author: MORTENSEN, Judge:

text:
    Curtis W. WARRICK and Shawna J. Warrick, Appellants, v. PROPERTY RESERVE INC., Appellee.
    No. 20170188-CA
    Court of Appeals of Utah.
    Filed October 12, 2018
    George S. Diumenti, Bountiful, Clifton W. Thompson, and Karra J. Porter, Salt Lake City, Attorneys for Appellants.
    Thomas D. Walk, Swen R. Swenson and Ryan R. Beckstrom, Salt Lake City, Attorneys for Appellee.
    Judge David N. Mortensen authored this Opinion, in which Judges Gregory K. Orme and Michele M. Christiansen Forster concurred.
    Opinion
   MORTENSEN, Judge:

¶1 In mid-January, during subfreezing temperatures, Plaintiff Curtis W. Warrick cut across Defendant Property Reserve Inc.'s (PRI) parking lot on his way to work. Before he could complete his sojourn, he slipped and fell on a patch of ice. Warrick and his wife, Shawna J. Warrick (collectively, the Warricks), sued PRI for negligence, but the district court dismissed their claims on summary judgment on the basis that the Warricks provided no evidence of how long the temporary condition had existed. The Warricks appeal, and we affirm.

BACKGROUND

¶2 Warrick left for work early one January morning in 2011. He boarded a bus and arrived in Salt Lake City just before 8:00 a.m. The weather was below freezing with light snowfall.

¶3 Warrick walked until he came to a private walkway that cut across a commercial property. The walkway had apparently been cleared of snow and salted. Warrick traveled along the walkway until it came to a pay-to-use parking lot owned by PRI. Warrick noticed a skiff of snow on the parking lot and piles of plowed snow, roughly two feet high, around the perimeter of the lot.

¶4 While attempting to cross the parking lot, Warrick slipped and fell, breaking his leg. After the fall, Warrick found that he had slipped on "crystal clear" ice, which he described as "just water under that thin layer of snow." The Warricks sued PRI for negligence.

¶5 After discovery, PRI moved for summary judgment, arguing (1) that Warrick was a trespasser and (2) that even if he was a licensee, PRI did not breach any duties because it did not have actual or constructive notice of the ice. The district court granted the motion, considering Warrick an invitee for purposes of the motion and ruling that Warrick presented no evidence that PRI had actual or constructive notice of the ice. The Warricks appeal.

ISSUE AND STANDARD OF REVIEW

¶6 The Warricks contend that the district court erroneously granted summary judgment. We review the district court's grant of summary judgment for correctness, "considering only whether the [district] court correctly applied the law and correctly concluded that no disputed issues of material fact existed." North Fork Special Service District v. Bennion , 2013 UT App 1, ¶ 12, 297 P.3d 624 (cleaned up).

ANALYSIS

¶7 The Warricks' argument on appeal is twofold. First, the Warricks assert that the district court misapplied controlling case law when it required them to demonstrate that PRI had actual or constructive notice of the ice. Second, in the alternative, the Warricks argue that the evidence presented on summary judgment reasonably supported an inference that the ice existed long enough for PRI to have discovered and remedied it. Before turning to issues of preservation and the merits of the district court's grant of summary judgment, we first address the procedural parameters of summary judgment. Particularly, we focus on what constitutes the facts to be considered by the district court.

I. The Constellation of Facts on Summary Judgment

¶8 We acknowledge the black letter law that the court must construe all facts and draw all reasonable inferences in favor of the non-moving party. Less clear is which facts the district court may consider in the first place. A conclusion that a genuine issue of fact exists, even when based upon a reasonable inference, must flow from a specific fact or set of facts.

¶9 Rule 56 of the Utah Rules of Civil Procedure is explicit in this regard. Subsection (a)(1) of rule 56 provides:

[A] motion for summary judgment must contain a statement of material facts claimed not to be genuinely disputed. Each fact must be separately stated in numbered paragraphs and supported by citing to materials in the record under paragraph (c)(1) of this rule.

Utah R. Civ. P. 56(a)(1). Correspondingly, subsection (a)(2) provides:

[A] memorandum opposing the motion must include a verbatim restatement of each of the moving party's facts that is disputed with an explanation of the grounds for the dispute supported by citing to materials in the record under paragraph (c)(1) of this rule. The memorandum may contain a separate statement of additional material[ ] facts in dispute, which must be separately stated in numbered paragraphs and similarly supported.

Id. R. 56(a)(2). Finally, subsection (a)(4) provides:

Each material fact set forth in the motion or in the memorandum opposing the motion under paragraphs (a)(1) and (a)(2) that is not disputed is deemed admitted for the purposes of the motion.

Id. R. 56(a)(4). Thus, the fact statements of the moving and opposing memoranda constitute the constellation of facts to be considered by the district court on summary judgment. Those same facts are to be considered by the reviewing court on appeal. Limiting consideration to this array of facts is fundamentally fair. Although a summary judgment motion commences with the moving party's statement of allegedly undisputed facts, the non-moving party ultimately controls the totality of facts to be considered because the rule specifically allows for additional statements of facts. Id. R. 56(a)(2). And indeed, these additional facts come not only by way of discovery responses already made, but also by way of affidavits of parties or other witnesses filed in response to the motion. Id. R. 56(c)(4). Beyond that, where facts essential to a determination of summary judgment cannot be presented, counsel may file an affidavit or declaration asking for additional time to obtain discovery justifying an opposition. See id. R. 56(d).

¶10 Such considerations are material here. On appeal, both in the briefing and at oral argument, the Warricks claim that the ice on which Warrick slipped was one inch thick, but that assertion is not found anywhere in the statements of fact before the district court. Instead, as discussed above, supra ¶ 4, the only factual statements provided to the district court indicate that the ice was clear and under a thin layer of snow. And while the district court would have been well within its discretion to limit its consideration to only those facts asserted in the statements of fact, the district court apparently looked elsewhere in the record to infer and characterize the ice as "thick," but it did not expressly infer that it was one inch thick. As such, we conclude that consideration of the fact now asserted on appeal that the ice was one inch thick would be improper. We nevertheless note that even if evidence were properly before us that the ice was one inch thick, Warrick's claim would still fail for the reasons we next explain.

II. The Requirement to Demonstrate Actual or Constructive Notice

¶11 The Warricks claim on appeal that the district court misapplied Utah case law by requiring a showing of actual or constructive notice. They argue that a showing of notice is not required in a situation where a defendant creates the dangerous condition. We conclude that this argument is unpreserved.

¶12 "When a party fails to raise and argue an issue in the trial court, it has failed to preserve the issue, and an appellate court will not typically reach that issue absent a valid exception to preservation." State v. Johnson , 2017 UT 76, ¶ 15, 416 P.3d 443. "An issue is preserved for appeal when it has been presented to the district court in such a way that the court has an opportunity to rule on it." Patterson v. Patterson , 2011 UT 68, ¶ 12, 266 P.3d 828 (cleaned up). "To provide the court with this opportunity, the issue must be specifically raised by the party asserting error, in a timely manner, and must be supported by evidence and relevant legal authority." Johnson , 2017 UT 76, ¶ 15, 416 P.3d 443 (cleaned up).

¶13 The Warricks' argument on appeal relies on principles articulated in Jex v. JRA, Inc. , 2008 UT 67, 196 P.3d 576. In that case, the court held that the notice requirement does not apply to temporary unsafe conditions created by owners. Id. ¶ 24. Although the Warricks point to no argument below applying this doctrine, they argue that their mention of the conditions of the parking lot preserved the argument. We disagree. All of the Warricks' arguments on summary judgment asserted that PRI had constructive notice of the temporary condition, and nowhere in the Warricks' statement of preservation do they identify where they argued that the notice requirement does not apply. The Warricks' argument was not preserved for two reasons.

¶14 First, the Warricks' statements before the district court lack specificity to preserve the argument. See Johnson , 2017 UT 76, ¶ 15, 416 P.3d 443. The Warricks cite parts of the record where they discuss snow being piled on an island, the lack of a drain to absorb melting snow, and the path created by the sidewalks and plowed snow. The Warricks also cite to their argument that PRI had constructive notice of the ice. These statements, without more, do not amount to an argument that the notice requirement, actual or constructive, was inapplicable.

¶15 Further, the Warricks specifically argued that PRI had constructive notice because the ice had been on the ground for a sufficient amount of time and the surrounding sidewalks had been salted. And when the district court asked at the hearing on the motion for summary judgment whether the Warricks "ha[d] any facts that would indicate that the owner ... actually knew" about the ice, they responded, "We're not asserting that.... We're not saying that this was an obvious condition...." Such an argument that PRI had constructive notice cuts against a conclusion that the Warricks argued that their claim did not require a showing of constructive notice. Accordingly, we cannot conclude that the Warricks raised this argument with adequate specificity for the district court to rule on it. See Johnson , 2017 UT 76, ¶ 15, 416 P.3d 443.

¶16 Second, the Warricks failed to provide the district court with "relevant legal authority." Id. The Warricks direct us to no place in the record where they cited Jex or any similar authority to the district court. Again, the Warricks argued only that the existence of the ice and the presence of salt on the sidewalks were sufficient to show that PRI had constructive notice of the ice. Thus, the issue of whether PRI created a dangerous condition was not preserved and we will not consider it.

III. The Sufficiency of the Evidence to Support Constructive Notice

¶17 Having rejected the Warricks' first argument, we now consider their alternative argument-that the evidence presented to the district court was sufficient, under the summary judgment standard, to support the conclusion that PRI had constructive notice of the ice. We disagree and conclude that the existence of the ice and the presence of salt on the surrounding sidewalks demonstrate neither how long the ice had been on the ground nor whether PRI had sufficient time to recognize and remedy the hazard.

¶18 "The mere presence of a slippery spot on a floor does not in and of itself establish negligence." Price v. Smith's Food & Drug Centers, Inc. , 2011 UT App 66, ¶ 8, 252 P.3d 365 (cleaned up). A business owner is not charged with insuring the safety of all those who enter the property, but he must "use reasonable care to maintain the floor of his establishment in a reasonably safe condition for his patrons." Id. (cleaned up).

¶19 To show that a landowner is liable for damages caused by a temporary unsafe condition, a plaintiff must show that "(1) the defendant had knowledge of the condition, that is, either actual knowledge or constructive knowledge because the condition had existed long enough that he should have discovered it; and (2) after obtaining such knowledge, sufficient time elapsed that in the exercise of reasonable care he should have remedied it." Jex v. JRA, Inc. , 2008 UT 67, ¶ 16, 196 P.3d 576 (cleaned up).

¶20 The district court ruled that the mere presence of ice and salt on the sidewalks nearby was not enough to demonstrate, without speculation, that the ice had been on the ground for a sufficient amount of time to allow PRI to discover the condition and to remedy it. The Warricks argue on appeal that the evidence "implies it took at least a day of melting and a night of freezing; and a long winter's night is plenty of time for constructive notice to be reasonably found," especially with "the ongoing mitigation of ice on other portions of the property." We agree with the district court.

¶21 In slip-and-fall cases such as this, a factfinder will often be required to make reasonable inferences based on the evidence to decide whether a dangerous condition existed for an appreciable amount of time. "A reasonable inference is a conclusion reached by considering other facts and deducing a logical consequence from them." State v. Cristobal , 2010 UT App 228, ¶ 16, 238 P.3d 1096 (cleaned up). For example, in Ohlson v. Safeway Stores, Inc. , 568 P.2d 753 (Utah 1977), our supreme court held that evidence showing spilled spaghetti that was dirty, crushed, broken into pieces, and strewn from one aisle to another was sufficient on summary judgment to show that the hazard existed for enough time for the store to act. Id. at 754.

¶22 However, "where conjecture and speculation are the only ways to determine the length of time a substance was on the floor, constructive notice should not be imputed." Price , 2011 UT App 66, ¶ 12, 252 P.3d 365 (cleaned up). "[S]peculation is defined as the act or practice of theorizing about matters over which there is no certain knowledge." Cristobal , 2010 UT App 228, ¶ 16, 238 P.3d 1096 (cleaned up). For example, where the evidence showed that the defendant's employees shoveled snow and that the employees wore boots with deep treads, our supreme court concluded that while these arguments helped show "who created the puddle," there was no evidence to prove how long the puddle that caused the plaintiff's fall had been on the floor. Jex , 2008 UT 67, ¶ 21, 196 P.3d 576.

¶23 Here, the Warricks present no evidence that demonstrates approximately when the ice formed. There is no evidence showing the temperatures on the preceding days or nights. There is also no evidence showing how long it takes for ice as described in the statements of fact to form. Further, while the Warricks insist that the ice formed from melting piles of snow, there is no evidence demonstrating that the piles of snow were the source of the water that turned to ice, as opposed to ice forming from precipitation. For all the evidence shows, the ice could have been there for several days or it could have been there for several minutes.

¶24 As for the salt on the surrounding sidewalks, there is no evidence that PRI was responsible for managing those sidewalks or that PRI employees cleared snow and spread salt on those sidewalks. It is unclear how the mere presence of salt on adjacent sidewalks tells us anything about how long the ice in the parking lot existed. The salt could have been applied days before and simply remained on the sidewalk.

¶25 Because inferring that the ice existed for an appreciable time requires "theorizing about matters over which there is no certain knowledge," see Cristobal , 2010 UT App 228, ¶ 16, 238 P.3d 1096 (cleaned up), we conclude, as did the district court, that the Warricks presented no evidence going to the amount of time the ice existed. And absent evidence upon which a factfinder could conclude that PRI should have known about the hazardous condition and remedied it, the Warricks' claim fails as a matter of law.

CONCLUSION

¶26 We conclude that the district court properly granted summary judgment. The Warricks' argument that they were not required to show actual or constructive notice of the dangerous condition was not preserved. Further, the Warricks presented no competent evidence going to the amount of time that the dangerous condition existed.

¶27 Affirmed.

      A non-moving party is not entitled to "every possible inference of fact, no matter how remote or improbable, in favor of the nonmoving party." IHC Health Services, Inc. v. D & K Mgmt., Inc. , 2008 UT 73, ¶ 19, 196 P.3d 588. The district court is required, however, only to draw reasonable inferences, and such inferences must present something more than speculation. Heslop v. Bear River Mutual Ins. Co. , 2017 UT 5, ¶ 21, 390 P.3d 314.

      Similarly, the Warricks attached to their appellate brief photographs of ice in a parking lot. However, the record reflects that when asked in his deposition whether the photos represented the ice on which he fell, Warrick stated: "I think it isn't.... I'm thinking not."

      We recognize that the district court has discretion to grant or deny a motion for summary judgment based on a "mere technical" failure to meet briefing requirements. See Jennings Inv., LC v. Dixie Riding Club, Inc. , 2009 UT App 119, ¶ 24, 208 P.3d 1077. But regardless of whether there has been a "technical violation" of the rules, the existence of a fact somewhere in the record does not absolve a party from its duty to include that fact in its summary judgment memorandum. Id. ¶ 25 ; see also id. ¶ 26 ("A district court is not obliged to comb the record to determine whether a genuine issue as to any material fact exists to prevent summary judgment. Rather, it is the nonmoving party's burden to demonstrate that such a conflict exists."); Utah R. Civ. P. 56(c)(3) ("The court need consider only the cited materials, but it may consider other materials in the record.").

      Indeed, at oral argument the Warricks acknowledged that they neither made this argument in the briefing before the district court nor at the hearing on the motion for summary judgment.


source: Caselaw Access Project

author: TOOMEY, Judge:

license: Public Domain

text:
    Donovan Todd STEPHENS, Appellee and Cross-appellant, v. Bridget Nicole STEPHENS, Appellant and Cross-appellee.
    No. 20170440-CA
    Court of Appeals of Utah.
    Filed October 12, 2018
    Jennifer R. Jackson, Attorney for Appellant and Cross-appellee.
    Angilee K. Dakic and Amy F. Hugie, Attorneys for Appellee and Cross-appellant.
    Judge Kate A. Toomey authored this Opinion, in which Judges Gregory K. Orme and Michele M. Christiansen Forster concurred.
    Opinion
   TOOMEY, Judge:

¶1 Bridget Nicole Stephens (Mother) appeals the district court's judgment on a petition to modify a decree of divorce, and Donovan Todd Stephens (Father) cross-appeals the same judgment. Mother argues that the district court erred when it awarded Father sole physical custody of the parties' minor child (Child), asserting the modified decree met the statutory requirements for joint physical custody. Mother further argues the court erred when it calculated Mother's child support obligation on the award of sole physical custody to Father, asserting it should have used a joint physical custody worksheet. Father cross-appeals, asserting the district court erred when it denied his requested relief for parent-time modification. We affirm with respect to the sole physical custody designation and the child support award. But we reverse and remand for the district court to make additional findings with respect to the parent-time award and, after doing so, to adjust its order as necessary.

BACKGROUND

¶2 Father and Mother divorced in 2011. The parties were awarded joint legal custody of Child, but Father was awarded sole physical custody subject to Mother's liberal parent-time. Under the parent-time arrangement, Child stayed overnight with Mother for more than thirty percent of the year. Because Mother was unemployed, her child support obligation was calculated based on an imputed minimum wage.

¶3 Four years later, Father filed a petition to modify the divorce decree, asserting that a substantial and material change of circumstances supported a reduction in Mother's parent-time and an increase of Mother's child support obligation. As to parent-time, Father claimed Mother had abused Child. The abuse allegation was based primarily on a supported finding of child abuse by the Utah Division of Child and Family Services (the DCFS Finding). With regard to the child support issue, Father claimed Mother had returned to work and asked for a modification based on her new income.

¶4 Mother answered the petition, denying the abuse allegation. Mother also filed a counter-petition to modify, asking for an award of joint physical custody that designated her as primary custodian. Mother's counter-petition alleged Father did not communicate with her about Child, Father "failed to work with [Child]" regarding Child's learning difficulties, and that she was "concerned about [Child's] nutrition and hygiene while in [Father's] custody." Mother acknowledged her new employment and asked that child support be modified "based on the parties' current income and the parent-time ordered, in compliance with [Utah's] child support guidelines."

¶5 Based on the DCFS Finding, the district court entered a temporary order, greatly reducing Mother's parent-time, terminating her overnight parent-time, and requiring supervision during all visits. The district court also appointed a private guardian ad litem (the GAL) to represent Child's best interest. The GAL was to make recommendations regarding the alleged abuse and whether Mother's parent-time should be supervised.

¶6 The GAL interviewed Child, who reported "substantial communication issues" with Mother, as well as physical and emotional abuse. For example, Mother called Child "fat" and "stupid," causing Child "distress and problems with her self-image." Mother also "required" Child to call her every day, and if Child missed a call, Mother became angry with her. In addition, Child described witnessing episodes of violence by Mother directed toward one of Mother's other children and Child's step-father.

¶7 Child also detailed the incident that gave rise to the DCFS Finding. According to Child, Mother was upset because Child had not called her the previous night. Mother asked Child "what goes on in her head," while forcefully and repeatedly jabbing and poking Child's face, then hit Child's leg with a fist. Child ultimately told the GAL she was "terrified of [Mother]" and would fear for her safety sleeping at Mother's house if the overnights resumed. Child feared Mother would "speak to her inappropriately, hit her, or lash out at her in other ways."

¶8 The GAL next interviewed Mother and was "openly shocked" at the way Mother communicated about Child. The GAL noted it was easy to understand why Child thought Mother called her "fat" or "dumb," "despite different verbiage or use of words."

¶9 The GAL also interviewed Child's personal therapist. The personal therapist began treating Child for anxiety at school, but the treatment evolved to include Child's relationship with Mother and a potential diagnosis of post-traumatic stress disorder resulting from the incident that gave rise to the DCFS Finding. The personal therapist concluded that Mother's damaging comments and the domestic violence toward Child had created Child's anxiety and caused her relationship with Mother to become "toxic." Child constantly worried about their interactions because at "any moment [Mother] could go off."

¶10 Based on the investigation, the GAL recommended the court adopt a provisional "step-up" parenting plan. That plan eventually eliminated supervision during Mother's visits, and allowed Mother a path to regain the parent-time awarded in the original divorce decree. The plan gradually increased Mother's visits each week, with a return to parent-time as established in the original decree after a successful six-week period. The GAL recommended continued therapy for Mother and Child as well as feedback from the therapists as the process moved forward. Also, the plan made returning to the original parent-time schedule contingent on Mother refraining from further abusive behavior. If Mother engaged in additional incidents of violence or abuse directed at Child, the step-up plan would cease immediately and Mother's parent-time would return to what it was under the temporary order.

¶11 The district court also received evidence at trial. Father detailed his understanding of the incident giving rise to the DCFS Finding and testified to Mother's other violent outbursts. Father also testified that Child smoked marijuana during a supervised visit at Mother's house. Ultimately, Father asked the court to adopt an extended step-up plan that would allow Mother overnight parent-time only after six months and cap Mother's potential parent-time at the statutory minimum under Utah Code section 30-3-35.

¶12 Mother also testified, denying Child's version of the incident giving rise to the DCFS Finding. Mother admitted "tapping" Child on the head, but she disputed the number of taps, and denied hitting Child's leg. In addition, Mother denied that Child smoked marijuana at Mother's house. Mother ultimately asked the court to award joint physical custody, identifying her as primary custodian.

¶13 The court also considered "affidavit-style answers" to the parties' questions submitted by the Child's personal therapist and Mother and Child's reunification therapist. The personal therapist reported Child's symptoms of post-traumatic stress disorder and recommended continued personal and reunification therapy to increase Child's "feelings of safety in the presence of [M]other." The personal therapist said she felt a step-up plan was appropriate, but she believed Child and Mother needed more than six weeks for reunification therapy before the plan was set in place. The personal therapist also recommended a "safety plan" to assist Child in the eventual transition back to increased, overnight parent-time with Mother, and to reduce the risk of physical violence that Child felt was "high as changes in [parent-time] [were] being addressed." That safety plan included (1) allowing Child to have her phone with her at all times when she is with Mother, (2) allowing Child to state "I feel unsafe right now" and go to a secluded area for at least half an hour of alone time, and (3) requiring a lock on Child's bedroom door at Mother's house that Child could lock before going to sleep.

¶14 The reunification therapist explained, "[Child] and [Mother] have been able to do some repair in their relationship, but it is both mine and [Child's] opinion that the work isn't completed and family therapy should continue." The reunification therapist said Child was still working to develop "some power in the relationship between her and [Mother]" and that "it is going to likely require a combination of more counseling (both individual and family) and getting older and more mature." The reunification therapist said she believed the six-week step-up plan was "appropriate because it gives [Child] a chance to ... get used [to] the changes gradually."

¶15 After considering the evidence, the district court entered an order supported by findings of fact and conclusions of law. First, the district court found Mother's abuse of Child constituted a significant and material change in circumstances warranting modification of parent-time. The findings stated that the abuse was "well documented," citing the DCFS Finding, Child's confirmation of that finding, and Father's testimony regarding the incident. The district court also found Mother had made other "violent outbursts in the presence of or directed at" Child, and that Child used marijuana at Mother's house during a supervised visit. The court concluded Child was suffering from post-traumatic stress disorder, and her relationship with Mother had become strained.

¶16 Despite the findings of abuse, the district court found the relationship between Mother and Child had improved through temporary parent-time restrictions and counseling. As such, the district court concluded it remained in Child's best interest that the original custody order remain in place-that Father retain sole physical custody and Mother have parent-time as set forth in the original decree-subject to a "step-up" plan.

¶17 The district court granted, in part, Father's petition to modify. First, it ordered the immediate adoption of the six-week step-up plan (without supervision), and the "safety plan," as recommended by Child's personal therapist. To support that modification, the court relied on the declarations of both the personal therapist and the reunification therapist "that a step-up and reunification plan [were] in the best interest of [Child]." Additionally, the district court ordered that Child continue personal therapy, and that Mother and Child continue reunification therapy until the reunification therapist determined, "with input from [Child]," it was no longer necessary. The court also conditioned the return to the original parent-time arrangement, noting that if Mother engaged in additional episodes or incidents of violence or physical abuse against Child, the step-up plan would cease immediately and supervised visits would be restored in accordance with the terms of the temporary orders.

¶18 The court also modified the parties' child support obligations to an amount consistent with Mother's new income, noting that "[b]oth parties acknowledged that there was a material change in circumstances related to [Mother's] employment status and this was not a contested issue in this case." It made the calculation based on the sole physical custody calculation in Utah Code section 78B-12-205.

¶19 Mother appeals and Father cross-appeals.

ISSUES AND STANDARDS OF REVIEW

¶20 Mother contends the district court erred in two respects. She argues it should not have granted sole physical custody to Father, asserting the modified order satisfies Utah's statutory definition of joint physical custody. Next, Mother contends the court erred by not using a joint physical custody child support worksheet to calculate her obligation. "A [district] court's interpretation of a statute is a question of law that we review for correctness." Spall-Goldsmith v. Goldsmith IV , 2012 UT App 302, ¶ 6, 288 P.3d 1105 (quotation simplified). Otherwise, this court reviews the district court's decision whether to modify a custody award and an award of child support for an abuse of discretion. Woodward v. Woodward , 709 P.2d 393, 394 (Utah 1985).

¶21 Father cross-appeals, contending the district court erred in failing to modify the parent-time order and award Mother only the statutory minimum amount of parent-time, as requested in his petition to modify. He argues "the [district] court's findings supporting denial of [Father's requested] parent-time modification are not clear and are contrary to the evidence." This court reviews a district court's parent-time determination for abuse of discretion. See Trubetzkoy v. Trubetzkoy , 2009 UT App 77, ¶ 7, 205 P.3d 891.

ANALYSIS

I. Custody Designation

¶22 Mother argues the district court erred by awarding Father sole physical custody. We disagree. Mother failed to show a substantial and material change in circumstances justifying a change to the custody designation. Thus, the original custody order appropriately remained unchanged in that regard.

¶23 Under Utah law, there is "neither a preference nor a presumption for or against joint physical custody or sole physical custody." Utah Code Ann. § 30-3-10(5) (LexisNexis Supp. 2017). Instead, "the court and the family [have] the widest discretion to choose a parenting plan that is in the best interest of the child." Id. Joint physical custody "means the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support," id. § 30-3-10.1(3)(a), in appropriate cases.

¶24 Once the district court makes an initial custody determination, it "has continuing jurisdiction ... and may later make such changes in custody provisions as it determines are reasonable and necessary for the welfare and best interests of the child." Hogge v. Hogge , 649 P.2d 51, 53 (Utah 1982) (quotation simplified). But before the district court may modify custody, the moving party must first show changed circumstances that warrant reconsideration of the issue. See id. Once the district court finds such changed circumstances, it considers the best interest of the child to decide "the manner in which custody should be modified, if at all." See id. A district court "is given broad discretion" in deciding whether to modify custody, and "its decision will not be disturbed absent a showing of an abuse of discretion or manifest injustice." Maughan v. Maughan , 770 P.2d 156, 159 (Utah Ct. App. 1989).

¶25 Here, the district court awarded Father sole physical custody in the original divorce decree. In Mother's counter-petition, she asked the district court to change that designation to joint physical custody and award her primary custody. But the court denied Mother's request, finding that Mother had not met her burden. Although the court noted "that [Father] has not shared all important information with [Mother] in a timely manner," and that "both parties testified that [Child] struggles with schooling," the court found there was insufficient "credible evidence that changing parent-time or custody as requested by [Mother] would resolve these struggles-particularly given the abuse findings."

¶26 The district court did not abuse its discretion when it denied Mother's request to modify the custody designation. Father's actions, and the lack of communication between Mother and Father, do not "indicate that the custodial circumstances of [Child] or the parenting capabilities of [Father]" have been affected. See Becker v. Becker , 694 P.2d 608, 611 (Utah 1984). Thus, the court acted within its discretion in denying Mother's counter-petition to modify custody.

¶27 Further, the parent-time modifications the court made did not require an alteration of the physical custody designation. The district court granted, in part, Father's petition to modify parent-time. First, it implemented the temporary order, greatly limiting Mother's parent-time. Next, the court ordered the step-up plan, allowing Mother to regain the parent-time she was awarded in the original divorce decree so long as she satisfied the plan's conditions. Those modifications, however, did not necessarily affect the award of custody as designated in the original divorce decree. The court specifically found the custody arrangement as entered in the original decree remained in Child's best interest and would remain in place. Because Mother did not establish a change in circumstances warranting reconsideration of the issue, the original order remained unchanged regarding Father's sole physical custody designation and the court was not required to modify the physical custody designation.

II. Child Support

¶28 Mother next argues the district court failed to comply with Utah's statutory child support guidelines when it used a sole physical custody worksheet to calculate her child support obligation. We disagree. Because the step-up parenting plan allowed Mother the time required for joint physical custody only after six weeks, contingent on Mother's actions, the modified parent-time order did not meet the requirements for a joint physical custody child support calculation.

¶29 Under the Utah Child Support Act, child support obligations are generally calculated using a worksheet in cases of joint physical custody. See Spall-Goldsmith v. Goldsmith IV , 2012 UT App 302, ¶ 8, 288 P.3d 1105 ; see also Utah Code Ann. § 78B-12-208 (LexisNexis 2012). Moreover, for purposes of calculating child support, the designation of "joint physical custody" or "sole physical custody" is not as important as whether the custody arrangement "exceed[s] the [statutory] threshold for joint physical custody."See Udy v. Udy , 893 P.2d 1097, 1100 (Utah Ct. App. 1995) (concluding that the district court erred when it used a sole custody child support worksheet when "[a]lthough labeled 'sole custody,' the [district] court awarded [the father] [parent-time] that exceeded the [statutory] threshold for joint physical custody"). In Utah, a custody plan meets the requirements for joint physical custody when "the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support." Utah Code Ann. § 78B-12-102(15) (LexisNexis Supp. 2018). When those requirements are met, a court must "use a joint [physical] custody child support worksheet ... [or] make findings supporting its deviation." Spall-Goldsmith , 2012 UT App 302, ¶ 8, 288 P.3d 1105 (quotation simplified).

¶30 Here, the district court modified child support and was thus required to make the modification consistent with the Utah Child Support Act. The parties agree that the modified divorce decree awarded Mother a path to obtain overnight parent-time with Child for more than thirty percent of the year. But under the modified decree, Mother could not achieve such parent-time until after successfully completing the six-week step-up plan. Further, Mother's increased parent-time was conditioned on her refraining from engaging in further abusive behavior toward Child. Thus, at the time the court entered the order, Mother was not entitled to overnight parent-time with Child for more than thirty percent of the year. Accordingly, the modified decree did not meet the requirements for joint physical custody under Utah Code section 78B-12-102(15), and the district court was not required to use a joint physical custody worksheet to calculate Mother's child support obligation.

III. Parent-Time

¶31 Father argues the district court erred in denying his requested relief for parent-time modification. He contends "the district court's findings supporting denial of [his requested] parent-time modification are not clear and are contrary to the evidence." We agree that the court's findings in support of the parent-time modification were not sufficiently detailed to inform the parties of the court's reasoning or facilitate meaningful appellate review. See Lay v. Lay , 2018 UT App 137, ¶ 28, 427 P.3d 1221 (concluding that "the district court's findings were inadequate to disclose the steps by which the court reached its ultimate conclusion" regarding modification of a parent-time agreement).

¶32 "[District] courts have continuing jurisdiction to consider motions to modify dealing with child custody and [parent-time]," Kallas v. Kallas , 614 P.2d 641, 645 (Utah 1980), and to make such modifications "as [they] determine[ ] are reasonable and necessary for the welfare or best interests of the child," Hogge v. Hogge , 649 P.2d 51, 53 (Utah 1982) (quotation simplified); see also Utah Code Ann. § 30-3-5(3) (LexisNexis Supp. 2017) (recognizing the district court's continuing jurisdiction over child custody and child maintenance determinations).

¶33 The district court's decision to modify a decree of parent-time "must involve two separate steps." Hogge , 649 P.2d at 54. First, the court must find that the petitioner has made "some showing of change in circumstances" that would support a modification of parent-time. Jones v. Jones , 2016 UT App 94, ¶ 10, 374 P.3d 45 ; see id. (explaining that the showing of a change in circumstance when a district court alters parent-time arrangements "does not rise to the same level as the substantial and material showing required when a district court alters custody"). Second, the court "must consider the changes in circumstance along with all other evidence relevant to the welfare or best interests of the child ... [to] determine de novo which custody arrangement will serve the welfare or best interest of the child, and modify, or refuse to modify, the decree accordingly." Hogge , 649 P.2d at 54.

¶34 "[T]he [district] court's proximity to the evidence places it in a better position than an appellate court to choose the best custody arrangement." Trubetzkoy v. Trubetzkoy , 2009 UT App 77, ¶ 6, 205 P.3d 891. Thus, we generally "will not disturb the [district] court's [parent-time] determination absent a showing that the [district] court has abused its discretion." Id. ¶ 7 (quotation simplified).

¶35 Although the district court's discretion is broad, that discretion "must be exercised within the confines of the legal standards set by the appellate courts." Schindler v. Schindler , 776 P.2d 84, 87 (Utah Ct. App. 1989). In addition, the "facts and reasons for the court's decision must be set forth in appropriate findings of fact and conclusions of law." Id. "The district court's factual findings are adequate only if they are sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached." Lay , 2018 UT App 137, ¶ 19, 427 P.3d 1221 (quotation simplified). Without sufficient detail and clarity, appellate courts cannot "ensure that the district court's discretionary determination was rationally based," Fish v. Fish , 2016 UT App 125, ¶ 22, 379 P.3d 882, and ensure that "the parties are informed of the district court's reasoning," Lay , 2018 UT App 137, ¶ 19, 427 P.3d 1221 (quotation simplified).

¶36 Here, the district court found Father had shown "a significant change in circumstances that warrant[ed] a modification of parent-time ... based on the ... finding of child abuse of [Child] by [Mother]." The court's finding was supported with detailed, subsidiary findings of fact, including that the DCFS Finding was credible, well-documented, and confirmed by Child. In addition, the district court found Mother made "multiple violent outbursts in the presence of or directed at Child," and Child used marijuana at Mother's house during a supervised visit. "[B]ased on [Mother's] abusive behavior," the district court found "that [Child] is suffering from post-traumatic stress disorder... and that [Child's] relationship with [Mother] is strained."

¶37 The district court then began the second step to determine which parent-time arrangement would serve Child's best interest. To that end, the court modified parent-time by ordering the immediate adoption of the six-week step-up plan. But the court found that it remained in Child's best interest that Mother retain parent-time as set forth in the original decree, following successful completion of the step-up plan.

¶38 We are unable to properly review the district court's parent-time modification because its findings regarding parent-time did not contain sufficient detail to explain the "steps by which the ultimate conclusion" was reached. See Lay , 2018 UT App 137, ¶ 19, 427 P.3d 1221 (quotation simplified). The only findings to support a return to Mother's original parent-time after completion of the six-week step-up plan were that the relationship between Mother and Child had "improved through counseling and due to the restrictions that [had] been in place since the temporary orders were entered," and that the court "found credible" the therapists' opinions "that a step-up and reunification plan are in the best interest of [Child]."

¶39 As to the therapists' opinions, the district court's finding was that the therapists supported "a" step-up plan, not "the" step-up plan. As Father notes, Child's personal therapist recommended a longer period for reunification and a "step-down" schedule, basing that recommendation on the lack of progress Child felt had taken place in therapy. The court did not explain why it deemed the reunification therapist's recommendation of a six-week step-up plan was more appropriate than the the personal therapist's recommendation regarding a longer period of time for further reunification therapy before Mother regained her parent-time. The court may have reached that conclusion because it found the reunification therapist's testimony more credible than Child's personal therapist's testimony. But the court "did not provide any such explanation." See id. ¶ 28.

¶40 Further, compelling evidence in the record supports a contrary conclusion regarding Mother and Child's relationship. Child stated she was " 'afraid' of [Mother], and [did] not feel [Mother] [had] the capacity to change or learn anything from therapy." Through the GAL, Child told the district court she would be "in fear for her safety" if she slept at Mother's house.

¶41 Child's personal therapist reported that the relationship between Mother and Child had not improved. At the time of the personal therapist's recommendation, Mother and Child had completed only two months of reunification therapy and attended only eight sessions. Indeed, the record indicates that both therapists and the GAL expressed concerns about the uncertain results of the reunification therapy. Those concerns are highlighted by several statements, including "there hasn't been progress," "the work isn't complete," and "[I] am concerned by the actions of [Mother] and the effect of her actions on [Child]."

¶42 "A [district] court's failure to provide adequate findings is reversible error when the facts are not clear from the record." Bartlett v. Bartlett , 2015 UT App 2, ¶ 2, 342 P.3d 296 (quotation simplified). That is the case here. The district court's findings of fact do not "show that the court's judgment ... follows logically from, and is supported by, the evidence." Id. (quotation simplified). Given the court's finding of "significant change warranting modification of parent-time," it was required to state adequate findings to ensure there was a rational basis to support its decision to allow Mother to return to her extended, overnight parent-time after just six weeks. See Lay , 2018 UT App 137, ¶ 19, 427 P.3d 1221. The district court's findings are therefore insufficient.

¶43 We agree with Father's argument that "jump[ing] from establishing that there has been a significant change of circumstances that warrants modification, to then stating that ... the relationship between [Mother] and [Child] [had] improved through counseling" renders the conclusion regarding parent-time "not entirely clear." Considering the court's findings of abuse, and the conflicting evidence regarding the appropriate restrictions and conditions to Mother's parent-time, it is not "reasonable to assume that the [district] court actually considered the controverted evidence and necessarily made a finding to resolve the controversy, but simply failed to record the factual determination it made." Fish v. Fish , 2016 UT App 125, ¶ 22, 379 P.3d 882 (quotation simplified); see also Hall v. Hall , 858 P.2d 1018, 1025 (Utah Ct. App. 1993) (determining that "missing findings can be viewed as harmless error" where "the undisputed evidence clearly establishes the factor or factors on which findings are missing," or where "the absent findings can reasonably be implied" (quotation simplified) ).

¶44 In sum, the district court's findings were "inadequate to disclose the steps by which the court reached its ultimate conclusion" that Mother's relationship with Child had improved, making the six-week step-up plan in Child's best interest. See Lay , 2018 UT App 137, ¶ 28, 427 P.3d 1221. We thus remand to the district court to make additional findings with respect to whether the modified parent-time plan is in Child's best interest and to adjust its order as may be appropriate, given those findings.

CONCLUSION

¶45 We conclude the district court did not err in awarding sole physical custody to Father. We also conclude it did not err in using a sole physical custody worksheet to calculate Mother's child support obligation. But we conclude the district court did not provide adequate findings to support its ultimate parent-time award and therefore remand to the district court to make additional findings with respect to whether the modified parent-time plan is in Child's best interest. The court may, in its discretion, allow additional evidence with regard to parent-time. And with the additional findings made, the court shall adjust its order as may be appropriate.

      Much of Mother's argument centers on her assertion that Child currently stays overnight with Mother for more than thirty percent of the year as required for joint physical custody under Utah law. See Utah Code Ann. § 30-3-10.1(3)(a) (LexisNexis Supp. 2017). But, as we discuss infra ¶ 30, Mother's parent-time under the district court's order was contingent on successful completion of the step-up plan. Any remedy Mother may have with respect to the physical custody designation following her successful completion of the step-up plan lies with the district court.

      We note that Mother appealed the DCFS Finding during this appeal, and we were informed by Mother's counsel that it was changed from "supported" to "unsupported." An unsupported finding means "there is insufficient evidence to conclude that abuse ... occurred." Utah Code Ann. § 62A-4a-101(45) (LexisNexis Supp. 2018). But an unsupported finding does not mean "that [DCFS] ... conclude[d] that the allegation was without merit." Id. "Without merit" is a separate designation that means DCFS determined "the alleged abuse ... did not occur." Id. § 62A-4a-101(46). On remand, "the decision whether to take additional evidence" regarding the parent-time order "is within the sound discretion of the [district] court." Interiors Contracting, Inc. v. Smith, Halander & Smith Assocs. , 881 P.2d 929, 931 (Utah Ct. App. 1994) (quotation simplified).


author: HARRIS, Judge:

text:
    Craig HOSKING, Appellee, v. Erin Jo CHAMBERS, Appellant.
    No. 20160444-CA
    Court of Appeals of Utah.
    Filed October 12, 2018
    Jason B. Richards, Brandon R. Richards, and Christopher Hill, Salt Lake City, Attorneys for Appellant.
    Troy L. Booher, Julie J. Nelson, Salt Lake City and Laura M. Rasmussen, Ogden, Attorneys for Appellee.
    Judge Ryan M. Harris authored this Opinion, in which Judges Michele M. Christiansen Forster and Jill M. Pohlman concurred.
    Opinion
   HARRIS, Judge:

¶1 After their divorce in 2008, Craig Hosking was ordered to pay alimony to Erin Jo Chambers. In 2012, suspecting that Chambers might be cohabiting with a new boyfriend, Hosking asked the district court to terminate his alimony obligation. After holding a two-day evidentiary hearing, the district court determined that Chambers was indeed cohabiting, and granted Hosking's petition.

Chambers appeals, and asks us to consider two issues. First, she asserts that the district court's cohabitation determination was unsupported. Second, she contends that the district court failed to address certain other issues pertaining to the division of property in the decree of divorce. We affirm.

BACKGROUND

¶2 Because the two issues Chambers raises are grounded in different underlying facts, we set forth the facts relevant to each issue separately, in turn.

Cohabitation

¶3 Chambers and Hosking married in 1997 and divorced in 2008. As part of the decree of divorce, the court ordered Hosking to pay Chambers alimony of $8,000 per month for three years, then $7,000 per month for four additional years. Alimony would cease after seven years, or "upon the death of either party, or upon the re-marriage or co-habitation of [Chambers]."

¶4 In 2011, after making alimony payments for more than three years, Hosking ran across an obituary that described Chambers as the spouse of the deceased's brother. His interest piqued, Hosking hired two private investigators to determine whether Chambers was cohabiting. One of the private investigators surveilled Chambers and her boyfriend (Boyfriend) daily from August to November 2011, and again during late December 2011 and early January 2012. The other private investigator surveilled Chambers's Ogden residence daily for seventeen days in March 2012. In May 2012, after examining the results of the surveillance, Hosking filed a petition to terminate alimony, alleging that Chambers was cohabiting with Boyfriend.

¶5 In 2015, the court held a two-day evidentiary hearing to consider Hosking's petition. Hosking introduced testimony from the two private investigators, and also presented documentary evidence obtained during discovery from Chambers and from Boyfriend, including bank statements, credit card statements, insurance policies, and other financial records. The investigators testified that Boyfriend owned a condominium in Provo, and traveled often for work, but that he spent the majority of his non-traveling time at Chambers's residence in Ogden rather than at his condo in Provo.

¶6 The first investigator testified that, between late August and early November 2011, Boyfriend spent twenty-four nights at Chambers's residence and only fifteen nights in Provo. The investigator observed that Boyfriend traveled frequently for work and would return to the Ogden residence after traveling. He also observed that Boyfriend often drove three vehicles, each of which was regularly parked at the Ogden residence. Boyfriend drove one of those vehicles-later determined to belong to Chambers-not only to his job in Provo, but to the airport where he left it for several days while apparently on a trip to Hawai'i. The investigator also testified that Boyfriend stayed at the Ogden residence continuously from December 19 to 27, and again during the first weekend of January 2012. The investigator also testified that, during the entire period of surveillance, Boyfriend regularly attended church with Chambers in Ogden. He also observed that Boyfriend's parents took care of the Ogden residence while Chambers and Boyfriend were out of town. On a separate occasion, the investigator observed Chambers take care of a house owned by a member of Boyfriend's family.

¶7 The second investigator surveilled the Ogden residence for seventeen days in March 2012. He testified that he observed Boyfriend stay at the Ogden residence for thirteen of those nights, and that the house was empty the remaining four nights. He also testified that Boyfriend helped with yard work and household chores, and attended church with Chambers in Ogden. He testified that he observed the same three cars observed by the first investigator parked regularly at the Ogden residence, and that Boyfriend regularly drove all three cars. Moreover, he testified that two of these cars were registered to Chambers and Boyfriend jointly. He also testified that Boyfriend appeared to have independent access to the house, stating as follows: "He could come and go from the front door. He could come and go from the garage doors. He could come and go and leave the home at will. He didn't need help from anybody. Never knocked on a door. Never stood outside and made a phone call."

¶8 During this time period, Chambers was attempting to sell the residence, and the second investigator posed as a potential homebuyer in order to gain access to the interior of the house. While inside the house, the investigator observed men's clothing in the closet of the master bedroom that matched the type of clothing that he observed Boyfriend wearing during his surveillance. He also observed men's grooming products, including shaving cream and men's shampoo, in the master bathroom.

¶9 The financial records presented by Hosking indicated that Chambers and Boyfriend owned two vehicles together and held five joint insurance policies. In addition, the records demonstrated that Chambers and Boyfriend had a joint bank account and frequently transferred various sums of money to each other, including large amounts up to $30,000. The two had applied for a mortgage on the Ogden residence together, first in 2008, and again in 2012. On the 2008 application, Boyfriend listed his Provo address as his residence, but on the 2012 application he indicated that he had lived at the Ogden residence for a year.

¶10 Chambers and Boyfriend disputed Hosking's characterization of their living arrangements. Both testified that Boyfriend lacked independent access to the house, did not keep any clothes in the house, and did not meaningfully contribute to household expenses. Both testified that Boyfriend kept his Provo condo as his primary residence and only occupied the Ogden home infrequently and as a guest. Both testified that Boyfriend occasionally spent the night in Ogden because Chambers was afraid of the private investigators-whom Chambers and Boyfriend had noticed loitering near the residence-and that Boyfriend would often sleep in his car in front of the house. And both characterized the various transfers of money between themselves as loans with repayment obligations.

¶11 Chambers's mother testified at trial, acknowledging that Chambers and Boyfriend had a very close relationship, and that at the time of a pretrial deposition, she did not know whether Chambers and Boyfriend were married or not. Chambers herself testified that she and Boyfriend became engaged in 2012 and remained so, but at the time of the 2015 hearing had not yet set a wedding date. Chambers admitted to having a sexual relationship with Boyfriend and frequently traveling with him. She also acknowledged that she and Boyfriend attended church and other family events together, and that she took care of Boyfriend's brother (the subject of the aforementioned obituary) as he suffered from terminal cancer.

¶12 Boyfriend testified that he spent a large amount of time in the Ogden area, not necessarily because of Chambers, but because most of his extended family lived in the area, his dentist and doctor were located there, and he had several business dealings in the area. He testified that he usually spent only "two or three nights a month" with Chambers, but acknowledged that his presence in Ogden increased after they became aware of the surveillance, because he was concerned about Chambers's welfare and worried that "there were people ... harassing her and following her." Boyfriend also acknowledged that he was engaged to Chambers and that they had a very close relationship; indeed, he testified that he was "in love with her" and that she was his "main concern in this life."

¶13 After the two-day hearing, the district court concluded that Chambers and Boyfriend were cohabiting, and entered an order terminating Hosking's future alimony obligations. In addition, the court concluded that the cohabitation had begun "at least as of September 2011," and ordered Chambers to repay Hosking all of the alimony she received during the cohabitation. In reaching these conclusions, the district court found that Hosking's "witnesses and evidence [are] more credible than [Chambers's] witnesses and evidence," and that the explanations offered by Chambers and Boyfriend "are not consistent or credible." As a result of this credibility determination, the district court concluded that it would "resolve[ ] all inconsistencies in the evidence and therefore all disputed issues of fact in favor of [Hosking]."

Procedural History of Allegedly Unresolved Issues

¶14 The parties' original divorce decree, which was based on a stipulated settlement agreement, specifically addressed several items of personal marital property, including two aircraft, but stated that "[a]ll other items of personal property will be resolved separately," that "neither party has waived any claim or interest to any other personal property not covered herein," and that "all such claims are hereby reserved by the Court."

¶15 Following entry of the decree, the parties conducted discovery and negotiations for over a year regarding the remaining personal property items, before the district court held a one-day trial on the issue in July 2009. At that trial, after lengthy testimony regarding various items of personal property, Chambers attempted to raise an issue regarding an insurance payment deposited into a joint bank account while she and Hosking were still married. Hosking objected, on the ground that there was already an order regarding that money; Chambers conceded that such an order existed, but claimed she was now asserting that the money was a premarital asset and that the order was in error. The court stated that it "thought [the issue] was resolved" in earlier proceedings before the domestic relations commissioner and told the parties that they would "have to sort out what happened with the commissioner" and that the court would "reserve the issue for [the parties] to figure it out." The court took the remaining issues presented at the July 2009 trial under advisement.

¶16 On January 6, 2010, the district court issued a decision dividing the items of personal property addressed at the July 2009 trial. Soon thereafter, Hosking filed a "Request for Clarification of Court's 1/6/10 Decision and Request for Further Findings," asserting that the court had erred in its division of the personal property. The parties continued to litigate various issues involving the exchange of personal property through the end of 2011.

¶17 In February 2012, Chambers filed a "Notice of Issues Still Pending Before the Court," listing ten issues that Chambers believed to be still pending. In June 2012, the district court held a hearing on those issues, at which it heard arguments from both parties on each issue and concluded that it would "not re-open the divorce." The transcript of this hearing is not in the record on appeal. In September 2012, the court issued an order stating that eight of the ten issues Chambers raised "were merged into" the divorce decree, and "declin[ed] to re-open or proceed on those issues" in any manner. The court stated that it would retain continuing supervision over "[p]ayment of [Chambers's] portion of retirement accounts and [Chambers] taking [Hosking's] name off of the" Ogden residence, as already ordered in the divorce decree. And the court stated that it would retain continuing supervision, "as needed," over the parties' respective transfer of minor items of personal property (referred to as "[p]ots and [p]ans"), as previously ordered.

¶18 Chambers did not appeal the September 2012 order, but continued to file motions asking the court to address issues of personal property. Hosking had petitioned the court to terminate alimony by this time, and Chambers sought to address personal property issues as part of those proceedings. In March 2015, Chambers filed a document entitled "Respondent's Submission Regarding Pending Retirement and Personal Property Issues," which sought "final review" of certain issues that Chambers had previously raised in her February 2012 filing, including "[a]ssets that belonged to [Chambers's] children," Chambers's "premarital assets," "[f]ixtures in the family home," and "[a]ssets included earlier in the division of assets held within the California home." In her filing, Chambers gave no specific description of what these assets or fixtures were.

¶19 On May 12, 2015, the court held a telephonic hearing-separate from the upcoming evidentiary hearing regarding cohabitation-to discuss the scope of the personal property and retirement issues that remained to be addressed. No transcript of this hearing is in the record on appeal, but the minutes of the hearing reflect that the court stated that it would "reconsider factual errors but not legal errors," and would not readdress issues regarding "California property" that had been "previously decided."

¶20 At the evidentiary hearing, the court primarily heard argument and testimony on the issue of cohabitation. There was also evidence given by two accountants regarding the correct present value of one of Hosking's retirement accounts. No argument or evidence was presented regarding any personal property, or of any factual errors the court may have made in earlier decisions regarding personal property.

ISSUES AND STANDARDS OF REVIEW

¶21 On appeal, Chambers first challenges the district court's cohabitation determination, arguing that its factual findings do not support its ultimate determination that cohabitation was present here. In her brief, Chambers appeared to be directly challenging some of the district court's underlying factual findings, but abandoned that position at oral argument, stating there that she was "accepting" the district court's underlying findings, but was challenging the court's ultimate determination that those findings add up to cohabitation.

¶22 A district court's "pure findings of fact" are "entitled to substantial deference on appeal," and are to be disturbed by an appellate court only if they are "clearly erroneous." Myers v. Myers , 2011 UT 65, ¶¶ 32, 34, 266 P.3d 806. Such findings of fact "entail the empirical, such as things, events, actions, or conditions happening, existing, or taking place, as well as the subjective, such as state of mind." Id. ¶ 32 (quotation simplified). In the cohabitation context, such "pure" findings include whether a sexual relationship exists between putative cohabitants, as well as "the degree to which they share[ ] space or expenses" in a household. Id. ¶ 37.

¶23 In the cohabitation arena, however, other determinations that a district court must make are findings "premised on embedded questions of law, which are reviewed for correctness." Id. ¶ 34. For instance, a district court's determination that two individuals do or do not have a shared residence is a "mixed question of law and fact" that involves "embedded legal conclusions that are reviewed for correctness on appeal." Id. ¶ 35. And the ultimate determination that two individuals are cohabiting is a "question[ ] of law on which no deference is due." Id. ¶ 36 (stating that "the impact of common residency and of a sexual relationship on the determination of cohabitation are questions of law on which no deference is due, since they do not call for proof but rather for argument" (quotation simplified) ).

¶24 Next, Chambers "seeks a reversal of the [district] court's decision to refuse to address substantial personal property issues." This challenge is premised on the assumption that the trial court failed to address certain issues in this case. On this issue, Chambers "seeks a remand directing the trial court" to address the issues Chambers believes remain unaddressed. "It is the duty of the [district] court to find upon all material issues raised by the pleadings, and the failure to do so is reversible error." K.P.S. v. E.J.P. , 2018 UT App 5, ¶ 25, 414 P.3d 933.

ANALYSIS

I

¶25 The "ultimate inquiry" in any cohabitation case is whether there exists "a relationship akin to that existing between" a married couple. Myers v. Myers , 2011 UT 65, ¶ 17, 266 P.3d 806. Although the uniqueness of each individual marriage-like relationship precludes the development of a hard and fast set of elements comprising cohabitation, our supreme court has identified three general "hallmarks" of the sort of relationship that constitutes cohabitation: "a shared residence, an intimate relationship, and a common household involving shared expenses and shared decisions." Id. ¶ 24.

¶26 In this case, the district court determined that all three of these hallmarks were present in the relationship between Chambers and Boyfriend, and from this determination concluded that Chambers and Boyfriend had a relationship akin to a married couple. On appeal, Chambers challenges the district court's determination regarding the existence of two of these hallmarks: (1) a shared residence, and (2) a common household involving shared expenses and shared decisions.

A

¶27 A shared (or common) residence requires the "sharing of a common abode that both parties consider their principal domicile for more than a temporary or brief period of time." Haddow v. Haddow , 707 P.2d 669, 672 (Utah 1985). Cohabitation "implies continuity," and an individual's status as resident-rather than guest-is critical to a determination that a common residence exists. Id. at 673 (quotation simplified). Indeed, "a resident will come and go as he pleases in his own home, while a visitor, however regular and frequent, will schedule his visits to coincide with the presence of the person he is visiting." Id.

¶28 Here, the district court's unchallenged factual findings support the conclusion that Chambers and Boyfriend shared a common residence. In this case, unlike in Haddow , the court found that Boyfriend spent more time at the Ogden residence than he spent at any other residence, and that Chambers's residence was therefore his "primary residence." The district court based that finding on abundant evidence, including the investigators' testimony about Boyfriend's nightly whereabouts, as well as evidence that Boyfriend came and went from the house freely, received mail at the house, returned to the house when he came back from business trips, kept clothes at the house, kept his primary vehicles at the house, and asserted in a mortgage application that he resided there.

¶29 Chambers resists the district court's determination, arguing that the evidence relied upon by the district court failed to support the conclusion that Chambers and Boyfriend lived together for more than a temporary or brief period of time. We find this argument unpersuasive. In Scott v. Scott , 2016 UT App 31, 368 P.3d 133, rev'd on other grounds , 2017 UT 66, 423 P.3d 1275, this court noted that "temporary" refers to "the couple's state of mind-that is, whether moving in together is motivated or accompanied by a desire to operate as a couple for the foreseeable future or is simply an expedient arrangement with no enduring quality," while "brief" has to do with "the duration of the stay." Id. ¶ 22 (quotation simplified). There is no doubt that Chambers and Boyfriend envisioned a non-temporary arrangement; indeed, they were engaged to be married. And while we acknowledge that a longer surveillance period would give us a more comprehensive look at the relationship, we note that a court may consider even a short surveillance period to be "representative of a longer trend in the relationship." See Levin v. Carlton-Levin , 2014 UT App 3, ¶ 17, 318 P.3d 1177 (stating that a "fifty-two-day observation window" was long enough, because it was "representative of a longer trend in the relationship" and did not "constitut[e] the entirety of their relationship").

¶30 We therefore see no error in the court's determination that Chambers and Boyfriend enjoyed a common residence.

B

¶31 While both an intimate relationship and common residency are necessary conditions for cohabitation, they are not sufficient-either alone or in conjunction with each other-to establish the existence of the type of marriage-like relationship that defines cohabitation. See Myers , 2011 UT 65, ¶ 22, 266 P.3d 806 (finding a shared residence and sexual relationship insufficient to establish cohabitation when the relationship "bore little resemblance to a marriage" (quotation simplified) ). To constitute cohabitation, the relationship must also bear the hallmarks of "a common household in the sense of shared expenses, shared decision-making, shared space, or shared meals." Id. ¶¶ 23-24 (quotation simplified).

¶32 The district court's unchallenged factual findings provide ample support for its determination that Chambers and Boyfriend shared a common household. The district court specifically found that Chambers and Boyfriend "made many 'big ticket' decisions together, including numerous major financial decisions," and referenced their joint bank account, their joint ownership in vehicles which they jointly insured, their money transfers back and forth, and the fact that they twice jointly applied for a mortgage on the Ogden residence. The court also found that Chambers and Boyfriend "shared expenses in particular situations," would go shopping together, and would take at least some of their joint purchases to the Ogden house. The court also referenced the fact that the couple often vacationed together, attended church together, and had "extensive involvement in each other's extended families." The court also noted that Chambers's own mother, at the time of her deposition, did not know whether or not Chambers and Boyfriend were married, and that Boyfriend's brother's obituary listed Chambers as Boyfriend's spouse.

¶33 On this record, we discern no error in the district court's determination that Chambers and Boyfriend shared a common household. See Levin , 2014 UT App 3, ¶ 16, 318 P.3d 1177 (affirming the district court's determination regarding common household where the couple shared meals, shared responsibility in care and upkeep of the home, shared in living expenses, and made major financial decisions together).

C

¶34 Much of the evidence in this case was contested, and it is certainly conceivable that a district court could have made different credibility determinations, and accordingly made factually-supported findings on many of the issues in favor of Chambers and Boyfriend. But the district court in this case found Hosking's witnesses much more persuasive than Chambers's witnesses and, as a result, made a series of "pure" factual findings, all supported by competent (if contested) evidence, that comfortably support the conclusion that Chambers and Boyfriend were cohabiting.

¶35 As noted, the district court's ultimate "determination of cohabitation" is a question of law on which no deference is due. See Myers , 2011 UT 65, ¶ 36, 266 P.3d 806. But that determination was informed by amply-supported findings of fact, and we cannot perceive any error in the district court's ultimate conclusion. It is true that "there is no single prototype of marriage that all married couples conform to," see id. ¶ 24, but the relationship enjoyed by Chambers and Boyfriend, as characterized in the district court's unchallenged factual findings, has all of the hallmarks of a marriage-like relationship. We therefore affirm the district court's ultimate conclusion that Chambers and Boyfriend were cohabiting, and that they began cohabiting no later than September 2011.

II

¶36 In her second argument, Chambers "seeks a reversal of the [district] court's decision to refuse to address substantial personal property issues," and "seeks a remand directing the [district] court" to address the issues Chambers believes remain unaddressed. This argument fails for the simple reason that the district court did not fail to address the issues Chambers raises. The district court addressed the issues, but did so in a manner that Chambers did not like, namely, by determining that it had already dealt with them.

¶37 As noted above, the district court held a series of post-decree hearings and trials on various issues of personal property, issuing rulings in 2009 and 2010. Ultimately, in 2012, after Chambers kept filing motions asking for further relief, the court determined that all of the issues raised had already been decided in previous orders, or had been merged into the original decree of divorce. In that order, the court offered to retain supervision, "as needed," over certain personal property rulings made in its January 2010 order, but in our view this statement did not constitute an admission that certain issues remained open for adjudication; rather, this statement indicated the court's willingness to supervise the parties, "as needed," in their implementation of orders already made.

¶38 If Chambers thought that the district court was wrong in any of its findings or conclusions as set forth in that 2012 order, Chambers had the opportunity to take an appeal from that order. But she elected not to appeal that order, and cannot do so now. And to the extent that Chambers's 2015 filing was a motion asking the court to reconsider its previous rulings, we perceive no abuse of discretion in the district court's decision to decline such reconsideration. See Tschaggeny v. Milbank Ins. Co. , 2007 UT 37, ¶ 15, 163 P.3d 615 (stating that district courts are "under no obligation to consider motions for reconsideration," and that a court's "decision to address or not to address the merits of such a motion is highly discretionary" (quotation simplified) ).

CONCLUSION

¶39 The district court committed no error in concluding, based on its amply-supported factual findings, that Chambers and Boyfriend were cohabiting. And Chambers's second argument is without merit, because the district court did address the issues Chambers raises, just not in a manner Chambers liked. Accordingly, we affirm.

      In other similar contexts in which a district court is asked to make a determination regarding a mixed question of law and fact, Utah appellate courts afford district courts far more discretion than Myers permits in the cohabitation context. See Myers v. Myers , 2011 UT 65, ¶ 34, 266 P.3d 806. In other contexts, a district court's determination regarding mixed questions of law and fact is reviewed deferentially, because such determinations are "highly fact-dependent," and have "numerous potential fact patterns, which accords the trial judge a broad measure of discretion when applying the correct legal standard to the given set of facts." See Judd v. Bowen , 2018 UT 47, ¶ 8 (quotation simplified) (affording district courts discretion in determining whether "the legal standard for establishing a prescriptive easement" is met); see also State ex rel. B.R. , 2007 UT 82, ¶ 12, 171 P.3d 435 (stating that the ultimate decision about whether to terminate a parent's rights "presents a mixed question of law and fact," but that due to the "factually intense nature" of the analysis, a court's final decision regarding termination of parental rights "should be afforded a high degree of deference"); State v. Pena , 869 P.2d 932, 936-39 (Utah 1994) (stating that "the reasonable-suspicion legal standard is one that conveys a measure of discretion to the trial judge when applying that standard to a given set of facts"), abrogation on other grounds recognized by USA Power, LLC v. PacifiCorp , 2016 UT 20, ¶ 40 n.36, 372 P.3d 629. While we wonder why our supreme court has prescribed a more restrictive standard of review for district court determinations in the cohabitation arena than in other similar contexts, we recognize that we are bound to follow Myers , and therefore apply the standard of review set forth there.

      As noted, Chambers does not challenge any of the district court's "pure" factual findings, including its finding-based largely on her own admission-that she and Boyfriend "shared an intimate or sexual relationship."

      Neither in her briefing on appeal nor in her filings before the district court did Chambers set forth exactly what the issues are that she wanted the district court to address. In her appellate brief, she devotes just over one page to the entire issue, and never makes any meaningful effort to specify what particular issues were not addressed. As noted, she included a general description (e.g., "premarital assets," "fixtures") of these issues in one of her filings before the district court, but made no effort to specifically identify the items. In addition, she fails to include in the record on appeal a copy of the transcript of the May 12, 2015 telephone conference at which the district court discussed these issues, and made determinations about whether and to what extent these issues had already been addressed. Under these circumstances, Chambers has not carried her burden on appeal. See Gines v. Edwards , 2017 UT App 47, ¶ 21, 397 P.3d 612 (stating that "it is the appellant's burden to assemble, transmit, and perfect the record on appeal," and holding that, where the appellant had failed to provide a transcript of a relevant hearing, the appellant had failed to carry its burden of demonstrating district court error). Chambers's failure to provide a specific description of the issues she complains of, or a transcript of the relevant hearing, provides an independent basis for us to reject her second argument.

      In her brief on appeal, Chambers gave no hint that she was attempting to appeal the September 2012 order; in her brief, her argument was that the district court failed to address the issues, not that it had addressed them in a previous order. At oral argument, however, Chambers appeared to change tactics to assert that she was indeed seeking to challenge the September 2012 order. To the extent that Chambers is asking us to review the district court's September 2012 order, this request suffers from two fatal infirmities. First, "[w]e do not address issues raised for the first time during oral argument." Porenta v. Porenta , 2017 UT 78, ¶ 33, 416 P.3d 487. Second, the time to appeal the 2012 order has long since expired. That order was a final order, because it purported to finally resolve the issues presented, and she had thirty days from the entry of that order to file a notice of appeal. See Utah R. App. P. 4(a) ; see also America West Bank Members, L.C. v. State , 2014 UT 49, ¶ 11, 342 P.3d 224 ("Our general rule in determining whether an order is final is whether the effect of the ruling is to finally resolve the issues." (quotation simplified) ); Cahoon v. Cahoon , 641 P.2d 140, 142 (Utah 1982) (stating that orders enforcing a divorce decree "are independently subject to the test of finality, according to their own substance and effect"); Ross v. Barnett , 2018 UT App 179, ¶ 20, 426 P.3d 306 ("Where the effect of a postjudgment order is to determine substantial rights and end the litigation regarding a specific issue in a supplemental proceeding, the order will be a final order for purposes of appeal." (quotation simplified) ). Her time to appeal that order expired in October 2012, and we are without jurisdiction to consider an appeal from that order now. See Express Recovery Services, Inc. v. Wall , 2012 UT App 138, ¶ 2, 278 P.3d 628 (per curiam) ("If an appeal is not timely filed, this court lacks jurisdiction to hear the appeal." (quotation simplified) ).