District Court, Heber Department The Honorable Jennifer A.
Brown No. 134500083
Russell W. Hartvigsen, Attorney for Appellant.
D. Banks, Attorney for Appellee.
David N. Mortensen authored this Opinion, in which Judges
Gregory K. Orme and Ryan M. Harris concurred.
After nearly twenty-five years of marriage, Wenlock Duane
Free Jr. (Husband) and Linda Lee Nave-Free (Wife) divorced.
They agreed to a division of their assets and an upward
deviation in the amount of child support based on the medical
needs of two of their children. Wife eventually remarried and
began renting out a house she was awarded in the divorce.
Alleging a substantial change in material circumstances,
Husband petitioned to modify the amount of child support he
was required to pay. The trial court denied the petition, and
Husband appeals. We affirm.
Wife and Husband were married in 1990 and had four children
together. They separated in 2012 and divorced in August 2013.
The parties did not use attorneys in their divorce
negotiations. Pursuant to the divorce decree, Wife was
awarded a house in Heber City, Utah, and Husband received a
house in Pleasant Grove, Utah. Frequent flier miles and the
proceeds of a sale of land in Eureka, Utah, were to be
divided equally. Wife also received $24, 050 as compensation
for any interest she might have in business ventures
developed during the course of the marriage.
The parties agreed that Wife was to receive $7, 629 per month
as support for the three minor children. The amount decreased
to $6, 586 per month when the first child reached eighteen
years of age. See Utah Code Ann. § 78B-12-219
(LexisNexis 2018). The amount further decreased to $5, 043
per month when the second child reached eighteen, and it was
to remain at that amount until April 2023. The amount of
child support represented an upward deviation of about $4,
558 per month from the guidelines. At the time of the
divorce, the parties agreed that the "increased amount
[was] based on the ongoing medical needs of two of the
children born to this marriage. Both parties . . . determined
this amount to be fair and necessary." At trial, Wife
clarified that the increased amount was designated for the
"medical needs" of the two children in a broad
sense, eclipsing actual expenses:
[The deviated amount allowed Husband] to go and do his thing,
and I needed to maintain raising and taking care of the
children, medical needs, corresponding doctor's
appointments . . . and accommodating . . . raising children,
which then therefore entailed me not having the right to go
and pursue a career where I could . . . travel and earn more
money. . . . [I]t was so that I would create a home base, so
that I would have a solid foundation for these kids. Be
there. Raise them. Create that sense of family. You know, and
not put my career first, but put my children first.
In November 2014, Husband filed a petition to modify the
divorce decree, alleging that substantial changes merited an
adjustment in the amount of child support he was required to
pay. Specifically, he argued that Wife's income had
substantially increased because she had remarried and moved
out of the house in Heber City and subsequently received
rental income from that property. Husband contended that, by
this move, Wife had "voluntarily completely changed her
circumstances and those of the parties' minor
children." Husband testified that his income had
"gone down just slightly" since the divorce decree
At trial, in addition to arguing that Wife's income and
relative wealth had substantially increased, Husband asserted
that the medical expenses of the two oldest children had
substantially changed. To support his claim of a substantial
change in the medical needs of the children, Husband offered
evidence that Wife's out-of-pocket expenses relating to
the children's medical needs had decreased.
The trial court determined that there had been no material
changes in Wife's income or in her relative wealth.
Regarding the amount of child support, the trial court
concluded that the deviated amount was "compensation for
the ongoing medical needs of the two oldest children and
compensation for the marital estate acquired over 23 years of
marriage." The trial court, having concluded that
there had been no substantial changes, ...