Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Pulham v. Kirsling

Supreme Court of Utah

May 22, 2019

Kristen Pulham, Respondent,
v.
William Kirsling, Petitioner.

          On Certiorari to the Utah Court of Appeals Third District, Salt Lake The Honorable Richard D. McKelvie No. 104901246

          Steve S. Christensen, Clinton R. Brimhall, Salt Lake City, for respondent

          Margaret S. Edwards, Salt Lake City, for petitioner

          Justice Himonas authored the opinion of the Court in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Pearce, and Justice Petersen joined.

          OPINION [1]

          HIMONAS, JUSTICE

         INTRODUCTION

         Â¶1 This appeal presents us with the unfortunate case of a divorce being strung out for the better part of a decade while the parties contest issues of child support and parent-time. The court of appeals held that it had limited appellate jurisdiction over this matter and that the district court's orders regarding child support and parent-time should be upheld. We agree and now affirm.

         BACKGROUND

         Trial and Amended Divorce Decree

         ¶2 Kristen Pulham and William Kirsling were married in September 2008. In November 2008, Pulham gave birth to the couple's only child (Child). In March 2010, Pulham filed a petition for divorce. In June 2012, the district court entered a bifurcated decree of divorce, reserving issues such as custody and child support for trial.

         ¶3 The district court held a bench trial in June 2014 and entered detailed findings of fact and conclusions of law that are reflected in an amended divorce decree issued November 4, 2014 (the Amended Decree). Relevant to this appeal are the issues of custody and child support.

         ¶4 Regarding custody, the district court found that Pulham had been Child's primary caregiver since birth and was acting as a full-time caregiver in her home in Tooele, where she lived with her new husband. It also found that Kirsling had resided in a number of places since the divorce, including Taylorsville, Brigham City, and Phoenix. Kirsling requested the district court to order that Child be enrolled at a school near his home in Taylorsville for three years and then Child's enrollment should be shifted to a school near Pulham's home in Tooele. The district court considered this arrangement impractical and unworkable, noting that this plan would require Child to spend a considerable amount of time commuting by car.[2]The district court also noted that Kirsling's plan would require Child to go through an unnecessary adjustment by switching schools and therefore his plan was not in the best interests of the child. Accordingly, the district court awarded Pulham and Kirsling joint legal and physical custody, but designated Pulham as Child's primary caretaker and Pulham's home as Child's primary residence. Kirsling was awarded parent-time with Child that amounted to approximately forty percent of the possible nights per year.

          ¶5 With respect to child support, the district court found that the parties had stipulated to Pulham's income for child support purposes at $30 per month and Kirsling's income for child support purposes at $4, 580 per month. Accordingly, the district court ordered Kirsling to pay Pulham $548 per month for child support.

         Motion for a New Trial and First Appeal

         ¶6 Kirsling moved for a new trial pursuant to Utah Rule of Civil Procedure 59, claiming: (1) accident or surprise under rule 59(a)(3); (2) newly discovered material evidence under rule 59(a)(4); (3) insufficiency of the evidence under rule 59(a)(6); and (4) error in law under rule 59(a)(7). As to accident and surprise, Kirsling argued that he expected the trial to be focused on past events, but the district court's focus on going forward was a surprise that ordinary prudence could not have guarded against. As to newly discovered evidence, Kirsling stated that he was able to locate a copy of a money order that Pulham had denied receiving at trial and he was now able to prove that Pulham had cashed the money order. As to insufficiency of the evidence, Kirsling argued that the district court erred in not imputing income to Pulham pursuant to Utah Code section 78B-12-203, that the parties did not stipulate to any imputation of income but the district court nonetheless imputed $30 per month income to Pulham based on a supposed stipulation, and that the district court did not provide an explanation for a number of rulings on parent-time and miscellaneous fees. Finally, as to error in law, Kirsling argued that the district court was required to provide a detailed explanation as to why it had not followed the recommendations of a custody evaluator and that the district court did not show why Pulham's income imputation was not calculated pursuant to Utah Code section 78B-12-203.

         ¶7 On June 17, 2015, the district court entered an order denying Kirsling's motion for a new trial. With respect to accident or surprise, the district court noted that, while the court had advised the parties that their time would be best spent focusing on issues going forward, the court did not prevent the parties from discussing past events. Furthermore, the parties did spend a significant amount of the trial focused on past events. With respect to newly discovered evidence, the district court ruled that Kirsling had failed to establish whether and why he was unable to obtain the copy of the money order before trial. With respect to insufficiency of the evidence, the district court explained that many of Kirsling's claims confused conclusions of the court with evidence presented to the court. In other words, Kirsling's insufficiency of evidence arguments were actually complaints about the district court's reasoning and application of facts to law-not complaints regarding the sufficiency of the underlying evidence. Finally, with respect to error in law, the district court held that any alleged errors complained of by Kirsling did not rise to errors of law and that it was within the court's discretion to issue the order it did regarding custody, parent-time, and child support.

         ¶8 On July 17, 2015, Kirsling filed a notice of appeal from the district court's order denying his motion for a new trial (the First Appeal) stating:

Kirsling appeals to the Utah Court of Appeals the final Decree of Divorce . . . entered in this matter on June 17, 2015. The Appeal is taken from such parts of the judgment as follow[s]:
(1) Paragraph 3 regarding child support calculation;
(2) Paragraph 4 wherein Mr. Kirsling was ordered to pay $1, 791.00 in child support and ORS fees and $2, 512.00 in child care expenses; and
(3) Paragraph 8 wherein all charges of Contempt are dismissed.

         Petition to Modify the Amended Decree and Second Appeal

         ¶9 On the same day that he filed his notice of appeal in the First Appeal, Kirsling filed a petition to modify the Amended Decree. In that motion, Kirsling argued that a "significant change of circumstances" had occurred as a result of his relocation to Stansbury Park, which is a short drive from Pulham's home in Tooele. Kirsling claimed that this change entitled him to a modification of his parent-time because the sizable distance between Tooele and Taylorsville-acknowledged by the district court in the denial of his original custody request-was no longer an issue. The petition also noted that Kirsling had filed the First Appeal "on three sections of the Decree of Divorce" but that "none of these sections pertain to or affect" the petition to modify the Amended Decree.

         ¶10 In an order dated February 25, 2016, the district court denied Kirsling's petition to modify the Amended Decree. The district court noted that Kirsling had historically been migratory in nature and expressed concern that his stop in Stansbury Park would be similarly brief. Additionally, the district court stated that it was concerned that Kirsling made the move for the sole purpose of "creat[ing] a change of circumstances" in an effort to modify the Amended Decree.[3] In denying the petition, the district court stated that "the 'change of circumstances' threshold is high" and concluded that Kirsling's move to Stansbury Park, in and of itself, was "wholly insufficient to create a sufficient change in circumstances to warrant reconsideration" of the Amended Decree.

         ¶11 On March 28, 2016, Kirsling filed a notice of appeal regarding the district court's denial of his petition to modify the Amended Decree (the Second Appeal).

         Court of Appeals Opinion

         ¶12 The court of appeals consolidated the First Appeal and Second Appeal for purposes of its opinion. It affirmed the district court's orders in both appeals.

         ¶13 With respect to the First Appeal, the court of appeals identified a threshold question regarding the scope of the appeal: whether Kirsling had limited the issues on appeal to the three sections of the Amended Decree that he identified in the notice of appeal. Kirsling argued that the reference to specific sections of the Amended Decree did not waive his right to appeal the entire order denying his motion for a new trial. The court of appeals disagreed, holding that Kirsling's notice of appeal manifested an intent to appeal the district court's order only as to the three sections ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.