2018 UT App 65

THE UTAH COURT OF APPEALS

KRISTEN PULHAM,

Appellee,

v.

WILLIAM KIRSLING,

Appellant.

Opinion

Nos. 20150577-CA and 20160236-CA

Filed April 12, 2018

Third District Court, Salt Lake Department

The Honorable Richard D. McKelvie

No. 104901246

Margaret S. Edwards, Attorney for Appellant

Steve S. Christensen and Clinton R. Brimhall, 

Attorneys for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES

KATE A. TOOMEY and DAVID N. MORTENSEN concurred.

POHLMAN, Judge:

¶1 This case involves two appeals in the same domestic 

relations dispute.1 In the first appeal (the First Appeal), William 

Kirsling challenges several aspects of the amended decree 

entered in his divorce from Kristen Pulham. In the second 

appeal (the Second Appeal), Kirsling challenges the trial court’s 

denial of his petition to modify the divorce decree’s custody 

 

1. We have consolidated Case No. 20150577-CA and Case No. 

20160236-CA for purposes of this opinion.
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arrangement. We affirm the trial court’s decisions in both 

appeals.

BACKGROUND

The Trial and the Amended Decree

¶2 Pulham and Kirsling were married in 2008 and separated 

in 2010. The parties had one child (Child) born during the 

marriage. In June 2012, the trial court entered a bifurcated decree 

of divorce, reserving several issues for trial.

¶3 At a bench trial in 2014, the parties contested the issues of 

custody, child support, past-due child support, and 

unreimbursed child care expenses. Each party also alleged that 

the other party was in contempt of the court’s prior orders and 

should therefore face sanctions.

¶4 On Child’s custody, the trial court made detailed findings. 

Among other things, it found that Pulham had remarried, had a 

son with her new husband, and was living in Tooele, Utah. The 

court also found that Pulham had been the primary caregiver of 

Child since birth and that, at the time of trial, Pulham was 

unemployed and was acting as the full-time caregiver of her 

younger son and Child.

¶5 Regarding Kirsling, the court found that he was living in 

Taylorsville, Utah, with his girlfriend and her children, and that 

Kirsling’s older son from a previous marriage lived with Kirsling 

part-time. The court also found that Kirsling had resided in 

various places, including Brigham City, Utah, and Phoenix, 

Arizona, for lengthy periods after the parties separated. The 

court found that even though Kirsling’s “contact and visitation 

with [Child] ha[d] been inconsistent for much of that time,” his 

contact had “stabilized considerably” in the year leading up to 

trial.
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¶6 Although Kirsling and Pulham agreed at trial that it 

would be in Child’s best interest if they shared joint physical and 

legal custody, they sharply disagreed about the details of that 

custody, including where Child should be enrolled in school and 

with whom she should primarily reside. A custody evaluator 

prepared a custody evaluation and testified about it at trial.

¶7 Kirsling requested a court order requiring Child to enroll 

in the school near his home in Taylorsville for three years, at 

which point Child would then transfer to the school near 

Pulham’s home for the latter half of elementary school. The court 

rejected Kirsling’s request, reasoning that his plan would require 

Child “to spend considerable time commuting by car between 

Taylorsville and Tooele”—amounting to “upwards of an hour 

each way, before school and after school”—and that it was not in 

Child’s best interest to do so merely to accommodate Kirsling’s 

preferred parenting plan. The court also reasoned that Kirsling’s 

plan would require Child to change elementary schools and that 

such a plan, which would put Child through “an unnecessary 

adjustment of surroundings, friends and routine,” was not in 

Child’s best interest.

¶8 In the November 2014 amended divorce decree (the 

Amended Decree), which followed the earlier bifurcated decree, 

the trial court awarded the parties joint physical and legal 

custody. The court also ordered that Pulham would be the 

primary custodial parent and would have the final say in 

parenting decisions for Child, including which school Child 

would attend.

¶9 As for parent-time, the court determined that a standard 

parent-time order, as anticipated under Utah Code section 

30-3-35, did “not provide sufficient parent time” for Kirsling and 

was not in Child’s best interest. As a result, the court awarded 

Kirsling additional parent-time in a manner that avoided 
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“creating the attendant travel time that would be inflicted upon 

[Child] by [Kirsling’s] proposed parenting plan.”

¶10 On future child support, the trial court found that it

would be calculated based on Pulham’s monthly income of $30 

and Kirsling’s monthly income of $4,580, “which are the 

stipulated monthly gross incomes” of the parties. Then, 

referencing the Utah Code and a custody worksheet,

2 the court 

ordered Kirsling to pay Pulham $548 per month for child 

support.

¶11 On past-due child support, the trial court found that the 

evidence supported Pulham’s claim that Kirsling had an 

outstanding obligation for a period before 2012. The court also 

found that Pulham incurred fees paid to the Office of Recovery 

Services (ORS) due to Kirsling’s “failure to timely pay his child 

support obligation.” Because Kirsling had not been “consistently 

responsible for payments until ORS intervened,” the court 

agreed with Pulham that Kirsling should reimburse her for the 

ORS fees. Accordingly, the court ordered Kirsling to pay Pulham 

for past-due child support and ORS fees.

¶12 On unreimbursed child care expenses, the trial court 

found that Pulham had shown that Kirsling had not paid his 

share of some expenses. The court ordered Kirsling to pay 

Pulham those expenses.

¶13 Finally, on the allegations of contempt of court, the trial 

court found that “insufficient evidence was presented at trial to 

warrant sanctions for either party.” Thus, the court dismissed all 

charges of contempt.

 

2. This child support worksheet is not part of the record on 

appeal.
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The Motion for a New Trial

¶14 Kirsling moved for a new trial pursuant to rule 59(a) of 

the Utah Rules of Civil Procedure.3 The motion was 

accompanied by an unsworn document signed by his attorney 

that purported to be Kirsling’s affidavit. As relevant here, 

Kirsling challenged the trial court’s decisions regarding child 

support and custody as well as the amounts Kirsling owed to 

Pulham for past-due child support and child care expenses.

¶15 With respect to the amounts owed to Pulham for past-due 

child support and child care expenses, Kirsling contended that, 

under rule 59(a)(4), he had newly discovered evidence that he 

could not have produced at trial. Referring to Pulham’s 

testimony that she did not receive a particular payment, he 

asserted that post-trial he was “able to obtain a photocopy of the 

cashed money order that was presented to [Pulham’s] counsel as 

settlement for the financial issues of the case” and that the new 

information affected the amounts he owed Pulham.

¶16 In denying the motion, the trial court began by 

characterizing the purported affidavit as “an argument by 

[Kirsling’s] counsel, complaining generally of the failure of the 

Court to find in [Kirsling’s] favor.” The court then rejected 

Kirsling’s newly discovered evidence argument, explaining that 

 

3. Rule 59(a) provided, in relevant part, that “a new trial may be 

granted to . . . any . . . part[y] and on all or part of the issues, for 

any of the following causes[:] . . . (a)(4) [n]ewly discovered 

evidence, material for the party making the application, which 

he could not, with reasonable diligence, have discovered and 

produced at the trial; . . . (a)(6) [i]nsufficiency of the evidence to 

justify the verdict or other decision”; or “(a)(7) [e]rror in law.” 

Utah R. Civ. P. 59(a) (2014). Because rule 59 has been amended, 

we cite the version in effect at the time Kirsling filed his motion.
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Kirsling had not established “whether or why he was unable to 

obtain this evidence prior to trial” and also had not shown that

“the introduction of the evidence would have resulted in a 

different trial outcome.”4

¶17 Kirsling raised another argument under rule 59(a)(6), 

attacking the court’s determination that Pulham’s gross monthly 

income was $30 for child support purposes. Kirsling argued that 

the evidence was insufficient because the court did “not show[] 

why Ms. Pulham’s income was not calculated” based on her 

employment potential and probable earnings pursuant to a 

statute governing the imputation of income. Kirsling asserted 

this same argument as an error of law under rule 59(a)(7).

¶18 The court rejected Kirsling’s arguments. It explained that

Utah Code section 78B-12-203(7) dictates the circumstances 

under which the trial court may impute income and gives 

discretion to the court to impute under those certain 

circumstances. The court then explained that it “did not impute 

income to [Pulham]” and that the application of this statute was 

“not the basis for a complaint of ‘insufficient evidence’” under 

 

4. Kirsling also cited rule 59(a)(3), making a related argument 

that he was surprised by Pulham’s assertion at trial that she had 

not received the settlement payment and that it was “not 

prudent to expect [him to] guard against” that assertion. While 

Kirsling briefly refers to rule 59(a)(3) in his statement of the 

issues on appeal, he makes no argument based on surprise and 

instead focuses this portion of his appeal on rule 59(a)(4) and his 

contention of newly discovered evidence. Accordingly, we do 

not address whether the trial court abused its discretion in not 

granting a new trial under rule 59(a)(3). See Wintle-Butts v. Career 

Service Review Office, 2013 UT App 187, ¶ 20, 307 P.3d 665 

(refusing to consider an undeveloped and inadequately briefed 

issue).
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rule 59(a)(6). Similarly, the court concluded that, in relation to 

rule 59(a)(7), it had not committed an error of law, because it had 

“exercised its discretion in determining not to impute income to 

[Pulham], something the statute authorizes it to do.”

¶19 Concerning custody, Kirsling contended that, under rule 

59(a)(7), the trial court erred when it did not follow the 

recommendations of the custody evaluator. In particular, he 

stated that the court failed to provide “a detailed and clear 

finding” explaining why it did not adopt the custody evaluator’s 

recommendation. The court rejected this argument as well, 

maintaining that it had “articulated the reasons for its decision 

regarding custody.”

¶20 The trial court denied the motion for a new trial on June 

17, 2015. Kirsling filed a timely notice of appeal, giving rise to 

the First Appeal. In his notice of appeal, Kirsling stated that he 

thereby appealed “the final Decree of Divorce . . . entered in this 

matter on June 17, 2015,” and that the appeal was “taken from 

such parts of the judgment as follow”: Paragraph 3 regarding 

child support calculation; Paragraph 4 regarding child support, 

ORS fees, and child care expenses; and Paragraph 8 regarding 

contempt.

The Petition to Modify the Amended Decree

¶21 On the same day he filed the First Appeal, Kirsling 

petitioned the trial court for a modification of the Amended 

Decree. Specifically, Kirsling asserted that “[a] significant change

of circumstances has occurred as a result of [his] recent 

relocation to Stansbury Park, Utah, which is located 

approximately 15 minutes of driving time from his home to the 

home of [Pulham].” Kirsling further asserted that at the time the 

trial court entered the Amended Decree he lived approximately 

forty-five minutes away from Pulham and that “[t]his distance 

affected the Court’s awarding of parent time for both the 
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overnight schedules, school choices and the midweek parent 

time determinations.” Because the long “commute time no 

longer exist[ed],” Kirsling requested that the court change the 

schedule to “fifty-fifty,” essentially asking to have Child spend 

every other week with him.5

¶22 Pulham responded by filing a motion to dismiss the 

petition to modify. Although she did not dispute that Kirsling 

had relocated, she contended that Kirsling’s move from 

Taylorsville to Stansbury Park did “not represent a change of 

circumstances sufficient to modify the controlling order,” 

because it did not affect her “parenting ability” and the 

“functioning of the current custodial relationship.”

¶23 A court commissioner heard the matter and 

recommended that the trial court deny Pulham’s motion to 

dismiss. Pulham objected to that recommendation, and the trial 

court ultimately resolved the petition to modify on its merits. 

The court observed that it had “considered the distance the 

minor child would be subjected to traveling” when entering its 

custody and parent-time orders in the Amended Decree, but it 

expressed concern that Kirsling’s “stop” in Stansbury Park 

would be “brief,” in light of his “somewhat migratory history.” 

The court also expressed concern that, “given the timing of the 

move and the petition itself, [Kirsling] made this move solely to 

create a change in circumstances in an effort to succeed in 

modifying the decree.”

¶24 Although Kirsling’s relocation closer to Pulham “benefits

all parties, including the minor child,” the court concluded that 

the “move, in and of itself, is wholly insufficient to create a 

sufficient change of circumstances to warrant reconsideration” of 

 

5. The parties seem to agree that Kirsling was trying to move 

from 40% overnights to 50% overnights.
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the Amended Decree, and it denied Kirsling’s petition to modify. 

Kirsling filed another notice of appeal, which triggered the 

Second Appeal.

ANALYSIS

I. The First Appeal

¶25 Kirsling raises three issues in the First Appeal. First, he 

contends that the trial court erred in calculating “Pulham’s 

income at $30 per month for child support purposes.” Second, he 

contends that it erred in denying his motion for a new trial on

his claim of newly discovered evidence related to child care 

expenses. Third, he contends that the trial court erred in 

deviating “from the recommendations of the court-appointed 

custody evaluator without making any specific findings on the 

record as to its deviation.” Before we reach the merits of these 

contentions, however, we must consider whether Kirsling’s 

notice of appeal vested this court with jurisdiction to consider 

and address these issues.

A. The Scope of This Court’s Jurisdiction

¶26 As a threshold matter, we first consider Pulham’s 

argument that this court lacks jurisdiction to review certain 

issues on appeal. Pulham argues that “Kirsling’s notice of appeal 

invokes this Court’s jurisdiction over only some of the issues he 

has argued in his brief.” According to Pulham, “Kirsling’s notice 

of appeal references only the decisions in the Amended Decree 

relating to child support, a monetary judgment, and the 

dismissal of contempt charges,” and “[b]ecause [his] notice of 

appeal does not reference the district court’s custody award or 

the . . . denial of [his] motion for a new trial, this Court lacks 

appellate jurisdiction over issues related to those decisions.” 

Kirsling counters that a notice of appeal’s “designation of the 
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specific parts [of an order or judgment] does not waive the 

appeal of the whole order or judgment” and that therefore this 

court “has jurisdiction over all of the issues raised on appeal . . . , 

as well as the issues concerning the post-trial motion” for a new 

trial.

¶27 “Whether appellate jurisdiction exists is a question of 

law . . . .” Goggin v. Goggin, 2011 UT 76, ¶ 16, 267 P.3d 885 

(quotation simplified). Likewise, we “determine whether a 

Notice of Appeal is adequate to grant this court jurisdiction as a 

matter of law.” State v. Valdovinos, 2003 UT App 432, ¶ 13, 82 

P.3d 1167 (quotation simplified).

¶28 The Utah Supreme Court has “emphasized that the object 

of a notice of appeal is to advise the opposite party that an 

appeal has been taken from a specific judgment in a particular 

case . . . [because the opposing party] is entitled to know 

specifically which judgment is being appealed.” Jensen v. 

Intermountain Power Agency, 1999 UT 10, ¶ 7, 977 P.2d 474

(quotation simplified). Rule 3(d) of the Utah Rules of Appellate 

Procedure dictates the content of a notice of appeal: “The notice 

of appeal . . . shall designate the judgment or order, or part 

thereof, appealed from . . . .” Utah R. App. P. 3(d); see also U.P.C., 

Inc. v. R.O.A. Gen., Inc., 1999 UT App 303, ¶ 11, 990 P.2d 945. This 

requirement “is jurisdictional.” Jensen, 1999 UT 10, ¶ 7. As a 

result, an “order not identified in the notice of appeal falls 

beyond [this court’s] appellate jurisdiction.” In re adoption of B.B., 

2017 UT 59, ¶ 106.

¶29 “[W]here the notice of appeal sufficiently identifies the 

final judgment at issue and the opposing party is not prejudiced, 

the notice of appeal is to be liberally construed.” Kilpatrick v. 

Bullough Abatement, Inc., 2008 UT 82, ¶ 14, 199 P.3d 957

(quotation simplified). Put another way, “[w]here the appealing 

party’s intent is clear and the appellee suffers no prejudice, the 

notice of appeal is sufficient.” Id. ¶ 15.
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¶30 As noted above, rule 3(d) requires that the notice of 

appeal “designate the judgment or order, or part thereof, appealed 

from.” Utah R. App. P. 3(d) (emphasis added). If an appellant 

has adequately designated the judgment or order appealed from, 

we do not read the rule’s language as also requiring the 

appellant to designate the “part thereof.” See id. But where an 

appellant chooses to identify the specific parts of a judgment 

subject to the appeal and gives notice of its intent to appeal only 

those parts of a particular judgment, our jurisdiction is limited 

by that representation. Cf. In re adoption of B.B., 2017 UT 59, 

¶ 106. In other words, “our jurisdiction is limited by the wording 

of the notice.” Kovaco v. Rockbestos-Surprenant Cable Corp., 834 

F.3d 128, 135 (2d Cir. 2016) (quotation simplified) (holding that 

the language of a notice of appeal limits an appellate court’s 

jurisdiction to those issues expressly identified in the notice);6 see 

also Muller v. Holmes, 353 F. App’x 664, 666 (2d Cir. 2009) (same); 

Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir. 

1977) (“When an appeal is taken from a specified judgment only 

or from a part of a specified judgment, the court of appeals acquires 

thereby no jurisdiction to review other judgments or portions 

thereof not so specified or otherwise fairly to be inferred from the 

notice as intended to be presented for review on the appeal.” 

(emphasis added)).

¶31 Here, Kirsling’s notice of appeal for the First Appeal 

states that he appeals “the final Decree of Divorce . . . entered in 

 

6. Substantively similar to Utah Rule of Appellate Procedure 

3(d), the federal counterpart requires that a party designate in its 

notice of appeal “the judgment, order, or part thereof being 

appealed.” Fed. R. App. P. 3(c)(1)(B); see also Drew v. Lee, 2011 UT 

15, ¶ 16 & n.22, 250 P.3d 48 (indicating that where federal court 

procedural rules are substantively similar to Utah’s rules, we 

may look to interpretations of the federal rules for guidance and 

as persuasive authority).
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this matter on June 17, 2015,” and specifies that the appeal “is 

taken from such parts of the judgment as follow”:

1) Paragraph 3 regarding child support calculation;

2) Paragraph 4 wherein Mr. Kirsling was ordered 

to pay . . . child support and ORS fees and . . . child 

care expenses; and

3) Paragraph 8 wherein all charges of Contempt are 

dismissed.

The Amended Decree was entered on November 4, 2014. The 

order denying Kirsling’s motion for a new trial was entered on 

June 17, 2015. When the notice of appeal is considered in context, 

its reference to “the final Decree of Divorce” manifests Kirsling’s 

intent to appeal from the Amended Decree, and its reference to 

an order “entered in this matter on June 17, 2015,” manifests his 

intent to appeal from the order denying his motion for a new 

trial. See Speros v. Fricke, 2004 UT 69, ¶ 15, 98 P.3d 28 

(interpreting a notice of appeal as an appeal from a January 15 

order despite its reference to a nonexistent January 11 order 

because the appellant’s intent to appeal the former order was 

evident from the context). We thus conclude that Kirsling’s 

notice of appeal sufficiently designates the Amended Decree and 

the order denying the motion for a new trial as “the judgment[s] 

or order[s] . . . appealed from.” Utah R. App. P. 3(d).

¶32 But the notice of appeal does more; it also designates the 

“part[s] thereof” to be appealed. See id. It does so by stating that 

the appeal “is taken from such parts of the judgment as follow”: 

Paragraph 3 regarding child support; Paragraph 4 regarding 

past-due child support, ORS fees, and child care expenses; and 

Paragraph 8 regarding contempt. Because the Amended Decree 

has paragraph numbers and subject matters that correspond to 

those mentioned in the notice of appeal, we read the notice of 
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appeal’s references to specific paragraphs as referring to 

Paragraphs 3, 4, and 8 of the Amended Decree. We thus construe 

the notice of appeal as manifesting Kirsling’s intent to contest on 

appeal only the issues of child support, past-due child support, 

ORS fees, child care expenses, and contempt. In contrast, the 

notice of appeal does not convey Kirsling’s intent to appeal 

issues related to the custody evaluation or the parenting plan—

issues that were resolved in other paragraphs of the Amended 

Decree that are not cited in the notice of appeal. By expressly 

identifying the parts of the trial court’s ruling from which the 

appeal was taken, Kirsling manifested an intent not to appeal the 

other parts of the trial court’s Amended Decree and its related 

order denying his post-trial motion.7

¶33 In sum, because Kirsling’s notice of appeal identifies the 

specific parts of the trial court’s Amended Decree that he 

contests on appeal, our jurisdiction is limited to those particular 

parts. To be precise, this court has jurisdiction to review issues 

related to “the child support calculation”; the order directing 

Kirsling to pay ORS fees, past-due child support, and child care 

expenses; and the dismissal of the contempt charges.8 The issues 

 

7. The same intent is also manifest in Kirsling’s petition to 

modify the Amended Decree, which he filed contemporaneously 

with his notice of appeal. In his motion, he advised the trial court 

that “[a] Notice of Appeal on three sections of the Decree of 

Divorce is being filed, but none of these sections pertain to or 

affect this Petition to Modify regarding parent time.” In his 

supporting affidavit, Kirsling further “emphasize[d] that none of 

the items that [he] . . . [n]oticed [for appeal] pertain to the issues” 

raised in his petition to modify the trial court’s determinations 

regarding parent-time.

8. Despite the fact that the issues related to the ORS fees and the 

contempt charges are within our jurisdiction, Kirsling has not

(continued...)
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in his opening brief that are not identified in his notice of 

appeal—relating to the custody evaluation and the parenting 

plan—are outside this court’s jurisdiction. Cf. In re adoption of 

B.B., 2017 UT 59, ¶ 106 (determining that the supreme court had 

no jurisdiction to review a consent order, where that order was 

not mentioned in the notice of appeal and where that order was 

a distinct final judgment from another final judgment that was 

properly identified in the notice of appeal). Having identified 

those issues that are properly before this court in the First 

Appeal, we now address their merits.

B. Calculation of Income for Child Support Purposes

¶34 Kirsling contends that the trial court erroneously 

calculated Pulham’s monthly income for child support purposes 

as $30, asserting that “[e]ither the $30 per month finding 

regarding Pulham’s income was supported by insufficient 

evidence, or the trial court erroneously imputed income to her 

absent proper procedure.” In his view, Pulham’s income should 

have been imputed at a much higher amount. He thus asserts 

that the trial court’s error resulted in “an excessive award of 

child support to Pulham” and asks us to reverse and remand for 

the trial court to “determine the income based on [Pulham’s] 

historical income.”

¶35 Because trial courts have broad discretion to award child 

support, we will not disturb such a decision “absent an abuse of 

discretion.” Roberts v. Roberts, 2014 UT App 211, ¶ 7, 335 P.3d 

378. “That means that as long as the court exercised its discretion 

within the bounds and under the standards we have set and has 

supported its decision with adequate findings and conclusions, 

 

(...continued)

briefed on appeal any challenge to the trial court’s decisions on 

those issues. Consequently, we do not consider them further.
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we will not substitute our judgment for the trial court’s.” Id.

(quotation simplified). Likewise, we review the trial court’s 

denial of Kirsling’s motion for a new trial for abuse of discretion. 

See Wall v. Wall, 2007 UT App 61, ¶ 8, 157 P.3d 341. We will set 

aside the trial court’s factual findings only if they are clearly 

erroneous. Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 

733 (“A trial court’s factual determinations are clearly erroneous 

only if they are in conflict with the clear weight of the evidence, 

or if this court has a definite and firm conviction that a mistake 

has been made.” (quotation simplified)).

¶36 We begin with Kirsling’s contention that the trial court’s 

finding regarding Pulham’s income is clearly erroneous because 

it lacks evidentiary support. On this point, we agree that no 

evidence adduced at trial supported the conclusion that, at the 

time of trial, Pulham had a monthly income of $30. It was 

undisputed that Pulham was unemployed and cared for her 

young children full-time. The trial court, however, did not 

purport to base its determination of income on the testimony or 

other evidence at trial. Rather, the court twice stated that its 

income determination was based on the parties’ “stipulated 

monthly gross incomes.”

¶37 Kirsling does not acknowledge the trial court’s 

explanation that its income determination was not based on 

evidence but on a stipulation by the parties. See Duchesne Land, 

LC v. Division of Consumer Prot., 2011 UT App 153, ¶ 8, 257 P.3d 

441 (requiring an appellant to address the basis for the trial 

court’s ruling). Nevertheless, we acknowledge that the

referenced stipulation does not appear to be in the record on 

appeal. And, when asked in oral argument to explain the origin 

of the $30 figure, counsel for Pulham admitted that he did not 

know.

¶38 But even assuming the court erred in determining that the 

parties stipulated to Pulham’s monthly income in the amount of 
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$30, we conclude that the error would not warrant reversal. 

“[W]e will not reverse a judgment merely because there may 

have been [an] error; reversal occurs only if the error is such that 

there is a reasonable likelihood that, in its absence, there would 

have been a result more favorable to the complaining party.” 

Portfolio Recovery Assocs., LLC v. Migliore, 2013 UT App 255, ¶ 15, 

314 P.3d 1069 (quotation simplified); see also Utah R. Civ. P. 61 

(“The court at every stage of the proceeding must disregard any 

error or defect in the proceeding which does not affect the 

substantial rights of the parties.”). As noted above, the 

undisputed evidence at trial showed that Pulham was 

unemployed and had no income. Thus, if the court erred in 

attributing some income to her based on a stipulation, that error 

arguably favored Kirsling. At the least, Kirsling has not 

demonstrated that if Pulham’s income was decreased from $30 

to $0 that his child support obligation would be reduced. As a 

result, we will not reverse the trial court on this basis.

¶39 We further conclude that Kirsling has not established that 

the alleged error of which he complains entitles him to his 

requested relief—a new trial with the opportunity to request the 

imputation of additional income to Pulham based on evidence 

not presented at trial. Kirsling did not move for a new trial on 

this issue under rule 59(a)(4) of the Utah Rules of Civil 

Procedure based on a claim of newly discovered evidence, and 

he has not shown that the court committed an error of law by 

not imputing income to Pulham based on her anticipated 

earnings or the federal minimum wage such that a new trial 

would be warranted under rule 59(a)(7). See Utah Code Ann. 

§ 78B-12-203(7) (LexisNexis 2012) (allowing under certain 

circumstances for the imputation of income for child support 

purposes based on employment potential and anticipated 

earnings or the federal minimum wage for a forty-hour work 
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week).9 See generally Utah R. Civ. P. 59(a)(4), (a)(7) (2014) 

(permitting the court to grant a new trial on the grounds of 

newly discovered evidence or errors in law).

¶40 Income in a contested case may be imputed under Utah 

Code section 78B-12-203 only if the court “enters findings of fact 

as to the evidentiary basis for the imputation.” Utah Code Ann. 

§ 78B-12-203(7)(a). Where income is imputed, it “shall be based 

upon [the parent’s] employment potential and probable 

earnings,” id. § 78B-12-203(7)(b), or, where a parent “has no 

recent work history” or an unknown occupation, “income shall 

be imputed at least at the federal minimum wage for a 40-hour 

work week,” id. § 78B-12-203(7)(c). Moreover, income “may not 

be imputed” if certain conditions exist, including where “the 

reasonable costs of child care for the parents’ minor children 

approach or equal the amount of income the custodial parent 

can earn.” Id. § 78B-12-203(d)(i).

¶41 The subject of imputation of income was not raised until 

Kirsling’s post-trial rule 59 motion. And, as Kirsling concedes on 

appeal, none of the factors relevant to imputing income to 

Pulham based on her employment potential and probable 

earnings were discussed, and information about those factors 

was not placed on the record. In fact, the only evidence at trial 

arguably relevant to the imputation of income was that Pulham 

worked for a time but that she “barely made anything” after 

paying for child care. Given that the record contains no evidence 

regarding Pulham’s employment potential and probable 

earnings, and given that her undisputed testimony was that the 

cost of child care approached the amount of income she 

previously had earned, see id., we cannot conclude that the trial 

 

9. This statutory provision was recently amended. We cite the 

version in effect when the trial court determined Kirsling’s child 

support obligation.
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court committed legal error in not imputing income to Pulham 

under section 78B-12-203(7)(b).

¶42 Similarly, Kirsling’s argument that the trial court should 

have imputed income to Pulham under Utah Code section 78B12-203(7)(c) at the federal minimum wage also fails. Not only did 

Kirsling not ask for imputation under this provision at trial or in 

his post-trial motion, but he now admits that “Pulham does have 

recent work history.” Thus, he implicitly concedes that 

imputation under that section would not have been appropriate. 

See id. § 78B-12-203(7)(c) (“If a parent has no recent work history 

or a parent’s occupation is unknown, income shall be imputed at 

least at the federal minimum wage for a 40-hour work week.” 

(emphasis added)). We therefore affirm the trial court’s child 

support order and its denial of Kirsling’s related rule 59 

motion.10

C. Newly Discovered Evidence Related to Child Care 

Expenses

¶43 Kirsling next contends that the trial court erred in 

denying his motion for a new trial when it refused to consider 

newly discovered evidence relating to past-due child care 

expenses. According to Kirsling, he “had been misinformed at 

the time of trial that he could not obtain evidence to show that

Pulham had received and cashed” a money order that he had 

 

10. In his motion for a new trial, Kirsling also argued that the 

child support order should have given him credit for other 

children in his home. The trial court rejected that argument. On 

appeal, Kirsling refers to these facts, but he does not present any 

related analysis supported by citations to the record and legal 

authority. See Utah R. App. P. 24(a)(9) (2016). He therefore has 

not carried his burden to show error in the court’s decision on 

this point.
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given to her counsel, but he was able to obtain a copy of that 

cashed money order after trial. Kirsling asserts that he 

undertook due diligence but that the misinformation given to 

him was “outside of his control.” He further asserts that the copy 

of the cashed money order would “affect[] the financial 

settlement ordered by the court” and that therefore the court 

should have granted him a new trial.11

¶44 Rule 59(a)(4) provides that a new trial may be granted if a 

party shows the existence of material and “[n]ewly discovered 

evidence, . . . which he could not, with reasonable diligence, 

have discovered and produced at the trial.” Utah R. Civ. P. 

59(a)(4) (2014). Such a motion “shall be supported by affidavit.” 

Id. R. 59(c). “In deciding whether to grant a new trial, the trial 

court has some discretion, and we reverse only for abuse of that 

discretion.” Wall v. Wall, 2007 UT App 61, ¶ 8, 157 P.3d 341 

(quotation simplified).

¶45 The trial court denied Kirsling’s rule 59 motion based on 

his claim of newly discovered evidence. The court reasoned that 

he had not established “whether or why he was unable to obtain 

this evidence prior to trial” and had not shown that “the 

introduction of the evidence would have resulted in a different 

trial outcome.”

 

11. Kirsling purports to challenge the trial court’s calculation of 

the amounts he owed Pulham for past-due child support and 

child care expenses, asserting that the court erred “in 

determining the financial award” and “in denying the financial 

settlement or offsetting amounts owed to Pulham.” But because 

his related briefing focuses on the denial of his rule 59 motion 

and does not attempt to show other error in the Amended 

Decree’s calculation of the amounts Kirsling owed to Pulham, 

we construe his argument as pertaining solely to the court’s 

denial of the rule 59 motion.
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¶46 Kirsling’s argument fails because he has not addressed 

the trial court’s rationale for denying his motion. See Duchesne 

Land, LC v. Division of Consumer Prot., 2011 UT App 153, ¶ 8, 257 

P.3d 441 (explaining that an appellant must address and show 

error in the basis for the trial court’s ruling). Moreover, though 

Kirsling recites the factual basis for his claim that evidence was 

newly discovered, he cites no evidentiary basis for his assertions 

that he could not obtain the relevant evidence prior to trial. 

Aside from his rule 59 motion and memorandum, the only 

material that Kirsling presented to the trial court in support of 

his newly discovered evidence claim was a document signed by 

his attorney purporting to be Kirsling’s affidavit. Rule 59(c) 

requires that a newly discovered evidence claim be “supported 

by affidavit,” Utah R. Civ. P. 59(c) (2014), but, as the trial court 

correctly noted, the purported affidavit is “more accurately 

characterized as an argument by [Kirsling’s] counsel.” Given 

Kirsling’s failure to provide the trial court with evidentiary 

support, the court did not exceed its discretion in denying 

Kirsling’s motion.

II. The Second Appeal

¶47 The Second Appeal centers on the trial court’s denial of 

Kirsling’s petition to modify the Amended Decree. We first 

address Kirsling’s sole argument on appeal regarding that 

decision, and then address the parties’ requests for an award of 

attorney fees incurred in the Second Appeal.

A. The Petition to Modify

¶48 Kirsling argues that the trial court “applied an incorrect 

heightened standard to arbitrarily foreclose modification” on the 

basis that “a substantial change of material circumstances had 

not occurred.” According to Kirsling, he was asking for a 

modification of parent-time, and the trial court therefore should 

have applied “a less strict” standard.
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¶49 “We generally review the determination to modify a 

divorce decree for an abuse of discretion. However, to the extent 

that determination is based on a conclusion of law, we review it 

for correctness.” Snyder v. Snyder, 2015 UT App 245, ¶ 9, 360 P.3d 

796 (quotation simplified).

¶50 The Utah Supreme Court has recognized that the 

threshold “change in circumstances required to justify a 

modification of a divorce decree varies with the type of 

modification sought.” Haslam v. Haslam, 657 P.2d 757, 758 (Utah 

1982). As a general rule, modifying a custody order requires a 

showing of a substantial and material change in circumstances. 

Doyle v. Doyle, 2011 UT 42, ¶¶ 24–25, 258 P.3d 553. In contrast, 

altering parent-time arrangements requires a showing of 

changed circumstances, but that “showing does not rise to the 

same level as the substantial and material showing required 

when a district court alters custody.” Jones v. Jones, 2016 UT App 

94, ¶ 10, 374 P.3d 45 (citing Becker v. Becker, 694 P.2d 608, 609, 611 

(Utah 1984); Haslam, 657 P.2d at 758); accord Blocker v. Blocker, 

2017 UT App 10, ¶¶ 12–14, 391 P.3d 1051.

¶51 Contrary to Kirsling’s contention, the trial court did not 

apply a “substantial change of material circumstances” standard. 

The court ultimately stated that Kirsling’s move was 

“insufficient to create a sufficient change in circumstances to 

warrant reconsideration of the Court’s Order.”12 (Emphasis 

added.) And while the court described the standard as “high,” 

 

12. Kirsling points to this statement as evidence that the court 

applied the “substantial change in material circumstances” 

standard to foreclose modification. But this statement cannot be 

read in isolation. As we explain below, because the court 

actually reached the merits of Kirsling’s petition, we cannot 

agree that the court refused to reconsider its prior order based 

on an unmet threshold.
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nowhere in its order did it identify the “substantial change of

material circumstances” standard as the one that must be met.

¶52 Even more importantly, however, the trial court did not 

arbitrarily refuse to hear Kirsling’s petition based on an 

application of a standard. Rather, the court considered the merits 

of Kirsling’s petition. The court accepted as true that Kirsling 

moved to Stansbury Park after the entry of the Amended Decree, 

but it rejected his assertion that the court’s custody and parenttime orders were driven primarily by the fact that Kirsling lived 

in Taylorsville at the time of trial. The court expressed concern 

that Kirsling’s “stop in [Stansbury Park would] be . . . brief,” 

given Kirsling’s “migratory history.” The court also expressed 

concern that the move was motivated to create a change of 

circumstances to justify a modification of the Amended Decree. 

Thus, rather than reject Kirsling’s petition on the basis that a 

move by one parent fails to constitute a “substantial change in 

material circumstances,” the court considered its merits and 

determined why Kirsling’s move, under the relevant 

circumstances, did not warrant modification of the court’s order.

¶53 But even assuming the court’s order could be construed 

as having applied a “substantial change in material 

circumstances” standard, Kirsling’s argument would fail for lack 

of preservation. “To preserve an argument for appellate review, 

the appellant must first present the argument to the district court 

in such a way that the court has an opportunity to rule on it.” 

Gowe v. Intermountain Healthcare, Inc., 2015 UT App 105, ¶ 7, 356 

P.3d 683 (quotation simplified). “We generally do not address 

unpreserved arguments raised for the first time on appeal.” Id.

¶54 Kirsling never alerted the court to his argument that his 

petition requested a type of modification that should be based 

on something less than a substantial and material change of 

circumstances. Instead, he practically invited the court to apply 

the heightened standard. Kirsling premised his petition on the 
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occurrence of “[a] significant change in circumstances,” and in 

his briefing he referred to a move to a new community as an 

example of a “material and substantial change[]” justifying the 

modification of a custody award. These submissions—

particularly the suggested standard—arguably invited the court 

to apply the standard about which Kirsling now complains. See 

Kerr v. City of Salt Lake, 2013 UT 75, ¶ 44, 322 P.3d 669 (stating 

that under the doctrine of invited error, “a litigant may not 

induce the trial court to make a ruling and then argue on appeal 

that the ruling was in error”). In any event, Kirsling did not 

preserve his argument that the court erred in applying the 

substantial change of circumstances standard rather than “a less 

strict” standard “for a change in parent time.” See Baumann v. 

Kroger Co., 2017 UT 80, ¶¶ 17–18 (deeming an argument 

unpreserved where the appellant did not argue for the more 

forgiving standard she advocated for on appeal and where she 

arguably invited the district court to apply the less forgiving 

standard). Thus, we will not now reverse the trial court’s denial

of his petition to modify on that basis. See Gowe, 2015 UT App 

105, ¶ 9.

B. Attorney Fees on Appeal

¶55 Both parties request an attorney fees award pursuant to 

rule 33 of the Utah Rules of Appellate Procedure. Rule 33 allows 

this court, if it determines that an appeal is “either frivolous or 

for delay,” to “award just damages, which may include . . . 

costs . . . and/or reasonable attorney fees, to the prevailing 

party.” Utah R. App. P. 33(a). “[P]arties seeking attorney fees 

under rule 33 face a high bar,” and the Utah Supreme Court has 

directed that such sanctions are warranted only in “egregious 

cases.” Porenta v. Porenta, 2017 UT 78, ¶ 51 (quotation 

simplified). We conclude that this case does not present an 

egregious case and therefore deny the parties’ requests for 

attorney fees.
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CONCLUSION

¶56 In the First Appeal, we conclude that only two of the 

three issues that Kirsling argues on appeal were identified in his 

notice of appeal and are properly before this court. On the merits 

of those two issues, we conclude that Kirsling’s challenge to the 

trial court’s calculation of income fails and he has not shown that 

the trial court erred in denying his motion for a new trial based 

on his claim of newly discovered evidence. As for the Second 

Appeal, we conclude that the trial court did not err in denying

Kirsling’s petition to modify the Amended Decree. Accordingly, 

we affirm the trial court’s decisions in both appeals.