Ward v. McGarry

2021 UT App 51
THE UTAH C OURT OF APPEALS
SARA WARD,
Appellant,
v.
MEREDITH MCG ARRY,
Appellee.
Opinion
No. 20200435-CA
Filed May 6, 2021
Third District Court, Salt Lake Department
The Honorable Richard D. McKelvie
No. 134901200
Angilee K. Dakic, Attorney for Appellant
Martin N. Olsen and Beau J. Olsen, Attorneys
for Appellee
J UDGE MICHELE M. C HRISTIANSEN FORSTER authored this Opinion,
in which J UDGES D AVID N. MORTENSEN and R YAN M. H ARRIS
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 	Sara 	Ward 	challenges 	the 	district 	court’s 	final 	order
regarding child support in a paternity action. We reverse and
remand for further proceedings.
¶2 	Ward and Meredith McGarry have one child together.
The two have been involved in a paternity action regarding that
child since 2013. Although they have resolved custody issues
relating to the child, they were unable to reach a resolution
regarding child support.
¶3 	The parties’ dispute centers on disagreements regarding
the amount of McGarry’s monthly income. McGarry is self-

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employed 	and 	has 	an 	ownership 	interest 	in 	at 	least 	one
company. Ward reports having ongoing difficulties obtaining
documentation relating to McGarry’s income, asserting that his
disclosures were incomplete and heavily redacted. The parties
engaged 	in 	settlement 	negotiations 	and 	exchanged 	rule 	68
settlement offers, see Utah R. Civ. P. 68, and in his rule 68
settlement offer, McGarry offered to have income of $30,000 per
month imputed to him. But the parties were unable to come to
an agreement.
¶4 	The 	parties 	appeared 	before 	a 	domestic 	relations
commissioner for a hearing on March 11, 2020, to address
various non-dispositive motions then pending before the court,
including motions for sanctions and a motion to strike. The
parties did not anticipate that the substantive issues in the case
would be resolved at that time. However, at the hearing, which
lasted only a few minutes, the commissioner did not directly
address the pending motions; instead, she announced that she
was “going to make a recommendation . . . to wrap this up and
resolve” the case and proceeded to impute McGarry’s income
“at $30,000 a month going forward for child support purposes”
based on McGarry’s “agreement.” Further, the commissioner
recommended 	that 	McGarry 	pay 	$56,000 	in 	child 	support
arrearages and attorney fees, a number calculated by averaging
Ward’s request for $60,000 and McGarry’s rule 68 offer of
$52,000. The commissioner did not take evidence at the hearing,
made no further findings in support of these calculations, and
did not distinguish which portion of the lump sum award was
attributable 	to 	attorney 	fees 	as 	opposed 	to 	arrearages. 	The
commissioner’s recommendation took the form 	of 	an order
captioned “Final Order Re Child Support.”
¶5 	Ward objected to the commissioner’s recommendation,
asserting 	that 	the 	commissioner 	“failed 	to 	make 	requisite
findings that would support the order” and erred by relying on
McGarry’s rule 68 settlement offer to reach the imputation

Ward v. McGarry
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number 	rather 	than 	calculating 	that 	amount 	based 	on 	the
evidence. Ward further asserted that the commissioner “made
no findings as to how she calculated the child support arrears or
attorney fees awarded to” Ward and erred in lumping the
arrears and fees together rather than calculating them separately.
Ward also claimed that the commissioner’s order, in the absence
of an evidentiary hearing, deprived her of her “right to a trial.”
The 	district 	court 	countersigned 	the 	commissioner’s
recommendation, making it the final order of the court, and
denied Ward’s objection without holding any further hearing or
making 	any 	additional 	findings 	on 	the 	record. 	Ward 	now
appeals.
¶6 	Ward asserts that the district court erred in approving the
commissioner’s recommendation and summarily denying her
objection without adequate findings and without a trial or other
evidentiary hearing.1 “The ultimate question of whether the trial
court strictly complied with . . . procedural requirements . . . is a
question of law that is reviewed for correctness.” State v. Holland,
921 P.2d 430, 433 (Utah 1996); accord Brigham Young Univ. v.
Tremco Consultants, Inc., 2007 UT 17, ¶ 25, 156 P.3d 782. Further,
“we review the legal adequacy of findings of fact for correctness
as a question of law.” Jacobsen v. Jacobsen, 2011 UT App 161, ¶ 15,
257 P.3d 478 (quotation simplified).
¶7 	“In all actions tried upon the facts without a jury . . . , the
court 	must 	find 	the 	facts 	specially 	and 	state 	separately 	its
1. Ward also raises arguments regarding the inadequacy of
McGarry’s disclosures. However, she does not identify any
particular errors the court made with respect to discovery issues,
and we are therefore unable to review her arguments on this
point. In any event, as we are reversing the district court’s child
support order, Ward will have the opportunity to raise any
ongoing issues with respect to discovery on remand.

Ward v. McGarry
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conclusions of law. The findings and conclusions must be made
part of the record and may be stated in writing or orally
following 	the 	close 	of 	evidence.” 	Utah 	R. 	Civ. 	P. 	52(a)(1).
Moreover, 	when 	a 	party 	objects 	to 	a 	commissioner’s
recommendation, the judge must “make independent findings of
fact and conclusions of law based on the evidence.” Id. R. 108(f);
see also Day v. Barnes, 2018 UT App 143, ¶ 16, 427 P.3d 1272
(“[R]ule 	[108] 	is 	explicit 	that 	the 	district 	court’s 	review 	is
independent on both the evidence and the law.”). A court’s
findings 	must 	“contain 	sufficient 	detail 	to 	permit 	appellate
review 	to 	ensure 	that 	the 	district 	court’s 	discretionary
determination was rationally based.” Fish v. Fish, 2016 UT App
125, ¶ 22, 379 P.3d 882.
¶8 	In 	this 	case, 	the 	district 	court 	did 	not 	make 	any
independent findings of fact or conclusions of law, as required
by rule 108 of the Utah Rules of Civil Procedure.2 McGarry urges
us 	to 	construe 	the 	court’s 	signing 	of 	the 	commissioner’s
recommendation and summary denial of Ward’s objection as an
implicit adoption of the same findings and conclusions entered
by the commissioner. However, nothing in the record supports
such an assumption.3
2. We are also concerned about the court’s refusal to grant Ward
a hearing when requested. See generally Utah R. Civ. P. 108(d)(3)
(“If the hearing before the commissioner was in a domestic
relations matter other than a cohabitant abuse protective order,
any party has the right, upon request . . . to a hearing at which
the judge may require testimony or proffers of testimony on
genuine issues of material fact relevant to issues other than
custody.”).
3. If the commissioner had taken evidence and if the district
court, after reviewing that evidence, had expressly adopted the
(continued…)

Ward v. McGarry
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¶9 	In any event, the commissioner’s findings are inadequate
to support her legal conclusions. The commissioner made a
single finding in support of her recommendation: “The parties
have had extensive, ongoing litigation for the past seven (7)
years and a conclusion of this matter is critical for the parties and
the minor child.” This finding does not address any of the
evidence pertaining to McGarry’s income, the arrearages owed,
or the attorney fees incurred by Ward. Rather than receiving and
examining any evidence and reaching legal conclusions based on
that evidence, the commissioner imputed income based solely on
McGarry’s rule 68 settlement offer, which was never accepted.4
(…continued)
commissioner’s findings as its own, then it might be possible to
construe those findings as independent findings mirroring those
of the commissioner. But that is not what occurred in this case.
4. The commissioner relied on McGarry’s rule 68 settlement offer
to calculate the $30,000 imputation amount, but Ward never
agreed to this amount. “Income may not be imputed to a parent
unless the parent stipulates to the amount imputed, the parent
defaults, or, in contested cases, a hearing is held and the judge
. . . enters findings of fact as to the evidentiary basis for the
imputation.” Utah Code Ann. § 78B-12-203(8)(a) (LexisNexis
2018). McGarry asserts that we should construe this provision as
permitting a court to impute income to a parent based on that
parent’s unilateral stipulation to the amount imputed. However,
McGarry’s interpretation is inconsistent with the language of the
statute and would also lead to an absurd result.
First, nothing in the statute requires the court to impute
income based on the imputed parent’s stipulation. It simply
states that the court cannot impute income “unless the parent
stipulates” or other conditions are met. Id. And in fact, the
statute explicitly states that “in contested cases,” the imputation
requires a hearing and factual findings entered by the judge in
(continued…)

Ward v. McGarry
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See generally Utah Code Ann. § 78B-12-203(8)(b) (LexisNexis
2018) (outlining the factors a court must consider in calculating
the appropriate amount of income to impute to a parent). The
commissioner’s 	recommendation 	regarding 	child 	support
arrearages and attorney fees was likewise unsupported by any
evidence. 	Rather 	than 	examining 	the 	actual 	numbers 	and
making findings regarding the amount owed, the commissioner
simply split the difference between the two parties’ claimed
numbers in their rule 68 settlement offers. Such findings would
not adequately support the court’s decision even if we could
somehow construe them as independent.
(…continued)
support of the imputation. Id. Here, Ward maintained that
McGarry’s income was greater than $30,000 per month. The
appropriate 	amount 	of 	McGarry’s 	income 	was 	therefore
contested, 	requiring 	the 	court 	to 	calculate 	the 	appropriate
amount 	after 	a 	hearing 	if 	the 	parties 	could 	not 	reach 	an
agreement.
Moreover, 	even 	if 	the 	statute 	was 	ambiguous 	and
McGarry’s interpretation was consistent with the plain language
of the statute, his reading would lead to an absurd result, as it
would 	essentially 	require 	the 	court 	to 	impute 	income 	at
whatever level the party being imputed requests. See, e.g., Encon
Utah, LLC v. Fluor Ames Kraemer, LLC, 2009 UT 7, ¶ 73, 210 P.3d
263 (“When statutory language plausibly presents the court with
two alternative readings, we prefer the reading that avoids
absurd results.” (quotation simplified)). Interpreting the statute
in this way could have a significant negative impact on the right
children have to be supported by their parents—a right that we
have consistently held “is not subject to being bartered away,
extinguished, estopped or in any way defeated by the agreement
or conduct of the parents.” Hills v. Hills, 638 P.2d 516, 517 (Utah
1981); accord Andrus v. Andrus, 2007 UT App 291, ¶ 14, 169 P.3d
754.

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¶10 	The overarching problem in this case—and the ultimate
source 	of 	the 	inadequacy 	and 	insufficiency 	of 	the 	court’s
findings—is that no judicial officer ever took evidence or held a
hearing on the contested child support issues. Unless the matter
in 	question 	can 	be 	resolved 	summarily 	(for 	instance, 	by
summary judgment pursuant to rule 56 of the Utah Rules of
Civil Procedure), parties have a right to their “day in court,” in
which they have the opportunity to testify and present evidence
regarding the relevant issues. See Utah Const. art. I, § 11 (“All
courts shall be open, and every person, for an injury done to the
person in his or her person, property or reputation, shall have
remedy by due course of law, which shall be administered
without denial or unnecessary delay; and no person shall be
barred from prosecuting or defending before any tribunal in this
State, with or without counsel, any civil cause to which the
person is a party.”); Miller v. USAA Cas. Ins. Co., 2002 UT 6, ¶ 38,
44 P.3d 663 (“Parties to a suit, subject to all valid claims and
defenses, are constitutionally entitled to litigate any justiciable
controversy between them, i.e., they are entitled to their day in
court.”).
¶11 	At 	some 	level, 	we 	understand 	the 	commissioner’s
frustration with parties who had litigated for several years over
positions that were perhaps not all that far apart. But concerns
regarding 	judicial 	efficiency 	alone 	cannot 	justify 	depriving
parties of their day in court. The contested child support issues
in this case needed to be resolved, if not through negotiation or
summary resolution, then through a trial at which evidence was
presented. The commissioner’s and the district court’s actions to
short-circuit that process here were improper.
¶12 	Because the district court did not take evidence and make
“independent findings of fact and conclusions of law based on
the evidence,” see Utah R. Civ. P. 108(f), in resolving Ward’s
objection, we must reverse the order and remand for further
proceedings.