Rivet v. Hoppie

2020 UT App 21
THE UTAH COURT OF APPEALS
JULIE R IVET,
Appellant,
v.
LOUIS HOPPIE,
Appellee.
Opinion
No. 20181018-CA
Filed February 13, 2020
First District Court, Logan Department
The Honorable Brian G. Cannell
No. 164100697
Marlin J. Grant, Attorney for Appellant
Paul H. Gosnell, Attorney for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES K ATE A PPLEBY and JILL M. POHLMAN concurred.
MORTENSEN, Judge:
¶1 	During a years-long relationship, and after four marriage
proposals, Julie Rivet and Louis Hoppie never formally married.
Toward the end of the relationship, Rivet petitioned the district
court to recognize a common-law marriage between her and
Hoppie. After three hearings, the district court ruled that Rivet
“failed to establish a common-law marriage under Utah Code
Ann. Section 30-1-4.5.” Specifically, the district court concluded
that 	although 	Rivet 	met 	four 	of 	the 	elements 	required 	to
establish the existence of a common-law marriage, she did not
satisfy 	the 	final 	elements 	requiring 	the 	parties 	to 	hold
themselves out as a married couple and to acquire a uniform and
general reputation as husband and wife. We affirm.

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BACKGROUND
¶2 	Rivet and Hoppie began their relationship in 2009. In
September 2015, the parties “ceased cohabitating” but did not
officially terminate the relationship until sometime in 2017. In
December 2016, Rivet petitioned the district court to recognize
the relationship as a common-law marriage.
¶3 	During 	the 	first 	evidentiary 	hearing, 	Rivet 	moved 	to
admit two contested exhibits: (1) an affidavit from Rivet’s former
attorney 	concerning 	statements 	made 	by 	Hoppie 	in 	their
discussion on how to resolve the petition (Exhibit 2) and (2) a
collection of written statements by members of the parties’
community 	expressing 	their 	opinions 	regarding 	the 	parties’
relationship status (Exhibit 10). Hoppie challenged the exhibits
as hearsay. Rivet conceded the statements contained in the
exhibits 	were 	hearsay, 	but 	suggested 	that 	the 	hearing 	was
informal and that the statements could be considered. The court
asked Rivet’s counsel if there was “something . . . that says I can
rely on [the] documents,” explaining that if there was support
for their admission, the court would allow it. Rivet did not
engage with the court on the question or provide a theory under
which the exhibits could be admitted. The court excluded the
exhibits 	as 	hearsay. 	Later, 	during 	the 	same 	hearing, 	Rivet
referenced Exhibit 2 to refresh the recollection of a witness,
prompting an objection from Hoppie. The court interjected, “I
haven’t received [Exhibit 2] as evidence. . . . [I]t refreshed [the
witness’s] 	recollection.” 	Rivet 	then 	stated 	she 	sought 	to
introduce Exhibit 2 only for that purpose, after which the court
reiterated, “I’m not going to receive [Exhibit 2] at this stage.”
Rivet simply responded, “Okay.” The court further indicated
that Rivet’s former attorney could be called to testify at a later
hearing. But Rivet never called her former attorney to testify.
¶4 	Rivet also sought to introduce Exhibit 10, comprising the
responses of several individuals to the query: “In your opinion

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20181018-CA 	3 	2020 UT App 21
did Julie Rivet and Lou Hoppie appear to be living together the
same as a married couple? And, represent themselves in public
and 	social 	gatherings 	as 	such?” 	The 	court 	responded, 	“It’s
technically hearsay. . . . So I’m not going to receive it . . . . We’ll
reserve the issue and allow for those witnesses to be brought
before the Court.” Rivet offered no response.
¶5 	For the duration of the hearing, the parties presented
conflicting evidence concerning the nature of the relationship,
including testimony from their friends. At the conclusion of the
hearing, Rivet asked whether she needed to call the individuals
represented in Exhibit 10 as witnesses. The court responded,
“It’s your burden. I’m not going to tell you how to present it to
me. . . . You’re going to have to put on your case and live with
it.”
¶6 	During the second evidentiary hearing, Rivet called only
one of the seventeen individuals identified in Exhibit 10 to
testify. 	Additional 	testimony 	was 	offered 	by 	Hoppie’s 	son,
Hoppie’s insurance agent, and the parties themselves.
¶7 	Also during the second hearing, Rivet twice tried to
reference a portion of Exhibit 2. Both times, the court told Rivet it
would not admit the exhibit, and the court later explained that
its decision to exclude Exhibit 2 was based on rule 408 of the
Utah Rules of Evidence, which bars, in some circumstances, the
admission of evidence connected with compromise offers and
negotiations. 	Throughout 	the 	hearing, 	the 	parties 	presented
additional evidence, including tax documents showing Hoppie’s
filing status as single during a period of the relationship, bank
statements showing the parties maintained separate financial
accounts, and insurance documents identifying Hoppie as single
and Rivet as married.
¶8 	During 	the 	third 	hearing, 	the 	court 	heard 	additional
argument from Rivet and Hoppie and acknowledged receiving a

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trust 	document 	executed 	by 	Hoppie 	referencing 	Rivet 	as
“beneficiary.” The court then ruled and concluded that Rivet did
not 	prove 	the 	elements 	of 	a 	common-law 	marriage 	by 	a
preponderance 	of 	the 	evidence. 	The 	court 	later 	issued 	a
memorandum 	decision 	finding 	that 	Rivet 	and 	Hoppie
“cohabitated with one another, and assumed marital rights,
duties, and obligations thus establishing the elements of Utah
Code Ann. Section 30-1-4.5(1)(a)–(d).” But the court also found
that the parties merely “held themselves out as being in a
committed relationship . . . . [T]hey did not hold themselves out
as husband and wife, nor did they acquire a uniform or general
reputation as husband and wife as required by Utah Code Ann.
Section 30-1-4.5(1)(e).” Accordingly, the court denied Rivet’s
requested relief and dismissed her petition. Rivet appeals.
ISSUE AND STANDARD OF REVIEW
¶9 	On 	appeal, 	Rivet 	contends 	that 	the 	district 	court’s
“findings were insufficient to support [Hoppie’s] position” that
there was no common-law marriage.1 In substance, Rivet does
1. Rivet also contends that the court erred by not admitting
Exhibits 	2 	and 	10 	into 	evidence, 	arguing 	that 	they 	were
admissible under four separate rules of evidence. We decline to
address the argument because Rivet did not preserve these
issues. While Rivet offered Exhibits 2 and 10, she provided no
justification for their admission, much less the four legal theories
she presents for the first time on appeal. See State v. Johnson, 2017
UT 76, ¶ 15, 416 P.3d 443 (“When a party fails to raise and argue
an issue in the [district] court, it has failed to preserve the issue
. . . .”). We also decline to review Rivet’s appeal of the district
court’s exclusion of Exhibit 2 because Rivet does not challenge
the court’s alternative basis for its decision under rule 408 of the
Utah 	Rules 	of 	Evidence. 	And 	when 	an 	appellant 	“fails 	to
(continued…)

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not 	contest 	the 	adequacy 	of 	the 	court’s 	findings, 	but 	the
sufficiency of the evidence supporting some of its findings.
Additionally, Rivet’s framing of the issue flips the script. It
was Rivet, as the petitioner, who bore the burden of proving
the elements of a common-law marriage. See Hansen v. Hansen,
958 P.2d 931, 935 (Utah Ct. App. 1998) (stating that a claimant
“must 	prove 	each 	of 	six 	different 	elements 	to 	establish” 	a
common-law marriage). “We do not reverse a [district] court’s
findings of fact unless they are clearly erroneous.” Kelley v.
Kelley, 	2000 	UT 	App 	236, 	¶ 	18, 	9 P.3d 	171 	(cleaned 	up).
Furthermore, when a party fails to challenge factual findings
“we assume that the record supports the findings . . . and
proceed 	to 	a 	review 	of 	the 	accuracy 	of 	the 	lower 	court’s
conclusions of law and the application of that law in the case.”
Heber City Corp. v. Simpson, 942 P.2d 307, 312 (Utah 1997)
(cleaned up); see also Hansen, 958 P.2d at 936–37.
ANALYSIS
¶10 	Rivet contends that certain of the court’s findings are
clearly 	erroneous 	because 	of 	how 	the 	court 	weighed 	the
evidence. Although Rivet enumerates several findings as clearly
erroneous, she substantively challenges only a few of those. See
Hahn v. Hahn, 2018 UT App 135, ¶ 20, 427 P.3d 1195 (declining to
address inadequately briefed issues under rule 24(a)(8) of the
Utah Rules of Appellate Procedure). Consequently, Rivet fails to
adequately 	challenge 	pertinent 	findings 	that 	independently
(…continued)
challenge the [district] court’s alternative basis for its decision,”
the reviewing court generally may not consider the issue sua
sponte. Deseret First Fed. Credit Union v. Parkin, 2014 UT App 267,
¶ 13, 339 P.3d 471 (citing Allen v. Friel, 2008 UT 56, ¶ 7, 194 P.3d
903).

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support 	the 	district 	court’s 	conclusion 	that 	Rivet 	failed 	to
establish the final elements of a common-law marriage: that the
parties “hold themselves out as and have acquired a uniform
and general reputation as husband and wife.” Utah Code Ann.
§ 30-1-4.5(1)(e) (LexisNexis 2019).2
¶11 	This 	court 	has 	indicated 	that 	a 	partial 	or 	divided
reputation of marriage is insufficient to meet the requirements
of section 30-1-4.5(1)(e). See Hansen v. Hansen, 958 P.2d 931, 936
(Utah Ct. App. 1998). A partial or divided reputation of marriage
may 	be 	shown 	when 	“the 	parties’ 	closest 	friends 	[do] 	not
consider 	the 	[parties] 	married” 	and 	the 	parties 	are 	“not
consistent in holding themselves out as married to the rest
of the world.” Id. Such circumstances “negate[] the establishment
. . . of the statutory requirement that the couple acquire[] a
uniform 	and 	general 	reputation 	as 	husband 	and 	wife.” 	Id.
(cleaned up).
¶12 	The 	district 	court 	made 	unchallenged 	findings 	that
negated the establishment of section 30-1-4.5(1)(e). In particular,
the court found the following:
7. During the course of the relationship the parties
held 	themselves 	out 	as 	being 	in 	a 	committed
relationship, 	however, 	they 	did 	not 	hold
themselves out as husband and wife, nor did they
acquire 	a 	uniform 	or 	general 	reputation 	as
husband and wife . . . .
. . . .
2. The statutory provision in effect at the relevant time does not
differ in any material way from the current provision. We
therefore cite the current version of the Utah Code for the
reader’s convenience.

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12. . . . [Rivet’s witness] also stated . . . that neither
party wore wedding rings . . . and that the parties
never 	referred 	to 	each 	other 	as 	“husband” 	or
“wife” but instead referred to each other by the
first names. . . . [The witness] while testifying . . .
claimed that they held themselves out as husband
and wife. However, when pressed for examples of
the parties holding themselves out as a married
couple he could provide none, and admitted that
his belief they were married was based merely on
an assumption.
13. [Hoppie’s] witnesses each testified that they
knew the parties were not married . . . [and n]ever
observed 	either 	party 	refer 	to 	themselves 	as
“husband,” “wife,” or “spouse.”
14. [Another witness] testified that [Hoppie] never
requested changing his status to married . . . or
listing [Rivet] as a spouse. . . . [H]e did not believe
[Hoppie] 	had 	a 	reputation 	of 	being 	a 	married
individual. . . . [H]e did not believe the parties
were married because of discussions they had with
him in his office, and . . . [Hoppie] was always
opposed 	to 	bringing 	[Rivet] 	onto 	other 	legal
documents or referring to her as a spouse.
¶13 	The unchallenged findings indicate at least some of the
parties’ friends and family did not consider them to be married
and the parties did not consistently represent themselves to be
husband and wife. Those facts negate the establishment of the
statutory 	requirements 	under 	Hansen. 	Accordingly, 	the
unchallenged findings adequately support the district court’s
conclusion 	that 	Rivet 	“failed 	to 	establish 	a 	common-law
marriage under Utah Code Ann. Section 30-1-4.5.” Therefore, the

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20181018-CA 	8 	2020 UT App 21
district court accurately applied the law in denying Rivet’s
petition.
CONCLUSION
¶14 	The district court correctly concluded that Rivet failed to
establish 	a 	common-law 	marriage 	in 	light 	of 	its 	findings
indicating that the parties did not hold themselves out as, and
did not acquire a uniform and general reputation as, husband
and wife. We therefore affirm the district court’s dismissal of the
petition.3
3. Hoppie seeks attorney fees incurred on appeal under rule 33
of the Utah Rules of Appellate Procedure, arguing that Rivet’s
appeal is frivolous “[g]iven the findings in Hansen v. Hansen, . . .
and the clear record supporting the trial court’s findings.” Rule
33 permits an award of damages, including attorney fees, for
appeals “not grounded in fact, not warranted by existing law, or
not based on a good faith argument to extend, modify, or reverse
existing law.” Utah R. App. P. 33(b). “The sanction for bringing a
frivolous appeal is applied only in egregious cases, lest there be
an improper chilling of the right to appeal erroneous lower court
decisions.” Marroquin v. Marroquin, 2019 UT App 38, ¶ 36, 440
P.3d 757 (cleaned up). While Rivet’s arguments are ultimately
unpersuasive, they were not so egregious as to warrant an
imposition of rule 33 sanctions. We therefore decline to award
Hoppie attorney fees.