author: JACKSON, Associate Presiding Judge:

text:
    2000 Utah Ct. App. 223
    AUTOLIV ASP, INC., Petitioner, v. WORKFORCE APPEALS BOARD, Department of Workforce Services; and Jon C. Edwards, Respondents.
    No. 981640-CA.
    Court of Appeals of Utah.
    July 20, 2000.

      Janet Hugie Smith, Lisa Yerkovich, and Paul C. Burke, Ray Quinney & Nebeker, Salt Lake City, for Petitioner.
    Suzan Pixton, Department oanorkforce Services, Salt Lake City, for Respondent DWS.
    Randall G. Phillips, Ogden, for Respondent Edwards.
    Before GREENWOOD, P.J., JACKSON, Associate P.J., and ORME, J.
   OPINION

JACKSON, Associate Presiding Judge:

T1 Autoliv ASP, Inc. (Autoliv) appeals from a decision of the Workforce Appeals Board awarding unemployment benefits to Jon C. Edwards. We reverse on the ground that Edwards did not present good cause for filing his appeal to the Department of Workforce Services (DWS) late, and therefore DWS did not have jurisdiction to hear his appeal.

BACKGROUND

12 Edwards worked for Autoliv as an assembler. On April 1, 1998 Edwards reported to work smelling of aleohol. Under Autoliv's procedures, Edwards was asked to take a drug test. The test results came back a few days later as positive for alcohol and cocaine. Autoliv thus fired Edwards on April 6, 1998.

3 Soon thereafter, Edwards filed for unemployment benefits with DWS. On May 21, 1998 Edwards received a Notice of Claimant Eligibility from DWS, stating that he would be awarded unemployment benefits, and a check for $717. The very next day, Edwards received a letter from DWS stating that his claim had been denied because he was terminated for just cause. Also on May 22, under separate cover, Edwards received a Notice of Unemployment Benefit Overpayment, stating that he must repay the $717 he had just received.

{4 Both May 22 communications de-seribed, under a section marked "RIGHT TO APPEAL," the procedure for appealing the decision. Both notices stated that "[ylou must appeal in writing within 10 calendar days after this decision was mailed. YOUR APPEAL MUST BE SIGNED BY YOU AND SHOW THE DATE MAILED OR SENT BY FAX AND YOUR NAME AND SOCIAL SECURITY NUMBER. STATE THE GROUNDS FOR YOUR APPEAL AND THE RELIEF YOU ARE REQUESTING." Disturbed by DWS's abrupt reversal, Edwards consulted an attorney within the ten-day appeals period. The attorney did some research and prepared a brief to appeal DWS's denial of benefits. However, the appeal was filed on June 10, 1998, six days after the June 4 deadline to appeal.

T5 A hearing was held before a DWS administrative law judge (ALJ) on July 7, 1998. At that hearing, Edwards argued the contrary notices from DWS justified his late filing. Edwards's attorney testified that he was concerned that the conflicting notices raised a due process issue, and that he needed "to do some fairly in[-]depth research" on the subject. The attorney acknowledged that although he was aware of the ten-day time limit for appealing, "from reading the [Utah] Code, it appears that ... the decision does not become actually final and graved [sic] in stone until thirty days after the original decision."

16 The ALJ issued a decision on July 9. On the issue of timeliness, the ALJ found that Edwards's

attorney spent several days researching information in a local law library regarding precedent cases where individuals had been allowed benefits and then denied without additional due process. The attorney understood from reading the Utah Administrative Procedures Act that he had 30 days to file an appeal before the Department's decision became final.

17 Based on these findings, the ALJ concluded that Edwards had presented good cause for filing late, thus allowing the ALJ to retain jurisdiction. - Specifically, the ALJ concluded that

the claimant's attorney had reason to believe through his reading of the Utah Administrative Procedures Act that he had 30 days to act on the initial decisions issued to his client by the Department. The claimant certainly acted in good faith by retaining legal counsel to represent him before the Department on the issue of his eligibility to receive unemployment insurance benefits. Under these special cireumstances, the administrative law judge concludes the claimant did not fail without good cause to file a timely appeal, and the case therefore will be considered on its merits.

Reaching the merits of the case, the ALJ concluded Antoliv did not show just cause for firing Edwards, and thus reversed the denial of benefits.

8 Autoliv appealed to the Workforce Appeals Board (Board). On September 11, 1998 the Board issued a decision upholding the ALJ's ruling and adopting in full the ALJ's factual findings. Regarding the timeliness of Edwards's appeal, the Board concluded that

[the [ALJ] found good cause for the late filing due in part to the unusual and perhaps confusing nature of the Department's actions. The first Department decision was 'dated and mailed on May 21, 1998 together with benefit checks totaling $717.00. The second Department decision, this one denying benefits, was sent on May 22, 1998. Apparently under separate cover, a "Notice of Unemployment Benefit Overpayment" was also mailed to the claimant on May 22, 1998. This notice treated the overpayment as a "fault" overpayment without making any findings or explanation as to how or why the elaimant was at fault as required by Department rule. If for no other reason, the [ALJ] had an obligation to assume jurisdiction over the appeal to take evidence on the issue of fault. Having assumed jurisdiction to correct an agency oversight, it was appropriate for the [ALJ] to rectify other inconsistencies in the record. The Board finds that there was good cause for allowing the untimely appeal in this case.

T9 Autoliv appealed the Board's decision to this court. Autoliv submitted its opening brief, which noted defects in the record. We granted the parties's joint motion to remand for further proceedings to complete the record at the agency. On September 21, 1999 the Board issued a written opinion affirming its earlier decision.

ISSUE AND STANDARD OF REVIEW

T10 Although Autoliv presented four issues on appeal, we reach only the issue of whether Edwards presented good cause for filing his appeal late.

111 We affirm the ALJ's factual findings underlying its determination of good cause only " 'if they are "supported by substantial evidence when viewed in light of the whole record before the court.""'" Armstrong v. Department of Employment Sec., 834 P.2d 562, 565 (Utah Ct.App.1992) (citations omitted). " 'Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." '" Id. (citations omitted). "The ultimate decision as to whether good cause exists is a mixed question of law and fact and should be affirmed only if it is reasonable." Id.

ANALYSIS

12 A claimant who has been denied unemployment benefits "may file an appeal from the determination with the Division of Adjudication within ten days after the date of mailing of the notice of determination." Utah Code Ann. § 835A-4-406(8)(a) (1997).

If a decision issued by the Department [of Workforce Services] is mailed, three days are added to the time prescribed by the Act for filing the appeal. Therefore, the amount of time permitted for filing an appeal from any decision that is mailed by the Department is thirteen calendar days unless otherwise specified on the decision or by the Act.

Utah Code Admin. P. R994-406-304 (2000). If the claimant does not file an appeal within the time permitted, he or she has the chance to show good cause for filing late.

Good cause is limited to cireumstances where it is shown that:
(a) the appeal was filed within 10 days of actual receipt of the decision if such receipt was beyond the original appeal period and not the result of willful neglect; or
(b) the delay in filing the appeal was due to cireumstances beyond the control of the appellant; or
(c) the appellant delayed filing the appeal for cireumstances which were compelling and reasonable.

Id. R994-406-308. If the appellant does not show good cause for filing late, the ALJ does not have jurisdiction to hear the appeal See id. R994-406-807.

113 Of the possible grounds for showing good cause, subsection (c) is the only ground that could apply to Edwards's case. Thus, we must decide whether Edwards presented "compelling and reasonable" circumstances to justify his late filing. If not, the agency did not have jurisdiction to hear his appeal. Autoliv argues the circumstances of Edwards's late filing do not amount to good cause under Rule 994-406-3808. DWS contends that Edwards's late filing was reasonable, considering the conflicting notices sent by DWS.

{14 Our analysis is governed by Armstrong v. Department of Employment Security, 834 P.2d 562 (Utah Ct.App.1992). In Armstrong, the claimant filed her appeal one day late. See id. at 564. The claimant, acting pro se, argued "she was confused by the term 'calendar days' in the notice of her appeal rights, somehow taking it to mean 'working days, and she reasonably needed extra time to gather materials to support her appeal." Id. at 566. Both the ALJ and the Board concluded in Armstrong that this did not present good cause for filing late. See id. This court agreed, noting that the letter sent to the claimant "clearly stated she had ten calendar days, not ten working days, in which to appeal." Id. at 567.

T 15 Applying Armstrong, we conclude that Edwards did not present good cause for filing late. First, Edwards's circumstances were not compelling. Unlike the claimant in Armstrong, Edwards was represented by an experienced attorney. Moreover, the Armstrong claimant filed only one day late, whereas Edwards missed the deadline by six days. We are not inclined to hold a pro se claimant to strict compliance with the law while treating an attorney's mistake with more leniency.

'I 16 Second, Edwards's attorney's mistake as to the law was not reasonable. The notices sent to Edwards, the relevant sections of the Utah Code, and the administrative rules all clearly state that an appeal must be filed within ten days. See Utah Code Anu. § 35A-4-406(8)(a) (1997); Utah Code Admin. P. R994-406-804 to -306 (2000). Edwards's attorney argued his reading of the Utah Administrative Procedures Act (UAPA) confused him as to the time allowed to appeal. However, UAPA states clearly in its first section that it "does not govern ... the initial determination of any person's eligibility for unemployment benefits." Utah Code Ann. § 68-46b-1(2)() (Supp.1999).

17 Moreover, Edwards's "letter of appeal needed to be only a short, simple statement of [his] 'grounds for appeal and the relief [he] requested." Armstrong, 884 P.2d at 567. Edwards's attorney could have timely filed this short notice and then researched any due process issues that might have been raised by the conflicting notices.

1 18 Finally, we reject the Board's contention that the ALJ was required to assume jurisdiction to hear evidence on the issue of fault. Because Edwards's appeal was not timely filed, the agency did not have jurisdiction to consider the issue of fault. See Utah Code Admin. P. R994-406-807 (2000).

CONCLUSION

T 19 We conclude Edwards failed to present compelling and reasonable cireumstances for not filing his appeal within ten days of the notice denying him unemployment benefits. Accordingly, DWS did not have jurisdiction to hear Edwards's appeal.

1 20 Reversed.

1 21 WE CONCUR: PAMELA T. GREENWOOD, Presiding Judge, and GREGORY K. ORME, Judge

      . The only evidence of drug use in the record is a "Drug Test Report" showing Edwards tested positive on a "9-drug with alcohol" screen and an assertion that Edwards admitted to having used cocaine. No one testified as to what levels of alcohol or cocaine were found in Edwards's system. A chain of custody report that showed the actual levels of alcohol and cocaine in Edwards's system did not make it into the record.

      . Specifically, because of problems with the recording of the hearing before the ALJ, Autoliv's cross-examination of Edwards could not be transcribed. We remanded to allow Autoliv to cross-examine Edwards again. These proceedings were held before a different ALJ, and no findings of fact were issued.

      . The other issues were: Whether the Board afforded Autoliv a fair hearing, whether the Board's findings were adequate, and whether Autoliv presented competent evidence to establish just cause for terminating Edwards.

      . The only exceptions are that the ALJ can assume jurisdiction because of a change of condition or mistake as to material facts. See Utah Code Ann. § 35A-4-406(2) (1997). "Change of conditions" and "mistake as to facts" are defined in Utah Code Admin. P. R994-406-202(1)(a) and (b) (2000), neither of which applies to the facts of this case.

      . The record shows that Edwards's attorney had no slight experience with similar matters, having handled more than 10 unemployment insurance appeals in the previous three years and more than 50 appeals from other administrative agencies in the previous six years.


source: Caselaw Access Project

author: BILLINGS, Judge:

license: Public Domain

text:
    2000 Utah Ct. App. 225
    Robert J. BACZUK, Plaintiff and Appellant, v. SALT LAKE REGIONAL MEDICAL CENTER and Dr. Brian Moench, Defendants and Appellees.
    No. 990787-CA.
    Court of Appeals of Utah.
    July 20, 2000.

      M. David Eckersley, Prince, Yeates & Geldzabler, Salt Lake City, for Appellant.
    J. Anthony Eyre, Kipp & Christian, David W. Slagle, and Brian P. Miller, Snow, Christensen & Martineau, Salt Lake City, for Ap-pellees.

      Before Judges BENCH, BILLINGS, and ORME.
   OPINION

BILLINGS, Judge:

T1 Plaintiff Robert Baczuk appeals from summary judgment in favor of defendants Dr. Brian Moench (Dr. Moench) and Salt Lake Regional Medical Center (Hospital) (collectively Defendants). We reverse and remand for trial.

BACKGROUND

1 2 Plaintiff underwent surgery at the Hospital to reattach fingers severed in a snow-blower accident. Dr. Moench, who was the anesthesiologist for Plaintiff's surgery, had used a heating pad to prevent vasoconstriction during the surgery. Following surgery, Plaintiff noticed that he had suffered what appeared to be a pressure injury and/or a burn to his buttocks, and had nerve damage to his right leg.

T3 Plaintiff brought the present negli-genee action against Dr. Moench and the Hospital, and both Defendants moved for summary judgment. Defendants supported their motions with affidavits from Carol Mo-yar, RN., and Cris G. Cowley, M.D. Both experts opined that neither the Hospital nor Dr. Moench had violated any standard of care. Dr. Cowley's affidavit further opined, "this type of injury is a rare but known risk" of surgery that "can and does occur even though appropriate care is taken by health care providers."

[ 4 Plaintiff filed no counter affidavit offering expert opinion but instead opposed summary judgment by invoking the doctrine of res ipsa loquitur. The trial court granted summary judgment to Defendants, concluding there was no issue of material fact regarding negligence because Plaintiff offered no expert opinion to rebut Defendants' expert opinions.

15 Summary judgment is appropriate when the pleadings, depositions, and affidavits show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Utah R. Civ. P. 56(c). We review a grant of summary judgment for correctness. See Carter v. Milford Valley Mem'l Hosp., 2000 Utah Ct. App. 021,¶ 12, 388 Utah Adv. Rep. 18, 996 P.2d 1076. "Ordinarily, the question of negligence is a question of fact for the jury. Thus, summary judgment is appropriate in negli-genee cases only in the most clear instances." Hunt v. Hurst, 785 P.2d 414, 415 (Utah 1990) (citation omitted); see also King v. Searle Pharm., Inc., 832 P.2d 858, 865 (Utah 1992) (noting "the general judicial policy that favors a trial on the merits when there is some doubt as to the propriety of a summary judgment").

ANALYSIS

16 At issue is whether Plaintiff may rely on the doctrine of res ipsa loquitur to resist summary judgment when Defendants have provided an unrebutted expert opinion that Plaintiff's injuries could possibly result in the absence of negligence. Because a plaintiff may be unconscious or incapacitated during surgery, and therefore unable to identify a defendant's specific negligent acts, the doctrine of res ipsa loquitur allows a plaintiff to raise an inference of negligence through cireumstantial evidence. See Dalley v. Utah Valley Reg'l Med. Ctr., 791 P.2d 193, 196 (Utah 1990). To invoke res ipsa loquitur, a plaintiff must establish an evidentiary foundation from which a finder of fact could logically conclude that an injury was probably caused by negligence. See King v. Searle Pharm., Inc., 832 P.2d 858, 862 (Utah 1992). To establish that foundation, a plaintiff must show:

(1) ... the accident was of a kind which in the ordinary course of events, would not have happened had the defendant(s) used due care, (2) the instrument or thing causing the injury was at the time of the accident under the management and control of the defendant, and (8) the accident happened irrespective of any participation at the time by the plaintiff.

Dalley, 791 P.2d at 196 (citations omitted; alterations in original).

T7 Ordinarily, a plaintiff must establish the foregoing evidentiary foundation through expert medical testimony. See Nixdorf v. Hicken, 612 P.2d 348, 353 (Utah 1980).

However, in certain situations, the medical procedure is so common or the outcome so affronts our notions of medical propriety that expert testimony is not required to establish what would occur in the ordinary course of events. In this type of situation the plaintiff can rely on the common knowledge and understanding of laymen to establish [that the injury is more probably than not due to negligence].

Id. (holding expert testimony not necessary to infer negligence when surgical instrument is left in plaintiff's body) (footnote omitted); see also King, 832 P.2d at 862.

T8 In the present case, Plaintiff argues that it is within the understanding of laypersons that his burn and/or pressure injury on an originally uninjured part of his body not involved in the surgery more probably than not resulted from negligence. We agree.

T9 Our supreme court has held that a surgery patient who suffers a burn to a part of the body not involved in the surgery need not provide expert testimony that the burn resulted from negligence. See Dalley, 791 P.2d at 196. In Dalley, the plaintiff suffered a burn injury on her calf during a voluntary caesarian section operation. See id. at 194-95. The plaintiff sued, alleging medical malpractice, and filed a motion in limine seeking the trial court's determination that the burn was an injury that does not normally occur absent negligence so that expert testimony was therefore unnecessary. See id. at 195. The trial court granted the defendants' motions for summary judgment, ruling in part that the plaintiff failed to provide expert testimony to establish that the injuries were of a type that does not occur in the absence of negligence. See id.

{10 The supreme court reversed and remanded for trial,. Holding expert testimony was not necessary to establish that the burn was an injury not ordinarily suffered absent negligence, the court stated,

It would appear that it is within the knowledge and experience of laypersons that a woman with a healthy leg does not usually go into an operating room for a caesarian section operation and emerge with a burn on her leg without some occurrence of negligence. This type of inference does not require expert testimony concerning the standard of care and breach of that standard.

Id. at 196.

11 The present case differs from Dalley in that the plaintiff in Dalley suffered a mysterious burn from an unknown instrumentality controlled by an unknown actor. See id. at 195. In the present case, Plaintiff has traced his burn and/or pressure injury to the heating pad, which Plaintiff alleges was negligently controlled by Dr. Moench. The issue, therefore, is narrower: Does the common knowledge and understanding of a layperson form a reasonable basis for determining that a burn and/or pressure injury from a heating pad used during anesthesia was more likely than not caused by negligence? We conclude that it does. It requires no medical or technical expertise to understand that a person may suffer a burn and/or a pressure injury from lying in the same position for too long on a heating pad. Nor does it require medical expertise to understand the steps that must be taken to avoid such injuries. Accordingly, Plaintiff was justified in relying on the understanding of laypersons to survive Defendants' summary judgment motion.

112 Defendants argue that their experts' affidavits show that the cause of Plaintiff's injury is beyond the understanding of laypersons. Where, as here, a plaintiff relies on the knowledge and understanding of laypersons to establish the evidentiary foundation from which negligence may be inferred, "a defendant may challenge the adequacy of that foundation with evidence showing that [the inference of negligence] is actually beyond the realm of common knowledge and experience." King, 832 P.2d at 863. However, summary judgment for defendants will be denied if "the res ipsa loqui-tur inference [is] strong enough to survive a motion for a directed verdict at the close of the plaintiff's case." Id.

T 13 In King, the plaintiff sued her doctor and the manufacturer of a copper IUD that perforated her uterus and migrated to her abdomen. See id. at 860. The manufacturer moved for summary judgment supported by an affidavit from an expert who had reviewed the plaintiffs medical records and depositions taken in the case and had conducted clinical research on the IUD prior to approval by the Food and Drug Administration. See id. The affidavit opined that the IUD was neither defective nor unreasonably dangerous and that the plaintiff's injury was not caused by negligence on the manufacturer's part. See id. The trial court granted summary judgment for the manufacturer. See id.

T14 On appeal, the supreme court held that, given the facts and the expert's affidavit, the manufacturer's negligence could not be inferred from common experience and knowledge. See id. at 864. Accordingly, the plaintiff could not rely upon res ipsa loquitur to defeat summary judgment.

T15 The present case is distinguishable from King in that, unlike perforation of the uterus by a copper IUD, no medical or technical expertise is required to understand a burn from a heating pad. The only evidence to the contrary is Dr. Cowley's opinion that injuries like Plaintiff's can and sometimes do occur absent negligence. That opinion does not even attempt to identify the cause of Plaintiff's injury, much less establish that a layperson could not understand the cause.

116 Defendants appear to argue that an inference of negligence under res ipsa loqui-tur can never survive a motion for summary judgment supported by expert opinion. Defendants rely on Hunt v. Hurst, 785 P.2d 414 (Utah 1990), which affirmed summary judgment for the defendant orthodontist because unrebutted expert opinion established that the plaintiffs "abnormal occlusal relationship" could have resulted from non-negligent causes. See id. at 415-16. Hunt, however, does not address whether the cause of an abnormal occlusal relationship is within the common knowledge and understanding of a layperson. By contrast, a jury could properly rely on common knowledge and understanding to determine whether Plaintiffs burn injury resulted from negligent use of a familiar item like a heating pad. Additionally, the plaintiff in Hunt could not show that negligence more probably than not caused her condition because the expert opinion in that case listed with specificity many possible non-negligent causes. See id. at 416. In this case, Defendants list no - non-negligent sources for Plaintiffs injuries, but rather suggest, in effect, that "these things happen."

§%17 Defendants finally argue they are entitled to summary judgment because, even if negligence in this case can be inferred from common knowledge and experience, Defendants have provided unrebutted exceulpa-tory evidence. When a plaintiff relies on res ipsa loquitur, "[ilf any defendant can come forward with a conclusive exculpatory statement or explanation of how the injury occurred, then the doctrine of res ipsa loquitur will not apply because there is no longer a need for an inference of negligence or causation." Dalley, 791 P.2d at 200 (emphasis added). If, however, defendant's explanation is not conclusive, "then it is up to the finder of fact to decide whether plaintiff has established all of the elements of negligence ... by a preponderance of the evidence." Id. at 199-200.

18 Although Defendants have offered expert opinion that Plaintiff's injuries could have resulted in the absence of negligence and expert opinion that Defendants were not negligent, these opinions are not conclusively exculpatory. Rather, under the factual circumstances of this case, and particularly in light of the conclusory nature of the Defendants' experts' affidavits, we conclude a jury could reasonably find Defendants negligent in allowing the heating pad to burn Plaintiff.

119 Nurse Moyar's affidavit offers the conclusory opinion that "neither Salt Lake Regional Medical Center nor its agents or employees violated any standard of care when providing care to Mr. Baczuk." Although Dr. Cowley's affidavit goes a bit further, it merely states that "appropriate steps were taken to position, pad and care for" the patient. In a different case-one requiring expert testimony to establish the standard of care and breach of that standard-these opinions might suffice to support summary judgment. Under the facts of the present case, however, these affidavits do not conclusively prove Defendants' negligence did not cause Plaintiffs injuries. A jury could find either that Defendants did not take the steps they claim were taken or that Defendants should have taken additional or alternative steps to monitor and protect Plaintiff.

T20 Likewise, Dr. Cowley's speculation that Plaintiffs injury "was likely related to the patient's weight and the length of the surgical procedure" does not preclude an inference of negligence. The operating room personnel presumably knew of these circumstances, and Dr. Cowley's affidavit does not opine that it would have been impossible or impractical to protect Plaintiff under these circumstances.

{21 Finally, Dr. Cowley's opinion that a burn injury is a "rare but known risk" of surgery that "can and does" occur despite appropriate care does not preclude a finding that Defendants did not take appropriate care in this case. Fairly read, Dr. Cowley's opinion is that whether Plaintiff's injuries resulted from negligence is not a foregone conclusion, but a question of fact. Defendants' evidence is thus not conclusive that Defendants were not negligent, and the question should be decided by a jury.

CONCLUSION

{22 In this case, res ipsa loquitur raises a sufficient inference of negligence to survive a motion for a directed verdict at the close of Plaintiff's case, and therefore raises a genuine issue of material fact. Defendants' experts' affidavits do not demonstrate that Plaintiff's injuries are beyond the understanding of laypersons, nor do they demonstrate conclusively that Plaintiff's burns occurred in the absence of negligence. Accordingly, summary judgment for Defendants was inappropriate, and we therefore reverse and remand for trial on the merits.

T 23 WE CONCUR: RUSSELL W. BENCH, Judge, and GREGORY K. ORME, Judge.

      . The court, however, reversed the summary judgment on other grounds. See King, 832 P.2d at 864.


author: DAVIS, Judge:

text:
    2000 Utah Ct. App. 237
    Tyler BOYCE, Petitioner and Appellee, v. Tammy L. GOBLE, Respondent and Appellant.
    No. 990641-CA.
    Court of Appeals of Utah.
    Aug. 3, 2000.

      D. Michael Nielsen, Bountifal City Prosecutor, Bountiful, for Appellant.
    Suzanne Marelius, Littlefield & Peterson, Salt Lake City, for Appellee.
    Before Judges BILLINGS, DAVIS, and THORNE.
   OPINION

DAVIS, Judge:

T 1 Appellant Tammy L. Goble appeals the trial court's denial of her motion for reconsideration or a new trial. We affirm.

I. FACTS

12 After eight years of marriage, Tyler Daran Boyce, Appellee, and Tammy Linge (Boyce) Goble, Appellant, divorced by Judgment and Decree of Divorcee on November 25, 1996. The decree, an incorporation of a stipulation between the parties, awarded joint legal and physical custody of their three minor children and laid out the terms of visitation and child support. Specifically regarding visitation and child support, the decree provided:

That each party be, and they are, hereby awarded the joint custody of the minor children ... with joint physical custody with [Ms. Goblel's home as the primary residence and granting [Mr. Boyce] equal control and input into the children's lives, and [Mr. Boyce] having liberal rights of visitation.
That [Mr. Boyce] be, and he is, hereby required to pay [Ms. Goble], for the support of the minor children, the sum of $796.00 per month, a sum in accordance with the Uniform Child Support Schedule and each party's gross monthly income, plusk of any actually incurred day-care expenses incurred by [Ms. Goble] to maintain her employment.

13 No visitation schedule was set out in the decree. The decree merely specified that Ms. Goble's home would be the children's primary residence and that Mr. Boyee would have "liberal rights of visitation." Although the decree awarded the parties joint legal and physical custody of the children, the amount that Mr. Boyce had to pay was caleu-lated using the sole custody worksheet from the Uniform Child Support Schedule.

T4 On August 4, 1997, about nine months after the trial court entered the decree, Mr. Boyce filed a verified petition for modification alleging changed cireumstances and seeking to modify both visitation and child support. Ms. Goble counter-petitioned only on the issue of visitation, agreeing that the original decree was unworkable concerning visitation.

T5 The parties attended mediation and resolved the visitation dispute as well as certain communication and parenting issues. They then appeared before a Commissioner on February 18, 1998 and stipulated to a visitation schedule wherein the children would be with Mr. Boyce 35.5% of the time and with Ms. Goble 64.5% of the time. This visitation schedule was similar to the visitation existing prior to the modification proceedings; however, the stipulation provided for a definite schedule. The parties were still unable to agree upon modification of child support and that issue was reserved for a modification hearing.

T6 Following the modification hearing, the court found in pertinent part: "Thiel Decree awarded the parties joint legal and physical custody of their three minor children ...; Both parties [agreed] the vague terms of the Decree concerning visitation became unworkable ...; [and] in 1997 [Mr. Boyce] had at least 88% of the nights with his children." The court concluded that "the lack of a defined visitation schedule and Respondent's household expenses for the children being higher than expected represent substantial, material changes in cireumstances which were not foreseeable at the time of entry of the Decree of Divorcee." The court continued the joint custody arrangement set out in the divorce decree but adopted the parties' stipulation as to the visitation schedule. The court used the new visitation schedule to determine the support amount based on a joint custody worksheet,. Additionally, in computing the amount of support, the court found that Ms. Goble's income should be $0 because she was no longer working.

T7 Appellant filed a motion for reconsideration or new trial which was denied on April 29, 1999. She appeals.

II. ISSUE AND STANDARD OF REVIEW

T8 The issue for our review is whether the trial court abused its discretion by finding a substantial change of cireumstances based primarily upon the definition and quantification of visitation.

419 "'"The determination of the trial court that there [has or has not] been a substantial change of cireumstances ... is presumed valid,"' and we review the ruling under an abuse of discretion standard." Moon v. Moon, 1999 UT App 012, ¶ 28, 973 P.2d 481 (alteration in original) (citations omitted), cert. denied, 982 P.2d 89 (Utah 1999). "This court will not overturn a trial court's modification of a divorce decree absent a clear abuse of discretion or manifest injustice." Moore v. Moore, 872 P.2d 1054, 1055 (Utah Ct.App.1994).

III. ANALYSIS

A. Separation of Child Custody and Child Support

110 Appellant argues that the issues contained in divoree decrees are separate and must be analyzed separately, and thus, modification of visitation should not open the door to modification of child support. "[A] specific change in cireumstances may justify reconsideration of one provision of a divorcee decree while not justifying reconsideration of another provision." Becker v. Becker, 694 P.2d 608, 611 (Utah 1984) (emphasis added). Depending on the facts of the case, the converse can also be true, a change of cireumstances may justify reconsideration of more than one provision. This concept is especially true when the areas are interdependent. For example, child custody and child support, while governed by separate statutes, are typically related to one another. See Utah Code Ann. §§ 78-45-1 to -13 (Supp.1999) (child support) and Utah Code Ann. § 80-38-10 to -10.6 (S§Supp.1999) (child custody). In fact, a child support award under the guidelines is statutorily predicated on the time the children are in the custody of each parent. See id. § 78-45-7.7 to -7.11. Additionally, a factor in determining if an adjustment in child support is appropriate is whether there was a material change in custody. See id. § 78-45-7.2(7)(b)(i).

111 Here, not only did quantification reveal that Mr. Boyce had visitation with his children more than contemplated in the divorce decree, but he had more expenses than anticipated due to the additional time that he cared for the children. Additionally, the decree itself neither set out any specific visitation schedule nor specified the basis for the amount of the support agreed upon. Thus, on the facts of this case, separate analysis of visitation and support is inappropriate.

B. Modification of Child Support

% 12 Appellant also argues: (1) the threshold requirement of a material change of circumstances was not met, so the merits should not have been evaluated; (2) the trial court abused its discretion in modifying the child support award based upon a finding that a minor change in the de facto visitation schedule constituted a substantial change of circumstances; and (8) the trial court's findings were an inadequate basis for a modification of child support.

1 13 We turn to Appellant's first argument by examining the standard for modification of a child support award. The Legislature addressed determination and modification of child support in the Uniform Civil Liability for Support Act (Support Act). See Utah Code Ann. §§ 78-45-1 to -18 (Supp.1999) With respect to modification within three years of the decree, the Support Act states: "Prospective support shall be equal to the amount granted by prior court order unless there has been a substantial change of circumstances on the part of the obligor or ..." Id. § 78-45-7(1)(a) (emphasis added). The Support Act strongly favors following the Child Support Guidelines to determine the amount of an award. In addition, the Support Act lists six factors which may be considered to determine if there was a substantial change of cireumstances. Those factors, however, are not exclusive and are merely a guideline to help determine if a substantial change of cireumstances has occurred.

"14 "To succeed on a petition to modify a divorce decree, the moving party must first show that a substantial material change of cireumstance has occurred ' "since the entry of the decree and not contemplated in the decree itself."'" Bolliger v. Bolliger, 2000 UT App 47, ¶ 11, 997 P.2d 903 (emphasis omitted) (citations omitted); accord Williamson v. Williamson, 1999 UT App 219, ¶ 8, 983 P.2d 1108. "The change in circumstance required to justify a modification of the decree of divorce varies with the type of modification contemplated. Provisions in the original decree of divorcee granting alimony, child support, and the like must be readily susceptible to alteration at a later date...." Foulger v. Foulger, 626 P.2d 412, 414 (Utah 1981).

C. Substantial Change of Cireumstances

T15 We now turn to Appellant's see-ond argument concerning whether the trial court erred by finding a substantial change of cireumstances based upon a de facto minor change in the visitation schedule. The trial court found there was a substantial change of cireumstances not contemplated in the original decree based upon the parties' agreement that the visitation provision in the decree needed to be modified due to its vagueness and Mr. Boyee's higher-than-expected household expenses for the children. We agree that these factors create a substantial change of circumstances.

T16 In accordance with the parties' petitions for modification, it is, in effect, undisputed that the change in visitation was a substantial and material change not contemplated in the original decree. Both agreed that the visitation agreement, as set out by the decree, was unworkable. The decree itself did not define "liberal visitation" nor did it outline how much time the parties expected the children to spend with each parent. After mediation, the parties were able to agree upon a set schedule of visitation that substantially changed the vague mandate of the original decree. Even though the actual amount of visitation was little changed, quantification made the visitation schedule concrete. This change was significant because it resolved an issue that had not been contemplated in the original decree, and facilitated the calculation of how much time the children were, in fact, in the custody of each parent.

T 17 The specificity of the visitation agreement enabled the trial court to determine if the children were spending more than 25% of the nights with their father. Therefore, although the actual visitation had not changed remarkably after the mediated agreement, the act of quantifying the visitation was a significant change of cireumstances.

T 18 The court also found, and Ms. Goble agreed in her testimony at the modification hearing, that Mr: Boyee had additional expenses based upon the amount of time that the children spent with him. Because the decree was vague as to visitation, there was no clear expectation as to how much each party would pay for the children's expenses while they were in each parent's custody. Therefore, the adoption of the visitation agreement was a changed circumstance because it enabled the court to make an equitable determination of the childcare costs to each parent.

T19 Appellee conceded that had the decree, in effect, contemplated the potential scope of "liberal visitation" and set out a basis for departure from the joint custody worksheet, quantification of visitation would probably not have amounted to a change of circumstances justifying modification of the child support amount. We agree that when parties wish to depart from the guidelines, they may do so, so long as the departure is contemplated in the decree and the trial court approves such departure and places on the record the reasons for the departure. See Rehn v. Rehn, 1999 UT App 41, ¶¶ 16-18, 974 P.2d 306; see also Durfee v. Durfee, 796 P.2d 718, 716 (Utah Ct.App.1990) ("In order for a material change of cireumstances to be contemplated in a divorce decree there must be evidence, preferably in the form of a provision within the decree itself, that the trial court anticipated the specific change.").

1 20 The trial court correctly found a material change of cireumstances based upon what amounted to a de facto minor change.

D. Adequacy of Findings

121 We now turn to Appellant's final argument that the trial court's findings were inadequate. The Support Act uses a bright line rule to determine if custody is joint or sole. "'Joint physical custody means the child stays with each parent overnight for more than 25% of the year, and both parents contribute to the expenses of the child in addition to paying child support." Utah Code Ann. $ 78-45-2(18) (Supp.1999). Additionally, this court has consistently required the application of the statute's bright line rule to determine which child eustody worksheet to use in calculating the support amount. See Rehn v. Rehn, 1999 UT App 41, ¶ 16, 974 P.2d 306 (stating that specific findings must be made when deviating from guidelines' requirement of which worksheet to use, even when parties have stipulated to use of particular worksheet); Udy v. Udy, 893 P.2d 1097, 1100 (Utah Ct.App.1995) (holding that court must use joint custody worksheet if overnight visits exceed 25% or else make specific findings as to why sole custody worksheet should be used) If the parties and/or trial court elect to deviate from the guidelines, specific findings based upon the factors listed in the Support Act must be made. See Rehn, 1999 UT App 41 at ¶ 16, 974 P.2d 306; Allred v. Allred, 797 P.2d 1108, 1111 (Utah Ct.App.1990). Failure to enter detailed findings on each of the factors is beyond the discretion of the trial court. See Rehn, 1999 UT App 41, ¶¶ 16-18, 974 P.2d 806; Allred, 797 P.2d at 1111.

122 The quantification of visitation had a substantial impact on the support amount. Quantification of the time the children are in each parent's custody triggers the application of statutory support. See Utah Code Ann. § 78-45-2(13) (Supp.1999) (definition of joint custody). Thus, onee the parties agreed that Mr. Boyee was caring for the children more than 25% of the nights, the trial court appropriately used the joint custody worksheet to determine the amount of child support. See Rehn, 1999 UT App 041 at ¶ 16, 974 P.2d 306; Udy, 893 P.2d at 1100.

CONCLUSION

123 We conclude that the trial court did not abuse its discretion in determining that the quantification of the visitation schedule was a substantial change of cireumstances, and the court appropriately used the joint custody worksheet to determine the amount of support.

€ 24 WE CONCUR: JUDITH M. BILLINGS, Judge, and WILLIAM A. THORNE, Judge.

      . As evidenced by computation of support from the sole custody worksheet.

      . Although, it is clear from the amount that it was calculated using the sole custody worksheet.

      . There have been no significant changes to the Support Act since the modification hearing, therefore, we cite to the most recent supplement.

      . Section 78-45-7.2, the Application of Guidelines, states:
      (1) The guidelines apply to any judicial or administrative order establishing or modifying an award of child support entered on or after July 1, 1989.
      (2) (a) The child support guidelines shall be applied as a rebuttable presumption in establishing or modifying the amount of temporary or permanent child support.
      (b) The rebuttable presumption means the provisions and considerations required by the guidelines, the award amounts resulting from the application of the guidelines, and the use of worksheets consistent with these guidelines are presumed to be correct, unless rebutted under the provisions of this section.
      (3) A written finding or specific finding on the record supporting the conclusion that complying with a provision of the guidelines or ordering an award amount resulting from use of the guidelines would be unjust, inappropriate, or not in the best interest of a child in a particular case is sufficient to rebut the presumption in that case....
      Utah Code Ann. § 78-45-7.2 (Supp.1999).

      . The six factors listed in § 78-45-7.2 are:
      (7) (a) A parent, legal guardian, or the office may at any time petition the court to adjust the amount of a child support order if there has been a substantial change in circumstances.
      (b) For purposes of Subsection (7)(a), a substantial change of circumstances may include:
      (i) material changes in custody;
      (ii) material changes to the relative wealth or assets of the parties;
      (iii) material changes of 30% or more in the income of a parent;
      (iv) material changes in the ability of a parent to earn;
      (v) material changes in the medical needs of the child; and
      (vi) material changes in the legal responsibilities of either parent for the support of others. .
      Utah Code Ann. § 78-45-7.2 (Supp.1999) (emphasis added). .

      . The trial court also found that Ms. Goble was no longer working but did not use that as a basis in determining that there was a change of circumstances. However, the change of income of a parent may be a factor in finding a change of circumstances. See Utah Code Ann. § 78-45-7.2(7)(b)(iii) (Supp.1999).

      . Here, the basis for the substantial change of circumstances stems from the quantification of visitation and not the relatively minor change in the actual visitation.

      . Appellant argued that these cases should not apply because they address this issue on appeal from the original divorce decree as opposed to on appeal from the modification trial. Appellant has given no legal basis for this argument. We disagree.


author: ORME, Judge:

text:
    2000 Utah Ct. App. 235
    Karen KELLY, Petitioner, v. SALT LAKE CITY CIVIL SERVICE COMMISSION; and Salt Lake City Corporation, Police Department, Respondents.
    No. 990530-CA.
    Court of Appeals of Utah.
    Aug. 3, 2000.

      Carol Clawson, Snell & Wilmer, Salt Lake City, for Petitioner.
    Steven W. Allred and Roger F. Cutler, Salt Lake City Law Department, Salt Lake City, for Respondents.
    Before Judges BILLINGS, DAVIS, an ORME. n
   OPINION:

ORME, Judge:

{1 Petitioner Karen Kelly seeks our review of the decision of the Salt Lake City Civil Service Commission upholding her termination by Police Chief Ruben B. Ortega from the Salt Lake City Police Department for conduct unbecoming an officer. We conclude the Commission's decision was proper.

BACKGROUND

a. Events Preceding Termination

T2 Kelly was a police officer with the Department from September 1, 1988 until her termination on December 11, 1998. The events culminating in her termination took place in the early morning hours of November 9, 1998. She had ended her shift and arrived home at approximately 12:80 a.m. Kelly had a history of depression and difficulty sleeping and was taking Ambien, a pre-seription sleep aid. She was instructed to take 10 mg. of Ambien at bedtime. Instead, Kelly took 5 mg. and began watching a movie and playing video games. Half-an-hour later she took another 5 mg. and an hour after that she admits taking yet another 10 mg. All in all, Kelly was uncertain how much Ambien she had actually taken over the course of that early morning, but admits she did not go to bed.

T3 Instead, between 4:82 and 5:15 a.m., Kelly, intoxicated due to the effects of Am-bien, repeatedly called the police and fire dispatch centers in the Public Safety Building in Salt Lake. Kelly had dialed the center's seven-digit number, not 911, from her cellular phone while in her living room. During those calls, she refused to give her real name, referring to herself as "Sire Arthur"; she asked to speak to- "Kraut Dog," her name for a dispatcher named Kim Kraus; she. asked whether a dispatcher was "cute"; called some dispatchers "babes" and others "dogs"; referred to one as a "witch"; and asked one dispatcher if she was "good," apparently in a sexual sense; she told dispatch she should blow up the Public Safety Building, but only after everyone was out of the building; she refused to give her location to dispatch; she reported smelling smoke and falsely reported a fire behind her house; she told dispatch she was drinking beer and Kool Aid; and she said she was playing around until she could get Kim on the line. During these events the dispatchers told Kelly she could not just talk on the phone - and stated they were busy. Dispatch also hung up on Kelly after she made the sexual innuendo. Later, after she called back and began talking about blowing up the building, they expressed concern about her desire. Although they never really took her threat very seriously, they notified the watch commander about her calls. Dispatch also talked to Kelly's roommate, who had awakened and taken the phone from Kelly at one point. Dispatch discovered Kelly's identity, and, during the conversation with her roommate, discovered, contrary to Kelly's report, that there was no fire behind her house. They were also informed Kelly had told her roommate she had taken enough Ambien to make her "feel good."

T4 Ultimately, the watch commander, Lieutenant Linton, along with Sergeant Isak-son, went to Kelly's home to check on her welfare and noted that no medical attention was needed to protect Kelly or others, as her intoxicated condition was improving. Linton reported the incident to Captain Neeley later that morning and an investigation was initiated and assigned to Sergeant Askerlund. Askerlund interviewed Kelly's roommate and discovered Kelly had told her roommate she had taken "9,000" Ambien tablets that night. Isakson reported to Askerlund that Kelly had slurred speech; admitted taking some sleeping pills; and lost her balance, falling into the couch in his presence.

15 Dr. Lowry, the physician who prescribed Ambien for Kelly, wrote a letter to the Department in the course of its investigation. He stated "(ilt is not unusual for patients who have taken 20 mg. of Ambien to behave in a bizarre fashion," and indicated that a very small percentage of users become inebriated by the drug. Apparently, Kelly had been prescribed 20 mg. doses previously, but was currently on a 10 mg. prescription dose. Dr. Lowry also stated he "consistently warn[ed] people that they need to be ready to go to bed and sleep without interruption when they take [Ambien}," although he could not specifically recall so instructing Kelly.

T 6 Following the investigation, Chief Ortega decided to terminate Kelly. Noting Kelly's "history of sustained complaints," the Chief terminated Kelly "[blecause of the gravity of [her] latest misconduct, coupled with [her] employment history and the need to protect [the citizens of Salt Lake]."

b. Employment History

17 Because the decision to terminate was based on Kelly's entire history with the Department, we must set out her previous conduct considered by the Chief in terminating her employment and considered by the Sait Lake City Civil Service Commission in upholding the termination. While Kelly's superior officers noted several positive aspects of her performance and the Commission's ree-ord contains many letters of thanks from members of the community, Kelly was also noted as having a recurring problem of being late for, or completely missing, work without prior approval. In 1992, her performance evaluation showed she had been late eleven times in seven months. In 1995, 1996, and 1997 Kelly's performance evaluations noted she took time off without prior approval and that she was often late for line-ups. In 1996 she was also counseled about appropriate use of sick time, as she had a history of taking many of her sick days just before or after long weekends. Also in 1996, Kelly had failed to appear as a prosecution witness at a preliminary hearing and the District Attorney wrote a letter to her division commander complaining that Kelly's absence had seriously prejudiced the prosecution in an important criminal case. Near the end of her employment in 1998, while assigned to the Detective Division of the Department, Kelly's supervisor noted that she lacked focus, resulting in a failure to quickly resolve her cases.

8 Kelly had also attempted suicide on two previous occasions. On the morning of October 1, 1994, Kelly ingested an overdose of prescribed medications and was transported to Cottonwood Hospital. On that very night, Kelly's roommates had taken her police weapon because they felt she might take her life with it. After the attempted suicide, Kelly's treating physician prescribed medication, which included depression medications and Ambien. Six weeks later, Kelly again tried to take her life, this time by overdosing on Ambien. She was discovered in her vehicle up Big Cottonwood Canyon and taken in for medical help.

1 9 Thereafter, Kelly was given a "fitness for duty" evaluation which concluded she had a substance abuse problem. She also received a disciplinary letter delineating violations of Department policy. Her continued employment status was conditioned on her participation in a monitored substance abuse program and indefinite absolute sobriety, and she was warned that any similar future conduct "will be cause for further disciplinary action up to and including termination." Kelly completed her substance abuse and after-care program, but only after additional pressure was exerted by the Department because of her uncooperative attitude.

T 10 During her participation in the aftercare program, Kelly was involved in a single-car accident in her police vehicle at 2:00 a.m. on June 28, 1995. Her vehicle had jumped the curb and run into a tree because she was distracted while adjusting the placement of her radio. There was some suspicion she was impaired, although she said she was not. Kelly submitted to a urine screen, and the test was negative. She was given a letter of reprimand as a result of the collision-her second preventable accident while driving a police vehicle. She was later given a letter of reprimand and required to pay for the damage when the ofl in her police cruiser had run dry, and the engine seized due to her neglect.

1 11 On July 1, 1998, Kelly failed to report to work. That morning she called her work section and reported she was waiting for an exterminator to come to her house. She remained at home, and later reported she had to visit a veterinarian with her pet because of the infestation. Her supervisor was concerned about inconsistencies in her story and the Department initiated an investigation. A month later she finally admitted she had made up the stories. Termination was recommended by Kelly's division commander then, but the Chief decided to give her one more chance, telling her in a letter that her peers were aware of her lying and had lost confidence in her; that her immediate supervisors recommended termination; that she would be suspended without pay for five days; and that she was to consider herself on notice regarding any future misconduct, stating, "You are hereby put on notice that ANY future violation of Department policy will not be tolerated and if such violation(s) occur, your employment status will be in jeopardy." This stern warning was given about three months before her misuse of Ambien, which precipitated the events that led to her termination.

c. Administrative Appeal

112 After being fired, Kelly appealed to the Salt Lake City Civil Service Commission, seeking reinstatement. The Commission upheld the Chiefs decision, finding that Kelly voluntarily ingested a substance inconsistent with medical advice so that she acted intentionally and "was responsible and accountable for her actions even though she was intoxicated." The Commission also found that Kelly's repeated calls were an abuse of the City's emergency dispatch, that her threats were violations of her public safety responsibilities, and that her conduct impacted the credibility of the Department and its ability to perform its mission.

T 13 The Commission concluded these findings supported the charge of conduct unbecoming an officer. It also stated that the Department "used a range of disciplinary and counseling measures to bring Officer Kelly's conduct and performance into conformity with Police Department policies prior to releasing her from employment[.]" Kelly seeks our review of the Commission's order.

ISSUES AND STANDARD OF REVIEW

T 14 Kelly argues on appeal that her termination and the Commission's decision to uphold her termination are in error for three reasons. First, she argues that the facts do not support the charges against her because her conduct was not willful; second, she maintains that termination was a disproportionate penalty; and third, she argues her termination was inconsistent with the treatment of other officers guilty of similar misconduct.

115 We review the final decision of the Commission only "for the purpose of determining if the commission has abused its discretion or exceeded its authority." Utah Code Ann. § 10-3-10125 (1999). Our review is limited to "the record of the commission." Id. " Discretion may be best viewed as an arena bounded by the law, within which the [Commission] may exercise its judgment as it sees fit' Unless the Commission 'has stepped out of the arena of discretion and thereby crossed the law,' we will affirm the Commission's order." Salt Lake City Corp. v. Salt Lake City Civ. Serv. Comm'n, 908 P.2d 871, 874 (Utah Ct.App.1995) (citations omitted; alteration in origirial). Insofar as Kelly tries to have the Commission's factual findings overturned, we employ a clearly erroneous standard. See Tolman v. Salt Lake County Attorney, 818 P.2d 283, 27 (Utah Ct.App.1991).

ANALYSIS

116 The Commission has the statutory authority to conduct appeals brought by suspended or discharged employees, and in that regard, to make two inquiries: "(1) do the facts support the charges made by the department head, and, if so, (2) do the charges warrant the sanction imposed?" In re Discharge of Jones, 720 P.2d 1356, 1361 (Utah 1986). See also Vetterli v. Civil Serv. Comm'n, 106 Utah 83, 145 P.2d 792, 797 (1944) (construing predecessor of Utah Code Ann. § 10-83-1012 (1999), which was identical except it only authorized Commission review of employee's outright discharge, not suspension). Thus, the Commission must first determine if discipline was warranted, and, if so, whether the discipline imposed was appropriate. If the Commission answers no to either question, it must reverse the action taken administratively. The Commission answered yes to both questions in this case, and we now review its order.

I. Factual Basis for Charges

117 Had Kelly not been intoxicated when she made the non-emergency phone calls on November 9, 1998, there is no doubt her actions would be conduct unbecoming an officer, which is defined as:

A. - Behavior or activity that is contrary to police ethics.
B. Conduct that is not in the best interest of the Department's public image.
C. Conduct that is subversive to the morale, efficiency and operation of the Department.
Conduct that has a tendency to adversely affect, lower, or harm the public interest and confidence of the Employee or the reputation of the Department.
The foregoing are not exclusive but are merely iMlustrative and intended to be a guideline for unacceptable activity or behavior.

Salt Lake Police Dep't, Police Manual § 3-01-07.01 (rev. July 1998). Kelly argues that the charge of conduct unbecoming an officer "requires at least a demonstration that the officer's conduct was voluntary 'so that [can] be shown to be responsible for the actions themselves, without regard to any intentions which [she may or may not have had concerning their effect." " Perry v. Philadelphia Civ. Serv. Comm'n, 108 Pa.Cmwith. 322, 529 A.2d 616, 617 (1987) (citation omitted). Basically, Kelly claims her conduct should be excused because her intoxication was involuntary, as the effect of the drug was not what she anticipated. See State v. Gard-mer, 870 P.2d 900, 901-02 (Utah 1993) (setting out standard for involuntary intoxication).

18 The Commission's findings-that the act of ingesting the medication in a manner inconsistent with medical advice was voluntary, thereby making her responsible for her conduct while intoxicated-are at odds with Kelly's assertion. We cannot say these findings are clearly erroneous. Kelly had been prescribed Ambien in the past. In fact, it was the very drug she had previously used to attempt suicide. Kelly's disregard for the instructions to take the medication and go to bed -instead staying in the living room, watching television, and playing video games-readily supports a finding of voluntary misuse. Moreover, her roommate's statement later that morning, that Kelly said she was going to take enough Ambien to "feel good," supports a finding that her use of Ambien on this particular occasion was recreational, and thus voluntary.

119 Having concluded that the Commission's finding about the voluntary misuse of Ambien was not clearly erroneous, Kelly is properly held responsible for her conduct while intoxicated. Cf. Utah Code Ann. § 76-2-306 (1999) ("[Ilf reckless or criminal negligence establishes an element of an offense and the actor is unaware of the risk because of voluntary intoxication, his unawareness is immaterial in a prosecution for that offense."); id. § 76-2-305(8) ("A person who asserts a defense of ... diminished mental capacity, and who is under the influence of voluntarily consumed controlled substances, or volatile substances at the time of the alleged offense is not excused from criminal responsibility ... if the ... substance caused, triggered, or substantially contributed to the mental illness."). Therefore, her actions warranted discipline.

120 Moreover, accepting, arguendo, Kelly's contention that her bizarre behavior did not reach the level of conduct unbecoming an officer, even she admits her conduct involved a violation of departmental policy warranting some sanction We conclude there was a sufficient factual basis for the Chief to levy some sanction and move to the more problematic issue-whether Kelly's conduct warranted the sanction imposed.

II. Sanction Warranted

121 Under the specific cireumstances of this case, the second question-"do the charges warrant the sanction imposed," In re Discharge of Jones, 720 P.2d 1856, 1861 (Utah 1986)-breaks down into two sub-questions: First, is the sanction proportional; and second, is the sanction consistent with previous sanctions imposed by the department pursuant to its own policies. See Lucas v. Murray City Civ. Serv. Comm'n, 949 P.2d 746, 761 (Utah Ct.App.1997). We will address these two questions in turn.

a. Proportionality of Sanction Imposed

122 While conceding her conduct warranted some sanction, Kelly challenges her termination as disproportionate, stating that no officer has ever previously been terminated for similar misuse of a prescription drug. "In determining whether the charges warrant the disciplinary action taken, we acknowledge that discipline imposed for employee misconduct is within the sound discretion of the Chief" Id. The Chief must have the ability to manage and direct his officers, and is in the best position to know whether their actions merit discipline. See In re Discharge of Jones, T20 P.2d 1856, 1868 (Utah 1986). We therefore proceed cautiously, so as not to undermine the Chief's authority, noting however, that he exceeds the scope of his discretion if the punishment imposed is in excess of "the range of sanctions permitted by statute or regulation, or if, in light of all the cireumstances, the punishment is disproportionate to the offense." Lucas, 949 P.2d at 761.

T23 It should be noted that the Commission's review of the Chief's decision was an all-or-nothing proposition, as is our review of the Commission's order. Thus, even if we agree there was misconduct but cannot abide the sanction of termination, we are not in a position to remand this case to the Commission to adjust the sanction imposed, as the Commission's role is simply to affirm or reverse the police chief's decision, and it lacks the power to modify or remand. See Salt Lake City Corp. v. Salt Lake City Civ. Serv. Comm'n, 908 P.2d 871, 875 (Utah Ct.App.1995) (holding Commission's authority only permits affirming or reversing sanctions imposed by police chief, not remanding or modifying imposed sanction).

$24 We agree with Kelly that such an onerous sanction has never been imposed for similar improper use of a prescription drug, and if this were the sole basis for her termination we might well see an abuse of discretion. However, neither the Chief nor the Commission were simply sanctioning this single incident, which both sides agree was not enough, by itself, to warrant Kelly's termination. We must review the sanction in light of all the cireumstances underlying the termination, and from that more expansive view, we simply cannot say the punishment is disproportionate to the conduct.

125 The Chief had progressively disciplined Kelly. Kelly's termination was the culmination of several instances of misconduct, as detailed above, which concluded with this final act of voluntary misuse of her prescription drug and her ensuing disruption of the dispatch staff, The cireumstances reveal this final act was merely the straw that broke the camel's back. The import of that final straw was not unknown to Kelly. The Chief had warned Kelly just three months earlier:

You are hereby put on notice that ANY future violations of Department policy will not be tolerated and if such violation(s) occur, your employment status will be in jeopardy.

And just a few months before that, she had been warned that any substance abuse would jeopardize her continued employment by the Department. Thus, the Chief's decision, and the Commission's decision on review, were fully justified given Kelly's overall conduct. Both concluded termination, on balance, was in order. We agree.

1 26 The record shows that Kelly was not only guilty of a present violation, but that she had also violated several policies on previous occasions-some of which were arguably related to the instant misconduct, although such a link between instances of misconduct is not necessarily required-and had been warned about the gravity of any future misconduct. It thus seems obvious that Kelly, although having many commendable qualities as an officer, was not able to discipline herself or to conform to the various policies of the Department. If anything, the record shows that Kelly was the beneficiary of remarkable disciplinary restraint by the Department in the past.

b. Consistency of Sanction Imposed

1127 Beyond the question of proportionality, Officer Kelly argues that the Commission abused its discretion by failing to make specific findings regarding whether the Chiefs action was consistent with the treatment of other officers for similar or more egregious conduct. Kelly relies on Pickett v. Utah Department of Commerce, 858 P.2d 187, 191 (Utah Ct.App.1998). Kelly argues the Chief must act consistently with his prior course of imposing more lenient penalties for conduct allegedly like that engaged in by Kelly. The City agrees that the Commission must consider the consistency of Kelly's treatment, but only after a prima facie showing by Kelly that the Chiefs actions in her case were contrary to his prior practice. See id. The City finds support for its position not only in Pickett, but also in Taylor v. Utah Department of Commerce, 952 P.2d 1090, 1094-95 (Utah Ct.App.1998). See also SEMECO Indus. v. State Tax Comm'n, 849 P.2d 1167, 1174 (Utah 1998) (Durham, J., dissenting).

128 This consistency element simply requires the Department to abide by its own policies, as outlined in Lucas v. Murray City Civ. Service Commission, 949 P.2d 746, 761 (Utah Ct.App.1997), and as recognized in the Department's own regulations:

Positive corrective action should be considered before the imposition of sanctions. The following factors should be considered when determining the degree of disciplinary action needed:
5. Consistency of discipline.

Salt Lake Police Dep't, Police Manual § 3-111-02.00 (rev. Nov.1997). Given this policy, an inconsistency in Kelly's sanction when compared to other sanctions levied for similar conduct would be a factor in determining if the Chief acted outside his permitted dis: cretion.

129 We note that Pickett, Taylor, and SEMECO, invoked as authoritative by the parties, are all governed by, and involve the interpretation of, the Utah Administrative Procedures Act (UAPA), particularly Utah Code Ann. $ 63-46b-16(4)(h)(@ii) (1997) , and that this case is not governed by the UAPA. However, both parties argue that the reasoning and logic of those cases is instructive due to the similar consistency requirement in the Department's own policies. We agree, and at the parties' suggestion, will use the basic approach employed in the aforementioned UAPA cases, in particular, the burden of proof analysis.

130 Under this framework, the burden was on Kelly to establish a prima facie case that the Chief acted inconsistently in imposing sanctions by presenting sufficient evidence from which the Commission could reasonably find a relevant inconsistency. Cf. SEMECO, 849 P.2d at 1174 (Durham, J., dissenting) ("[In the typical challenge to agency action, the party challenging the action carries the burden of demonstrating its impropriety."). This burden of proof is not unlike claims of disparate discipline of public employees on the basis of race, where the disciplined employee must first make out a prima facie case by pointing to specific instances or statistics, rather than relying on an unsupported assertion of inconsistent punishments. See Stotts v. Memphis Fire Dep't, 858 F.2d 289, 294 (6th Cir.1988) (reversing court's order and dismissing employee because finding of disparate discipline on basis of race was clearly erroneous); Moore v. City of Charlotte, 754 F.2d 1100, 1105 (4th Cir.), cert. denied, 472 U.S. 1021, 105 S.Ct. 3489, 87 LEd.2d 628 (1985). While there is no requirement in this context that Kelly show the disparity is motivated by race or even animosity, she must, at a minimum, carry the burden of showing some meaningful disparity of treatment between herself and other similarly situated employees.

131 In support of her contention that the Chief acted inconsistently, Kelly points to numerous cases where sanctions were imposed on her fellow officers who had engaged in inappropriate conduct. However, none of these prior sanctions present us with evidence sufficient to make a prima facie showing of inconsistency. Meaningful disparate treatment can only be found when similar factual cireumstances led to a different result without explanation. See Taylor, 952 P.2d at 1094-95; Stotts, 858 P.2d at 294. Each instance presented by Kelly, in her attempt to show similar cireumstances resulting in lesser discipline of her fellow officers, either involves a single episode of misconduct or multiple episodes that do not realistically compare to Kelly's overall conduct.

132 For example, Kelly makes much of the fact that one fellow officer attempted suicide by overdosing on prescription medication and received a letter of reprimand. However, Kelly likewise received a letter of reprimand after her second suicide attempt. We see nothing inconsistent here, and, in fact, recognize additional leniency afforded Kelly, who was not similarly reprimanded for her first attempt. That same fellow officer later filed a false police report and was given a second letter of reprimand. Kelly was also disciplined for dishonesty relating to her failure to come to work, a recurring problem in her history with the Department. She was not truthful with her superior about why she was not at work, and she lied again after being given a Garrity warning by her supervisors. Admittedly, she was suspended for a short time, a punishment more severe than that imposed on her fellow officer, but Kelly admits her suspension was justified. See supra, note 4 ("Chairman: Commissioner Corrigan asked you if you thought that the action taken was appropriate action [when you lied] under Garrity, and you indicated yes, you felt it was appropriate.... Kelly: Exactly.").

133 The fatal flaw in Kelly's claim of inconsistency is that none of her fellow officers have taken their sanctionable violations that one additional step after being given a letter warning of termination for any additional violation. Kelly offered no evidence that any fellow officer, receiving such a warning following a suicide attempt and after admitting to making a false statement, then improperly took a prescription drug, or called in a bomb threat while intoxicated. Fortunately for the citizens of Salt Lake, the Chief has not frequently had to deal with an officer who attempted suicide twice; was routinely late or absent and then lied about an absence on multiple occasions; was given multiple warnings; and ultimately misused the same prescription drug previously used to attempt suicide and then made bomb threats, engaged in sexual innuendo, and bothered police dispatchers. But this does not mean he cannot terminate someone for such conduct. See Vukovich v. Civil Serv. Comm'n, 832 P.2d 1126, 1128 (Colo.Ct.App.1992). The Department does "not carry the burden of persuasion as to the nonexistence of a disparity," rather, the burden to show the existence of disparity remains with Kelly. Segar v. Smith, 738 F.2d 1249, 1268 (D.C.Cir.1984), cert. denied, 471 U.S. 1115, 105 S.Ct. 2857, 86 L.Ed.2d 258 (1985). From all that appears, no other officer brought to our attention had received a one-more-violation- and-you-are-through letter, then violated policy like Kelly, and was simply reprimanded or suspended as a result. Kelly's multitude of violations is unlike any other brought to our attention. See Taylor, 952 P.2d at 1095 ("Taylor's case is not comparable ... [and thus] Taylor has not established a prima facie case"). Her conduct was uniquely opprobrious and her termination was manifestly in order.

CONCLUSION

[ 34 The Commission's record contained a sufficient factual basis for the Chief to levy sanctions against Kelly when it concluded her misuse of Ambien was voluntary. The Commission did not abuse its discretion in concluding that the Chief's decision to terminate Kelly was proportionate to the offense when viewed in light of her entire record with the Department, specifically recognizing that the Chief had given her many opportunities to correct her behavior and had engaged in progressive discipline. The Commission did not abuse its discretion in failing to make specific findings regarding the consistency of the sanction with prior sanctions levied by the Chief because Kelly had failed to point to sufficiently similar episodes of conduct by other officers so as to trigger consistency analysis.

1 35 Affirmed.

1 86 WE CONCUR: JUDITH M. BILLINGS, Judge, and JAMES Z. DAVIS, Judge.

      . Strangely, section 10-3-1012.5, providing that appeals from municipal civil service commissions come to the court of appeals, is titled "Appeal to district court."

      . We reject Kelly's argument that her conduct was not subversive to the operation of the Department simply because her threats were not taken seriously. Common sense, as well as signs at airport and other security check points, confirm that bombs and fires are not matters about which one is free to joke with law enforcement personnel. Likewise, it was for the Commission to decide if the nature of her calls abused emergency dispatch services. The Commission's conclusions are not outside the bounds of sound discretion.

      . Even if, contrary to his usual practice, Dr. Lowry failed to impart these instructions to Kelly, the very point of a sleep aid is to help one fall asleep. Kelly obviously had recreational, rather than somnolent, objectives in mind when she popped double the prescribed dose and, far from turning in for the night, stayed up to play video games and bother people over the telephone.

      . - Counsel for the City urged us at oral argument to modify this rule, and allow proceedings to be remanded or modified so that in cases where the Chief's sanctions are inconsistent or too harsh, those sanctions could be modified rather than letting offending officers go undisciplined for their conduct. However, "[wle are not at liberty to overrule our prior holding." Kunz & Co. v. State Dep't of Transp., 949 P.2d 763, 767 (Utah Ct.App.1997). Moreover, the Utah Legislature is in the best position to modify the language of the statute that we reasoned "does not authorize the Commission to modify suspension or iermination decisions or to remand such decisions for further proceedings." Salt Lake City Corp. v. Salt Lake City Civ. Serv. Comm'n, 908 P.2d 871, 875-76 (Utah Ct.App.1995) (discussing Utah Code Ann. § 10-3-1012 (1999), which says Commission "shall fully hear and determine" appeals of suspension or termination and that Commission's order "shall be final and immediately enforced").

      . During the three-day hearing on this matter, the Commission Chair and Kelly had the following exchange, with our emphasis:
      Chairman: Commissioner Corrigan asked you if you thought that the [disciplinary] action taken [against you previously] was appropriate action [when you admitted to] lying under Garrity, and you indicated yes, you felt it was appropriate. And then in this case, you indicated that, no, you didn't think termination was appropriate but you did think there should be some action taken because of your behavior. Kelly: Exactly.

      . Kelly argues the Commission did not make a specific finding about proportionality. We disagree. While the language was not precisely couched in terms of proportionality, the Commission's finding that the Department and Chief "used a range of disciplinary and counseling measures to bring Officer Kelly's conduct and performance into conformity with Police Department policies prior to releasing her from employment," amounts to a determination that, on balance, her full record, including all the second chance and reform opportunities accorded her, supports her sanction, which is thus proportional.

      . Utah Code Ann. § 63-46b-16 (1997) states in relevant part:
      (4) The appellate court shall grant relief only if, on the basis of the agency's record, it determines that a person seeking judicial review has been substantially prejudiced by any of the following:
      (h) the agency action is:
      (ii) contrary to the agency's prior practice, unless the agency justifies the inconsistency by giving facts and reasons that demonstrate a fair and rational basis for the inconsistency[.]

      . "The majority opinion in SEMECO had no occasion to discuss the issue addressed by this portion of Justice Durham's dissenting opinion . or remark on her discussion of burdens of proof." Pickett v. Utah Dep't of Commerce, 858 P.2d 187, 191 n. 9 (Utah Ct.App.1993). Consequently, we have adopted her insightful burdens-of-proof analysis in the context of UAPA. See id.

      . A Garrity warning allows a police officer's superiors to order an officer to provide information during an investigation, and requires the officer to comply, but provides that any information elicited by such order cannot be used against the officer in a subsequent criminal prosecution. See Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967).

      . It should not be feared that a party who is severely punished, but has no history of inconsistency to turn to, is without recourse. While the party may have no basis to claim disparity, the party still retains the protection of proportionality review. See In re Discharge of Jones, 720 P.2d 1356, 1361 (Utah 1986).


author: SPANGLER, District Judge (Retired).

text:
    Josephine Marie NEVILLE, Appellant (Defendant), v. Frank D. NEVILLE, Appellee (Plaintiff).
    No. 99-282.
    Supreme Court of Wyoming.
    July 18, 2000.
    Representing Appellant: E. James Burke of Burke, Woodard & O'Donnell, P.C., Cheyenne, Wyoming.
    Representing Appeliee: Richard G. Miller of Richard G. Miller, P.C., Casper, Wyoming.
    Before LEHMAN, C.J., THOMAS, MACY , and HILL, JJ., and DAN SPANGLER, D.J. (RET,).

       Retired June 2, 2000.

   SPANGLER, District Judge (Retired).

Following a divorce trial, Appellant Josephine Neville (the wife) claims that she was not granted sufficient alimony. Finding no abuse of discretion by the trial court, we affirm.

THE ISSUE

The wife presents this issue:

I. The Neville were married for 34 years. Mrs,. Neville was unemployed for the vast majority of the 34 year marriage of the parties. During the marriage, by agreement of the parties, her primary responsibilities were homemaker and caretaker for Mr. Neville and the parties' three children. Now unemployed, her reasonable earning capacity is $24,000 per year. Mr. Neville is a respected Wyoming attorney, at the pinnacle of his profession, who earns $160,000 annually plus benefits. It was undisputed that fault for the divorce rests with Mr. Neville Did the District Court abuse its discretion in failing to award adequate spousal support to Mrs. Neville?

THE FACTS

The parties were married in 1964. Appel-lee Frank Neville (the husband) was a student at Casper College. He finished that schooling and later graduated from the University of Wyoming Law School. His present average annual income as an attorney is approximately $160,000, plus benefits.

The wife had a high school education at marriage. She served primarily as a mother and homemaker during the marriage. In 1992, she began taking courses at Casper College and obtained an associate's degree in applied science. She is now a registered nurse. She was so employed for fourteen months in 1997 and 1998 at an annual salary of approximately $24,000.

Both parties were fifty-four years of age at the time of the divorce trial, July 29, 1999. The husband was in good health. The wife suffered from depression, along with ankle, back, and weight problems.

THE TRIAL COURT DISPOSITION

The wife was granted the divorcee. She was awarded assets valued at nearly $500,000 and no debts. The wife acknowledges that she received at least $77,470 more in net assets than the husband received. The husband was required to pay alimony of $1,000 per month for thirty-six months. He was also required to pay the wife's health insurance premiums under COBRA, unless health insurance became available to the wife at no cost through an employer.

STANDARD OF REVIEW

The trial court's decision regarding alimony will not be overturned unless the record demonstrates that a procedural error occurred or that the trial court abused its discretion. Scherer v. Scherer, 931 P.2d 251, 253-54 (Wyo.1997). A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. Raymond v. Raymond, 956 P.2d 329, 881 (Wyo.1998).

DISCUSSION

The wife contends that she should have been awarded alimony of $4,000 per month for twelve years instead of $1,000 per month for thirty-six months.

The pertinent portion of Wyo. Stat. Ann. § 20-2-114 (LEXIS 1999) states: "The court may decree to either party reasonable alimony out of the estate of the other having regard for the other's ability." The controlling factor is the ability of the other spouse to pay alimony, though other matters may be considered. Bailey v. Bailey, 954 P.2d 962, 967 (Wyo.1998) (citing Hendrickson v. Hendrickson, 583 P.2d 1265, 1267 (Wyo.1978)). The purpose of alimony is to provide a post-divoree substitute for the support provided to a spouse during the marriage. Sellers v. Sellers, 775 P.2d 1029, 1032 (Wyo.1989). It is for the support and maintenance of a former spouse who is unable to adequately provide for himself or herself. Id. An award of property is a preferable modern substitute for alimony. Id. The objective criteria for an award of alimony include the ability of the payor spouse to pay and the necessity of support for the payee. Id.

The wife argues that, in the case of Triggs v. Triggs 920 P.2d 658 (Wyo.1996), this Court upheld an award of alimony for a period of eight years and established that alimony is designed to provide the dependent spouse with a standard of living comparable to what that spouse enjoyed during the term of the marriage. However, the award of alimony and the amount thereof were not issues on appeal in the Triggs case. Instead, the husband was claiming that his alimony payments to the wife should be included in her income for purposes of establishing the joint child support obligation of the parties. The opinion cites the case of Koelble v. Koelble, 261 N.J.Super. 190, 618 A.2d 377 (1992), for the proposition that the policy behind an award of alimony is to provide the dependent spouse with a standard of living comparable to what the spouse enjoyed during the term of the marriage, not to support the children. Accordingly, this Court agreed with the New Jersey court that alimony is to be exeluded from child support calculations if it is being received from the supporting parent. Therefore, the circumstances of the Triggs case do not assist the wife here in establishing that she is entitled to increased alimony.

The wife discusses various factors including fault, the condition in which the parties will be left by the divorce, the husband's ability to pay, and the wife's needs. The record shows that the trial court received evidence on these matters and took them into account in arriving at its decision. Viewing the situations of the parties, the property settlement, and the alimony awarded, we are not persuaded by the wife that the trial court exceeded the bounds of reason under the cireumstances or that it otherwise abused its discretion. Therefore, the decision of the trial court is affirmed.