Nelson v. Nelson

               THE UTAH COURT OF APPEALS

                        STASHIA NELSON,
                           Appellee,
                               v.
                      ISAAC SCOTT NELSON,
                           Appellant.

                             Opinion
                        No. 20210345-CA
                       Filed April 13, 2023

             First District Court, Logan Department
                 The Honorable Brian G. Cannell
                           No. 154100713

       Sara Pfrommer, Ronald D. Wilkinson, and Nathan S.
                 Shill, Attorneys for Appellant
       Jacob A. Watterson and James C. Jenkins, Attorneys
                          for Appellee

    JUDGE JOHN D. LUTHY authored this Opinion, in which
 JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY concurred.

LUTHY, Judge:

¶1      This case raises issues regarding the claim preclusion
branch of the doctrine of res judicata in the context of divorce
proceedings. Two years after Stashia and Isaac Nelson divorced,
their circumstances had changed enough that Isaac 1 asked the
district court to modify their divorce decree to give him shared
physical custody of their children and to lower his monthly child
support obligation. Isaac was behind in his support payments,
and in response to his petition, Stashia asserted that Isaac’s


1. As is our practice, because the parties share the same last name,
we use their first names, with no disrespect intended by the
apparent informality.
                           Nelson v. Nelson


“claims [were] barred, in whole or in part, because of [his] unclean
hands in not being current in his child support obligation.”

¶2     The parties engaged in mediation and were able to agree
on a new custody and parent-time arrangement and on a reduced
monthly child support obligation for Isaac going forward. They
presented their agreement to the court, and it entered a modified
divorce decree that incorporated the terms of the agreement.

¶3      Stashia then initiated a separate proceeding to collect the
child support that Isaac had failed to pay under the original
decree. Isaac argued that all child-related financial matters,
including his child support arrears, had been resolved in the
proceeding to modify the divorce decree and that Stashia was
therefore barred under the claim preclusion branch of the doctrine
of res judicata from collecting the unpaid support. The court
disagreed and ordered Isaac to pay past-due support. In response,
Isaac filed a certificate of readiness for trial on an issue that he had
not raised previously, namely, whether the reduction in his
monthly support obligation should be backdated to when he filed
his petition to modify the divorce decree. The district court ruled
that there were no issues to certify for trial and entered judgment
against Isaac for unpaid support in the amount of $2,835.40 plus
interest. Isaac appeals.

¶4      We see no error in the conclusion that claim preclusion
does not bar Stashia’s claim for unpaid child support. We also see
no error in the district court’s ruling that there were no issues to
certify for trial. We therefore affirm.


                          BACKGROUND

                  The Parties’ Marriage and Divorce

¶5     Isaac and Stashia married in 2007 and together had two
children. Stashia later initiated divorce proceedings, during




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which the parties reached an agreement that was incorporated
into a divorce decree in March 2016.

¶6      The divorce decree provided for the parties’ joint legal
custody of the children, while giving Stashia sole physical
custody and Isaac parent-time. The decree also ordered Isaac to
pay $768 per month in child support, based on Stashia having sole
physical custody of the children and on her lack of employment
at the time.

            Isaac’s Petition to Modify the Divorce Decree

¶7     In June 2018, Isaac petitioned to modify the divorce decree,
based on “substantial and material changes in the circumstances
of the parties.” In support of modifying the decree’s custody
order, Isaac alleged that he had a more “stable residence” and
“flexible work schedule” than when the parties divorced; that he
was also more able to “provide additional familial support”
because he had recently remarried; and that Stashia, on the other
hand, had violated several of the custody and parent-time
provisions in the divorce decree. Based on these allegations, Isaac
requested “increased parent time” and “joint physical custody.”

¶8     In support of modifying the decree’s child support order,
Isaac alleged that Stashia had become employed full time and that
her increased income, along with the parties’ joint physical
custody of the children, if the court awarded it, merited a
reduction in his child support obligation.

¶9     In her answer to Isaac’s petition, Stashia alleged, among
other things, that Isaac was “not current in his child support
obligation.” She then asserted, as one of several affirmative
defenses, that Isaac’s “claims [were] barred, in whole or in part,
because of [his] unclean hands in not being current in his child
support obligation.”

¶10 During discovery, the parties exchanged financial
declarations outlining their incomes, assets, and expenses, but



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neither party produced documents or information regarding
Isaac’s past child support payments or alleged arrears.

¶11 In October 2018, the parties participated in mediation and
stipulated to a temporary modification of the divorce decree. The
stipulation, the terms of which were incorporated into an order,
contained temporary parent-time provisions and an agreement to
participate in a custody evaluation. It did not mention or modify
child support, and it concluded by saying: “All issues not
specifically addressed herein that have been raised or could have
been raised by the parties are, hereby, reserved.”

¶12 After the agreed-upon custody evaluation was completed,
the parties again participated in mediation, in May 2019. Later the
same day, the district court commissioner held a settlement
conference at which the parties orally presented stipulated terms
to be incorporated into an amended divorce decree.

¶13 As to custody, the parties’ attorneys told the commissioner
that the parties had agreed to “a joint legal, joint physical custody
arrangement,” and the attorneys then explained the details of that
arrangement. As to child support, they said that the parties had
agreed that “[c]hild support would be 600 per month effective
June 1st, 2019.” The attorneys then said that the parties had agreed
that “all prior orders that are not specifically modified here . . .
would remain in full force and effect.”

¶14 Toward the end of the settlement conference, the
commissioner asked Isaac and Stashia if they were “willing to
accept those terms as a final resolution of the issues that [were]
currently pending in [the] matter.” Each responded, “Yes.”

¶15 In October 2019, the court issued an amended divorce
decree incorporating the terms the parties had orally agreed to
during the settlement conference. The amended decree sets forth
the parties’ custody arrangement; contains provisions regarding
parent-time; restates the parties’ parenting plan; provides that
Isaac’s “child support obligation shall be modified to $600.00 per



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month effective June 1, 2019”; contains provisions regarding
claiming the minor children for tax purposes; and states the
parties’ responsibilities regarding medical and childcare
expenses. It then provides: “This order shall be a consolidated
order on custody, parent-time, and child related financial
matters.”

            Stashia’s Motion for an Order to Show Cause

¶16 In February 2020, Stashia filed a motion for an order to
show cause, 2 alleging that Isaac owed child support arrears that
had accrued between September 2016 and February 2020.

¶17 Isaac opposed Stashia’s request for unpaid child support.
He noted that in response to his petition to modify the
original divorce decree, Stashia “had raised the issue that [Isaac]
had child support arrearage.” He pointed to the
parties’ statements during the May 2019 settlement conference
that they were willing to accept the terms outlined at
that conference “as a final resolution of the issues that
[were] currently pending in [the] matter.” (Emphasis omitted.)
And he pointed to the language of the amended decree that says
that the amended decree is “a consolidated order on custody,
parent-time, and child related financial matters.” The district


2. The “motion to enforce order” procedure outlined in rule 7B of
the Utah Rules of Civil Procedure has now “replace[d] and
supersede[d] the prior order to show cause procedure” in the
context of “domestic relations actions, including divorce.” Utah
R. Civ. P. 7B(a), (i), (j). A similar “motion to enforce order”
procedure outlined in rule 7A now applies in the context of other
civil proceedings. See 

 R. 7A. In recommending rule 7B, the Utah
Supreme Court’s Advisory Committee on the Rules of Civil
Procedure left untouched rule 101(k), which addresses motion
practice before district court commissioners and still recites
requirements for “[a]n application to the court for an order to
show cause.” 

 R. 101(k). The committee may wish to revise rule
101(k) to conform rule 101(k)’s provisions to those of rule 7B.


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court commissioner “reviewed the pleadings on file and . . .
considered the evidence and arguments presented” and
disagreed with Isaac, finding that “[Stashia] did not waive
[Isaac’s] child support arrears at the [May 2019] mediation
between the parties or by stipulating to the Amended Decree of
Divorce.”

¶18 Isaac objected to the commissioner’s recommendation. He
argued that, based on “the principles of the ‘claim preclusion’
prong of the doctrine of res judicata,” the modification proceedings
and amended divorce decree had “a preclusive effect” on a claim
for child support arrears that accrued before entry of the amended
decree. The district court overruled Isaac’s objection and entered
judgment against Isaac for child support arrears “in an amount to
be determined . . . based on the accountings submitted by the
Parties.” After the parties submitted their accountings, the court
found that Isaac’s child support arrears totaled $2,835.40. 3

               Isaac’s Certificate of Readiness for Trial

¶19 Isaac then filed, in March 2021, a certificate of readiness for
trial, in which he asserted: “This case is ready for trial on the
reserved issue of [whether] the June 1, 2019 child support
adjustment should be backdated to the date of the filing of the
Petition to Modify (June 2018).” Isaac had not previously asked
the court to backdate the modified child support order to June
2018.

¶20 The district court ruled that “[t]here [were] no issues to
certify for trial” and entered judgment against Isaac in the amount
of $2,835.40 plus interest. Isaac now appeals.




3. Our resolution of this appeal makes determining the portion of
this amount that accrued before entry of the amended divorce
decree unnecessary.


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             ISSUES AND STANDARDS OF REVIEW

¶21 Isaac asks us to reverse the district court’s judgment
against him for unpaid child support. He contends that Stashia’s
claim for unpaid child support is barred by the claim preclusion
branch of res judicata. 4 Ultimately, “[w]hether a claim is barred
by res judicata is a question of law that we review for correctness.”
Gillmor v. Family Link, LLC, 

, 

.

¶22 Part of our claim preclusion analysis in this case, however,
requires a determination of the intended scope of ambiguous
language in the stipulated amended divorce decree. Where the
language of a written stipulation is ambiguous, “the trial court


4. Isaac does not always frame his argument in terms of “claim
preclusion” or “res judicata.” In one section of his principal brief,
he asserts that the claim for unpaid child support was “resolved”
by the amended divorce decree. In another, he argues that “the
issues to which the parties have stipulated [have] become ‘settled’
and ‘not reserved for future consideration.’” And at one point he
does explicitly invoke “the ‘claim preclusion’ prong of the
doctrine of res judicata.” Regardless of their phrasing, each of
these arguments is, in substance, an argument for application of
the doctrine of res judicata. See infra ¶¶ 26-28; Mel Trimble Real
Estate v. Monte Vista Ranch, Inc., 

 (Utah Ct. App.)
(explaining that res judicata “bars the relitigation . . . of a claim for
relief previously resolved” (emphasis added)), cert. denied, 

 (Utah 1988); Res judicata, Black’s Law Dictionary (abridged 6th
ed. 1991) (defining res judicata as “a thing or matter settled by
judgment” (emphasis added)).
        Because Isaac never uses the terms “issue preclusion” or
“collateral estoppel” and never cites a case applying that branch
of res judicata, and because he did not do so in the district court,
we address only the claim preclusion branch of res judicata. See
generally 438 Main St. v. Easy Heat, Inc., 

, 

 (“Issues that are not raised at trial are usually deemed
waived.”); State v. Sloan, 

, 

(declining to address an inadequately briefed issue).


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                          Nelson v. Nelson


ordinarily considers extrinsic evidence in an effort to resolve the
ambiguit[y] and will make findings of fact to resolve any disputed
evidence.” Christensen v. Christensen, 

, 

 (footnote omitted). When a court looks outside the four
corners of a written stipulation to determine its intended scope,
that determination presents a question of fact, “which we review
for clear error.” Fuller v. Bohne, 

, 

,
cert. denied, 

 (Utah 2017).

¶23 Isaac also asks us to reverse the district court’s ruling, in
response to his filing of a certificate of readiness for trial, that
“[t]here [were] no issues to certify for trial.” The legal effect of a
certificate of readiness for trial is a question of law, and “[w]e
review questions of law for correctness, giving no deference to the
ruling of the court below,” see Madsen v. Washington Mutual Bank
FSB, 

, 

.


                            ANALYSIS

           I. Stashia’s Claim for Unpaid Child Support
                   Is Not Barred by Res Judicata.

¶24 Isaac contends that the district court erred in allowing
Stashia to bring a claim for unpaid child support. As we have
noted, the substance of his argument is that Stashia’s claim for
unpaid support is barred by the claim preclusion branch of res
judicata. See supra note 3. This court has previously observed that,
indeed, “[t]he principles of res judicata apply fully in the context
of divorce proceedings.” Krambule v. Krambule, 

, 

 (citing Jacobsen v. Jacobsen, 

(Utah 1985)), cert. denied, 

 (Utah 2000). But this
observation merits explanation.

¶25 Both res judicata and the law of the case doctrine can
operate to give an earlier decision on a particular claim or issue
preclusive effect when the same claim or issue is raised again. See
Utah State Bar v. Rasmussen (In re Discipline of Rasmussen), 

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                         Nelson v. Nelson


14, ¶¶ 17–18, 

. A key difference between the two
doctrines, however, is that generally “[r]es judicata applies as
between multiple cases while the law of the case doctrine applies
to successive proceedings within one case.” State v. Waterfield,

, ¶ 39 n.12, 

, cert. denied, 

(Utah 2014).

¶26 This distinction could suggest that in a single divorce
case—over which a district court has continuing jurisdiction
to enter orders modifying the original decree, see Utah Code § 30-
3-5(5)—only the law of the case doctrine would ever apply. To
the contrary, however, we have held that res judicata applies
as between “[original] divorce actions and subsequent
modification proceedings.” Smith v. Smith, 

(Utah Ct. App. 1990). Accordingly, in Krambule v. Krambule,

, 

, cert. denied, 

(Utah 2000), we concluded that a petition to modify a divorce
decree to require an ex-husband to pay support for a child
conceived through artificial insemination without the ex-husband’s knowledge was “barred under the principles of
res judicata” since that claim “could and should have been
asserted in the original divorce action.” Id. ¶ 16. And in
Throckmorton v. Throckmorton, 

 (Utah Ct. App. 1988),
we upheld on res judicata grounds the denial of a petition to
modify a divorce decree to give an ex-wife an interest in her ex-husband’s retirement benefits, which had not been included in the
original decree. See 

.

¶27 In other words, we treat an original divorce proceeding
and each subsequent proceeding to modify the divorce decree
as separate “cases” for res judicata purposes. At the same time,
we treat a divorce proceeding leading to a decree or an
amended decree and any subsequent proceeding to enforce that
decree or amended decree as successive proceedings within the
same case. Thus, in this second context, we apply the law of the
case doctrine. See Robinson v. Robinson, 

, ¶¶ 26–29,

 (holding, in a proceeding to enforce a stipulated
divorce decree, that law of the case barred a husband from



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relitigating a factual issue decided previously), cert. denied, 

 (Utah 2016). 5

¶28 This appeal is somewhat unusual in that the “first case” for
purposes of res judicata is the modification proceeding and the
“second case” is the order to show cause proceeding to enforce
the child support order from the original decree. But because the
order to show cause proceeding is based on the original decree, it
is a separate “case” from the modification proceeding that
resulted in the amended decree. We therefore apply the principles




5. Application of res judicata in the divorce context might be seen
as “distinguish[able]” from its application in other contexts in
another way as well. See Smith v. Smith, 

 (Utah
Ct. App. 1990). That is because in the divorce context the
preclusive effect of res judicata can be avoided based on “the
equitable doctrine that allows courts to reopen [prior]
determinations if the moving party can demonstrate a substantial
change of circumstances.” 

 In fact, some prior determinations
in divorce cases may be reopened on a showing of a material
change of circumstances that is less than substantial. See, e.g.,
Miller v. Miller, 

, 

 (observing
that “when modifying parent-time (as opposed to custody), the
petitioner is required to make only some showing of a change in
circumstances, which does not rise to the same level as the
substantial and material showing required when a district court
alters custody” (cleaned up)). Though this might be seen as a
distinguishing feature of res judicata in the divorce setting, it is
consistent with our statement that “[t]he principles of res judicata
apply fully in the context of divorce proceedings,” Krambule v.
Krambule, 

, 

, cert. denied, 

 (Utah 2000), because a decision based on a changed set of
material facts is not a decision on the same question as the one
presented previously.


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                           Nelson v. Nelson


of res judicata as we analyze the potential preclusive effect of the
amended decree in the order to show cause proceeding. 6

¶29 “The doctrine of res judicata embraces two distinct
branches: claim preclusion and issue preclusion.” Macris
& Assocs., Inc. v. Neways, Inc., 

, 

.
“[C]laim preclusion corresponds to causes of action[;] issue
preclusion corresponds to the facts and issues underlying causes
of action.” Oman v. Davis School Dist., 

, 

.

¶30 “Claim preclusion . . . is premised on the principle that a
controversy should be adjudicated only once.” Pioneer Home
Owners Ass’n v. TaxHawk Inc., 

, 

(cleaned up), cert. denied, 

 (Utah 2020). It “bars a
party from prosecuting in a subsequent action a claim that has
been fully litigated previously.” Hansen v. Bank of N.Y. Mellon,

, 

 (cleaned up). “Whether a
claim is precluded from relitigation depends on a three-part test.”
Mack v. Utah State Dep’t of Com., 

, 

.

       First, both cases must involve the same parties or
       their privies. Second, the claim that is alleged to be
       barred must have been presented in the first suit or
       be one that could and should have been raised in the
       first action. Third, the first suit must have resulted
       in a final judgment on the merits.

 (cleaned up).



6. We are not alone in this approach. See, e.g., In re Marriage of Potts,

, 180–82 (Ill. App. Ct. 1989) (applying res judicata
principles to hold that, under the facts of the case, an amended
divorce decree that modified a child support obligation did not
bar a claim for child support arrears that accrued under the prior
decree); Zickefoose v. Muntean, 

, 180–81 (Minn. Ct.
App. 1987) (same).


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                          Nelson v. Nelson


¶31 Here, it is undisputed that Stashia and Isaac were the
parties to both the proceeding on Isaac’s petition to modify the
divorce decree—the “first case”—and the proceeding on Stashia’s
subsequent claim for unpaid child support under the original
decree—the “second case.” It is also undisputed that Isaac’s
petition to modify the divorce decree resulted in a final judgment
on the merits, in the form of the amended divorce decree. Thus,
we focus our analysis on the second requirement of the claim
preclusion test: whether Stashia presented or was required to
present her claim for unpaid child support during the proceeding
on Isaac’s petition to modify the decree.

A. Stashia did not present a claim for unpaid child support in the
   modification proceedings.

¶32 The second requirement of the claim preclusion test is
satisfied if the claim at issue was presented in a prior action. See
Mack, 

. Isaac argues that Stashia’s answer to his
petition to modify the divorce decree presented a claim for unpaid
child support. Specifically, he points to Stashia’s allegation that
Isaac was “not current in his child support obligation” and to her
assertion, as an affirmative defense, that Isaac’s “unclean hands in
not being current in his child support obligation” should bar
modification of his support obligation.7

¶33 However, while Stashia alleged that Isaac was in arrears in
his child support payments, neither that allegation nor the
affirmative defense based on that allegation presented a “claim.”
“An original claim, counterclaim, cross-claim or third-party claim
must contain a short and plain: (1) statement of the claim showing
that the party is entitled to relief; and (2) demand for judgment for
specified relief.” Utah R. Civ. P. 8(a). Stashia’s answer to Isaac’s


7. “The doctrine of unclean hands expresses the principle that a
party who comes into equity for relief must show that his conduct
has been fair, equitable, and honest as to the particular
controversy in issue.” Goggin v. Goggin, 

, 

 (cleaned up).


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                          Nelson v. Nelson


petition to modify the divorce decree did not allege how much
Isaac owed in unpaid child support or make a demand for relief.
We cannot, therefore, say that Stashia’s affirmative defense
presented a claim for res judicata purposes. See Airfreight Express
Ltd. v. Evergreen Air Center, Inc., 

 (Ariz. Ct. App.
2007) (holding that “affirmative defenses are not claims” for
purposes of “[t]he doctrine of claim preclusion”); cf. Norman A.
Koglin Assocs. v. Valenz Oro, Inc., 

 (Ill. 1997) (“A
counterclaim differs from an . . . affirmative defense. A
counterclaim is used when seeking affirmative relief, while an . . .
affirmative defense seeks to defeat a plaintiff’s claim.”).

¶34 This is consistent with our analysis in Berkshires, LLC v.
Sykes, 

, 

. In that case, the plaintiffs
were poised to purchase and develop multiple parcels of land
when the defendants recorded a document purporting to grant an
easement that would significantly hinder the anticipated
development. Id. ¶ 4. The plaintiffs sued “for slander of title and
interference with economic relations, claiming that [the
defendants] had intentionally fabricated the [e]asement
[d]ocument.” Id. ¶ 6. Late in the litigation, the defendants moved
for partial summary judgment, asserting that as a matter of law
under the undisputed evidence “Hope Lane, a road running
[across the parcels at issue], was a public road.” Id. ¶ 9. The trial
court denied the motion on the ground that the defendants had
not presented a claim for Hope Lane to be declared a public road
because their “original answer merely stated that ‘[a]s a separate
and affirmative defense, [the] [d]efendants . . . allege that Hope
Lane is a public road,’ without making any further affirmative
claim for relief.” Id. (first alteration and omission in original).

¶35 On appeal, the defendants argued that the trial court
improperly refused to treat their Hope Lane affirmative defense
as a counterclaim. See id. ¶¶ 16–17. We said that among the factors
a court could consider when deciding whether to treat an
affirmative defense as a counterclaim was “whether the defense
as argued or articulated in the pleadings sufficiently states a claim
for relief and a demand for judgment as required by rule 8(a) of



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the Utah Rules of Civil Procedure.” Id. ¶ 18. In concluding that the
trial court had not abused its discretion by refusing to treat the
Hope Lane affirmative defense as a counterclaim, we explained:

       At the heart of the matter here is whether Plaintiffs
       should have recognized that Defendants’ statement
       “Hope Lane is a public road” was in reality a
       counterclaim, though labeled an affirmative
       defense. Here, the statement on its face is not readily
       identifiable as a counterclaim; it requests no relief
       and does not demand judgment. . . . Defendants did
       not properly plead a counterclaim . . . .

Id. ¶ 19. In sum, although it was in a different context, we have
previously concluded that an affirmative defense that requests no
relief and does not demand judgment does not present a claim.
Our reaching the same conclusion here in the res judicata context
“is not much of a jurisprudential leap.” Atkinson v. Stateline Hotel
Casino & Resort, 

, ¶ 19 n.6, 

.

B. The district court’s finding that the amended divorce decree
   did not preclude Stashia’s claim for unpaid child support was
   not clearly erroneous.

¶36 Even if a party does not present a claim in her pleadings or
otherwise during litigation, she might still agree to settle that
unpled claim with the intent to foreclose its future litigation. If
such an agreement becomes the basis of a stipulated decree, the
second requirement of claim preclusion is met, and claim
preclusion may apply to the settled but unpled claim. See Keith v.
Aldridge, 

 (4th Cir. 1990) (holding, in the context
of a “consent judgment,” that “[i]f the parties intended to
foreclose through agreement litigation of a claim, assertion of that
claim in a later suit, whether or not formally presented in the
earlier action, is precluded”); 18A Charles Alan Wright, Arthur R.
Miller & Edward H. Cooper, Federal Practice and Procedure § 4443
(3d ed. April 2022 update) (“[Following a consent judgment,] [i]f



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                            Nelson v. Nelson


it is clear that the parties agreed to settle claims that were not
reflected in the original pleadings, preclusion may extend to
claims that were not even formally presented.”). 8

¶37 Isaac relies on this principle. He contends that the amended
divorce decree, which was the product of a settlement agreement
and stipulation, “expressly and unambiguously resolved” any
claim for child support arrears that predated the amended decree.
In support, he points to the provision of the amended decree that
states: “This order shall be a consolidated order on custody,
parent-time, and child related financial matters.” (Emphasis added.)
Isaac interprets the phrase “child related financial matters” to
mean that the amended decree was an order resolving all child
related financial matters, including his child support arrears. But
this is not the only plausible reading of this provision.

¶38 The amended decree addresses several child-related
financial matters explicitly: the modified child support award,
income tax deductions related to the children, health insurance
and medical expenses for the children, and childcare expenses. It
never mentions child support arrears. Thus, the phrase “child
related financial matters” can plausibly be read as encompassing
only the child-related financial matters explicitly addressed in the
amended decree. Because this provision of the amended decree
supports two plausible readings, it is ambiguous. See Moon v.
Moon, 

, 

 (“Language in a written
document is ambiguous if the words may be understood to
support two or more plausible meanings.” (cleaned up)), cert.
denied, 

 (Utah 1999).

¶39 “Ordinarily, we interpret a divorce decree as we would
any other written instrument, construing it in accordance with its
plain meaning and according no deference to the district court’s
interpretation.” Christensen v. Christensen, 

. “In Utah, . . . the rules of claim preclusion are ‘virtually
identical’ to the federal rules . . . .” Haik v. Salt Lake City Corp., 

, ¶ 9, 

 (citation omitted).


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                         Nelson v. Nelson

. “But where, as here, the agreement is ambiguous,
the trial court ordinarily considers extrinsic evidence in an effort
to resolve the ambiguit[y] and will make findings of fact to resolve
any disputed evidence . . . .” 

 (footnote omitted).

¶40 The district court here considered extrinsic evidence to
determine whether Stashia’s claim for unpaid child support was
encompassed within the amended decree, and it made a factual
finding that the claim for unpaid child support was not
encompassed within the decree. Among the evidence considered
were the oral representations the parties made during their May
2019 settlement conference and a declaration provided by Isaac,
both of which Isaac directed the court to when he opposed
Stashia’s motion for an order to show cause. The district court
considered this evidence and found that Stashia did not waive her
claim for unpaid child support.

¶41 When, as here, a court looks outside the four corners of a
stipulated judgment to determine its intended scope, that
determination is a determination of fact, which we review for
clear error. See Noel v. James, 

, 

(“The scope of a stipulation presents a question of fact, which we
review for clear error.” (cleaned up)); Fuller v. Bohne, 

, 

 (same), cert. denied, 

 (Utah 2017).
And “[f]indings of fact are clearly erroneous only if no reasonable
factfinder could review the evidence presented and arrive at the
disputed finding.” Blackhawk Townhouses Owners Ass’n Inc. v. J.S.,

, 

.

¶42 We see no clear error in the district court’s finding that the
parties’ amended decree was not intended to be preclusive of
Stashia’s claim for child support arrears. Isaac’s child support
arrears were not mentioned at all during the May 2019 settlement
conference. A reasonable factfinder might therefore believe it a
stretch to assume that when Stashia and Isaac told the
commissioner they were “willing to accept [the] terms [that had
been outlined in the settlement conference] as a final resolution of
the issues that [were] currently pending in [the] matter,” they



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would have thought that those issues included Isaac’s alleged
child support arrears.

¶43 Moreover, after the parties said that the modified child
support obligation would become effective June 1, 2019, they told
the commissioner that “all prior orders that are not specifically
modified [as outlined in the settlement conference] . . . would
remain in full force and effect.” A reasonable view of this evidence
is that when the parties accepted the terms of the stipulation “as
a final resolution of the issues that [were] currently pending in
this matter,” these were the terms that they intended to accept: that
the child support order prior to June 1, 2019, as well as any
outstanding obligations under it, “would remain in full force and
effect.”

C. Stashia was not required to present her claim for unpaid child
   support in the modification proceeding.

¶44 Even if a claim was not presented or settled in an initial
action, the second requirement of the claim preclusion test can be
met by showing that the subsequently raised claim “could and
should have been raised in the first action.” Mack v. Utah State
Dep’t of Com., 

, 

 (cleaned up). A
subsequent claim could and should have been brought in an
earlier action “if [both claims] arise from the same operative facts,
or in other words from the same transaction.” Id. ¶ 30. To
determine if two claims arise from the same transaction, a court
may consider “whether the facts [of each] are related in time,
space, origin, or motivation, whether they form a convenient trial
unit, and whether their treatment as a unit conforms to the parties’
expectations.” Gillmor v. Family Link, LLC, 

, 

 (cleaned up). But “no single factor is determinative.” 

(cleaned up). “Therefore, every consideration need not be
addressed or considered in every case.” 

¶45 Here, Isaac’s claims for modification of the divorce decree
were not related in origin to Stashia’s later claim for unpaid child
support. Isaac’s claims to modify the divorce decree originated



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                         Nelson v. Nelson


from alleged changes to his work and home life since the entry of
the original decree (including his recent remarriage), alleged
violations by Stashia of the divorce decree’s custody and parent-time provisions, and Stashia’s recent full-time employment. In
contrast, Stashia’s claim for unpaid child support originated from
Isaac’s alleged failure to abide by the divorce decree’s child
support order. These differing origins suggest that the parties’
respective claims do not arise from the same transaction. See In re
Marriage of Potts, 

, 181–82 (Ill. App. Ct. 1989)
(observing that “[t]here [was] no significant evidentiary overlap”
between a father’s claim for unpaid child support and the
mother’s claim for modification of the support obligation and,
thus, holding that res judicata did not bar the father’s separate
action for unpaid support); Zickefoose v. Muntean, 

,
180–81 (Minn. Ct. App. 1987) (concluding that a stipulation to
amend a divorce decree to reduce the father’s child support
obligation was “a totally different and distinct action” from the
mother’s later “motion to compel payment of child support
arrearages” and, thus, that res judicata did not bar the mother’s
later action for arrearages).

¶46 Additionally, neither Isaac nor Stashia conducted
discovery related to Isaac’s alleged child support arrears during
the modification proceeding, which suggests that it was not their
expectation that Isaac’s claims for modification of the original
decree and Stashia’s claim for unpaid child support under the
original decree would be treated as a single trial unit.

¶47 Moreover, Utah Code section 78B-12-210(9)(a) provides for
the filing of a petition to modify a child support order based on a
substantial change of circumstances, while our rules require a
motion—previously a motion “for an order to show cause,” see
Utah R. Civ. P. 7(q) (2020), and now “a motion to enforce order,”
see Utah R. Civ. P. 7B—to recover unpaid child support. By
providing different procedures for modifying a child support
order and enforcing a child support order, our code and rules also
implicitly recognize that these two types of actions generally do
not arise from the same transaction. Cf. In re P.D.D., 

-CA                    18               

                         Nelson v. Nelson


834, 842, 844 (Tex. App. 2008) (reasoning in part that because the
Texas Family Code “does not require their joinder,” actions for
“delinquent child support” and actions for “modification of . . .
future child support obligations” are “separate and definable
questions” and the one is not barred by the other under a
“transactional approach” to res judicata).

¶48 The differing origins of Isaac’s and Stashia’s respective
claims, the apparent expectations of the parties, and the
procedural scheme set forth in our code and rules demonstrate
that Isaac’s claim for modification of the original child support
order and Stashia’s claim for enforcement of the original order did
not arise from the same transaction. Thus, Stashia was not
required to present her claim for unpaid child support during the
proceeding on Isaac’s petition to modify the divorce decree.

¶49 Because Stashia neither presented nor settled her claim for
unpaid child support during the proceeding on Isaac’s petition to
modify the divorce decree, and because she was not required to
present her claim for unpaid child support during that
proceeding, the doctrine of claim preclusion does not apply to bar
Stashia’s claim. 9



9. The district court expressed its ruling against Isaac’s claim
preclusion argument by finding that Stashia “did not waive” her
claim for unpaid child support. Our ruling is that Stashia neither
waived nor forfeited her right to assert that claim. “Though
principles of waiver and forfeiture are often used
interchangeably, the two concepts are technically distinct.” Reller
v. Argenziano, 

, 

 (cleaned up).
“Forfeiture is the failure to make the timely assertion of a right,
whereas waiver is the intentional relinquishment or
abandonment of a known right.” 

 (cleaned up). Stashia did not
waive her known right to bring a claim for unpaid support since,
as we have concluded, she did not intentionally relinquish it
through settlement or otherwise. Nor did she forfeit that right by
                                                    (continued…)


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                          Nelson v. Nelson


   II. The District Court Did Not Err by Concluding that There
                Were No Issues to Certify for Trial.

¶50 Isaac also argues that “[t]he district court erred when it
refused to allow [him] to counter Stashia’s Order to Show Cause
with his request to retroactively apply the child support
modification.” His request to retroactively apply the child
support modification took the form of a certificate of readiness for
trial filed nearly a year and a half after the modification
proceeding to which it related had concluded. Because the
modification proceeding had concluded, and because Isaac filed
no rule 59 or 60(b) motion to alter or relieve him from the resulting
judgment—i.e., the amended divorce decree, with its June 1, 2019
effective date for the modified support order—Isaac’s certificate
of readiness for trial landed in a legal vacuum and had no legal
effect. 10 With no pending proceeding to which the issue of


failing to timely assert it since, as we have concluded, she was not
required to present her claim during the modification proceeding.
See id. ¶ 31 (holding that failure to timely amend a complaint to
assert a claim for retroactive child support amounted to a
forfeiture). We leave for another day the question of whether or
how a claim for unpaid child support may be settled without
running afoul of the statutory limitation on the waiver of child
support claims. See generally Utah Code § 78B-12-109(1) (“Waiver
and estoppel [of child support] shall apply only to the custodial
parent when there is no order already established by a tribunal if
the custodial parent freely and voluntarily waives support
specifically and in writing.”); Cahoon v. Evans, 

, 

 (holding that Utah Code section 78B-12-109
“rules out waiver and estoppel in all instances where there is a
child support order already in place”).

10. Isaac makes no attempt to address this procedural reality.
Instead, he uses the certificate of readiness for trial as a vehicle to
argue that he stipulated to a June 1, 2019 effective date for the
modified child support order only “[i]n exchange” for Stashia
                                                        (continued…)


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                          Nelson v. Nelson


retroactive application of the modified support order applied, the
district court was correct to conclude that “[t]here [were] no issues
to certify for trial.”


                          CONCLUSION

¶51 Stashia did not present an affirmative claim for child
support arrears during the modification proceeding. The district
court did not clearly err in finding that Stashia’s claim for those
arrears was not encompassed within the modified divorce decree.
And Stashia’s claim for those arrears did not arise out of the same
transaction as the claims Isaac made in his petition to modify the
decree. Accordingly, Stashia’s claim for unpaid child support is
not barred by res judicata. Additionally, the district court’s ruling
in response to Isaac’s certificate of readiness for trial—that there
were no issues to certify for trial—was not in error.

¶52    Affirmed.




giving up the right to pursue her claim for child support arrears.
But the district court found that the parties did not intend such an
exchange, and we have affirmed that finding. See supra ¶¶ 36–43.


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