2015 UT App 278

THE UTAH COURT OF APPEALS

LISA V. HIBBENS,

Appellant,

v.

MARK H. HIBBENS,

Appellee.

Opinion

No. 20140826-CA

Filed November 19, 2015

Third District Court, Salt Lake Department

The Honorable Robert P. Faust

No. 064903669

David Pedrazas, Attorney for Appellant

Platte Seth Nielson, Attorney for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which 

JUDGE KATE A. TOOMEY and SENIOR JUDGE RUSSELL W. BENCH 

concurred.

1

VOROS, Judge:

¶1 Lisa V. Hibbens (Wife) and Mark H. Hibbens (Husband) 

divorced in 2006. At the time of the divorce, Wife and Husband 

had three minor children. The divorce decree required, among 

other things, that Husband make the payments on the second 

mortgage on Wife’s parents’ house and pay child support. By 

2013, Wife had retired the second mortgage on her parents’ 

house, and two of the three children had reached the age of 18. 

Both parties asked the court to modify the decree. After a bench 

 

1. The Honorable Russell W. Bench, Senior Judge, sat by special 

assignment as authorized by law. See generally Utah R. Jud. 

Admin. 11-201(6).
Hibbens v. Hibbens

20140826-CA 2 2015 UT App 278

trial, the trial court found a substantial and material change in 

circumstances. It extinguished Husband’s obligation to make 

payments on the retired mortgage, terminated his child support 

obligation with respect to the adult children, increased his child 

support for the minor child, and ordered Wife to repay child 

support overpayments. Wife appeals. We affirm.

BACKGROUND

The Mortgage

¶2 The 2006 divorce decree (the Decree) awarded Wife the 

marital home and required her to assume the mortgage on it. It 

also required Husband to assume the second mortgage on Wife’s 

parents’ house (the Mortgage). Wife’s parents died the following 

month. She sold the marital home and moved into her parents’ 

house. In February 2007, Wife told Husband that she planned to 

refinance the Mortgage, after which he would not have to make 

payments on it. Wife refinanced the Mortgage in January 2008

but did not inform Husband of the refinance. In the meantime, 

due to health issues, Husband moved in with Wife and her 

partner. During this time, Husband continued to make partial

payments on the (by then retired) Mortgage, paid child support, 

paid Wife some rent, and contributed to the utilities. 

¶3 When Husband learned in December 2009 or January 

2010 that Wife had refinanced the Mortgage, he stopped making 

payments on it. From the time of the refinance until Husband 

stopped making the Mortgage payments, he paid Wife $9,600 

toward the Mortgage. In August 2010, Husband’s then-fiancée 

exchanged Facebook messages with Wife. Wife acknowledged 

that she told Husband he did not have to pay the Mortgage:

[Husband] was court ordered to pay off the 

loan . . . on my parents’ house . . . . The payment 

was $575.00 with a balance of $45,000. I told 
Hibbens v. Hibbens

20140826-CA 3 2015 UT App 278

[Husband] he does not have to pay that off, I will. 

He accepted and no longer has to make that 

payment.

Wife testified at trial that she only intended to relieve Husband 

of his obligation to pay the Mortgage temporarily. In December 

2010, Wife emailed Husband and asked if he would ‚resume 

paying the $575 mortgage payment.‛ Husband replied, ‚What 

mortgage payment, it got rolled into the refinance. You said once 

you did that I was no longer responsible.‛

¶4 The trial court found that a substantial and material 

change in the parties’ circumstances had occurred since entry of 

the Decree. The court concluded that the ‚parties did not 

anticipate an assumption of the [Mortgage] by the party who 

had not previously been ordered to pay.‛ The court found 

Husband’s testimony regarding the Mortgage credible and 

found Wife’s testimony regarding the Mortgage not credible. 

The court explained that the message Wife sent to Husband’s 

then-fiancée made no qualifications regarding Husband’s 

obligation for the Mortgage and did not support her testimony.

In light of these facts, the court ordered that Husband ‚is no 

longer required to pay any sums to [Wife] relating to the 

[Mortgage].‛

Child Support

¶5 At the time of their divorce, Wife and Husband had three 

minor children. Wife’s average monthly income was $1,925.21; 

Husband’s average monthly income was $4,158.33. The Decree 

required Husband to ‚pay $962.00 per month in child support in 

conformance with the Utah Child Support guidelines.‛ The 

Decree also provided that Husband’s child support obligation 

would continue ‚until all children are no longer attending 

college.‛ Husband and Wife both acknowledged at trial that they 

were unaware of this provision at the time of the divorce.
Hibbens v. Hibbens

20140826-CA 4 2015 UT App 278

¶6 By the time the court issued its decision on the parties’

petitions to modify, only one of the three children remained a 

minor. The other two children had turned 18 and graduated 

from high school. Neither had attended college. One had

married, and neither had any special needs. 

¶7 Since the divorce, Wife had become permanently 

disabled. As a result, the trial court found that Wife had a 

monthly income of $895 per month. Thus, the trial court found

Wife’s monthly income suffered a 53% decrease, constituting a 

material change under Utah law. The trial court also found that 

Wife’s disability constituted a permanent condition, ‚which 

materially changes her employment potential and her ability to 

earn income.‛ Finally, the trial court concluded that because the 

Decree contemplated that the children would attend college, the 

fact that neither of the adult children had attended college

constituted a substantial and material change in circumstances. 

¶8 Based on these changes in the parties’ circumstances, the 

trial court modified Husband’s child support obligation. The 

court first determined that ‚[t]he child support provision in the 

Decree is unusual and constitutes a ‘deviated’ child support 

order.‛ The trial court terminated Husband’s child support 

obligations with respect to the two adult children. The court

increased Husband’s child support for the minor child to $517 

and ordered that obligation to continue until the child turns 18 

or graduates from high school, whichever occurs later. The court 

made its child support modifications effective as of February 

2013, the date the parties filed their cross-petitions. Accordingly,

it awarded Husband $7,565, ‚representing the overpayment of 

child support from February 2013 through June 2014.‛

ISSUES ON APPEAL

¶9 Wife raises two issues on appeal. First, she contends that 

the trial court erred in relieving Husband of his obligation to pay 
Hibbens v. Hibbens

20140826-CA 5 2015 UT App 278

the Mortgage. Second, she contends that the trial court erred in 

modifying Husband’s child support obligation.

ANALYSIS

I. The Mortgage

¶10 Wife contends that the trial court erred in terminating

Husband’s obligation to pay the Mortgage. Specifically, she 

argues that the trial court could terminate Husband’s obligation 

to pay the Mortgage only if the court found that Wife 

‚intentional[ly] and distinctly‛ waived her right to receive 

payments. Husband responds that the trial court’s ruling ‚was 

not dependent on the trial court’s application of the law on 

waiver. It was based upon the normal standard applied in 

divorce modification cases—whether a substantial change in 

circumstances has occurred since the entry of the decree that 

supports a modification of the decree.‛

¶11 We agree with Husband. This round of litigation arose

from the parties’ cross-petitions to modify the Decree based on a 

substantial change in circumstances. The trial court did find that 

Wife told Husband that he no longer had to make payments on 

the second mortgage. But, as explained below, the court based its 

modification of the Decree not on waiver, but on a finding of a

substantial and material change in the parties’ circumstances.

Accordingly, we consider whether a substantial change in 

circumstances supports the trial court’s modification of the 

Decree.

¶12 ‚To succeed on a petition to modify a divorce decree, the 

moving party must first show that a substantial material change 

of circumstances has occurred since the entry of the decree and 

not contemplated in the decree itself.‛ Bolliger v. Bolliger, 2000 UT 

App 47, ¶ 11, 997 P.2d 903 (emphasis, citation, and internal 

quotation marks omitted). ‚The determination of the trial court 
Hibbens v. Hibbens

20140826-CA 6 2015 UT App 278

that there [has or has not] been a substantial change in 

circumstances . . . is presumed valid, and we review the ruling 

under an abuse of discretion standard.‛ Id. ¶ 10 (alteration and 

omission in original) (citation and internal quotation marks 

omitted). An appellate court ‚can properly find abuse [of 

discretion] only if no reasonable person would take the view 

adopted by the trial court.‛ Goggin v. Goggin, 2011 UT 76, ¶ 26, 

267 P.3d 885 (citation and internal quotation marks omitted).

¶13 Here, the trial court found that ‚[t]he parties did not 

anticipate an assumption of the [Mortgage] obligation by the 

party who had not been previously ordered to pay the debt.‛ 

Further, the trial court found Wife’s ‚refinance of the [Mortgage] 

obligation constitutes a substantial and material change since the 

entry of the [D]ecree which supports modification of the 

[D]ecree.‛ Thus, the trial court ruled that Husband ‚should no 

longer be obligated to pay [Wife] on the [Mortgage] obligation,

or to reimburse her for payments she made on the refinance of 

that obligation.‛

¶14 The court also believed Husband’s testimony that Wife 

had told him she planned to refinance the Mortgage, after which

he would no longer have to pay the Mortgage; the court

disbelieved Wife’s testimony that she intended to relieve 

Husband of his obligation to pay the Mortgage only temporarily.

While these findings might lend support to a finding of waiver, 

in context they demonstrate that the parties themselves viewed 

the sale of the house and the payoff of the Mortgage as material 

circumstances justifying a modification of Husband’s mortgage 

obligation. Wife challenges none of these findings on appeal; 

accordingly, ‚we accept these findings as true in our analysis on 

appeal.‛ See D’Elia v. Rice Dev., Inc., 2006 UT App 416, ¶ 24, 147 

P.3d 515.

¶15 Based on the trial court’s factual findings, we conclude 

that the trial court did not abuse its discretion in concluding that 

a material and substantial change occurred justifying a 
Hibbens v. Hibbens

20140826-CA 7 2015 UT App 278

modification of the Decree. Accordingly, we affirm the trial 

court’s order terminating Husband’s obligation to pay the 

Mortgage.

II. Child Support

¶16 Wife contends that ‚the trial court’s modification of 

[Husband’s] child support obligation was incorrect.‛ She 

challenges the trial court’s modification in two respects. First, 

she challenges the termination of Husband’s child support 

obligation with respect to the two older children. She argues that 

‚the Court failed to make any findings sufficient [to] justify[] a 

modification of the child support termination date based upon a 

change in circumstances and in the best interests of the child.‛ 

Second, Wife challenges the amount of Husband’s new child

support obligation. She argues that ‚modifying child support in 

this case by lowering child support based upon [her] reduction 

in income based upon her disability is unconscionable and not in 

the best interest of the child.‛

¶17 ‚In reviewing child . . . support proceedings, we accord 

substantial deference to the trial court’s findings and give it 

considerable latitude in fashioning the appropriate relief. We 

will not disturb that court’s actions unless the evidence clearly 

preponderates to the contrary or there has been an abuse of 

discretion.‛ Woodward v. Woodward, 709 P.2d 393, 394 (Utah 1985)

(per curiam).

A. The Adult Children

¶18 The Utah Child Support Act defines child generally as an 

unemancipated son or daughter under 18, in high school or 

incapacitated from earning a living:

‚Child‛ means:

(a) a son or daughter under the age of 18 

years who is not otherwise emancipated, self-
Hibbens v. Hibbens

20140826-CA 8 2015 UT App 278

supporting, married, or a member of the armed 

forces of the United States;

(b) a son or daughter over the age of 18 

years, while enrolled in high school during the 

normal and expected year of graduation and not 

otherwise emancipated, self-supporting, married, 

or a member of the armed forces of the United 

States; or

(c) a son or daughter of any age who is 

incapacitated from earning a living and, if able to 

provide some financial resources to the family, is 

not able to support self by own means.

Utah Code Ann. § 78B-12-102(7) (LexisNexis 2012). Consistent 

with this definition, the Act provides that, unless a child support 

order provides otherwise, when a child turns 18 or graduates 

from high school, the child support obligation ‚automatically 

adjust[s],‛ excluding that child from the calculation:

When a child becomes 18 years of age or graduates 

from high school during the child’s normal and 

expected year of graduation, whichever occurs 

later . . . the base child support award is 

automatically adjusted to the base combined child 

support obligation for the remaining number of 

children due child support . . . unless otherwise 

provided in the child support order. 

Id. § 78B-12-219(1). However, if ‚the order deviates from the 

guidelines, automatic adjustment of the order does not apply 

and the order will continue until modified by the issuing 

tribunal.‛ Id. § 78B-12-219(3). 

¶19 Furthermore, ‚courts in divorce actions may order 

support to age 21.‛ Id. § 15-2-1 (2013). Thus, the court ‚‘has 

power to order continued support until age 21 when it appears 

to be necessary and when the court makes findings of any 
Hibbens v. Hibbens

20140826-CA 9 2015 UT App 278

special or unusual circumstances to justify the order.’‛ Thornblad 

v. Thornblad, 849 P.2d 1197, 1199 (Utah Ct. App. 1993) (quoting 

Harris v. Harris, 585 P.2d 435, 437 (Utah 1978)).

¶20 Here, because the Decree provided that child support 

‚shall continue until all of the children are no longer attending 

college,‛ the trial court determined this to be ‚a ‘deviated’ child 

support order.‛ Thus, under Utah law, the order would not 

automatically adjust as the children became emancipated; rather,

it would ‚continue until modified by the issuing tribunal.‛ Utah 

Code Ann. § 78B-12-219(3). 

¶21 The issuing tribunal in this case modified the child 

support order with respect to the parties’ adult children. The 

trial court found that these children are not under the age of 18 

years, that one is married, and that ‚[n]either of the two 

emancipated children is disabled or struggling with any special 

needs that would justify extended child support for them . . . 

beyond high school graduation or turning 18 years of age.‛

Accordingly, neither qualifies as a child as defined by the Utah 

Child Support Act. In addition, the court found that neither had 

ever attended college.

¶22 Given these findings, we cannot conclude that the trial 

court failed to make required findings or otherwise abused its 

discretion in terminating Husband’s obligation to pay child 

support for the two adult children. The children both turned 18 

and no longer qualified as children under the Act. The court had

power to order support to continue until age 21 based on finding 

‚special or unusual circumstances to justify the order.‛

Thornblad, 849 P.2d at 1199 (citation and internal quotation marks 

omitted). But the court found no such special or unusual 

circumstances, and Wife presented no evidence to support such 

a finding. Finally, we cannot agree that the trial court’s order 

was not in the best interest of any children. As explained above, 

the adult children at issue here are not, for purposes of the Utah 

Child Support Act, children.
Hibbens v. Hibbens

20140826-CA 10 2015 UT App 278

¶23 Accordingly, we affirm the trial court’s order terminating 

Husband’s child support obligation for his adult children.

B. The Minor Child

¶24 Under the Utah Child Support Act, ‚A parent . . . may at 

any time petition the court to adjust the amount of a child 

support order if there has been a substantial change in 

circumstances.‛ Utah Code Ann. § 78B-12-210(9)(a) (LexisNexis 

2012). A substantial change in circumstances may include, 

among other things, ‚material changes of 30% or more in the 

income of a parent,‛ or ‚material changes in the employment 

potential and ability of a parent to earn.‛ Id. § 78B-12-

210(9)(b)(iii)–(iv). 

¶25 Taking the best interests of the child into account, a court 

tasked with reviewing a petition to modify the amount of a child 

support order first determines whether a substantial change has 

occurred. Id. § 78B-12-210(9)(c)(i). Then, if a substantial change 

has occurred, the court determines ‚whether the change results 

in a difference of 15% or more between the payor’s ordered 

support amount and the payor’s support amount that would be 

required under the guidelines.‛ Id. § 78B-12-210(9)(c)(ii). Next, if 

‚there is a difference of 15% or more‛ and ‚the difference is not 

of a temporary nature,‛ the court shall adjust the child support 

amount in conformance with the guidelines. Id. § 78B-12-

210(9)(c)(iii). ‚Finally, when explaining the outcome of a 

modification petition, the court must make findings on all 

material issues, and its failure to delineate what circumstances 

have changed and why the changes support the 

modification . . . constitutes reversible error unless the facts in 

the record are clear, uncontroverted and only support the 

judgment.‛ Diener v. Diener, 2004 UT App 314, ¶ 7, 98 P.3d 1178 

(citation and internal quotation marks omitted). 

¶26 The trial court followed these requirements to the letter. 

In considering an adjustment in the amount of child support for 
Hibbens v. Hibbens

20140826-CA 11 2015 UT App 278

the minor child, the court found Wife’s income changed from 

$1,925 per month to $895 per month. The court found the change 

in Wife’s income amounted to a 53% decrease and thus 

constituted a substantial change—i.e., a change of more than 

30% in income. The court also found that Wife’s disability

constituted a ‚permanent condition which materially changes 

her employment potential and her ability to earn income.‛ This 

too, the court concluded, constituted a substantial change under 

Utah law.

¶27 The court next determined that Wife’s change in income, 

together with the emancipation of two of the children, resulted

in a 15% or more change in Husband’s child support obligation. 

See Utah Code Ann. § 78B-12-210(9)(c)(ii). Given the difference of 

at least 15%, and given the court’s finding that the decrease in 

Wife’s income was not temporary, the court adjusted Husband’s 

child support obligation. Husband’s child support obligation for 

the minor child effectively increased under the court’s order. 

Because the trial court followed the statute to the letter and 

clearly delineated the facts underlying the change in 

circumstances, we cannot agree that it abused its discretion in 

increasing Husband’s child support obligation for the minor 

child.

¶28 Nevertheless, Wife argues that the trial court’s order 

‚modifying the child support amount failed to consider the best 

interests of the children.‛ Wife continues, ‚‘Clearly a decrease in 

child support from the guideline amount has an obvious 

potential to negatively affect the best interest of the child.’‛

(Quoting Cantrell v. Cantrell, 2013 UT App 296, ¶ 14 n.5, 323 P.3d 

586.) Wife goes on to assert that ‚modifying child support in this 

case by lowering child support based upon [her] reduction in 

income . . . [and] disability is unconscionable and not in the best 

interest of the child.‛ 

¶29 If the trial court had actually reduced the child support 

obligation with respect to the minor child or otherwise deviated 
Hibbens v. Hibbens

20140826-CA 12 2015 UT App 278

from the guidelines, we might agree. But it did not do so. True, 

the Husband’s total child support obligation decreased from 

$962 (for three children) to $517 (for one child). But the court 

based the overall decrease not on Wife’s ‚reduction in income,‛ 

as she now claims, but on the two older children’s emancipation.

We have already concluded that the trial court did not abuse its 

discretion by discontinuing child support for the adult children. 

See supra ¶¶ 20–23. And we similarly cannot say that the court 

abused its discretion by setting the remaining minor child’s 

support in conformance with the guidelines.

2

¶30 Finally, Wife argues that the trial court failed to consider 

‚the best interests of the child and/or make findings of a 

substantial change in circumstances to justify a modification of 

the termination date of the child support obligation.‛ 

Specifically, she asserts that ‚[t]he court failed to consider 

whether it was in the best interest of the children to modify[] the 

termination date of the child support and whether the youngest 

child would be attending college.‛ Again, we do not agree.

¶31 The trial court found that ‚[t]he Decree does not address 

the intent of the parties regarding payment for college expenses 

for any of the children.‛ Thus, the trial court concluded ‚[t]he 

parties are left to resolve between themselves as to the extent 

they will help their children with college expenses or with 

support beyond the age of 18 and the graduation from high 

school.‛ Further, our supreme court has explained ‚that the 

 

2. To the extent Wife’s argument challenges the sufficiency of the 

trial court’s findings with respect to the best interests of the 

child, we reject her argument as unpreserved. See 438 Main St. v. 

Easy Heat, Inc., 2004 UT 72, ¶¶ 50–51, 99 P.3d 801 (declining to 

consider the appellant’s sufficiency challenge where the 

appellant raised the sufficiency issue for the first time on 

appeal). 
Hibbens v. Hibbens

20140826-CA 13 2015 UT App 278

court has power to order continued [child] support until age 21 

when it appears to be necessary and when the court makes findings of 

any special or unusual circumstances to justify the order.‛ Harris v. 

Harris, 585 P.2d 435, 437 (Utah 1978) (emphasis added). 

¶32 Here, the court’s findings do not reveal any necessity or 

special or unusual circumstances that would have justified 

extending the minor child’s child support beyond the age of 18. 

The fact that Husband might have been obligated to pay child 

support for the adult children had they chosen to attend college 

does not constitute such a circumstance. As a result, we cannot 

conclude the trial court abused its discretion, and we 

accordingly affirm.

CONCLUSION

¶33 Because the trial court did not abuse its discretion in 

terminating Husband’s obligation to pay the Mortgage, or in 

modifying Husband’s child support obligations, we affirm.