument: that the trial court erred in denying Cypress's rule 59 motion for a new trial because the verdict was "contrary to law." See id. R. 59(a)(7). Specifically, he argued that the two-year statute of limitations barred Cougar's securities fraud claim. See Utah Code Ann. § 61-1-22(7)(a)(ii) (LexisNexis 2018) (providing that a claim brought under the Utah Uniform Securities Act is barred after "the expiration of two years after the discovery by the plaintiff of the facts constituting the violation").

¶6 Cypress premises its argument on Cougar's receipt of two emails more than two years before Cougar brought suit. In March 2009, Cypress sent an email to Cougar detailing issues with some of the collateral securing the loan. And in March 2011, Cypress sent an email detailing the parties' current percentage interest in the Trinidad Project loan, which was not 50/50. The 2011 email was sent to an administrative assistant, but Richard Miller, the owner of the entity that manages Cougar, never reviewed it. Cypress argues that the emails conferred sufficient actual or inquiry notice upon Cougar to trigger the running of the two-year statute of limitations for its securities fraud claim, which would have elapsed by the time Cougar commenced its action in October 2013.

¶7 Ordinarily, "we review an appellant's allegations of legal error under [ rule] 59(a)(7) [of the Utah Rules of Civil Procedure] for correctness," but "reverse and order a new trial only if we (1) identify a legal error that would be grounds for a new trial under [ rule] 59(a)(7) and (2) determine that the error resulted in prejudice necessitating a new trial." ASC Utah, Inc. v. Wolf Mountain Resorts, LC , 2013 UT 24, ¶ 23, 309 P.3d 201 (quotation simplified). But this issue was not preserved for appeal by trial counsel.

¶8 Although a party may advance a new argument in its motion for a new trial, "the trial court may refuse to consider the merits of the argument because it may find the issue waived." State v. Pinder , 2005 UT 15, ¶ 46, 114 P.3d 551 (quotation simplified). And should the trial court "refuse[ ] to address the merits of the newly advanced argument, the issue remains unpreserved for appellate review and may be addressed only if the challenging party can show plain error or exceptional circumstances." Id. See also Tschaggeny v. Milbank Ins. Co. , 2007 UT 37, ¶ 30, 163 P.3d 615 (stating that raising an issue in a post-trial motion does not cure preservation defects); Clark Props., Inc. v. JDW-CM, LLC , 2012 UT App 163, ¶ 9, 282 P.3d 1009 ("Insofar as [the appellant] suggests that it preserved [a] claim by raising it in its motion for new trial, that fact alone is inadequate to preserve an issue for appellate review.") (emphasis added).

¶9 In the present case, the trial court addressed Cypress's multiple post-trial motions in a single memorandum decision. In denying Cypress's motion for a new trial, the court briefly addressed Cypress's argument based on the sufficiency of the evidence, see Utah R. Civ. P. 59(a)(6), by stating that the argument failed because Cypress had not marshaled the evidence supporting the jury's verdict. The court made no specific mention of Cypress's contention that the verdict was "contrary to law," see id. R. 59(a)(7), other than to state that Cypress failed to cite to the record where it had preserved its remaining issues-thereby implicitly refusing to reach the merits of that specific argument. And because "courts are required to explain the basis for their decisions only when they grant motions for a new trial-not when they deny such motions," ASC Utah , 2013 UT 24, ¶ 21, 309 P.3d 201 (emphasis in original), the court did not commit legal error in declining to address the merits of that particular argument. Cypress's rule 59(a)(7) argument is therefore unpreserved for appeal.

¶10 We typically review unpreserved issues only when a valid exception to the preservation rule applies. See State v. Johnson , 2017 UT 76, ¶ 15, 416 P.3d 443. Cypress contends that the plain error doctrine applies to its rule 59(a)(7) argument. To establish plain error, a defendant must show that "(i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful." Id. ¶ 20 (quotation simplified).

¶11 Cypress argues that the trial court plainly erred by failing to properly instruct the jury regarding the two-year statute of limitations applicable to Cougar's securities fraud claims. Specifically, Cypress contends that the court should have instructed the jury "that Cougar is imputed to know or ought to know that which its agent [i.e., the administrative assistant] knows or ought to know." Because we conclude that any alleged error in the jury instructions was not "obvious to the trial court," Cypress has failed to carry its burden of establishing plain error.

¶12 The jury was given the following instruction, approved by Cypress at trial, regarding Cypress's statute of limitations defense:

The statute of limitations governs the amount of time in which a party may bring a claim after the discovery of that claim. For securities fraud, the statute of limitations is two (2) years. [Cougar] filed its complaint on October 17, 2013. If you find that [Cougar] knew of the alleged securities fraud before October 17, 2011, you must find that [Cougar's] securities fraud claim fails in violation of the statute of limitations.

Cypress argues that this instruction was insufficient because "[t]he jury could do nothing with the statute of limitation instruction and undisputed facts without being told, as well, that an agent's knowledge is imputed to the corporation." Citing State v. Dean , 2004 UT 63, 95 P.3d 276 (amended opinion), Cypress contends that the erroneous omission of this additional instruction should have been obvious to the trial court because "the law governing the error was clear at the time the alleged error was made." Id. ¶ 16.

¶13 To the extent that the trial court erroneously instructed the jury regarding the statute of limitations and that error resulted in a verdict that was contrary to law, such error would have been far from obvious to the trial court given Cypress's conduct at trial. Cypress never proposed the instruction that it now faults the trial court for not providing, nor did it object to the manner in which the court instructed the jury concerning the statute of limitations. To the contrary, Cypress not only stipulated to the relevant jury instruction but requested it. Moreover, Cypress has not directed us to anything in the record that shows it alerted the court to its statute of limitations argument based on the administrative assistant's receipt of the 2011 email. Prior to trial, Cypress never moved the court for summary judgment based on its discovery of the 2011 email. Nor, following the conclusion of Cougar's case-in-chief, did Cypress move the court for judgment as a matter of law pursuant to rule 50 based on its statute of limitations argument. See Utah R. Civ. P. 50(a). Indeed, the 2011 email was never even admitted into evidence at trial-it was only briefly alluded to during the direct- and cross-examination of Richard Miller, the owner of the entity that manages Cougar.

¶14 Against this backdrop, Cypress fails to address how the existence of the 2011 email and its allegedly dispositive legal implications should have been obvious to the trial court. Given how the case was tried, there was nothing in the parties' course of conduct to suggest to the court that an error had occurred, plain or otherwise. Quite the opposite, Cypress's conduct and stipulation to all of the jury instructions would have lulled the court into a sense that the trial was moving forward as it should, pending ultimate resolution by a properly instructed jury. Despite this, Cypress basically asserts that the court should have, on its own initiative, realized that an email that was never entered into evidence and was only fleetingly mentioned in the course of a four-day trial merited an additional jury instruction. We conclude that such a scenario would have been anything but obvious to the trial court. Cypress has therefore failed to establish plain error.

¶15 As a final point on appeal, Robert N. Baxter, one of the principals of Cypress Capital III, LLC, argues that the trial court abused its discretion in holding him in contempt. See Utah Code Ann. § 78B-6-301(5) (LexisNexis 2018). "When reviewing a [trial] court's decision to find a party in contempt, we review the [trial] court's findings of fact for clear error and its legal determinations for correctness." Rosser v. Rosser , 2019 UT App 25, ¶ 9 (amended opinion) (quotation simplified).

¶16 Following the jury verdict and during the pendency of Cougar's motion for attorney fees, the trial court granted a stipulated motion (the Stay Order) that, among other things, prohibited any of the Cypress parties from "(i) engaging in transactions outside the ordinary course of their business and (ii) transferring any of the judgment debtors' assets." Nonetheless, a few weeks following entry of the Stay Order, Baxter transferred $ 230,000 out of one of his and his wife's joint money market accounts to a recently formed company owned by his wife, Sprout Funding Partners, LLC. After Cougar learned of the transfer, it sent a letter to Cypress advising that it would seek contempt sanctions against Cypress unless the transferred funds were paid over to Cougar. Baxter, his wife, and their company, Baxter Properties, LLC, then filed a motion to interplead $ 115,000 of the transferred funds and sought a determination that the funds belonged to Baxter Properties-and not to the Baxters. Cougar subsequently filed a motion seeking a contempt determination against Baxter. Following an evidentiary hearing on both motions, the trial court determined that the transferred funds belonged to the Baxters-not Baxter Properties-and, pursuant to Utah Code section 78B-6-301(5), held Baxter in contempt for his violation of the Stay Order.

¶17 Generally, "to prove contempt for failure to comply with a court order it must be shown that the person cited for contempt knew what was required, had the ability to comply, and intentionally failed or refused to do so." LD III, LLC v. BBRD, LC , 2013 UT App 115, ¶ 14, 303 P.3d 1017 (quotation simplified). Baxter does not challenge the trial court's determination that he knew of and had the ability to comply with the Stay Order. Rather, he argues that the trial court erred in finding that the transferred funds did not belong to Baxter Properties.

¶18 Baxter correctly recognizes that, at the evidentiary hearing, he bore the burden of rebutting, by clear and convincing evidence, the presumption that funds in a bank account belong to the owners of that account. See Peterson v. Peterson , 571 P.2d 1360, 1362 (Utah 1977). But instead of discussing the evidence supporting the trial court's finding that he failed to overcome the presumption that the transferred funds belonged to him, Baxter highlights the evidence that supports his contention that the funds belonged to Baxter Properties. He argues that this "evidence clearly and convincingly demonstrate[d] that the $ 230,000 on deposit in the account was the property of Baxter Prop[erties]." Because Baxter has not "adequately marshaled the evidence" or "otherwise ... carr[ied] [his] burden in demonstrating clear error, we presume that the evidence supports the trial court's finding" that the transferred funds belonged to him and his wife. See Grimm v. DxNA LLC , 2018 UT App 115, ¶ 17, 427 P.3d 571. See also State v. Nielsen , 2014 UT 10, ¶ 42, 326 P.3d 645 ("[A] party challenging a factual finding or sufficiency of the evidence to support a verdict will almost certainly fail to carry its burden of persuasion on appeal if it fails to marshal [the evidence]."). We therefore conclude that the trial court did not err in holding Baxter in contempt.

¶19 Cougar requests an award of attorney fees incurred on appeal. "A party entitled by contract or statute to attorney fees below and that prevails on appeal is entitled to fees reasonably incurred on appeal." Federated Capital Corp. v. Abraham , 2018 UT App 117, ¶ 15, 428 P.3d 21 (quotation simplified). The trial court, pursuant to Utah Code section 61-1-22, awarded Cougar reasonable attorney fees incurred in pursuing its securities fraud claim against Cypress.

See Utah Code Ann. § 61-1-22(1)(b) (LexisNexis 2018). Because Cougar has prevailed on appeal, we award Cougar reasonable attorney fees incurred in defending the jury's verdict on appeal. Additionally, as part of its contempt order against Baxter, the trial court awarded Cougar attorney fees "in connection with the filing of [Cougar's] Motion regarding contempt and in responding to the [Baxters'] Motion to Interplead." Because those fees were awarded as a sanction, see Gardner v. Gardner , 2012 UT App 374, ¶ 32, 294 P.3d 600 (holding that attorney fees awarded as a result of contemptuous behavior are sanctions), "we decline [Cougar's] request for attorney fees incurred on appeal" in defending the order of contempt entered against Baxter "on this ground," Maxwell v. Woodall , 2014 UT App 125, ¶ 11, 328 P.3d 869. See also Liston v. Liston, 2011 UT App 433, ¶ 27 n.6, 269 P.3d 169 (denying an award of attorney fees on appeal because the district court awarded the fees as "a sanction for [Appellant's] conduct during litigation").

¶20 In conclusion, we affirm the trial court's denial of Cypress's motion for a new trial because any alleged error regarding the two-year statute of limitations instruction could not have been "obvious" to the trial court given Cypress's conduct during trial. We also affirm the court's order holding Baxter in contempt given Baxter's failure to establish that the trial court clearly erred in finding that the transferred funds belonged to the Baxters. We remand for the limited purpose of determining reasonable attorney fees incurred by Cougar in connection with defending the jury's verdict on appeal.

      A bridge loan is "[a] short-term loan that is used to cover costs until more permanent financing is arranged or to cover a portion of costs that are expected to be covered by an imminent sale." Bridge Loan , Black's Law Dictionary 1020 (9th ed. 2009). Bridge loans typically have terms of "up to one year, have relatively high interest rates and are usually backed by some form of collateral, such as real estate or inventory." Bridge Loan Definition , Investopedia, https://www.investopedia.com/terms/b/bridgeloan.asp [https://perma.cc/GXF7-UJQJ].

      Because the statutory provisions in effect at the relevant time do not differ in any way material to our analysis from those now in effect, we cite the current version of the Utah Code for convenience.

      "On appeal, we review the record facts in a light most favorable to the jury's verdict and recite the facts accordingly. We present conflicting evidence only as necessary to understand issues raised on appeal." USA Power, LLC v. PacifiCorp , 2016 UT 20, ¶ 8 n.3, 372 P.3d 629 (quotation simplified).

      For ease of reference, we often use approximations in this opinion when referring to dollar amounts.

      In its briefing, Cypress raised a number of issues dealing with Cougar's breach-of-good-faith-and-fair-dealing claim. As both parties have recognized, the $ 1 million jury award on that claim was duplicative of the $ 4 million award on Cougar's securities fraud claim. Accordingly, we would address Cypress's good-faith-and-fair-dealing arguments only if we took issue with the jury's securities fraud verdict, which we do not, as hereinafter explained.

      The parties hotly dispute the role this employee played at Cougar. Cougar asserts that she was an "administrative assistant" who lacked the "requisite background understanding of the transaction" and therefore "did not understand [the email's] import." Conversely, Cypress contends that her knowledge was corporate knowledge because "[s]he was an accountant" who "regularly sent emails in which she revealed her expertise and substantive role in managing the loan." In view of our resolution of the appeal, the distinction proves to be unimportant.

      Because Cypress has failed to show that the alleged error "should have been obvious to the trial court," State v. Johnson , 2017 UT 76, ¶ 20, 416 P.3d 443 (quotation simplified), we do not address the merits of Cypress's rule 59(a)(7) argument nor the extent to which the alleged error prejudiced Cypress, see id.

      Cypress does not address how this jury instruction was insufficient or erroneous as concerns the 2009 email in which it purportedly brought the issues surrounding some of the collateral to Cougar's attention. Instead, it asserts that the email in and of itself was sufficient to trigger the running of the statute of limitations, as a matter of law. But this was a factual question that was directly addressed by the jury that, by rejecting Cypress's statute of limitations defense and returning a verdict in favor of Cougar, necessarily found that the email did not confer sufficient actual or inquiry notice upon Cougar that fraud was afoot.

      The error, then, was not only not obvious but may also have been invited. See generally Kerr v. Salt Lake City , 2013 UT 75, ¶ 44, 322 P.3d 669 ("The invited error doctrine prevents a party from taking advantage of an error committed at trial when that party led the trial court into committing the error.") (quotation simplified).

      At oral argument, Cypress clarified that, in making its rule 59(a)(7) argument, it relied exclusively on evidence presented by Cougar at trial, thus avoiding any duty to marshal the evidence supporting the verdict in making its argument.

      Cypress seeks an award of attorney fees on appeal. "Ordinarily, we award appellate attorney fees and costs when a party was awarded fees and costs below and then prevails on appeal." Tobler v. Tobler , 2014 UT App 239, ¶ 48, 337 P.3d 296. Because Cypress was not awarded fees below and has not prevailed on appeal, we deny its request for attorney fees.

      In noting that Baxter focuses on the evidence supporting his contention rather than on the evidence supporting the trial court's finding, and in concluding that Baxter has thus not carried his burden of persuasion, we imply no criticism of counsel. Very often such an approach simply reflects counsel's considered opinion that diverting the appellate court's attention from that evidence is more likely to lead to success on appeal than focusing on it, especially if such evidence is strong.


author: CHRISTIANSEN FORSTER, Judge:

text:
    Pany ZAK, Petitioner, v. DEPARTMENT OF WORKFORCE SERVICES AND WORKFORCE APPEALS BOARD, Respondents.
    No. 20171040-CA
    Court of Appeals of Utah.
    Filed March 28, 2019
    Pany Zak, Petitioner Pro Se
    Nathan R. White, Attorney for Respondents
    Judge Michele M. Christiansen Forster authored this Opinion, in which Judges David N. Mortensen and Diana Hagen concurred.
    Opinion
   CHRISTIANSEN FORSTER, Judge:

¶1 While many hands make light work, they may also accrue liability for contributions to the state's unemployment compensation fund. The Department of Workforce Services (Department) determined that Pany Zak's day spa workers were employees and not independent contractors. Because the workers were employees, the Department concluded that their wages were subject to state unemployment compensation fund contributions and the Workforce Appeals Board (Board) affirmed. Zak petitions for judicial review. We decline to disturb the Board's decision.

¶2 Zak operated a by-appointment-only day spa business out of her home and offered a variety of spa-related services to customers. While Zak provided most of the services herself, she hired other workers and contacted them when more hands were needed. When Zak contacted the workers with an opportunity to perform services in her spa, the workers were free to reject the offer. But if the workers accepted, Zak expected them to render their services at her place of business and she would pay the workers a percentage of the sale or a commission.

¶3 Under this arrangement, the customers belonged to Zak and the workers were directed not to hand out their own business cards to the customers. Zak set the price of services, set the rate or amount of commissions to workers, collected payment from customers, and paid the workers. When customers called the day spa, Zak or her boyfriend who lived with her answered the call and scheduled the appointment. If a customer failed to show up for an appointment with a worker or was dissatisfied with the services provided by a worker, Zak did not pay that worker.

¶4 When providing a service, workers paid no "booth" fees and otherwise did not rent space in Zak's day spa. Rather, Zak provided a room and massage table to the workers at no cost, and made available, at a cost to the workers, some spa-related products. If a customer paid by credit card, Zak charged the workers a credit card processing fee.

¶5 Zak generally found workers by placing classified advertisements and soliciting resumes. She then had the workers sign an agreement in which they agreed to be "classified as Contract Labor." The agreement further stated that Zak's day spa "is not considered [the worker's] employer and will not be held responsible for any tax payments" related to the workers' employment. Zak issued the workers a 1099-MISC form but did not know what types of tax forms the workers filed with the Internal Revenue Service. Zak offered the workers no instruction or training on how to perform services and did not ask them to show her their own business licenses. Indeed, Zak allowed the workers to provide services in their own unique styles.

¶6 In 2016, the Department commenced an audit to determine whether Zak's workers should be classified as independent contractors or as Zak's employees. After an investigation, the auditor determined that Zak's workers were employees and, consequently, that the workers' wages were subject to state unemployment compensation fund contributions. Zak appealed the audit to the Department. Considering Zak's appeal, a hearing officer within the Department reviewed documents from the original investigation and consulted with Zak. The hearing officer weighed the circumstances surrounding Zak's relationship with the day spa workers against several factors used to aid in the determination of a worker's independent contractor status. The officer affirmed the auditor's determination that Zak's spa workers were employees and not independent contractors.

¶7 Zak appealed the Department's decision to an administrative law judge (the ALJ). The ALJ affirmed the Department's decision, determining that Zak was an employer and that Zak's day spa workers were employees. As a result, the ALJ determined that Zak's business was subject to unemployment contributions. The ALJ observed that Zak had the burden to establish that the workers were "independently established in their own trade, occupation, profession, or business providing similar services as those provided to [Zak] at the same time the services were provided to [Zak]." See Aura Spa & Boutique v. Department of Workforce Services , 2017 UT App 152, ¶ 8, 402 P.3d 813 ; see also Utah Code Ann. § 35A-4-204(3) (LexisNexis Supp. 2018). Zak's evidence in support of this factor consisted of her own testimony that the workers told her they had their own places of business and business licenses. In addition, Zak offered two resumes from workers she had hired that indicated those workers were self-employed. The ALJ determined that this evidence was hearsay and thus was "insufficient to establish a finding of fact that [the workers] had their own businesses, had other clients, or had business licenses."

¶8 Zak then appealed the ALJ's decision to the Board. The Board adopted in full the factual findings of the ALJ and affirmed the ALJ's reasoning and conclusions of law. Zak seeks review of that decision in this court. Zak primarily argues that the Board erred when it concluded that the day spa workers were employees and not independent contractors with independently established businesses.

¶9 The Employment Security Act generally makes "[s]ervices performed by an individual for wages or under any contract of hire" subject to contributions to the state unemployment compensation fund. Utah Code Ann. § 35A-4-204(3). Zak does not dispute that her relationship with the spa workers included payment of wages under a contract for hire. Consequently, the services of the workers are subject to the Employment Security Act "unless it is shown to the satisfaction of the [Unemployment Insurance Division] that" an exception for independent contractors applies. See id. ; see also Evolocity, Inc. v. Department of Workforce Services , 2015 UT App 61, ¶ 9, 347 P.3d 406 (observing that "Utah law presumes that a paid or contracted worker is an employee unless the putative employer can demonstrate that the worker (1) is independently established in work of the same nature and (2) has been free from control or direction over the means of performing the work" (quotation simplified)). Accordingly, Zak bears the burden to rebut the presumption that the workers were employees. See Aura , 2017 UT App 152, ¶ 8, 402 P.3d 813.

¶10 "The determination whether a [worker] is an independent contractor involves a fact-sensitive inquiry into the unique facts of a particular employment relationship." Evolocity , 2015 UT App 61, ¶ 6, 347 P.3d 406. We accordingly grant deference to the Board "in its weighing of the relevant factors to arrive at its ultimate decision" and "we will disturb that decision only if it is clearly erroneous or falls outside the scope of the afforded deference." Id.

¶11 The Board considered seven factors to aid in its determination that the workers were independent contractors. See Utah Admin. Code R944-204-303(1)(b). These factors

require the reviewing entity to examine whether the worker has a separate place of business; has substantially invested in his or her own equipment; has independent clients; can realize a profit or loss; advertises his or her own services; has obtained the required and customary professional licenses; and maintains records that validate business expenses.

Aura , 2017 UT App 152, ¶ 8, 402 P.3d 813. The Board considered the evidence presented and, importantly, the lack of evidence supporting the conclusion that any of the workers were independent contractors under each of the seven factors.

¶12 Zak separately addresses each factor in her briefing but does not challenge any of the record evidence. Instead, she asks us to consider the same evidence presented in the administrative proceedings and reach a different conclusion-that the workers were more like independent contractors.

However, "[w]e do not reweigh the evidence or substitute our decision for that of the Department but instead will uphold its determinations if they are supported by the record evidence." Evolocity , 2015 UT App 61, ¶ 6, 347 P.3d 406. Affirming the Department's decision, the Board adopted in full its factual determinations. Because Zak does not confront the record evidence supporting the Board's decision, we decline to address the majority of Zak's challenges.

¶13 With regard to the first factor-the worker's separate place of business-Zak argues that the Board improperly ignored some of her evidence when it labeled that evidence hearsay. In other words, she contends that the Board refused to consider legally competent evidence, an argument that implicates the residuum rule. See Aura , 2017 UT App 152, ¶ 11, 402 P.3d 813. "The residuum rule requires that an administrative board's findings of fact be supported by a residuum of legal evidence competent in a court of law even if the board has received and considered evidence of a lesser quality." Id. (quotation simplified). Here the Board declined to base its findings of fact on hearsay evidence alone.

¶14 " 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." InnoSys, Inc. v. Department of Workforce Services , 2011 UT App 169, ¶ 9, 257 P.3d 489 (quoting Utah R. Evid. 801(c) ). "While hearsay is clearly admissible in administrative proceedings, the ensuing findings of fact may not rely exclusively on inadmissible hearsay evidence." Aura , 2017 UT App 152, ¶ 11, 402 P.3d 813 (quotation simplified).

¶15 Zak testified that the workers told her in conversations that they had their own business licenses and places of business. She further testified that some of the workers had other jobs performing spa treatments and she submitted two resumes from workers identifying themselves as "self-employed" and showing that they maintained other employment. None of the workers testified at the administrative hearing and Zak offered no other evidence of the workers' separate businesses. Zak's testimony about what the workers told her and the workers' resumes are hearsay. It constituted statements of others made while not testifying and the statements were offered by Zak to prove the truth of those statements. Zak offered this evidence to establish that the workers had their own business licenses and independent places of business. Because Zak did not assert that an exception applied to this hearsay evidence, the Board correctly concluded that this evidence was hearsay.

¶16 The Board considered Zak's testimony as well as the resumes. The ALJ observed that Zak "provided hearsay evidence the workers had their own places of business[,] ... had other clients[, and] ... had business licenses." Likewise, the Board observed that the only evidence supporting the workers maintaining a separate place of business "is hearsay in the form of the workers' resumes and their alleged statements to [Zak]." Because this evidence was hearsay not subject to an exception, standing alone and without corroboration, it was not competent evidence sufficient to support a factual finding contrary to the facts found by the ALJ. The ALJ and the Board thus properly concluded that Zak's testimony and the two resumes could not support a finding that the workers had business licenses or their own places of business. See id.

¶17 Zak has not demonstrated that the Board clearly erred in its conclusion that the workers were employees of her day spa. Nor has she established that the Board exceeded the scope of its afforded deference in determining the facts and weighing them in reaching its conclusion. "Further, because independent contractor status requires a showing of both independent establishment and freedom from direct control, the lack of the former obviates the need to discuss the latter." Id. ¶ 15 ; see also Utah Code Ann. § 35A-4-204(3)(a)-(b) (LexisNexis Supp. 2018). For these reasons, we decline to disturb the Board's decision.

      A 1099-MISC, or miscellaneous income form, is an Internal Revenue Service tax form that reports, among other things, earnings paid to an independent contractor or a person who is self-employed but has performed work for another. See About Form 1099-MISC, Miscellaneous Income , IRS, https://www.irs.gov/forms-pubs/about-form-1099-misc [https://perma.cc/TY2T-4437].

      We note that Zak asserts that the Board misinterpreted the language of Utah Administrative Code R944-204-303(1)(b) when it considered that provision's enumerated factors used to determine whether a worker is an independent contractor. However, Zak fails to "explain, with reasoned analysis supported by citations to legal authority and the record," why she should prevail on this argument on judicial review. See Utah R. App. P. 24(a)(8). She also suggests that the Board's decision is not supported by substantial evidence. In our review of the Board's decision, the Board affirmatively cited substantial and undisputed evidence supporting its weighing of all seven factors. Because neither of these arguments is adequately briefed, we do not consider them further. See State v. Thomas , 961 P.2d 299, 304 (Utah 1998) ("It is well established that a reviewing court will not address arguments that are not adequately briefed.").

      Hearsay may be "legally competent evidence, given the multitude of exceptions to the presumptive bar on the admission of hearsay." Aura Spa & Boutique v. Department of Workforce Services , 2017 UT App 152, ¶ 12, 402 P.3d 813. Zak asserts only that the public records exception should apply. See Utah R. Evid. 803(8) (excepting from the general hearsay bar, "[a] record or statement of a public office" so long as certain conditions are met). She fails, however, to direct us to the portion of the record where this argument was presented either to the ALJ or the Board for resolution. Consequently, this argument is not preserved. Zak does not argue that any exception to preservation applies under the circumstances and we therefore decline to address this argument further. See State v. Johnson , 2017 UT 76, ¶ 27, 416 P.3d 443 (explaining that, when an issue is not preserved, "the party must argue that an exception to preservation applies" in order for the appellate court to address that issue).