2022 UT App 83
THE UTAH COURT OF APPEALS
JILL NIX,
Appellee,
v.
ROLAND COMPTON NIX JR.,
Appellant.
Opinion
No. 20200691-CA
Filed June 30, 2022
Fourth District Court, Provo Department
The Honorable Darold J. McDade
No. 174402122
Seth D. Needs, Attorney for Appellant
D. Grant Dickinson, Attorney for Appellee
JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN
concurred.
TENNEY, Judge:
¶1 Under the Utah Code, there are ten “[g]rounds for
divorce,” one of which is “adultery committed by the respondent
subsequent to marriage.” Utah Code Ann. § 30-3-1(3)(b)
(LexisNexis 2019). Interpreting this provision, our supreme court
has held that evidence of adultery “subsequent to the filing of a
divorce complaint is inadmissible for the purpose of establishing
grounds for divorce,” though it can be “admissible as lending
weight to and corroborating testimony as to prior acts” of
infidelity. Vrontikis v. Vrontikis,
358 P.2d 632, 632 (Utah 1961).
¶2 When Jill Nix filed for divorce from Roland Nix Jr., she
alleged “adultery committed by Roland during the marriage” as
one of “the grounds for dissolution of this marriage.” During his
subsequent deposition, Roland declined to answer a question
Nix v. Nix
from Jill’s attorney about whether he’d had extramarital sexual
relations “since the marriage.” The district court later concluded
that this non-response constituted an adoptive admission that
Roland had committed adultery before Jill filed for divorce. Based
on this conclusion, the court awarded Jill a divorce on the ground
of adultery.
¶3 Roland now appeals that decision. As explained below, we
agree that Roland’s non-response did not provide sufficient
evidence to establish that Roland committed adultery before Jill
filed her divorce petition. We accordingly reverse.
BACKGROUND1
¶4 Jill filed for divorce from Roland in August 2017. In her
petition, Jill asserted two “grounds for dissolution of [the]
marriage,” one of which was “adultery committed by Roland
during the marriage.” Jill also asserted cruelty as an alternative
ground for divorce. But that alternative ground was not further
litigated below, the district court never ruled on it, and neither
party has raised any issue about it on appeal.
¶5 In his answer, Roland “denie[d]” Jill’s “[g]rounds.” But
Roland did not want the marriage to continue, so he counterpetitioned for divorce on the ground of irreconcilable differences.
¶6 Roland was later deposed. During his deposition, the
following exchange occurred between Jill’s counsel, Roland, and
Roland’s counsel:
1. Because the parties share the same last name, we’ll follow our
normal practice and refer to them by their first names, with no
disrespect intended by the apparent informality. Also, for
purposes of consistency and readability, we’ll use the parties’ first
names (and corresponding pronouns) when quoting references to
them from the record or the briefing, and we’ll do so without
using brackets to note any such alterations.
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[Jill’s counsel:] Have you had any sexual relations
with someone other than Jill since the marriage?
[Roland:] It is none of your business.
[Jill’s counsel:] Counsel I am entitled to know.
[Roland’s counsel:] I question the relevance. I don’t
think that adultery or anything has been alleged in
the pleadings.
....
[Roland:] We are separated and that is none of their
business.
. . . . [brief break taken by the parties]
[Jill’s counsel:] We left on the question of adultery.
Mr. Nix what is your response?
After another objection and then more discussion between
counsel, Roland made a somewhat vague reference to a woman
with whom he’d apparently had some type of relationship. A
short time later, Roland was asked, “And have you engaged in
sexual relations with this person?” Roland answered, “Yes.”
¶7 Roland and Jill eventually settled most aspects of their
divorce. But when they weren’t able to agree on the ground for
divorce, Jill’s counsel requested a trial on that issue. At a
scheduling conference, however, the parties and the court agreed
on an alternative procedure under which the parties would
submit memoranda about the ground for divorce, after which the
court would hear oral argument on the matter.
¶8 In her memorandum, Jill pointed to Roland’s non-response
to the deposition question of whether he’d “had any sexual
relations with someone other than Jill since the marriage.” From
this, Jill asked the court to draw “an adverse inference” that
Roland had “committed adultery subsequent to the marriage.” In
addition, Jill pointed to Roland’s express admission that he’d
“engaged in sexual relations with this person.”
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¶9 In his responsive memorandum, Roland asked the court to
deny Jill’s request for an adultery-based divorce. Roland asserted
that under Vrontikis v. Vrontikis, 358 P.2d 632 (Utah 1961), any
adultery that he had committed after Jill filed for divorce could
not constitute a ground for divorce. And Roland then argued that
Jill had offered no evidence that he had “committed adultery prior
to her filing for divorce.”
¶10 After briefing and then a hearing, the district court issued
a written decision. There, the court agreed that under Vrontikis,
“adulterous conduct subsequent to a divorce petition does not
constitute fault,” but that “evidence of such conduct can be used
to lend weight” to other evidence that the party had “committed
adultery prior to the divorce petition.” (Emphases omitted.) The
court then concluded that although Roland had expressly
admitted to adultery in his deposition, this express admission had
only been to “adultery subsequent to the divorce petition, but
prior to divorce finalization.”2
¶11 Given its understanding of Vrontikis, the court next
considered whether there was any evidence of pre-filing adultery.
The court concluded that there was. In the court’s view, Roland’s
non-response to the deposition question about whether he’d had
sexual relations “since the marriage” qualified as an adoptive
admission under rule 801(d)(2)(B) of the Utah Rules of Evidence.
Notably, the court not only regarded this as proof “that Roland
did commit adultery,” but also as proof “that Roland’s adultery
caused the divorce,” i.e., proof that the adultery happened pre-filing. Thus, the court concluded that even if “Roland’s express
admission [was] not, stand[ing] alone, a grounds for fault, the
adoptive admission satisfie[d] Jill’s burden to show that Roland’s
2. We note that Roland did not actually draw this chronological
line in the portion of the deposition in which he made his express
admission. But neither party has challenged the court’s
determination that the express admission was only to post-filing
adulterous conduct.
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adultery caused the divorce.” Based on this, the court later
“awarded Jill a decree of divorce on the grounds of adultery.”
¶12 Roland subsequently filed a motion under rule 59 of the
Utah Rules of Civil Procedure “for [a] new trial or for an alteration
of judgment on the issue of grounds for divorce.” Roland
challenged the district court’s ruling on several fronts, including
procedural fairness, incorrect application of the adoptive
admission standard, and insufficiency of the evidence. After Jill
opposed the motion, the court denied it. Roland timely appealed.
ISSUE AND STANDARD OF REVIEW
¶13 Roland challenges the district court’s denial of his rule 59
motion. As he did below, Roland assails this ruling for several
reasons. We need address only one of them: Roland’s contention
that there was insufficient evidence to support the court’s
determination that he committed adultery before Jill filed for
divorce.
¶14 A district court ordinarily has “some discretion in deciding
whether or not to grant a new trial.” Hansen v. Stewart, 761 P.2d
14, 17 (Utah 1988). But because Roland’s “challenge rests on a
claim of insufficiency of the evidence, we will reverse only if,
viewing the evidence in the light most favorable to the prevailing
party, the evidence is insufficient to support the verdict.” In re
Estate of Anderson,
2016 UT App 179, ¶ 7,
381 P.3d 1179 (quotation
simplified); accord Hansen,
761 P.2d at 17.
ANALYSIS
¶15 The district court determined that Roland had committed
adultery before Jill filed for divorce. It based this determination
on Roland’s non-response to a question about this subject in his
deposition, which the court regarded as an adoptive admission of
pre-filing adultery.
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¶16 On appeal, Roland first argues that the district court erred
in concluding that his non-response qualified as an adoptive
admission. But we need not decide whether this was so. Even
assuming for the sake of argument that the non-response did
qualify as an adoptive admission, the court was still required to
point to some evidence that Roland had committed adultery
before Jill filed for divorce. See Vrontikis v. Vrontikis, 358 P.2d 632,
632 (Utah 1961) (holding that evidence of adultery “subsequent to
the filing of a divorce complaint is inadmissible for the purpose of
establishing grounds for divorce,” though it can be “admissible as
lending weight to and corroborating testimony as to prior acts” of
infidelity).
¶17 Roland argues that there was no such evidence. Of note,
Roland points out that, in the deposition exchange at issue, he
“was never specifically asked whether he had had sexual relations
with someone other than Jill since the marriage, but prior to the
filing of the petition for divorce.” Having reviewed the portion of
the deposition that is in the record, we agree. While Jill’s counsel
asked Roland whether he had engaged in extramarital sexual
relations, Jill’s counsel never asked Roland when he had done so.
As a result, with respect to the critical issue of timing, the question
and non-answer that supported the court’s adoptive-admission
determination were silent.
¶18 Jill nevertheless points to Roland’s express admission of
adultery. But on this, the district court only found that Roland had
expressly admitted to post-filing adultery, and Jill has not
challenged the court’s temporal limitation of its own finding on
appeal. In any event, we’ve reviewed the exchange ourselves. We
see nothing in it in which Roland said that his extramarital
conduct was limited to post-filing behavior, but we also see
nothing in it in which he admitted to any pre-filing conduct.
Instead, as with the (alleged) adoptive admission, the timing of
Roland’s behavior simply never came up.
¶19 This same defect exists with respect to the small amount of
other evidence that Jill provided below to inferentially support
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Nix v. Nix
her claims about Roland’s adultery. For example, Jill provided the
court with a check that Roland had given her for alimony. This
check was embossed with a picture of Roland and another
woman, and in the identification block in the upper corner, it
identified the other woman’s last name as “Nix.” Even accepting
Jill’s contention that this could inferentially show that there was a
sexual relationship between Roland and the other woman, what
matters here is that the check was dated September 2019—which
was after Jill had filed for divorce.
¶20 This leaves us with Jill’s final argument, which is to rely
heavily on the favorable standard of review. Because Roland
challenges the district court’s ruling on sufficiency grounds, we’re
required to view the evidence in the light most favorable to the
district court’s determination. But Roland’s argument presents us
with a “no evidence” challenge—i.e., he argues that “even with
the evidence in the record, nothing would demonstrate that . . .
Roland committed adultery prior to the filing of the Petition for
Divorce.” And to defeat such a claim, Jill “need only point to a
scintilla of credible evidence from the record that supports the
finding of fact in order to overcome [Roland’s] ‘no evidence’
assertion.” Wilson Supply, Inc. v. Fraden Mfg. Corp., 2002 UT 94,
¶ 22,
54 P.3d 1177.
¶21 She hasn’t. Even on such a review, there must be some
evidence to support the determination in question. As we have
explained in another context, a “reviewing court will stretch the
evidentiary fabric as far as it will go,” but “this does not mean that
the court can take a speculative leap across a remaining gap in
order to sustain a verdict.” State v. Pullman,
2013 UT App 168,
¶ 14,
306 P.3d 827 (quotation simplified). Here, the evidence
demonstrates that Roland engaged in sexual activity with another
woman before his divorce was finalized. After all, he expressly
admitted as much. But Vrontikis requires evidence of adultery at a
particular time—namely, before the petitioner filed for divorce.
Jill points to no evidence, and we see none, that even inferentially
says anything about when Roland engaged in extramarital sexual
activity. Without such evidence, the district court’s finding that
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Nix v. Nix
Roland had engaged in pre-filing extramarital sexual relations
cannot stand. We accordingly reverse for insufficient evidence.3
CONCLUSION
¶22 There was insufficient evidence to support the district
court’s determination that Roland committed adultery before Jill
filed for divorce. We accordingly reverse that decision and
remand this case for further proceedings consistent with this
opinion.4
3. Our determination leaves a potential wrinkle about what
should happen next. At the close of his brief, Roland asks us to
not only reverse on insufficiency grounds, but also to “alter the
Ruling” ourselves to grant him a divorce on “the grounds of
irreconcilable differences.” Roland provides us with no authority
that establishes our ability to modify an order in this manner,
however, so this request is inadequately briefed. Moreover, Jill
petitioned for divorce on an alternative ground, but neither party
on appeal has competently briefed the question of whether Jill
would be entitled to continue litigating that ground if we reverse
the district court’s adultery-based decree. Without such briefing,
we decline to decide the question in the first instance.
4. Jill has asked for her attorney fees on appeal. See Utah R. App.
P. 24(a)(9). Because she is not the prevailing party in this appeal,
we deny her request.
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