2014 UT App 264

_________________________________________________________

THE UTAH COURT OF APPEALS

ANDREW VEYSEY,

Petitioner and Appellee,

v.

ALEXIS VEYSEY,

Respondent and Appellant.

Opinion

No. 20130726-CA

Filed November 14, 2014

Third District Court, Salt Lake Department

The Honorable L.A. Dever

No. 984907587

Alexis Veysey, Appellant Pro Se

Rebecca Long Okura and Jenna Hatch, Attorneys

for Appellee

JUDGE JAMES Z. DAVIS authored this Opinion, in which JUDGES

GREGORY K. ORME and J. FREDERIC VOROS JR. concurred.

DAVIS, Judge:

¶1 Alexis Veysey (Mother) challenges the district court’s

adoption of the domestic commissioner’s recommendation

regarding reimbursement of daycare expenses for the parties’

children. We vacate the district court’s order and remand for

further proceedings.

BACKGROUND

¶2 The parties divorced in September 1999. Pursuant to Utah

Code section 78B-12-214, the parties’ divorce decree required

Andrew Veysey (Father) to reimburse Mother for half of “all

reasonable monthly day care expenses actually paid by [Mother]

and incurred on behalf of the parties’ minor children as a result of

[Mother’s] employment and/or occupational or career training.”
Veysey v. Veysey

The decree did not require Father to pay a defined monthly

amount of daycare expenses, but rather required him to reimburse

Mother within ten days of receiving a receipt for daycare expenses.

The decree contained no provision requiring Mother to provide

such receipts within a particular time frame.1

¶3 On March 5, 2013, Mother filed a Motion for Order to Show

Cause requesting a judgment for daycare arrearages accrued

between September 2002 and June 2006. During some of this time

period, the children attended full-day kindergarten at Challenger,

a private school. A hearing was held before a domestic

commissioner on April 1, 2013. The commissioner issued a

recommendation concluding, “The statute of limitations on child

care expenses and the principle of laches preclude[] the court from

1. Following an order to show cause hearing in 2000 before a

different commissioner, that commissioner recommended as

follows:

2. From this point forward, if family members

provide child care, [Father] does not need to pay. If

[Mother’s]neighborprovides the childcare, [Mother]

is to provide verification within 30 days and [Father]

is to pay 1/2 the amount within 5 days. [Mother] to

provide copies of checks to show verification of

payment.

3. Parties stipulate to modify the decree of divorce

with the language that verification of child care

expenses is to be provided.

Neither party objected to this recommendation. See generally Utah

R. Civ. P. 108(a) (explaining that a commissioner’s recommendation

“is the order of the court until modified by the court” and outlining

the procedure for objecting to the recommendation). The parties

disagree as to whether the commissioner’s explicit reference to

Mother’s neighbor indicates that the modified verification

requirements were intended to apply only to daycare expenses

associated with the neighbor or whether they can be interpreted to

apply to all daycare expenses. We need not resolve this dispute for

purposes of our analysis, but it may be relevant to the district

court’s determination on remand.

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considering child care expenses more than 8 years old.” The

recommendation therefore ordered that Father “pay one half of

any pre-school or extended care expenses incurred between April

1, 2005 and June of 2006.” The calculation ultimately adopted by

the commissioner excluded Mother’s claims for reimbursement

relating to full-day kindergarten at Challenger and included only

preschool expenses for the youngest child incurred before she

entered kindergarten in September 2005.

¶4 Mother objected to the commissioner’s recommendation,

and a hearing was held before the district court on June 20, 2013.

Following the hearing, the district court issued a minute entry

stating only, “[T]he decision of the Commissioner is correct.”

Mother appeals.

ISSUES AND STANDARDS OF REVIEW

¶5 Mother first argues that the district court erred in adopting

the commissioner’s employment of an eight-year statute of

limitations to bar her claims for reimbursement. “The trial court’s

application of a statute of limitations presents a question of law

which we review for correctness.” Estes v. Tibbs, 1999 UT 52, ¶ 4,

979 P.2d 823.

¶6 Mother next asserts that the district court erred in adopting

the commissioner’s determination that the doctrine of laches

applies to this case. “[T]he question of laches presents a mixed

question of law and fact.” Johnson v. Johnson, 2014 UT 21, ¶ 8, 330

P.3d 704. Although “we typically grant some level of deference to

the trial court’s application of law to the facts,” Wayment v. Howard,

2006 UT 56, ¶ 9, 144 P.3d 1147, the court’s determination must be

supported by adequate factualfindings,Anderson v.Thompson, 2008

UT App 3, ¶ 42, 176 P.3d 464.

¶7 Finally, Mother argues that the district court’s approval of

the commissioner’s reimbursement calculation erroneously

excluded full-day kindergarten expenses that should have been

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reimbursed as work-related daycare expenses under the statute.

“The properinterpretation and application of a statute is a question

of law which we review for correctness, affording no deference to

the district court’s legal conclusion.” Gutierrez v. Medley, 972 P.2d

913, 914–15 (Utah 1998).

ANALYSIS

I. Statute of Limitations

¶8 Mother asserts that we should employ the statute of

limitations applicable to child support orders and sum-certain

judgments for past-due support. That statute of limitations permits

enforcement within the longer of four years after the youngest

child reaches majority or eight years from the date of entry of a

sum-certain judgment. Utah Code Ann. § 78B-5-202(6) (LexisNexis

2012). Father argues that we should employ the general eight-year

statute of limitations for judgments. See id. § 78B-5-202(1). When

two statutes of limitations conflict, the statute applying to a specific

type of action controls over a more general statute of limitations.

Perry v. Pioneer Wholesale Supply Co., 681 P.2d 214, 216 (Utah 1984).

Thus, the resolution of this dispute turns on the question of

whether daycare expenses constitute child support.

¶9 The Utah Code is ambiguous as to whether daycare costs

that have not been reduced to a judgment fall within the definition

of child support. First, the Utah Code mandates that a requirement

“that each parent share equally the reasonable work-related child

care expenses of the parents” be included in “[t]he child support

order.” Utah Code Ann. § 78B-12-214(1) (LexisNexis 2012)

(emphasis added). A child support order is defined as an order that

“establishes or modifies child support” or “reduces child support

arrearages to judgment.” Id. § 78B-12-102(9)(a)–(b).

¶10 Child support is defined as

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[1] a base child support award, or [2] a monthly

financial award for uninsured medical expenses,

ordered by a tribunal for the support of a child,

including [3] current periodic payments, [4] all

arrearages which accrue under an order for current

periodic payments, and [5] sum certain judgments

awarded for arrearages, medical expenses, and child

care costs.

Id. § 78B-12-102(8). “Base child support award” is defined as “the

award that may be ordered and is calculated using the [child

support] guidelines” and explicitly excludes “medical expenses 2

and work-related child care costs.” Id. § 78B-12-102(4). The other

types of support identified in the definition contemplate only fixed

amounts—monthly financial awards, current periodic payments,

arrearages, and sum-certain judgments. Mother urges us to

interpret “current periodic payments” as encompassing the type of

variable “reasonable monthly day care expenses actually paid”

provided for in the parties’ divorce decree. However, variable

daycare expenses cannot be classified as “periodic” because they

are based on actual expenses incurred, which may vary from week

to week and month to month. Similarly, the phrase “arrearages

which accrue under an order for current periodic payments”

contemplates the existence of an order defining a specific amount

to be paid periodically.

¶11 Thus, although the Utah Code requires courts to order the

payment of work-related daycare expenses as part of the child

support order, it appears to exclude such expenses (at least until

they are reduced to judgment) from the definition of child support.

We resolve this inconsistency by looking at the child support

statute as a whole and by considering the intent and purpose of the

2. The child support guidelines are contained in sections 78B-12-201

to -219 of the Utah Code. Utah Code Ann. § 78B-12-102(12)

(LexisNexis 2012). See generally id. §§ 78B-12-201 to -219 (2012 &

Supp. 2013).

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legislature in enacting the definition. See Carter v. University of Utah

Med. Ctr., 2006 UT 78, ¶¶ 9, 13, 150 P.3d 467 (explaining that “we

seek to render all parts [of the statute] relevant and meaningful,

and we accordingly avoid interpretations that will render portions

of a statute superfluous or inoperative,” and that “[w]e read the

plain language of the statute as a whole, and interpret its

provisions in harmony with other statutes in the same chapter and

related chapters” (alterations in original) (citations and internal

quotation marks omitted)).

¶12 Until 2000, the child support statute’s definition of child

support merely stated, “‘Child support’ is defined in Section 62A11-401.” See Utah Code Ann. § 78-45-2(7) (Lexis Supp. 1999); see also

Act of March 13, 2000, ch. 161, § 22, 2000 Utah Laws 558, 570.

Section 62A-11-401 is contained in the statute relating to income

withholding by the Office of Recovery Services (ORS) andprovides

definitions relevant to that statute. See Utah Code Ann. § 62A-11-

401 (LexisNexis 2011). ORS’s role in collecting child support is

limited to specific dollar amounts contained in a support order and

judgments for arrearages; ORS does not collect ongoing medical

and daycare expenses where the dollar amount of those expenses

is not specified in the divorce decree or reduced to a judgment.

Utah Department of Human Services, Office of Recovery

Services/Child Support Services, Notice of Services, 2 (July 1, 2014),

available at http://www.ors.utah.gov/documents/ANIAForm.pdf.

Thus, it stands to reason that the definition of child support

contained in the ORS statute includes only forms of support that

have a fixed dollar amount; we can conceive of no such rationale

for excluding variable support, i.e., support defined by category

rather than by dollar amount, from the child support statute’s

definition.

¶13 Although the legislature added an explicit definitionof child

support to the child support statute in 2000, that definition still

relied on the language used in the ORS statute rather than creating

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a distinct definition for purposes of the child support statute.3

Compare Act of March 13, 2000, ch. 161, § 14, 2000 Utah Laws 558,

566, with id. ch. 161, § 22, 2000 Utah Laws 558, 570. Because the

legislature simply adopted an already-existing definition, it does

not appear to have made a conscious decision to exclude variable

medical and daycare expenses from the definition of child support

in the context of the child support statute, and indeed, its

requirement that reimbursement for daycare expensesbeprovided

for in the child support order suggests the opposite. See Utah Code

Ann. § 78B-12-214(1).

¶14 The exclusion of medical and daycare expenses from the

definition of base child support also does not appear to stem from

the legislature’s determination that these expenses do not

constitute child support, but from its desire to distinguish these

two categories from other categories of child-rearing expenses

presumably covered by the base child support award. See Davis v.

Davis, 2011 UT App 311, ¶ 17, 263 P.3d 520 (“[C]hild-rearing

expenses not statutorily distinguished from regular child support

should be considered part and parcel of the child support award.”

(citation and internal quotation marks omitted)). Indeed, the fact

that the legislature felt the need to distinguish “base child support”

from “child support” on this basis suggests that it expected medical

and daycare expenses to fall within the general definition of child

support and that a different term was needed to refer to the base

award “calculated using the [child support] guidelines.” See Utah

Code Ann. § 78B-12-102(4) (LexisNexis 2012); see also Wardle v.

Bowen, 2005 UT App 226U, para. 11 (“[T]here is no question that . . .

medical and daycare expenses are in the nature of child support.”);

Black’s Law Dictionary 274 (9th ed. 2009) (defining child support as,

3. The only current difference between the two definitions is that

the ORS definition “includes obligations ordered by a tribunal for

the support of a spouse or former spouse with whom the child

resides if the spousal support is collected with the child support.”

Compare Utah Code Ann. § 62A-11-401 (LexisNexis 2011), with id.

§ 78B-12-102(8) (2012).

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inter alia, “the money legally owed by one parent to the other for

the expenses incurred for children of the marriage”).

¶15 In short, we conclude that variable daycare expenses

constitute child support and that the statute of limitations

governing enforcement of child support orders applies to Mother’s

claim for reimbursement. Because the statute of limitations permits

enforcement of the divorce decree’s order on daycare expenses at

least until four years after the youngest child reaches majority, it

does not preclude Mother from seeking reimbursement for the pre2005 daycare expenses. See Utah Code Ann. § 78B-5-202(6)

(LexisNexis 2012).

II. Laches

¶16 The commissioner alternatively determined that the

principle of laches barred Mother from recovering expenses

incurred prior to April 2005. “To successfully assert a laches

defense, a defendant must establish both that the plaintiff

unreasonably delayed in bringing an action and that the defendant

was prejudiced by that delay.” Borland v. Chandler, 733 P.2d 144,

147 (Utah 1987). “The length of time that constitutes a lack of

diligence depend[s] on the circumstances of each case, because the

propriety of refusing a claim is equally predicated upon the gravity

of the prejudice suffered . . . and the length of delay.”

Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Lindberg,

2010 UT 51, ¶ 28, 238 P.3d 1054 (alteration and omission in original)

(citation and internal quotation marks omitted). This issue is

therefore highly fact-dependent, requiring consideration of “the

relative harm caused by the petitioner’s delay, the relative harm to

the petitioner, and whether or not the respondent acted in good

faith.” Id.

¶17 The commissioner’s recommendation contains no findings

supporting a determination that laches applies in this case. It

merely states that both the statute of limitations and the principle

of laches preclude the court from considering daycare expenses

more than eight years old. First, this determination is erroneous

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inasmuch as it suggests that the passage of a particular length of

time was alone sufficient to invoke the doctrine of laches. See id.

Second, the findings made by the commissioner at the hearing do

not address the two elements of a laches defense. The 4

commissioner did not explicitly find that Mother unreasonably

delayed in bringing her action. Instead, the commissioner was

equivocal on this point, merely observing that the parties disputed

this issue and that “[i]t appears that [Mother] has not provided

proof of these expenses until recently.” (Emphasis added.) The

commissioner made no findings regarding the prejudicial impact

of any delay on Father. See id.; Borland, 733 P.2d at 147. Without

specific findings supporting a determination that laches applied in

this case, the commissioner’s recommendation—and, accordingly,

the district court’s adoption of that recommendation —was 5

erroneous.

4. In fact, although the order adopted by the commissioner asserted

laches as a justification for her ruling, her oral ruling did not

appear to rely on laches. The commissioner focused primarily on

the statute of limitations and asserted only that “there’s a principle

of laches that indicates that, if a party simply does not provide

proof for a significant period of time and, simply, does not make

any requests whatsoever with regard to those expenses, that they

can waive that merely by the passage of time.” Although the

commissioner discussed laches, she did not explicitly determine

that it applied in this case until she approved the written order.

5. Although we conclude that the district court’s findings were

ultimately inadequate to support its determination that laches

applied, our determination is based on the inadequacy of the

commissioner’s findings, not the fact that the district court

summarily adopted those findings as its own.Contraryto Mother’s

assertion, it is not erroneous for a district court to adopt a

commissioner’s findings rather than making its own separate

findings where its decision and reasoning do not differ from that

of the commissioner. Where the district court does so, we will

simply evaluate the commissioner’s findings as though they were

made by the district court.

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¶18 The absence of more specific findings is perhaps

understandable in light of the fact that the commissioner relied

primarily on the statute of limitations in denying Mother’s claim

for reimbursement of pre-2005 expenses. Seesupranote 4. However,

given our reversal of that determination, additional findings are

necessary to determine which of Mother’s expenses may be

properly reimbursed. If supported by adequate findings, a

determination that some portion of Mother’s claims are barred by

laches would not necessarily be inappropriate. Alternatively,

6

based on adequate findings, the district court may exercise its

discretion to deny Mother’s claims if it determines that she failed

to comply with Utah Code section 78B-12-214(2)(b), which outlines

the verification requirements a parent must comply with to obtain

reimbursement for daycare expenses, see Utah Code Ann. § 78B- 7

12-214(2)–(3) (LexisNexis 2012), or with the requirements of the

parties’ divorce decree, see supra ¶ 2 & note 1. Or the district court

may conclude that all of Mother’s claims are reimbursable because

they were brought within the statute of limitations. In any event,

additional findings are needed to support the district court’s

determination.

6. Relying on Utah Code section 78B-12-109, Mother asserts that

laches is inapplicable to claims for support made pursuant to a

court order. However, this section precludes only waiver and

estoppel defenses and says nothing about laches. See Utah Code

Ann. § 78B-12-109 (LexisNexis 2012). While the doctrines of

estoppel and laches may be similar, they are still distinct legal

doctrines with different elements. Compare CECO Corp. v. Concrete

Specialists, Inc., 772 P.2d 967, 969–70 (Utah 1989) (outlining the

elements of equitable estoppel), with Papanikolas Bros. Enters. v.

Sugarhouse Shopping Ctr. Assocs., 535 P.2d 1256, 1260 (Utah 1975)

(outlining the elements of laches). We decline to read section 78B12-109 more broadly than it is written.

7. The commissioner suggested as much at the hearing but did not

base her ruling on that ground.

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III. Extended-Care Expenses

¶19 Finally, although Mother acknowledges that private-school

tuition does not fall within the scope of reimbursable daycare

expenses, she argues that she should be entitled to reimbursement

for one-fourth of the cost of full-day kindergarten because the

second half of the day constitutes “extended care expenses,” for

which the commissioner acknowledged Mother should receive

reimbursement. The commissioner indicated that “extended care

prior to or after the core time period is also a type of day care

expense[]” and that the parties should “work together” to

determine what portion of the claimed full-day kindergarten

tuition, if any, constituteddaycare expenses. Because the “core time

period” for kindergarten is only half of the regular school day,

Mother asserts that the other half should be categorized as

daycare.8

¶20 Mother claims that she has always sought reimbursement

for only one-fourth of the kindergarten expenses because the first

half of the cost of full-day kindergarten is attributable to the

regular kindergarten school day. However, when Mother

submitted a proposed order to the commissioner, it contained the

same calculation that the commissioner had acknowledged to be

erroneous, which included the entire cost of the youngest child’s

full-day kindergarten tuition. Thus, when Father submitted an

order that excluded the kindergarten expenses completely, the

commissioner adopted that order. While Father is not responsible

for the cost of regular half-day kindergarten tuition, any extra

tuition paid for full-day kindergarten may qualify as extended-care

8. Mother does not demonstrate that the cost of an additional half

day of kindergarten would be no more expensive than a half day

of extended care or other daycare.

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expenses. On remand, the district court should take this into 9

consideration in calculating the amount owed by Father.

CONCLUSION

¶21 The district court erred in adopting the commissioner’s

recommendation that Mother’s pre-2005 reimbursement claims

were barred by the statute of limitations and laches. The district

court’s adoption of the commissioner’s calculation excluding

extended-care costs associated with the youngest child’s full-day

kindergarten was likewise erroneous. Accordingly, we vacate the

district court’s order and remand for additional findings and

conclusions, in accordance with this opinion, regarding Mother’s

claims for reimbursement.

9. That said, we are not convinced that Mother’s one-fourth

calculation accurately represents Father’s share of the daycare

obligation. Father would not be required to pay any portion of the

children’s tuition for half-day kindergarten. Thus, his portion

should be, at most, half of the difference between the cost of fullday kindergarten andthe cost of half-day kindergarten, which may

not be the same as one-fourth of the total cost of full-day

kindergarten. And it may be that some further adjustment is

necessary if full-day kindergarten is significantly more expensive

than traditional daycare and Father did not at least tacitly agree to

the use of full-day kindergarten as daycare.

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