Veysey v. Veysey

2014 UT App 264
_________________________________________________________

THE UTAH COURT OF APPEALS

ANDREW VEYSEY,
Petitioner and Appellee,
v.
ALEXIS VEYSEY,
Respondent and Appellant.

Opinion
No. 20130726-CA
Filed November 14, 2014

Third District Court, Salt Lake Department
The Honorable L.A. Dever
No. 984907587

Alexis Veysey, Appellant Pro Se
Rebecca Long Okura and Jenna Hatch, Attorneys
for Appellee

JUDGE JAMES Z. DAVIS authored this Opinion, in which JUDGES
GREGORY K. ORME and J. FREDERIC VOROS JR. concurred.

DAVIS, Judge:

¶1 Alexis Veysey (Mother) challenges the district court’s
adoption of the domestic commissioner’s recommendation
regarding reimbursement of daycare expenses for the parties’
children. We vacate the district court’s order and remand for
further proceedings.

BACKGROUND

¶2 The parties divorced in September 1999. Pursuant to Utah
Code section 78B-12-214, the parties’ divorce decree required
Andrew Veysey (Father) to reimburse Mother for half of “all
reasonable monthly day care expenses actually paid by [Mother]
and incurred on behalf of the parties’ minor children as a result of
[Mother’s] employment and/or occupational or career training.”
Veysey v. Veysey

The decree did not require Father to pay a defined monthly
amount of daycare expenses, but rather required him to reimburse
Mother within ten days of receiving a receipt for daycare expenses.
The decree contained no provision requiring Mother to provide
such receipts within a particular time frame.1

¶3 On March 5, 2013, Mother filed a Motion for Order to Show
Cause requesting a judgment for daycare arrearages accrued
between September 2002 and June 2006. During some of this time
period, the children attended full-day kindergarten at Challenger,
a private school. A hearing was held before a domestic
commissioner on April 1, 2013. The commissioner issued a
recommendation concluding, “The statute of limitations on child
care expenses and the principle of laches preclude[] the court from

1. Following an order to show cause hearing in 2000 before a
different commissioner, that commissioner recommended as
follows:
2. From this point forward, if family members
provide child care, [Father] does not need to pay. If
[Mother’s] neighbor provides the child care, [Mother]
is to provide verification within 30 days and [Father]
is to pay 1/2 the amount within 5 days. [Mother] to
provide copies of checks to show verification of
payment.
3. Parties stipulate to modify the decree of divorce
with the language that verification of child care
expenses is to be provided.
Neither party objected to this recommendation. See generally Utah
R. Civ. P. 108(a) (explaining that a commissioner’s recommendation
“is the order of the court until modified by the court” and outlining
the procedure for objecting to the recommendation). The parties
disagree as to whether the commissioner’s explicit reference to
Mother’s neighbor indicates that the modified verification
requirements were intended to apply only to daycare expenses
associated with the neighbor or whether they can be interpreted to
apply to all daycare expenses. We need not resolve this dispute for
purposes of our analysis, but it may be relevant to the district
court’s determination on remand.

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considering child care expenses more than 8 years old.” The
recommendation therefore ordered that Father “pay one half of
any pre-school or extended care expenses incurred between April
1, 2005 and June of 2006.” The calculation ultimately adopted by
the commissioner excluded Mother’s claims for reimbursement
relating to full-day kindergarten at Challenger and included only
preschool expenses for the youngest child incurred before she
entered kindergarten in September 2005.

¶4 Mother objected to the commissioner’s recommendation,
and a hearing was held before the district court on June 20, 2013.
Following the hearing, the district court issued a minute entry
stating only, “[T]he decision of the Commissioner is correct.”
Mother appeals.

ISSUES AND STANDARDS OF REVIEW

¶5 Mother first argues that the district court erred in adopting
the commissioner’s employment of an eight-year statute of
limitations to bar her claims for reimbursement. “The trial court’s
application of a statute of limitations presents a question of law
which we review for correctness.” Estes v. Tibbs, 1999 UT 52, ¶ 4,
979 P.2d 823.

¶6 Mother next asserts that the district court erred in adopting
the commissioner’s determination that the doctrine of laches
applies to this case. “[T]he question of laches presents a mixed
question of law and fact.” Johnson v. Johnson, 2014 UT 21, ¶ 8, 330
P.3d 704. Although “we typically grant some level of deference to
the trial court’s application of law to the facts,” Wayment v. Howard,
2006 UT 56, ¶ 9, 144 P.3d 1147, the court’s determination must be
supported by adequate factual findings, Anderson v. Thompson, 2008
UT App 3, ¶ 42, 176 P.3d 464.

¶7 Finally, Mother argues that the district court’s approval of
the commissioner’s reimbursement calculation erroneously
excluded full-day kindergarten expenses that should have been

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reimbursed as work-related daycare expenses under the statute.
“The proper interpretation and application of a statute is a question
of law which we review for correctness, affording no deference to
the district court’s legal conclusion.” Gutierrez v. Medley, 972 P.2d
913, 914–15 (Utah 1998).

ANALYSIS

I. Statute of Limitations

¶8 Mother asserts that we should employ the statute of
limitations applicable to child support orders and sum-certain
judgments for past-due support. That statute of limitations permits
enforcement within the longer of four years after the youngest
child reaches majority or eight years from the date of entry of a
sum-certain judgment. Utah Code Ann. § 78B-5-202(6) (LexisNexis
2012). Father argues that we should employ the general eight-year
statute of limitations for judgments. See id. § 78B-5-202(1). When
two statutes of limitations conflict, the statute applying to a specific
type of action controls over a more general statute of limitations.
Perry v. Pioneer Wholesale Supply Co., 681 P.2d 214, 216 (Utah 1984).
Thus, the resolution of this dispute turns on the question of
whether daycare expenses constitute child support.

¶9 The Utah Code is ambiguous as to whether daycare costs
that have not been reduced to a judgment fall within the definition
of child support. First, the Utah Code mandates that a requirement
“that each parent share equally the reasonable work-related child
care expenses of the parents” be included in “[t]he child support
order.” Utah Code Ann. § 78B-12-214(1) (LexisNexis 2012)
(emphasis added). A child support order is defined as an order that
“establishes or modifies child support” or “reduces child support
arrearages to judgment.” Id. § 78B-12-102(9)(a)–(b).

¶10 Child support is defined as

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[1] a base child support award, or [2] a monthly
financial award for uninsured medical expenses,
ordered by a tribunal for the support of a child,
including [3] current periodic payments, [4] all
arrearages which accrue under an order for current
periodic payments, and [5] sum certain judgments
awarded for arrearages, medical expenses, and child
care costs.

Id. § 78B-12-102(8). “Base child support award” is defined as “the
award that may be ordered and is calculated using the [child
support] guidelines”2 and explicitly excludes “medical expenses
and work-related child care costs.” Id. § 78B-12-102(4). The other
types of support identified in the definition contemplate only fixed
amounts—monthly financial awards, current periodic payments,
arrearages, and sum-certain judgments. Mother urges us to
interpret “current periodic payments” as encompassing the type of
variable “reasonable monthly day care expenses actually paid”
provided for in the parties’ divorce decree. However, variable
daycare expenses cannot be classified as “periodic” because they
are based on actual expenses incurred, which may vary from week
to week and month to month. Similarly, the phrase “arrearages
which accrue under an order for current periodic payments”
contemplates the existence of an order defining a specific amount
to be paid periodically.

¶11 Thus, although the Utah Code requires courts to order the
payment of work-related daycare expenses as part of the child
support order, it appears to exclude such expenses (at least until
they are reduced to judgment) from the definition of child support.
We resolve this inconsistency by looking at the child support
statute as a whole and by considering the intent and purpose of the

2. The child support guidelines are contained in sections 78B-12-201
to -219 of the Utah Code. Utah Code Ann. § 78B-12-102(12)
(LexisNexis 2012). See generally id. §§ 78B-12-201 to -219 (2012 &
Supp. 2013).

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legislature in enacting the definition. See Carter v. University of Utah
Med. Ctr., 2006 UT 78, ¶¶ 9, 13, 150 P.3d 467 (explaining that “we
seek to render all parts [of the statute] relevant and meaningful,
and we accordingly avoid interpretations that will render portions
of a statute superfluous or inoperative,” and that “[w]e read the
plain language of the statute as a whole, and interpret its
provisions in harmony with other statutes in the same chapter and
related chapters” (alterations in original) (citations and internal
quotation marks omitted)).

¶12 Until 2000, the child support statute’s definition of child
support merely stated, “‘Child support’ is defined in Section 62A-
11-401.” See Utah Code Ann. § 78-45-2(7) (Lexis Supp. 1999); see also
Act of March 13, 2000, ch. 161, § 22, 2000 Utah Laws 558, 570.
Section 62A-11-401 is contained in the statute relating to income
withholding by the Office of Recovery Services (ORS) and provides
definitions relevant to that statute. See Utah Code Ann. § 62A-11-
401 (LexisNexis 2011). ORS’s role in collecting child support is
limited to specific dollar amounts contained in a support order and
judgments for arrearages; ORS does not collect ongoing medical
and daycare expenses where the dollar amount of those expenses
is not specified in the divorce decree or reduced to a judgment.
Utah Department of Human Services, Office of Recovery
Services/Child Support Services, Notice of Services, 2 (July 1, 2014),
available at http://www.ors.utah.gov/documents/ANIAForm.pdf.
Thus, it stands to reason that the definition of child support
contained in the ORS statute includes only forms of support that
have a fixed dollar amount; we can conceive of no such rationale
for excluding variable support, i.e., support defined by category
rather than by dollar amount, from the child support statute’s
definition.

¶13 Although the legislature added an explicit definition of child
support to the child support statute in 2000, that definition still
relied on the language used in the ORS statute rather than creating

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a distinct definition for purposes of the child support statute.3
Compare Act of March 13, 2000, ch. 161, § 14, 2000 Utah Laws 558,
566, with id. ch. 161, § 22, 2000 Utah Laws 558, 570. Because the
legislature simply adopted an already-existing definition, it does
not appear to have made a conscious decision to exclude variable
medical and daycare expenses from the definition of child support
in the context of the child support statute, and indeed, its
requirement that reimbursement for daycare expenses be provided
for in the child support order suggests the opposite. See Utah Code
Ann. § 78B-12-214(1).

¶14 The exclusion of medical and daycare expenses from the
definition of base child support also does not appear to stem from
the legislature’s determination that these expenses do not
constitute child support, but from its desire to distinguish these
two categories from other categories of child-rearing expenses
presumably covered by the base child support award. See Davis v.
Davis, 2011 UT App 311, ¶ 17, 263 P.3d 520 (“[C]hild-rearing
expenses not statutorily distinguished from regular child support
should be considered part and parcel of the child support award.”
(citation and internal quotation marks omitted)). Indeed, the fact
that the legislature felt the need to distinguish “base child support”
from “child support” on this basis suggests that it expected medical
and daycare expenses to fall within the general definition of child
support and that a different term was needed to refer to the base
award “calculated using the [child support] guidelines.” See Utah
Code Ann. § 78B-12-102(4) (LexisNexis 2012); see also Wardle v.
Bowen, 2005 UT App 226U, para. 11 (“[T]here is no question that . . .
medical and daycare expenses are in the nature of child support.”);
Black’s Law Dictionary 274 (9th ed. 2009) (defining child support as,

3. The only current difference between the two definitions is that
the ORS definition “includes obligations ordered by a tribunal for
the support of a spouse or former spouse with whom the child
resides if the spousal support is collected with the child support.”
Compare Utah Code Ann. § 62A-11-401 (LexisNexis 2011), with id.
§ 78B-12-102(8) (2012).

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inter alia, “the money legally owed by one parent to the other for
the expenses incurred for children of the marriage”).

¶15 In short, we conclude that variable daycare expenses
constitute child support and that the statute of limitations
governing enforcement of child support orders applies to Mother’s
claim for reimbursement. Because the statute of limitations permits
enforcement of the divorce decree’s order on daycare expenses at
least until four years after the youngest child reaches majority, it
does not preclude Mother from seeking reimbursement for the pre-
2005 daycare expenses. See Utah Code Ann. § 78B-5-202(6)
(LexisNexis 2012).

II. Laches

¶16 The commissioner alternatively determined that the
principle of laches barred Mother from recovering expenses
incurred prior to April 2005. “To successfully assert a laches
defense, a defendant must establish both that the plaintiff
unreasonably delayed in bringing an action and that the defendant
was prejudiced by that delay.” Borland v. Chandler, 733 P.2d 144,
147 (Utah 1987). “The length of time that constitutes a lack of
diligence depend[s] on the circumstances of each case, because the
propriety of refusing a claim is equally predicated upon the gravity
of the prejudice suffered . . . and the length of delay.”
Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Lindberg,
2010 UT 51, ¶ 28, 238 P.3d 1054 (alteration and omission in original)
(citation and internal quotation marks omitted). This issue is
therefore highly fact-dependent, requiring consideration of “the
relative harm caused by the petitioner’s delay, the relative harm to
the petitioner, and whether or not the respondent acted in good
faith.” Id.

¶17 The commissioner’s recommendation contains no findings
supporting a determination that laches applies in this case. It
merely states that both the statute of limitations and the principle
of laches preclude the court from considering daycare expenses
more than eight years old. First, this determination is erroneous

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inasmuch as it suggests that the passage of a particular length of
time was alone sufficient to invoke the doctrine of laches. See id.
Second, the findings made by the commissioner at the hearing do
not address the two elements of a laches defense.4 The
commissioner did not explicitly find that Mother unreasonably
delayed in bringing her action. Instead, the commissioner was
equivocal on this point, merely observing that the parties disputed
this issue and that “[i]t appears that [Mother] has not provided
proof of these expenses until recently.” (Emphasis added.) The
commissioner made no findings regarding the prejudicial impact
of any delay on Father. See id.; Borland, 733 P.2d at 147. Without
specific findings supporting a determination that laches applied in
this case, the commissioner’s recommendation—and, accordingly,
the district court’s adoption of that recommendation5—was
erroneous.

4. In fact, although the order adopted by the commissioner asserted
laches as a justification for her ruling, her oral ruling did not
appear to rely on laches. The commissioner focused primarily on
the statute of limitations and asserted only that “there’s a principle
of laches that indicates that, if a party simply does not provide
proof for a significant period of time and, simply, does not make
any requests whatsoever with regard to those expenses, that they
can waive that merely by the passage of time.” Although the
commissioner discussed laches, she did not explicitly determine
that it applied in this case until she approved the written order.

5. Although we conclude that the district court’s findings were
ultimately inadequate to support its determination that laches
applied, our determination is based on the inadequacy of the
commissioner’s findings, not the fact that the district court
summarily adopted those findings as its own. Contrary to Mother’s
assertion, it is not erroneous for a district court to adopt a
commissioner’s findings rather than making its own separate
findings where its decision and reasoning do not differ from that
of the commissioner. Where the district court does so, we will
simply evaluate the commissioner’s findings as though they were
made by the district court.

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¶18 The absence of more specific findings is perhaps
understandable in light of the fact that the commissioner relied
primarily on the statute of limitations in denying Mother’s claim
for reimbursement of pre-2005 expenses. See supra note 4. However,
given our reversal of that determination, additional findings are
necessary to determine which of Mother’s expenses may be
properly reimbursed. If supported by adequate findings, a
determination that some portion of Mother’s claims are barred by
laches would not necessarily be inappropriate.6 Alternatively,
based on adequate findings, the district court may exercise its
discretion to deny Mother’s claims if it determines that she failed
to comply with Utah Code section 78B-12-214(2)(b), which outlines
the verification requirements a parent must comply with to obtain
reimbursement for daycare expenses,7 see Utah Code Ann. § 78B-
12-214(2)–(3) (LexisNexis 2012), or with the requirements of the
parties’ divorce decree, see supra ¶ 2 & note 1. Or the district court
may conclude that all of Mother’s claims are reimbursable because
they were brought within the statute of limitations. In any event,
additional findings are needed to support the district court’s
determination.

6. Relying on Utah Code section 78B-12-109, Mother asserts that
laches is inapplicable to claims for support made pursuant to a
court order. However, this section precludes only waiver and
estoppel defenses and says nothing about laches. See Utah Code
Ann. § 78B-12-109 (LexisNexis 2012). While the doctrines of
estoppel and laches may be similar, they are still distinct legal
doctrines with different elements. Compare CECO Corp. v. Concrete
Specialists, Inc., 772 P.2d 967, 969–70 (Utah 1989) (outlining the
elements of equitable estoppel), with Papanikolas Bros. Enters. v.
Sugarhouse Shopping Ctr. Assocs., 535 P.2d 1256, 1260 (Utah 1975)
(outlining the elements of laches). We decline to read section 78B-
12-109 more broadly than it is written.

7. The commissioner suggested as much at the hearing but did not
base her ruling on that ground.

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III. Extended-Care Expenses

¶19 Finally, although Mother acknowledges that private-school
tuition does not fall within the scope of reimbursable daycare
expenses, she argues that she should be entitled to reimbursement
for one-fourth of the cost of full-day kindergarten because the
second half of the day constitutes “extended care expenses,” for
which the commissioner acknowledged Mother should receive
reimbursement. The commissioner indicated that “extended care
prior to or after the core time period is also a type of day care
expense[]” and that the parties should “work together” to
determine what portion of the claimed full-day kindergarten
tuition, if any, constituted daycare expenses. Because the “core time
period” for kindergarten is only half of the regular school day,
Mother asserts that the other half should be categorized as
daycare.8

¶20 Mother claims that she has always sought reimbursement
for only one-fourth of the kindergarten expenses because the first
half of the cost of full-day kindergarten is attributable to the
regular kindergarten school day. However, when Mother
submitted a proposed order to the commissioner, it contained the
same calculation that the commissioner had acknowledged to be
erroneous, which included the entire cost of the youngest child’s
full-day kindergarten tuition. Thus, when Father submitted an
order that excluded the kindergarten expenses completely, the
commissioner adopted that order. While Father is not responsible
for the cost of regular half-day kindergarten tuition, any extra
tuition paid for full-day kindergarten may qualify as extended-care

8. Mother does not demonstrate that the cost of an additional half
day of kindergarten would be no more expensive than a half day
of extended care or other daycare.

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expenses.9 On remand, the district court should take this into
consideration in calculating the amount owed by Father.

CONCLUSION

¶21 The district court erred in adopting the commissioner’s
recommendation that Mother’s pre-2005 reimbursement claims
were barred by the statute of limitations and laches. The district
court’s adoption of the commissioner’s calculation excluding
extended-care costs associated with the youngest child’s full-day
kindergarten was likewise erroneous. Accordingly, we vacate the
district court’s order and remand for additional findings and
conclusions, in accordance with this opinion, regarding Mother’s
claims for reimbursement.

9. That said, we are not convinced that Mother’s one-fourth
calculation accurately represents Father’s share of the daycare
obligation. Father would not be required to pay any portion of the
children’s tuition for half-day kindergarten. Thus, his portion
should be, at most, half of the difference between the cost of full-
day kindergarten and the cost of half-day kindergarten, which may
not be the same as one-fourth of the total cost of full-day
kindergarten. And it may be that some further adjustment is
necessary if full-day kindergarten is significantly more expensive
than traditional daycare and Father did not at least tacitly agree to
the use of full-day kindergarten as daycare.

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