Cantrell v. Cantrell

2013 UT App 296
_________________________________________________________
THE UTAH COURT OF APPEALS
JAMES N. CANTRELL,
Petitioner and Appellee,
v.
ELLEN CANTRELL,
Respondent and Appellant.
Opinion
No. 20110433-CA
Filed December 19, 2013
First District Court, Logan Department
The Honorable Kevin K. Allen
No. 084100008
Stephen W. Jewell, Attorney for Appellant
Lyle W. Hillyard and R. Christian Hansen,
Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGE STEPHEN L. ROTH concurred. JUDGE JAMES Z. DAVIS
concurred in the result.
CHRISTIANSEN, Judge:
¶1 Ellen Cantrell (Wife) appeals from the district court’s order
granting James N. Cantrell’s (Husband) petition to modify a decree
of divorce. We reverse and remand.
BACKGROUND
¶2 In late 2007, after a marriage of just over twenty-two years,
the parties entered into a Collaborative Law Participation
Agreement in which they agreed to pursue a divorce settlement
without judicial intervention. In April 2008, the parties

Cantrell v. Cantrell
1. For clarity, we refer to the court in which the petition for divorce
was filed and in which the decree of divorce was entered as the
decree court. We refer to the court that adjudicated Husband’s
petition to modify the decree of divorce and entered the order
appealed from as the district court.
2. The Stipulation appears to have been drafted based on the
parties’ understanding of the requirements of the Utah Uniform
Civil Liability for Support Act. See Utah Code Ann. §§ 78-45-1 to -
(continued...)
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memorialized their agreement regarding the terms of their divorce
(the Stipulation) and submitted the Stipulation to the court for
entry of a decree of divorce. The parties have three minor children,1
two daughters and one son.
¶3 In the Stipulation, the parties agreed that Husband would
have primary physical custody of their son and Wife would have
primary physical custody of their daughters. The parties also
agreed that Wife would be awarded the marital home and would
attempt to refinance the home in order to eliminate Husband’s
obligation as a debtor on the home. The Stipulation provided that
if the marital home were sold at any time, Wife would be awarded
the net proceeds of the sale, but it did not otherwise address a sale
of the marital residence. The Stipulation also included a proposed
parenting plan, which provided,
[E]ach parent will continue to reside in fairly close
proximity to the other. If either [parent] intends to
relocate so that this plan would be impractical to
maintain, then the relocating parent should give
notice to the other parent as soon as possible. Each
[parent] should then submit proposed amended
parenting plans to take into account the proposed
relocation.
¶4 The parties also “agreed to an upward deviation” from the
child support amount required by statute. The Stipulation2

Cantrell v. Cantrell
2. (...continued)
13 (LexisNexis 2002 & Supp. 2007). At the time the parties executed
the Stipulation, that act had been renumbered and amended as the
Utah Child Support Act. See Utah Code Ann. §§ 78B-12-101 to -403
& amend. notes (LexisNexis 2008) (explaining that the 2008
amendments became effective February 7, 2008). However, the
decree of divorce entered by the decree court properly relied upon
the Utah Child Support Act as the law in effect at the time. And
because the stipulated support amount is an upward deviation
from the statutory guidelines under either act, the parties’ reliance
on the superseded act in the Stipulation does not materially affect
our analysis.
3. Based on the child support obligation worksheet attached to the
Decree, Husband was obligated to pay $5,232 per month to Wife
for child support for the daughters, consistent with the statutory
guidelines. See Utah Code Ann. § 78B-12-301 (LexisNexis 2008). The
stipulated support amount of $8,000 was thus an upward deviation
of $2,768 per month.
20110433-CA 3 2013 UT App 296
provided that Husband would “pay child support for [the
daughters] to [Wife] in the amount of $8000.00 per month” and that
Wife would not make any child support payments to Husband.
The Stipulation did not provide any explanation for the upward
deviation.
¶5 The decree court entered a decree of divorce (the Decree) in
May 2008 based upon and incorporating the Stipulation. The
Decree recognized that Husband’s child support obligation
“constitutes an upward deviation from the amount required by
[statute].” The attached child support obligation worksheet stated3
only, “This is an upward deviation in the base child support
award,” in the space provided for explanation of any deviation
from the guideline amount. The Decree did not otherwise address
the basis for the upward deviation.
¶6 In August 2008, Wife relocated with the daughters to upstate
New York. In October 2008, Husband filed with the district court

Cantrell v. Cantrell
4. Husband requested modification of other terms of the Decree in
his petition to modify, but neither party has challenged the district
court’s rulings on those issues in this appeal. We therefore do not
review those rulings.
20110433-CA 4 2013 UT App 296
a petition to modify the Decree, in part to modify his child support
to correspond to the guideline amount based on the parties’ then-
current incomes and thereby eliminate the upward deviation.4
Husband claimed that the reason he had originally agreed to an
upward deviation in the amount of his child support payment was
“so that [Wife] could maintain the marital residence and [the
daughters] would not have to move.” He asserted that the upward
deviation was no longer necessary because “the purpose behind
the upward deviation [was] defeated by [Wife’s] relocation to New
York.” Accordingly, Husband argued that Wife’s relocation to New
York constituted a substantial change in circumstances that was not
contemplated in the Decree.
¶7 In November 2010, having settled some issues and reserved
others for trial, the parties filed cross-motions for partial summary
judgment on the remaining issues, including modification of child
support. Husband argued that because no finding was made in the
Decree regarding the reason for the upward deviation, his child
support obligation should be recalculated according to the
statutory guideline amounts. He also argued that the undisputed
evidence—specifically, emails exchanged by the parties prior to
their formal divorce proceedings—showed that the reason for the
upward deviation was to provide for maintenance of the marital
residence, and that the deviation was no longer necessary as a
result of Wife’s sale of the marital residence. Wife argued that no
further explanation for the upward deviation was required by
statute and that the district court could not consider parol evidence
to determine the reason for the upward deviation because the
provisions of the Decree and Stipulation that provided for the
upward deviation were not ambiguous.
¶8 After hearing oral argument on the parties’ motions for
summary judgment, the district court resolved or deferred all of
the issues raised except for child support. The district court

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20110433-CA 5 2013 UT App 296
scheduled an evidentiary hearing on the child support issue
because it found that the “stipulation and divorce decree upon
which it is based are ambiguous regarding the reason that there
was an upward deviation in the child support.” At the hearing on
January 6, 2011, the district court elaborated, “[B]ecause there was
never an explanation for the upward deviation in child support, as
the code requires an explanation, [the court] found that [the
Decree] was ambiguous on its face. . . . [The court] found it was
ambiguous because the code requires an explanation be given.”
The district court then received evidence and testimony from the
parties as to the original purpose of the upward deviation.
Husband testified that the purpose of the upward deviation was
for maintenance of the marital home, and he offered the emails
exchanged by the parties prior to their divorce as evidence of this
intent. Wife testified that her remaining in the marital home was
never a condition of the upward deviation and that she was
already contemplating moving from the home in early 2008.
¶9 In April 2011, the district court entered its findings of fact,
conclusions of law, and order granting Husband’s petition to
modify child support. The court noted that “this is a difficult
determination because of the scant evidence received regarding
this issue because of the parties’ collaborative law agreement and
their failure to articulate a reason for the upward deviation other
than their ‘agreement’ to doing so.” The district court found that
the evidence presented at the hearing “demonstrate[d] that the
parties both desired that the minor children should remain in the
marital home and that the marital home was going to take money
to keep the house going.” The court found Husband’s testimony
more credible as to the purpose for the upward deviation,
concluding that “the reason for the upward deviation in child
support was because of the substantial maintenance costs for
keeping the [marital] home.” As a result, the district court found
that Wife “moving from and selling the [marital] home constitutes
a substantial change in circumstance[s].” The court granted
Husband’s petition to modify as to child support, concluding that
child support should be reduced to the amount required under the
child support guidelines.

Cantrell v. Cantrell
20110433-CA 6 2013 UT App 296
ISSUES AND STANDARDS OF REVIEW
¶10 Wife first claims that the district court incorrectly
determined that the Decree failed to comply with the requirements
of the Utah Child Support Act and that this failure created an
ambiguity in the Decree. Wife contends that the district court
therefore erred in receiving parol evidence regarding the purpose
for the upward deviation in child support and in granting
Husband’s petition to modify the Decree on the basis of that
evidence. “We review the trial court’s legal determinations
regarding [Husband’s] entitlement to child support modification
for correctness.” Doyle v. Doyle, 2009 UT App 306, ¶ 9, 221 P.3d 888,
aff’d, 2011 UT 42, 258 P.3d 553. “Interpretation of a divorce decree
presents a question of law, which is reviewed for correctness.”
Gardner v. Gardner, 2012 UT App 374, ¶ 14, 294 P.3d 600. And “we
review the district court’s decision for correctness to the extent it
involves questions of statutory interpretation.” Diener v. Diener,
2004 UT App 314, ¶ 4, 98 P.3d 1178 (citation and internal quotation
marks omitted).
¶11 Alternatively, Wife argues that the evidence is insufficient
to support the district court’s findings of fact supporting its grant
of Husband’s petition to modify. “In reviewing child . . . support
proceedings, we accord substantial deference to the trial court’s
findings and give it considerable latitude in fashioning the
appropriate relief. We will not disturb the district court’s actions
unless the court exceeded the limits of its permitted discretion.” Id.
(omission in original) (citation and internal quotation marks
omitted).
ANALYSIS
¶12 The central issue in this case is whether the district court
erred in granting Husband’s petition to modify the award of child
support to eliminate the upward deviation. Entry and modification
of child support orders are governed by section 210 of the Utah
Child Support Act (the Act). Utah Code Ann. § 78B-12-210
(LexisNexis 2008). To determine whether the district court properly

Cantrell v. Cantrell
20110433-CA 7 2013 UT App 296
based its decision on a perceived ambiguity in the Decree we must
first interpret the requirements for a deviated order under Utah
Code section 78B-12-210(3). We then consider whether the district
court’s ruling on Husband’s petition to modify complied with the
requirements to modify a decree of divorce under Utah Code
section 78B-12-210(9).
I. Under These Circumstances, No Explanation for the Upward
Deviation in the Decree Was Required by Statute.
¶13 Wife challenges the district court’s determination that the
Decree did not comply with the statutory requirements for an
upward deviation because no explanation was given for the
upward deviation in child support. The district court explained,
“[T]here was never an explanation for the upward deviation . . . ;
therefore, [the court] found it was ambiguous because the code
requires an explanation be given.” Wife argues that the district
court incorrectly concluded that the absence of such an explanation
created an ambiguity in the Decree. We therefore consider the
requirements for a deviated child support order under the Act.
¶14 The Act establishes specific guidelines for the calculation of
child support obligations. See Utah Code Ann. §§ 78B-12-205, -301
(LexisNexis 2008). The Act also establishes a presumption that the
award amount resulting from application of the guidelines is the
correct child support obligation to be imposed. Id. § 78B-12-210(2).
Generally, to rebut the presumption that the guideline amount is
correct, the district court must enter a “specific finding on the
record” supporting its conclusion that the guideline award would
be “unjust, inappropriate, or not in the best interest of a child.” Id.
§ 78B-12-210(3). However, “a party may agree to pay child support
in excess of the guidelines even if the trial court does not make a
specific finding that such a deviation is warranted.” Davis v. Davis,
2011 UT App 311, ¶ 17 n.11, 263 P.3d 520 (emphasis added).
Because an increase in ordered child support does not negatively
implicate a child’s best interest in the obvious way that a decrease
in child support would, a district court may accept the parties’
stipulation to an upward deviation without further findings under
the principle that a “stipulation constitutes an agreement of the

Cantrell v. Cantrell
5. This case does not present us with the question of whether and
to what extent parties may stipulate to a downward deviation from
the guideline child support amount, and we do not decide that
question today. Clearly a decrease in child support from the
guideline amount has an obvious potential to negatively affect the
best interest of the child. Thus, if the district court accepts a
stipulation by the parties to such a downward deviation from the
guideline child support amount, it should nevertheless enter
specific findings supporting its conclusion that such a downward
deviation was warranted under the circumstances. See Utah Code
Ann. § 78B-12-210(3) (LexisNexis 2008).
20110433-CA 8 2013 UT App 296
parties that all the facts necessary to support it . . . pre-existed and
would be sustained by available evidence, had not the agreement
of the parties dispensed with the taking of evidence,” see id.
(omission in original) (citation and internal quotation marks
omitted).5
¶15 Here, as a result of their collaborative law agreement, the
parties stipulated to an upward deviation from the presumed
guideline amount. The decree court accepted the parties’
stipulation and incorporated the stipulated deviation into the
Decree without a separate finding by the decree court to rebut the
presumption under Utah Code section 78B-12-210(3). However,
because the parties had stipulated to an upward deviation from the
guideline amount, the decree court was not required to make a
specific finding that the deviation was warranted. See id. Thus, even
absent such a finding by the decree court, the Decree complied with
the requirements of Utah Code section 78B-12-210(3). The district
court therefore erred in concluding that an explanation for the
deviation was required by statute under these circumstances and
that the absence of an explanation rendered the Decree ambiguous.
II. The Decree Is Not Otherwise Ambiguous as to the Reason for
the Upward Deviation.
¶16 Our determination that the Act does not require an
explanation for the upward deviation in this case is not dispositive

Cantrell v. Cantrell
20110433-CA 9 2013 UT App 296
of the parties’ arguments regarding whether the Decree is
ambiguous under a contract analysis. “We interpret a divorce
decree according to established rules of contract interpretation
. . . .” Moon v. Moon, 1999 UT App 12, ¶ 18, 973 P.2d 431 (citation
and internal quotation marks omitted). “A contractual term or
provision is ambiguous if it is capable of more than one reasonable
interpretation because of uncertain meanings of terms, missing
terms, or other facial deficiencies.” Glenn v. Reese, 2009 UT 80, ¶ 10,
225 P.3d 185 (citation and internal quotation marks omitted).
Husband argues that the Decree is rendered ambiguous by a
missing term—an explanation of the reason for the upward
deviation. Wife argues that the language of the Decree is
unambiguous because a contract need contain only clear and
unambiguous terms, and not an explanation for every provision.
We agree with Wife.
¶17 The Decree plainly states that Husband “shall pay to [Wife],
as and for base child support, the sum of $8,000 per month for the
support of [the daughters], commencing the month after the date
of entry by the Court of this Decree of Divorce.” The Decree also
notes that the child support award is an upward deviation from
that required by statute. The parties do not dispute that these terms
unambiguously define Husband’s child support obligation. The
absence of an explanation for why the parties agreed to the upward
deviation or the specific amount of child support has no bearing on
the meaning or interpretation of the child support provision and
does not render the terms of the Decree “capable of more than one
reasonable interpretation.” See id. Accordingly, we conclude that
the Decree is not ambiguous as to the reason for the upward
deviation but that it is simply silent on the matter.
III. The District Court’s Findings Are Inadequate To Sustain Its
Grant of Husband’s Petition To Modify the Decree with Respect
to Child Support.
¶18 Having determined that the Decree is not ambiguous, we
next consider whether the district court properly granted
Husband’s petition to modify the Decree. The district court
explained that as a result of its determination that the Decree was

Cantrell v. Cantrell
20110433-CA 10 2013 UT App 296
ambiguous, the court was not required to “go through the whole
analysis of a substantial change in circumstances, best interests of
the child, because that’s not necessary.” We conclude, however,
that the district court was required to evaluate Husband’s petition
under the statutory framework for deciding a petition to modify
child support.
¶19 Because the Decree is not ambiguous, the district court’s task
was not to clarify the Decree by employing a contract analysis but
to evaluate Husband’s petition under Utah Code section 78B-12-
210(9). “A parent, legal guardian, or the [Office of Recovery
Services] may at any time petition the court to adjust the amount
of a child support order if there has been a substantial change in
circumstances.” Utah Code Ann. § 78B-12-210(9)(a) (LexisNexis
2008). “Upon receiving a petition under Subsection (9)(a), the court
shall, taking into account the best interests of the child[,] . . .
determine whether a substantial change has occurred” and
whether that change justifies an adjustment of the payor’s child
support obligations. See id. § 78B-12-210(9)(c). “[A] party requesting
that a divorce decree be modified must demonstrate that there has
been a substantial change of circumstances occurring since the
entry of the decree [that was] not contemplated in the decree
itself.” Gullickson v. Gullickson, 2013 UT App 83, ¶ 21, 301 P.3d 1011
(first alteration in original). However, it is not enough for the
parties themselves to have contemplated the change in
circumstances. “In order for a material change in circumstances to
be contemplated in a divorce decree there must be evidence,
preferably in the form of a provision within the decree itself, that
the trial court anticipated the specific change.” Durfee v. Durfee, 796
P.2d 713, 716 (Utah Ct. App. 1990) (emphasis added). “Thus, if both
the divorce decree and the record are bereft of any reference to the
changed circumstance at issue in the petition to modify, then the
subsequent changed circumstance was not contemplated in the
original divorce decree.” Wall v. Wall, 2007 UT App 61, ¶ 12, 157
P.3d 341 (citation and internal quotation marks omitted).
¶20 Husband petitioned for a modification of the Decree on the
basis that Wife’s “relocation to New York . . . constitutes a
substantial change in circumstances not contemplated at the time

Cantrell v. Cantrell
20110433-CA 11 2013 UT App 296
the Decree of Divorce was entered.” The district court’s focus thus
should have been on subsection 78B-12-210(9) and determining
whether there was a substantial change in circumstances not
contemplated in the Decree. However, the district court focused on
the question of ambiguity and the parties’ intent to the exclusion of
an inquiry into whether the substantial change in circumstances it
identified was contemplated by the decree court in entering the
Decree and whether modification of Husband’s support obligation
would be in the best interest of the children. The district court
specifically explained that the only evidence that was to be received
and considered on the issue of child support related to the intent of
the parties as to the upward deviation and not to whether
modification was appropriate under the Act.
¶21 “[W]hen explaining the outcome of a modification petition,
the court must make findings on all material issues, and its failure
to delineate what circumstances have changed and why these
changes support the modification made [to] the prior divorce
decree constitutes reversible error unless the facts in the record are
clear, uncontroverted and only support the judgment.” Diener v.
Diener, 2004 UT App 314, ¶ 7, 98 P.3d 1178 (second alteration in
original). Here, the district court received evidence and testimony
from the parties and prepared factual findings based on that
evidence. Notably, the district court found that Wife’s “moving
from and selling the [marital] home constitutes a substantial change
in circumstances.” Based upon the evidence in the record,
including the email evidence and Husband’s testimony regarding
the importance of maintaining the marital home for the
children—which testimony the district court expressly found more
credible than Wife’s on that issue—we cannot say the district court
abused its discretion in reaching this conclusion. See id. ¶ 4.
¶22 However, the district court did not analyze or make any
findings regarding whether Wife’s relocation or the sale of the
marital home was contemplated in the Decree and whether
modification of Husband’s child support obligation would be
consistent with the best interest of the children for whom the child
support payment is intended. See id. ¶¶ 13–14. As a result, the
findings and record before this court are inadequate to sustain the

Cantrell v. Cantrell
6. Wife also requests attorney fees incurred at trial and on appeal
on the basis that she is the prevailing party on appeal. “An award
of fees on appeal requires both a fee award below and success in
the appellate court.” Holladay Towne Ctr., LLC v. Brown Family
Holdings, LC, 2008 UT App 420, ¶ 25, 198 P.3d 990, aff'd, 2011 UT 9,
248 P.3d 452. We deny Wife’s request for attorney fees incurred on
appeal because the district court did not award attorney fees
below. And because we reverse the district court’s order and
remand for further proceedings, the district court may reevaluate
Wife’s request for attorney fees upon entering judgment at the
conclusion of those proceedings. We therefore need not address
Wife’s request for fees incurred below at this time.
20110433-CA 12 2013 UT App 296
district court’s grant of Husband’s petition to modify the Decree
with respect to child support. See id. ¶ 7. We therefore reverse the
district court’s order as it relates to Husband’s child support
obligation and remand for the district court to evaluate Husband’s
petition under Utah Code section 78B-12-210(9) and to make
further factual findings on the issues discussed in this opinion.6
CONCLUSION
¶23 The district court erred in concluding that an explanation for
the upward deviation in child support was required by the Act
under these circumstances and that the absence of an explanation
created an ambiguity in the Decree. Because the Decree was not
ambiguous, the district court erred by failing to evaluate
Husband’s petition to modify the Decree under the appropriate
statutory framework and to make the required factual findings. We
reverse and remand for further proceedings consistent with this
opinion.