This opinion is subject to revision before final

publication in the Pacific Reporter

2018 UT 40

IN THE

SUPREME COURT OF THE STATE OF UTAH

In re DEBORAH MICHELLE KILEY

_________________________________________________

DEBORAH MICHELLE KILEY,

Appellant and Debtor,

v.

MARY M. HUNT, Trustee,

Appellee.

No. 20170472

Filed August 14, 2018

On Certification from the

United States Bankruptcy Court for the District of Utah

The Honorable Judge Kevin R. Anderson

Case No. 15-27838

Attorneys:

Matt Wadsworth, Salt Lake City, for appellant

Peggy Hunt, Michael F. Thomson, Megan K. Baker, Salt Lake City, 

for appellee

JUSTICE PEARCE authored the opinion of the Court in which

ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS, JUSTICE PETERSEN, 

and JUDGE HAGEN joined.

Having recused himself, CHIEF JUSTICE DURRANT did not participate 

herein; COURT OF APPEALS JUDGE DIANA HAGEN sat.

JUSTICE PEARCE, opinion of the Court:

INTRODUCTION

¶ 1 The bankruptcy court certified two questions of Utah law

that lie at the intersection of family and bankruptcy law. Based upon 

a compelling certification order, we accepted the invitation to resolve 

those questions. After receiving briefing and conducting oral 
In re KILEY

Opinion of the Court

2

argument, we are left with dual concerns—that the parties have not 

given us the briefing we need to actually answer the questions and 

that our opinion might ultimately be for naught. At oral argument, 

Kiley’s counsel admitted the deficiencies in the briefing. And the 

bankruptcy trustee suggested that the marital property division at 

the heart of this case may have violated the automatic stay that 

accompanies a bankruptcy petition’s filing. Because of the 

inadequate briefing and the problematic procedural posture, we 

revoke certification.

BACKGROUND

¶ 2 In 2012, Deborah Kiley filed for divorce from Jarod Marrott. 

The district court entered temporary orders and bifurcated the

proceeding; that is, the district court granted the divorce but

deferred resolution of other questions, including the division of 

marital assets. About a year later, after Marrott had fallen behind on 

alimony and child support payments, Kiley filed a motion to show 

cause and a motion to clarify. Kiley sought to enforce the temporary 

orders and to recover unpaid child support and alimony.

¶ 3 The district court granted the motions and entered 

judgment for $121,188.22. Two months later, Kiley and Marrott 

participated in mediation and stipulated to a property settlement. 

The parties then, according to Kiley, read the stipulation into the 

record before the domestic relations commissioner. As part of that 

stipulation, and to satisfy the judgment for unpaid child support and 

alimony, Kiley received “all of the value in any and all of her former 

spouse’s retirement accounts . . . .”

¶ 4 The day after mediation, Kiley petitioned for bankruptcy. 

About a month after that, the district court entered a supplemental 

decree reifying the settlement the parties had placed on the record. A 

couple months later, the district court entered the qualified domestic 

relations order (QDRO)—the document that would permit Kiley to 

access Marrott’s retirement funds.

¶ 5 Kiley did not list the retirement plan proceeds on her initial 

bankruptcy disclosures. At a meeting with her creditors—a meeting 

that took place before the district court entered the order

memorializing the stipulated property division—Kiley disclosed her 

interest in the retirement funds. A few months later, after the QDRO 

was entered, Kiley filed an amended schedule that included the 

retirement funds.
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Opinion of the Court

3

¶ 6 But Kiley claimed the retirement funds were exempt from 

the bankruptcy estate under Utah Code section 78B-5-505(1)(a)(xiv).1

The trustee argued that the exemption was inapplicable because, 

among other reasons, Kiley was entitled to the value of the 

retirement funds, not the funds themselves. About a month later, 

Kiley filed another amended schedule and claimed that the 

retirement funds were exempt under Utah Code section 

78B-5-505(1)(a)(xv).2 The trustee asserted that this exemption was not 

available to Kiley either.

¶ 7 Against this backdrop, the bankruptcy court certified two 

questions to us:

1. What is the nature and scope of a party’s interest in 

marital property as of the filing of a divorce 

complaint—contrasted with the nature and scope of 

such interest upon the entry of a divorce decree 

allocating such marital property? Stated differently, 

upon the filing for divorce, is a spouse’s interest in 

marital property merely contingent, unliquidated, 

and inchoate until the entry of a divorce decree 

creating a vested right to receive a specific sum of 

money or a specific marital asset?

_____________________________________________________________

1 This exemption provides that:

(1)(a) An individual is entitled to exemption of the 

following property: . . . (xiv) except as provided in 

Subsection (1)(b), any money or other assets held for or 

payable to the individual as a participant or beneficiary 

from or an interest of the individual as a participant or 

beneficiary in a retirement plan or arrangement that is 

described in Section 401(a), 401(h), 401(k), 403(a), 

403(b), 408, 408A, 409, 414(d), 414(e), or 457, Internal 

Revenue Code . . . . 

UTAH CODE § 78B-5-505(1)(a).

2 And this exemption provides that:

(1)(a) An individual is entitled to exemption of the

following property: . . . (xv) the interest of any money 

or other assets payable to an alternate payee under a 

qualified domestic relations order as those terms are 

defined in Section 414(p), Internal Revenue Code . . . .

UTAH CODE § 78B-5-505(1)(a).
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4

2. Is an individual entitled to an exemption under Utah 

Code Ann. § 78B-5-505(1)(a)(xv) in money or other 

assets payable to that individual as an alternate 

payee under a [qualified domestic relations order]

(QDRO)? Stated more simply, is the Debtor entitled 

under Utah law to exempt the Retirement Plan 

Proceeds?

¶ 8 We accepted the certified questions, ordered briefing, and 

held oral arguments.

ANALYSIS

¶ 9 Certified questions can present unique challenges, as we 

recently noted in Zimmerman v. University of Utah, 2018 UT 1, 417 

P.3d 78. In Zimmerman, we declined to answer two certified 

questions involving the Free Speech Clause of our constitution. Id. 

¶¶ 1–2. We noted that “[i]f this case were before us on appeal we 

would have the benefit of a lower court’s disposition of [these]

claims. We would also be presented with the legal standards 

adopted by the trial court and the application of those standards to 

the evidence in the record.” Id. ¶ 14.

¶ 10 We reasoned that these “obstacles alone are not 

insurmountable.” Id. ¶ 16. But we concluded that the limited briefing 

the parties had presented us amplified the challenges inherent in 

answering a certified question. Id. Specifically, we were concerned 

that the parties had not provided the state constitutional analysis we 

needed to answer the certified questions. Id. ¶¶ 17–23. We noted that 

“[o]ur jurisdiction in answering certified questions . . . is elective” 

and that our discretion “necessarily encompasses the authority to 

decline to provide a conclusive answer after reviewing the parties’ 

briefing.” Id. ¶ 27. We ultimately declined to answer the Free Speech 

Clause questions because the briefing did not provide us what we 

needed to tackle a question of that importance.

¶ 11 This case offers similar challenges. The first certified 

question asks us to address what interest Kiley had in the marital 

property at various points in time. During oral argument, Kiley’s 

counsel acknowledged: “I am apologetic because in reading both my 

brief and counsel’s brief, for the appellee in this case, I don’t think 

either of us really addressed [the first question] very well.” And, 

indeed, instead of analyzing what interest Kiley had in the martial 

estate, Kiley spends a portion of her brief asserting that the question

did not matter.
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Opinion of the Court

5

¶ 12 Kiley argues that the “matter before the Court is far 

broader than an academic discussion over the distinction between 

equitable interests in marital property as opposed to vested 

interests.”

The state court cites the rule that dominates current 

divorce law in Utah—that regardless of who the owner 

of record is, both parties share an interest in marital 

property. The nature of that interest (i.e. equitable, 

contingent, vested etc.) is academic. The point is that 

both parties share interest . . . . Here, Ms. Kiley owns 1⁄2 

of the marital share of her husband’s 401k—whether it 

was as an actual owner or equitable ownership is 

immaterial.

(Emphasis omitted).

¶ 13 But the bankruptcy court did not think the distinction 

immaterial or academic. Indeed, we believe that is why the court 

specifically asks us to define “[t]he nature of that interest” in the first 

certified question. And taking on that task, already complicated in a 

certified case, see supra ¶ 9, becomes even more challenging when we 

have inadequate briefing on the question from one of the parties.

Though we appreciate counsel’s candor about the lackluster briefing, 

we are left with the task of answering the bankruptcy court’s 

question with one party declining to engage meaningfully on the

central issue.

¶ 14 We have constitutional and rule-based authority to decide 

when to answer a certified question. Zimmerman, 2018 UT 1, ¶ 2 

(“Our authority to answer certified questions, however, is a matter of 

discretion (citing UTAH CONST. art. VIII, § 3 and UTAH R. APP. 

P. 41.”)). And, given the importance of the question and the potential 

to decide it with only one side of the argument before us, we believe 

it best to leave this question for another day.3

_____________________________________________________________

3 That the question arises in the context of funds in a retirement 

account further complicates the question and informs our decision to 

decline to answer the first certified question. The parties agree that 

the Employee Retirement Income Securities Act (ERISA) may have 

some impact on the disposition of the funds. The bankruptcy court 

appears to have carefully drafted the question to leave the ERISA 

issues out of our court. Nevertheless, both parties analyze the 

question with reference to ERISA. For example, Kiley argues that 

(continued . . .)
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Opinion of the Court

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¶ 15 The second certified question asks us to interpret the Utah 

Exemptions Act.4 Specifically, the bankruptcy court asks us to 

determine whether an alternate payee under a QDRO can claim the 

exemption in Utah Code section 78B-5-505(1)(a)(xv). Because the 

Act’s exemptions are applied in a variety of contexts, our 

interpretation has the potential to reverberate throughout the Utah 

Code. See, e.g., Oliver v. Mitchell, 376 P.2d 390, 391–93 (Utah 1962) 

(applying exemptions statute to the garnishment of wages); Cricket 

Commc’ns, Inc. v. All You Can Talk Partners, Inc., No. 

2:11-cv-315-DB-PMW, 2011 WL 4591099, at *1–2 (D. Utah Sept. 30, 

2011) (applying exemptions statute to determine what property is 

subject to “prejudgment writ of attachment”).

¶ 16 Once again, the briefing hampers our ability to answer the 

question. Kiley refused, both in her brief and at oral argument, to 

engage with the statute’s plain language. Kiley’s brief focuses 

instead on the “cataclysmic change” that might result from a 

decision that the exemption does not apply to Kiley. And Kiley trots 

out a pretty serious parade of horribles for many debtors and 

divorcing spouses that she claims would occur if we were to credit 

the trustee’s interpretation. She also claims that this interpretation 

would disrupt the “status quo”—which we understand to mean the 

manner in which the bench and bar currently understand the way 

the exemptions operate. But Kiley cites no authority to support that 

assertion.

¶ 17 Instead, Kiley’s legal argument focuses on the interpretive 

canon that exemptions should be read in favor of the debtor. See, e.g.,

Russell M. Miller Co. v. Givan, 325 P.2d 908, 909 (Utah 1958). The 

problem with Kiley’s legal argument is that this canon comes into 

play if the statute is ambiguous. See Marion Energy, Inc. v. KFJ Ranch 

P’ship, 2011 UT 50, ¶ 15, 267 P.3d 863 (“When the ‘meaning of [a] 

statute can be discerned from its language, no other interpretive 

 

“ERISA qualified accounts are sacrosanct to creditors” and that 

Kiley’s entitlement to the account is “pursuant to ERISA.” Similarly

the trustee argues that—whatever interest Kiley might have under 

state law—that interest is preempted by ERISA. So, despite the 

bankruptcy court’s effort to present us with a question that avoided 

the ERISA concerns, the parties have briefed the issue in a way that 

presumes we will analyze ERISA’s impact.

4 UTAH CODE §§ 78B-5-501 to 513.
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Opinion of the Court

7

tools are needed.’” (alteration in original) (citation omitted)). And 

despite repeated questions during oral argument aimed at 

permitting, and indeed imploring, Kiley to identify an ambiguity, 

Kiley refused to play ball. Instead, Kiley’s counsel responded with a 

discussion of how practitioners interpreted the exemptions and the 

dire consequences flowing from a reading that would deny his 

client, and those like her, from claiming the exemption. In other 

words, because Kiley refused to engage with the statute’s language, 

we have only one reading of the statute in front of us. And we 

hesitate to opine on a matter of Utah law that could have serious 

impacts beyond this case with only one side of the issue analyzed.

¶ 18 One final consideration motivates us to decline to answer 

the certified questions. There appears to be a question regarding 

whether the automatic stay that accompanies a bankruptcy filing has 

the potential to void the property settlement at issue in this case.5

¶ 19 We asked the bankruptcy trustee about the automatic stay’s 

potential impact. The response did not assuage our concerns that our 

decision could be mooted. At oral argument, the trustee’s counsel 

stated that:

Section 362(b)(2) of the Bankruptcy Code does . . . state 

that the automatic stay does not apply to certain 

_____________________________________________________________

5 When a bankruptcy petition is filed, the petition:

(a) . . . operates as a stay, applicable to all entitles, of—

. . .

(3) any act to obtain possession of property of the 

estate or of property from the estate or to exercise 

control over property of the estate . . . .

(b) The filing of a petition . . . does not operate as a 

stay— . . .

(2) under subsection (a)—

(A) of the commencement or continuation of a 

civil action or proceeding— . . .

(ii) for the establishment or modification of 

an order for domestic support 

obligations; . . .

(iv) for the dissolution of marriage, except to 

the extent that such proceeding seeks to 

determine the division of property that is 

property of the estate . . . .

11 U.S.C. § 362.
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Opinion of the Court

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divorce-related proceedings. Property division is not 

one of them. . . . [The automatic stay] was not lifted. We 

haven’t gone to those issues, quite frankly, because, 

from our perspective, . . . if we go down the road of 

“was the automatic stay violated?” and “is that order 

void?”, . . . from our perspective, we don’t have to go 

there because I think we win on these grounds.

¶ 20 Trustee’s counsel did assert that, “I think the same 

argument with respect to the exemption will apply regardless of 

whether those orders violated the automatic stay.” But the potential 

for the bankruptcy trustee to effectively moot our decision, coupled 

with the concerns we have about the briefing in this matter, convince 

us that the best course of action is to decline to answer these certified 

questions.

CONCLUSION

¶ 21 The Utah Constitution provides us with jurisdiction to 

answer questions of state law certified by the federal courts. We have 

discretion to answer those questions or not. Although we appreciate 

the work that the bankruptcy court invested in the certification 

order, we decline to answer the questions because the issues have 

not been adequately briefed and because of the potential impact of 

the automatic stay on the property settlement at the heart of this 

case. We revoke certification.