2023 UT App 78
THE UTAH COURT OF APPEALS
DEJUAN BLAKE,
Appellee,
v.
JILLYN SMITH,
Appellant.
Opinion
No. 20210779-CA
Filed July 20, 2023
Third District Court, Salt Lake Department
The Honorable Su Chon
No. 184900112
Julie J. Nelson, Attorney for Appellant
DeJuan Blake, Appellee Pro Se
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Jillyn Smith appeals the district court’s order regarding
custody and child support for her minor son (Child). Because we
determine the court abused its discretion by awarding Smith sole
physical and legal custody while requiring joint decision-making
between Smith and Child’s father, DeJuan Blake, we vacate that
part of the court’s custody award. Furthermore, because we
conclude the court made a mathematical error in calculating the
amount of child support, and that a further examination of the
evidence of Blake’s income is warranted, we reverse the court’s
child support award and remand for recalculation as appropriate.
Blake v. Smith
BACKGROUND
¶2 Smith met Blake in 2007 in Las Vegas, Nevada, and the two
entered into a relationship. As a result of the relationship, Smith
became pregnant with Child in 2009. At the time Smith learned
about the pregnancy, she was no longer living in Las Vegas—she
had moved to Utah to escape her relationship with Blake.
¶3 After a tumultuous pregnancy, during which Blake
continuously asked Smith to have an abortion, Child was born in
Utah in October 2009. Blake traveled to Utah to visit Child twice
during the first year of Child’s life, with each visit lasting “maybe
an hour or two.” The sporadic visits continued over the next few
years, with Child and Smith traveling with Blake on short trips
together. Although Smith asked Blake for financial support
during this time, Blake did not provide support and instead
always offered an “excuse.” Eventually, the communications
between the couple became too toxic and Smith elected to “take a
break from communication” with Blake.
¶4 Thereafter, Smith decided to “give [Blake] a second
chance.” Blake and Child had “maybe a few” “infrequent[]”
telephone conversations a year, but the conversations were short
due to Child’s speech impediment. Blake was not involved in
Child’s schooling or scheduling, he never attended Child’s
doctor’s appointments, and he “wouldn’t follow through” or offer
any explanation as to why he could not help Smith with financial
support for Child’s medical care or educational needs.
¶5 Blake traveled to Utah in 2015 to attend Child’s birthday
party. Toward the end of the party, Blake and Smith had a verbal
altercation regarding Blake’s failure to honor their agreement for
Blake to pay Smith child support. Following this visit, Blake
returned to Utah once in 2016 to attend Child’s baseball game.
That visit also ended in a verbal altercation.
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Blake v. Smith
¶6 In January 2018, Blake petitioned the district court for
paternity and custody of Child. At the time, Child was eight years
old and living with Smith.
¶7 After initiating custody proceedings, Blake filed a series of
three financial declarations with the district court. Blake is self-employed and owns a company managing professional and
aspiring boxers. Blake’s stated gross income, monthly expenses,
and debt listed on each of the three financial declarations differed
significantly. In the first declaration, Blake claimed $0 in gross
monthly income, $1,875 in monthly expenses, and a debt of $7,240.
In the second, Blake claimed $2,000 in gross monthly income,
$17,797 in monthly expenses, and no debt. And in the third, Blake
claimed $1,686 in gross monthly income, $3,947 in monthly
expenses, and no debt. The bank statements filed with each
disclosure were incomplete; however, the bank statements that
were submitted showed that between August 2017 and January
2019, Blake made deposits into his personal account totaling
$456,669.98, and that during that same time, he made withdrawals
totaling nearly $50,000 for investments in cryptocurrency,
payments to his mother, payments to the mother of one of his
other children, and luxury clothing.
¶8 The case proceeded to a bench trial in October 2020. At
trial, Smith detailed the relationship between Child and Blake.
She explained that Blake had never been actively involved in
Child’s life and that Blake had not seen Child at all since May
2016. Smith testified that she and Blake had reached an “original
agreement” for child support where Blake would pay her $1,000
per month. She further testified that this agreement did not start
until 2015—when Child was already six years old—and that the
payments had lasted for only one month. In total, Smith estimated
that Blake had contributed $1,600 in support payments “over the
entirety of [Child’s] life.”
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Blake v. Smith
¶9 Following trial, the district court adjudicated Blake as
Child’s father, awarded Smith sole physical and legal custody of
Child, and awarded Blake standard relocation parent-time
pursuant to Utah Code section 30-3-37, which is approximately
17% of the year. In reaching its legal custody determination, the
court analyzed the statutory factors outlined in Utah Code
sections 30-3-10 and 30-3-10.2 and concluded that the
presumption favoring joint legal custody had been rebutted and
that joint legal custody was not in Child’s best interest. However,
the court ordered a joint decision-making arrangement between
the parties, requiring that the parties “discuss with each other
decisions that should be made regarding [Child].” The
arrangement further provides, “If there is a dispute, the parties
should attend mediation and each pay half of the mediation fees.
If the dispute remains, then [Smith] will have final say. [Blake] can
. . . bring the matter to court if he is unsatisfied with the decision.”
¶10 Regarding child support, the district court primarily
calculated Blake’s past child support payments based on his 2018
tax record, where he claimed $45,050 in gross receipts and $34,483
in deductions. After reviewing the evidence, the court concluded
that several of the deductions—totaling $27,530—were
unsupported and accordingly struck those deductions. Based on
this, the court found that Blake’s “annual income should be
$23,790” through March 2020. However, given the outbreak of the
COVID-19 pandemic, the court concluded that “Blake’s income
has come to a halt,” and it accordingly found it “appropriate . . .
to impute minimum wage income of $1,257/month from March
2020 forward.”
ISSUES AND STANDARDS OF REVIEW
¶11 Smith now appeals the district court’s order regarding
custody and child support, raising two issues for our review. First,
Smith argues the court abused its discretion when it “issued an
internally inconsistent [custody] award” giving Smith “sole legal
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Blake v. Smith
and physical custody but also order[ing] joint decision-making”
between her and Blake. “We review custody determinations
under an abuse of discretion standard, giving the district court
broad discretion to make custody awards.” K.P.S. v. E.J.P., 2018
UT App 5, ¶ 24,
414 P.3d 933 (quotation simplified). “But this
broad discretion must be guided by the governing law adopted
by the Utah Legislature. And on matters of statutory
interpretation, we review for correctness.” Dahl v. Dahl,
2015 UT
79, ¶ 155,
459 P.3d 276 (quotation simplified). And “[w]here the
court’s findings are internally inconsistent on a material point,
reversal and remand are appropriate.” Vandermeide v. Young,
2013
UT App 31, ¶ 21,
296 P.3d 787, cert. denied,
308 P.3d 536 (Utah
2013). 1
1. Blake did not file a brief or otherwise appear in this appeal.
Although “an appellee’s failure to file a brief does not amount to
an automatic default and consequent reversal of the lower court,”
our supreme court has recently recognized that such failure does
impact the “typical burden of persuasion on appeal.” See AL-IN
Partners, LLC v. LifeVantage Corp.,
2021 UT 42, ¶ 19,
496 P.3d 76
(quotation simplified). Because an appellee’s failure to raise any
argument leaves the appellant’s claims “unrebutted,” see Broderick
v. Apartment Mgmt. Consultants, LLC,
2012 UT 17, ¶¶ 18–21,
279
P.3d 391, “when an appellee fails to present us with any
argument, an appellant need only establish a prima facie showing
of a plausible basis for reversal,” AL-IN Partners,
2021 UT 42, ¶ 19
(quotation simplified). We question whether the standard
articulated in AL-IN Partners should apply the same way in cases
such as this where the standard of review on appeal is deferential
to the discretionary decisions of the district court. But because this
issue was not briefed and our decision on both arguments
presented ultimately involves the conclusion that the district
court did abuse its discretion and committed other errors, we
need not decide the issue today. However, we note the question
(continued…)
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Blake v. Smith
¶12 Second, Smith argues the district court abused its
discretion when it calculated Blake’s income for purposes of child
support. “We review the district court’s decisions regarding child
support . . . under the abuse of discretion standard.” Pankhurst v.
Pankhurst, 2022 UT App 36, ¶ 13,
508 P.3d 612 (quotation
simplified). Where the court’s findings contain mathematical
error or conflict with the record, we will remand for recalculation.
See Miner v. Miner,
2021 UT App 77, ¶¶ 57–60,
496 P.3d 242.
ANALYSIS
I. Custody
¶13 Smith first challenges the district court’s custody award,
contending the court abused its discretion in crafting the award
because it is “internally inconsistent.” According to Smith, the
joint decision-making arrangement “undermines” her award of
sole physical and legal custody because it “allows [Blake] to force
mediation and litigation whenever he disagrees with a decision
made by [Smith], even though she has sole legal and physical
custody.” We agree.
¶14 As an initial matter, the Utah Code does not define “sole
physical custody” or “sole legal custody.” But in Hansen v. Hansen,
2012 UT 9,
270 P.3d 531, our supreme court provided guidance as
to the meaning of those terms. In Hansen, the father and the
mother were awarded joint custody of their daughter following
their divorce. Id. ¶ 2. The mother was awarded sole physical
custody and the father was ordered to pay child support to the
mother. Id. Sometime later, the daughter entered a private youth
homeless shelter, where she lived through her eighteenth
birthday. Id. While the daughter was living at the shelter, the
father filed a petition with the district court seeking to redirect his
does warrant additional consideration in a case where it is
squarely before the court.
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Blake v. Smith
child support payments from the mother to the homeless shelter.
Id. ¶¶ 2–3. The court denied the motion, which denial was
ultimately upheld by the Utah Supreme Court.
Id. ¶¶ 4–5, 30.
¶15 The supreme court’s decision centered on the meaning of
custody. Although the daughter had been residing at the shelter,
the court determined that the daughter’s physical custody had not
changed; rather, the mother still retained physical custody.
Id.
¶¶ 15–19, 28. The court explained,
Family law treatises consistently define custody as a
bundle of constituent rights and obligations to a
child’s possession, care, and control, and explain
that the essence of custody is control over all aspects
of the child’s life coupled with responsibility for the
child’s welfare. Standard dictionary definitions of
custody are to the same effect.
Custody is often divided into two subsets:
legal and physical custody. Both encompass a duty
of control and supervision. While legal custody
carries the power and duty to make the most
significant decisions about a child’s life and welfare,
physical custody involves the right, obligation, and
authority to make necessary day-to-day decisions
concerning the child’s welfare. Although the latter
is limited to the right to control the child’s daily
activities, it still involves a right of control. This
grant of authority is necessary so that the custodian
can control and discipline the child or make
emergency medical or surgical decisions for the
child.
Id. ¶¶ 16–17 (quotation simplified). Put differently, “the legal duty
of control or supervision [is] the essential hallmark of custody.”
Id. ¶ 18 (quotation simplified). Legal custody encompasses the
ability to make major decisions in a child’s life, while physical
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Blake v. Smith
custody encompasses the ability to make day-to-day decisions in
a child’s life.
¶16 Although the Utah Code does not define sole physical or
legal custody, it does define “joint legal custody” and “joint
physical custody.” 2 Under the current statutory scheme, a parent
may be awarded “joint legal custody,” which is defined as “the
sharing of the rights, privileges, duties, and powers of a parent by
both parents.” Utah Code § 30-3-10.1(2)(a) (emphasis added). As
this court has long recognized, the purpose of joint legal custody
is to allow “both parents [to] share the authority and
responsibility to make basic decisions regarding their child’s
welfare.” See Thronson v. Thronson, 810 P.2d 428, 429–30 (Utah Ct.
App. 1991), cert. denied,
826 P.2d 651 (Utah 1991).
¶17 Taken together, it follows that an award of “sole” legal
custody does not involve sharing the “rights, privileges, duties,
and powers of a parent.” See Utah Code § 30-3-10.1(2)(a).
Accordingly, when the district court awarded sole legal and
physical custody to Smith, it also awarded her alone the “rights
and obligations to [Child’s] possession, care, and control,” see
Hansen,
2012 UT 9, ¶ 16 (quotation simplified), including the sole
authority to “make the most significant decisions about [Child’s]
2. In relevant part, the statute defines “joint physical custody” as
when “the child stays with each parent overnight for more than
30% of the year.” Utah Code § 30-3-10.1(3)(a). This particular
provision is not applicable here because Blake was awarded
standard relocation parent-time which falls below the 30%
threshold. See id. § 30-3-37. Nevertheless, Utah law is clear that
“[e]ach parent may make decisions regarding the day-to-day care
and control of the child while the child is residing with that
parent.” Id. § 30-3-10.9(6). Thus, by statute Smith has sole
decision-making authority over day-to-day decisions when Child
is in her care. Likewise, Blake has decision-making authority over
day-to-day decisions when Child is in his care.
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Blake v. Smith
life and welfare,” see id. ¶ 17 (quotation simplified), and the
“authority to make necessary day-to-day decisions concerning
[Child’s] welfare,” see id. (quotation simplified). It therefore was
inconsistent to simultaneously order a joint decision-making
arrangement.
¶18 Moreover, the joint decision-making arrangement is at
odds with the district court’s own findings regarding Child’s best
interest. “In making a custody determination, a [district] court’s
primary focus is what custody arrangement would be in the best
interest[] of the child.” Grindstaff v. Grindstaff, 2010 UT App 261,
¶ 4,
241 P.3d 365. Utah law presumes that joint legal custody is in
a child’s best interest, but that presumption may be rebutted by
showing “by a preponderance of the evidence that it is not in the
best interest of the child.” Utah Code § 30-3-10(3)–(4). And under
Utah law, there is “neither a preference nor a presumption for or
against joint physical custody or sole physical custody.” Id. § 30-
3-10(8).
¶19 “In determining whether the best interest of a child will be
served by ordering joint legal custody or joint physical custody or
both, the court shall consider” a number of statutory factors. See
id. § 30-3-10.2(2). Here, the court analyzed the statutory factors
and determined that awarding Smith sole legal and physical
custody of Child was in Child’s best interest. In particular, the
court found that there was “very little evidence provided that
either parent could function appropriately with co-parenting
skills,” that it was “unclear” whether the parties could work
together to reach shared decisions in Child’s best interest, and that
there was “very little evidence” the parties “actually discussed
and made decisions together.” In light of these findings, it is
unclear how the joint decision-making arrangement—which is
not limited to major decisions but instead encompasses all
decisions—could be properly viewed as advancing Child’s best
interest. It does not follow from the evidence of the parties’
ongoing issues making decisions relating to Child that such an
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Blake v. Smith
arrangement would lead to success in the future. Rather, precisely
because of the court’s findings, it seems likely that such an
arrangement would cause ongoing issues, result in costly
mediation and additional court involvement, and be detrimental
to Child’s best interest, which is exactly what Utah law seeks to
avoid.
¶20 In sum, the district court abused its discretion when it
awarded Smith sole physical and legal custody while also
ordering a joint decision-making arrangement between Smith and
Blake. Although Utah law does not prohibit a joint decision-making arrangement in cases involving an award of joint physical
and legal custody, an examination of the underlying statutory
scheme reveals that such an arrangement is not compatible with
an award of sole physical and legal custody. Furthermore, these
competing provisions belie the court’s own findings regarding
Child’s best interest as relates to custody. As such, we vacate the
portion of the court’s custody award ordering the joint decision-making arrangement.
II. Child Support
¶21 Smith next argues the district court erred in calculating
child support. Specifically, Smith takes issue with the court’s
calculation of Blake’s income for purposes of child support,
contending the court’s calculation (1) contains a mathematical
error and (2) is inconsistent with the evidence in the record. We
agree.
¶22 The Utah Child Support Act outlines the process by which
a district court must evaluate the income of a parent when
calculating child support. See generally Utah Code § 78B-12-202.
To begin, the court must consider the “gross income” of a parent,
which the Utah Code defines broadly as including
prospective income from any source, including
earned and nonearned income sources which may
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Blake v. Smith
include salaries, wages, commissions, royalties,
bonuses, rents, gifts from anyone, prizes, dividends,
severance pay, pensions, interest, trust income,
alimony from previous marriages, annuities, capital
gains, Social Security benefits, workers’
compensation benefits, unemployment
compensation, income replacement disability
insurance benefits, and payments from “nonmeanstested” government programs.
Id. § 78B-12-203(1). And when a parent is self-employed—as is the
case with Blake—the statute directs how gross income should be
handled. It provides that “[g]ross income from self-employment
or operation of a business shall be calculated by subtracting
necessary expenses required for self-employment or business
operation from gross receipts. . . . Gross income . . . may differ
from the amount of business income determined for tax
purposes.” Id. § 78B-12-203(4).
¶23 The district court determined that Blake’s income had been
impacted as a result of the COVID-19 pandemic and accordingly
evaluated his income for purposes of child support based on what
he had earned pre-pandemic and what he was earning during the
pandemic. On the record before us, we see two errors in the
court’s calculations. First, the court made a discrete mathematical
error in calculating Blake’s pre-pandemic income. Second, and
more broadly, the court did not consider all the evidence of
Blake’s finances when calculating Blake’s income, both pre-pandemic and at the time of trial.
¶24 First, the district court calculated Blake’s past child support
payments using his 2018 tax record. On that record, Blake claimed
$45,050 in gross receipts. From that, Blake deducted $34,483 as
follows: $5,270 for “materials and supplies,” $3,605 for
“advertising,” $360 for “legal and professional services,” $500 for
“office expense,” $21,760 for “other business property,” and
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Blake v. Smith
$2,988 for “utilities.” After viewing the evidence, the court found
that Blake had failed to adequately explain why he should be
entitled to deductions for “materials and supplies” ($5,270),
“other business property” ($21,760), or “office expense” ($500),
and it accordingly struck those deductions, totaling $27,530. As a
result, the court should have concluded that Blake’s income was
$38,097, or $3,175 per month rounded. But it did not. Instead, it
concluded that Blake’s income was $23,790, or $1,983 per month.
This value is mathematically incorrect.
¶25 Second, notwithstanding the mathematical error in the
court’s calculation of Blake’s income, the value imputed by the
court is inconsistent with the evidence in the record. Utah law is
clear that “in contested cases,” a judge is entitled to impute
income to a parent so long as the judge “enters findings of fact as
to the evidentiary basis for the imputation.” See id. § 78B-12-
203(8)(a). “The purpose of such imputation is to prevent parents
from reducing their child support or alimony by purposeful
unemployment or underemployment.” Connell v. Connell,
2010
UT App 139, ¶ 16,
233 P.3d 836 (quotation simplified).
Accordingly, when imputing income, “the income shall be based
upon employment potential and probable earnings considering,”
among other things, “employment opportunities,” “work
history,” and “occupation qualifications.” Utah Code § 78B-12-
203(8)(b).
¶26 As explained above, the court calculated Blake’s income at
$1,983 per month up until the time that the COVID-19 pandemic
began in March 2020. And at trial, which was held in October
2020, the court concluded that due to the pandemic, “Blake’s
income has come to a halt” and therefore determined it was
“appropriate . . . to impute minimum wage income of
$1,257/month from March 2020 forward.” But the financial
documents submitted by Blake do not support the low amount of
income the court chose to impute.
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Blake v. Smith
¶27 Blake’s bank records—which were all filed with the
court—show that Blake made deposits into his personal account
totaling $456,669.98 between August 2017 and January 2019.
These deposits included a check for $200,000, which Blake
testified “was for my services that was rendered” in connection
with a high-publicity boxing match. And in addition to the
deposits, Blake’s bank records show significant withdrawals. For
example, the records indicate that Blake had regularly invested in
cryptocurrency, had transferred over $15,000 to his mother, had
transferred over $9,000 to the mother of one of his other children, 3
and had spent over $10,000 on luxury clothing.
¶28 Despite the evidence of Blake’s spending, Blake did not
demonstrate how he was funding his lifestyle, and he claimed
only one debt of $7,240 in the first of his three financial
disclosures. In light of the foregoing, the district court’s
determination that Blake was making no money and therefore
should be imputed minimum wage is not supported by the
evidence. Rather, the evidence suggests that Blake was less than
forthcoming with the court as to the actual amount of his income.
As such, on remand the court should reevaluate evidence of
Blake’s finances, his earning capacity, and whether he is
voluntarily underemployed and should make a further
determination as to whether greater income should be imputed to
him. 4 In so doing, the court should take special care to ensure that
the final award is void of mathematical error.
3. This amount does not include child support payments awarded
to the mother, which were $1,000 per month. Those support
payments were made directly to Nevada’s State Collection and
Disbursement Unit.
4. Smith filed a post-trial motion pursuant to rule 59(e) of the Utah
Rules of Civil Procedure seeking to amend, among other things,
(continued…)
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Blake v. Smith
CONCLUSION
¶29 The district court abused its discretion when it awarded
Smith sole physical and legal custody of Child while also ordering
a joint decision-making arrangement with Blake. We therefore
vacate the court’s custody ruling as it relates to the joint decision-making arrangement. The court also abused its discretion when
calculating child support. The current award contains a
mathematical error and is not supported by record evidence.
Accordingly, we reverse the court’s award of child support and
remand with instructions that the court reexamine the evidence to
determine whether greater income should be imputed to Blake.
the court’s child support award. The district court issued a
Memorandum Decision and Order denying the motion. In
analyzing the child support issue, the court stated that “[g]ifts are
not generally considered income.” This is legally incorrect. As
explained above, the Utah Code explicitly defines “gross income”
as including “gifts from anyone.” See Utah Code § 78B-12-203(1).
To the extent Blake was gifted items, the court must include the
value of those gifts when calculating his income.
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