This opinion is subject to revision before final
publication in the Pacific Reporter
2019 UT 72
IN THE
SUPREME COURT OF THE STATE OF UTAH
THERESA I. HINKLE,
Appellee,
v.
KOREY D. JACOBSEN,
Appellee,
and
JODY RHORER,
Intervenor and Appellant.
No. 20180124
Heard February 22, 2019
Filed December 19, 2019
On Certification from the Court of Appeals
Third District, Salt Lake
The Honorable Andrew H. Stone
No. 124906297
Attorneys:
Theresa I. Hinkle, Salt Lake City, pro se
Colleen K. Coebergh, Salt Lake City, for appellee Korey D. Jacobsen
David Pedrazas, Wade Taylor, Salt Lake City,
for intervenor and appellant
JUSTICE PETERSEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PEARCE joined.
HINKLE v. JACOBSEN
Opinion of the Court
JUSTICE PETERSEN, opinion of the Court:
INTRODUCTION
¶1 Jody Rhorer appeals the district court’s determination that
he does not have standing to establish paternity of his biological
daughter under the Utah Uniform Parentage Act (UUPA). But the
district court also concluded that Rhorer had abandoned his
paternity claim entirely, and Rhorer did not challenge this ruling in
his opening brief. He has consequently waived the issue, and we
dismiss his appeal.
BACKGROUND
¶2 Theresa Hinkle (Mother) and Korey Jacobsen (Husband)
married in 2002 and then separated in 2005. In 2005, Mother and
Rhorer engaged in a relationship during which a child was
conceived and born. Because Mother and Husband were still
married at the time the child was born, Husband is the child’s
presumed father under the UUPA. See UTAH CODE
§ 78B-15-204(1)(a).
¶3 Mother and Husband began divorce proceedings in 2012.
Rhorer intervened in the divorce proceedings, alleging that he is the
biological father of the child. He filed multiple motions including
one to establish himself as the child’s biological father and another
for a determination of parentage. He asserted that he could establish
his paternity with genetic test results.
¶4 After briefing and proceedings before the commissioner, the
commissioner concluded that under the court of appeals’
interpretation of the UUPA in R.P. v. K.S.W., 2014 UT App 38,
320
P.3d 1084, Rhorer did not have statutory standing to assert his
paternity because the child had a presumed father—Husband—and,
under such a circumstance, only the mother and presumed father
had standing to challenge paternity under the UUPA.
¶5 However, the commissioner noted the court of appeals’
statement in R.P. that
[a]lthough constitutional considerations might require
further analysis in cases such as this—where the
alleged father has an established relationship with the
child—R.P. has not raised a constitutional challenge in
the district court or on appeal. Accordingly, we leave
for another day the issue of the constitutional
implications of the UUPA’s standing limitations where
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Opinion of the Court
the alleged father has an established relationship with
the child.
Id. ¶ 7. In light of this language, the commissioner gave Rhorer the
opportunity through a custody evaluation to develop facts relevant
to whether the UUPA was unconstitutional as applied to him. The
district court adopted the recommendation as a court order. The
court order provided that Rhorer had no statutory standing to assert
his paternity. Therefore, unless he could show “constitutional
standing,” he could not move forward with his petition.
¶6 Rhorer proceeded with the custody evaluation in an attempt
to establish “constitutional standing.” However, he never analyzed
the results of the evaluation to make a legal argument that the UUPA
was unconstitutional as applied to him. Rather, he filed a motion in
which he asked the court to grant him “standing to pursue a claim
for time-sharing with the minor child at time of trial.”
¶7 At a hearing before the commissioner on the custody
evaluation and Rhorer’s motion, the commissioner directly
requested briefing from Rhorer on any constitutional issues he
sought to assert. The commissioner stated, “[I]t’s already the law of
this case . . . that [Rhorer] wouldn’t have standing under the statute
were it not for concerns about . . . protecting his constitutional rights,
and so I’d like to have something that actually states the parties’
positions in writing . . . referring to any facts that are in the file.”
¶8 But Rhorer did not do this. Instead, he filed a reply brief in
which he asserted he had already addressed the constitutional issues
in other pleadings. But while Rhorer did make reference to the due
process clause in some of his pleadings, he did not provide any
analysis or argument as to why it required he have standing here.
¶9 The commissioner ultimately concluded that
[i]nasmuch as the issue before the Court . . . is whether
the strict application of the [UUPA] is unconstitutional
as applied to the facts of this case . . . the Commissioner
cannot conclude that there exists a compelling reason
to grant standing to [Rhorer] to assert his claim of
parentage contrary to the provisions of Utah Code
Ann. § 78B-15-607.
¶10 In light of the commissioner’s recommendation, in a
December 21, 2016 order, the district court concluded that Rhorer
“lacks standing to assert his parentage claim.”
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HINKLE v. JACOBSEN
Opinion of the Court
¶11 Rhorer filed a belated objection to the commissioner’s
recommendation and also moved to set aside the December 21, 2016
order. At a hearing on the objection before the district court, Rhorer’s
counsel stated that Rhorer was not trying to take “this little girl away
from [Husband],” but that he was “asking this Court to give him a
relationship with the child.” Counsel added, “I’m asking this Court
to admittedly break new ground . . . to say ‘[N]o, why can’t you have
two fathers?’”
¶12 In a June 1, 2017 memorandum decision denying the
motion to set aside, the district court found that Rhorer “asked th[e]
Court to craft a remedy whereby he is ultimately granted limited
parent-time with [the child], while not actually seeking custody of
the child or challenging [Husband’s] status as [the child]’s presumed
father.” The district court explained,
Ultimately, while Mr. Rhorer may have had a right at
the time the biological mother and [Husband] sought a
divorce to assert standing to challenge the child’s
paternity and to rebut [Husband’s] paternity
(assuming that Mr. Rhorer could mount a
constitutional challenge to [Utah Code section
78B-15-607] as applied to him), he has plainly
abandoned such a claim at this point.
The court noted that Rhorer had failed to “brief his theories of why
Section 607 is unconstitutional as applied to him with adequate
specificity to permit intelligent analysis.” Finally, the court
concluded that Rhorer had not met his burden to demonstrate the
statute’s unconstitutionality and that Rhorer “[did] not seek to rebut
[Husband’s] paternity and [did] not seek to establish himself as the
legal father” of the child, so he had no standing to challenge
Husband’s status as presumed father.
¶13 Rhorer responded to the June 1, 2017 memorandum
decision by filing a motion for amended findings and a new trial. At
a hearing on the motion, Rhorer’s counsel walked back the request
for dual fatherhood and explained that Rhorer still sought to
establish paternity and rebut Husband’s status as the child’s
presumed father.
¶14 The district court denied the motion in a November 14,
2017 memorandum decision. The court outlined the procedural
history of the case and explained that “the only issue” was the
“conclusion regarding the constitutional implications of the UUPA’s
standing limitations.” The court noted again that “neither
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Opinion of the Court
Mr. Rhorer’s written briefing nor his counsel’s oral argument
focused on th[e] constitutional challenge” and that Rhorer’s counsel
at the time “did not mount a constitutional challenge.” The district
court then concluded that Rhorer had “accepted [Husband’s]
parental rights” and “was merely asking this Court to take judicial
notice of the bond he had formed with [the child] and find it
sufficient to enter into a ‘multiple relationship’ of fathering.”
¶15 Rhorer then moved to set aside the November 14, 2017
memorandum decision under rule 60(b) of the Utah Rules of Civil
Procedure. In this motion, for the first time, he briefed a
constitutional argument asserting that section 78B-15-607 of the
UUPA violates the Equal Protection Clause of the United States
Constitution.
¶16 In a January 25, 2018 minute entry, the district court denied
Rhorer’s motion. The district court reasoned that it seemed as if
“Rhorer [wa]s seeking Rule 60(b)(6) relief simply to advance an
entirely new legal argument, one that could have been raised and
preserved during the multiple instances when this Court and the
Commissioners considered the issue of who has standing to
challenge a presumed father’s paternity under the [UUPA].”
¶17 Rhorer appeals these four district court orders. 1 We
exercise jurisdiction pursuant to Utah Code section 78A-3-102(3)(j).
STANDARD OF REVIEW
¶18 Standing is generally a mixed question of fact and law
“because it involves the application of a legal standard to a
particularized set of facts.” Alpine Homes, Inc. v. City of West Jordan,
2017 UT 45, ¶ 10,
424 P.3d 95 (citation omitted). However, “the
question of whether a given individual or association has standing to
request a particular relief is primarily a question of law.” Kearns—
Tribune Corp. v. Wilkinson,
946 P.2d 372, 373 (Utah 1997). We review
the district court’s “factual determinations” with deference.
Id. at
373–74. But we give “minimal discretion” to the district court on
“determinations of whether a given set of facts fits the legal
requirements for standing.”
Id. at 374.
_____________________________________________________________
1 Specifically, Rhorer challenges (1) the December 21, 2016 order;
(2) the June 1, 2017 memorandum decision; (3) the November 14,
2017 memorandum decision; and (4) the January 25, 2018 minute
entry.
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HINKLE v. JACOBSEN
Opinion of the Court
ANALYSIS
¶19 Rhorer’s primary argument on appeal is that the UUPA is
unconstitutional under the Equal Protection and Due Process
Clauses of the United States Constitution. Husband argues that
Rhorer did not preserve these arguments in the district court. As the
procedural history above makes clear, Husband is correct.
¶20 But in a companion case issued today, Castro v. Lemus, we
interpret the UUPA to grant standing to “a man whose paternity of
the child is to be adjudicated.” 2019 UT 71, ¶ 51, --- P.3d ---. This
statutory interpretation does not implicate Rhorer’s equal protection
or due process concerns. Accordingly, Rhorer’s failure to preserve
his constitutional arguments is moot because the constitutionality of
the UUPA is no longer at issue.
¶21 However, we do need to determine whether Rhorer can
benefit from any favorable change in the law as articulated in Castro.
This hinges upon whether he waived any challenge to the district
court’s determination that he abandoned his paternity claim.
¶22 In its June 1, 2017 memorandum decision, the district court
noted that Rhorer had asked it “to craft a remedy whereby he is
ultimately granted limited parent-time with [the child], while not
actually seeking custody of the child or challenging [Husband’s]
status as [the child’s] presumed father.” The court concluded that the
“law clearly does not recognize the hybrid role proposed by
Mr. Rhorer,” and determined that Rhorer no longer sought to rebut
Husband’s paternity or to establish himself as the child’s legal father.
¶23 Further, in its November 14, 2017 memorandum decision,
the district court concluded that Rhorer had “accepted [Husband’s]
parental rights” and “was merely asking [the] Court to take judicial
notice of the bond he had formed with [the child] and find it
sufficient to enter into a ‘multiple relationship’ of fathering.”
¶24 In these rulings, the district court concluded that Rhorer
had abandoned his pursuit of his constitutional standing argument
by never briefing it. Further, the court found that Rhorer had
abandoned his paternity claim altogether by instead pursuing dual
fatherhood and shared parent-time and stating that he did not want
to disrupt the relationship between the child and Husband.
¶25 Rhorer does not address these rulings in his briefing to us,
other than making a conclusory statement that he did not abandon
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Opinion of the Court
his paternity claim. 2 He did respond to [Husband’s] argument
regarding waiver in his reply brief. But that is insufficient. “When a
party . . . raises [an issue] for the first time in a reply brief, that issue
is waived and will typically not be addressed by the appellate
court.” State v. Johnson, 2017 UT 76, ¶ 16,
416 P.3d 443; see also Allen v.
Friel,
2008 UT 56, ¶ 7,
194 P.3d 903 (“If an appellant fails to allege
specific errors of the lower court, the appellate court will not seek
out errors in the lower court’s decision.”); Webster v. JP Morgan Chase
Bank, NA,
2012 UT App 321, ¶ 21,
290 P.3d 930 (“The reply brief,
however, is reserved for ‘answering any new matter set forth in the
opposing brief,’ not for making an argument in the first instance.”).
¶26 Accordingly, we can only hold that Rhorer waived any
challenge to the district court’s conclusion that he had abandoned his
paternity petition.
CONCLUSION
¶27 The district court found that Rhorer abandoned his
paternity claim, and Rhorer did not challenge that finding on appeal.
We therefore conclude that Rhorer waived any claim to challenge
Husband’s presumed paternity. Accordingly, we dismiss his appeal.
_____________________________________________________________
2 Specifically, Rhorer stated in his opening brief that he “never
abandoned his claim to rebut [Husband’s] paternity in this matter
and to seek custody of the minor child.” But this conclusory
statement does not constitute a challenge to the district court’s
repeated, specific conclusion that he had abandoned his paternity
claim.
Rhorer did “technically appeal[]” the orders containing the
district court’s conclusions about abandonment, but “technical
compliance is not enough.” Utah Physicians for a Healthy Env’t v. Exec.
Dir. of the Utah Dep’t of Envtl. Quality, 2016 UT 49, ¶ 18,
391 P.3d 148.
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