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Nave-Free v. Free

Court of Appeals of Utah

May 16, 2019

Linda Lee Nave-Free, Appellee,
v.
Wenlock Duane Free Jr., Appellant.

          Fourth District Court, Heber Department The Honorable Jennifer A. Brown No. 134500083

          Russell W. Hartvigsen, Attorney for Appellant.

          Aaron D. Banks, Attorney for Appellee.

          Judge David N. Mortensen authored this Opinion, in which Judges Gregory K. Orme and Ryan M. Harris concurred.

          MORTENSEN, JUDGE.

         ¶1 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.

         BACKGROUND

         ¶2 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.

         ¶3 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).[1] 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."[2] 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.

         ¶4 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.[3] 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 was entered.

         ¶5 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.

         ¶6 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."[4] The trial court, having concluded that there had been no substantial changes, ...


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