Rivet v. Hoppie

               THE UTAH COURT OF APPEALS

                          JULIE RIVET,
                           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 DAVID N. MORTENSEN authored this Opinion, in which
     JUDGES KATE APPLEBY 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.
                          Rivet v. Hoppie


                        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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                           Rivet v. Hoppie


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, 

, 

 (“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,

 (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, 

, 

 (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, 

 (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, 

, 

 (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, 

, 

 (citing Allen v. Friel, 

, 

).




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                          Rivet v. Hoppie


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.” 

(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, 

(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.” 

 Such circumstances “negate[] the establishment
. . . of the statutory requirement that the couple acquire[] a
uniform and general reputation as husband and wife.” 

(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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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, 

, 

 (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.




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