2021 UT App 58

THE UTAH COURT OF APPEALS

BRUCE RAY MCFARLAND,

Appellant and Cross-appellee,

v.

NICOLE S. MCFARLAND,

Appellee and Cross-appellant.

Opinion

No. 20190541-CA

Filed June 4, 2021

Second District Court, Farmington Department

The Honorable David J. Williams

No. 084701533

Jacob K. Cowdin and A. Douglas Anderson, 

Attorneys for Appellant and Cross-appellee

Angilee K. Dakic and Ryan C. Gregerson Attorneys

for Appellee and Cross-appellant

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES 

MICHELE M. CHRISTIANSEN FORSTER and DAVID N. MORTENSEN

concurred.

HARRIS, Judge:

¶1 Bruce Ray McFarland (Bruce) and Nicole S. McFarland 

(Nicole)1 divorced in 2009 pursuant to a stipulated divorce 

decree, but soon thereafter began to ignore many of the decree’s 

important provisions. However, neither party brought any 

matter to the attention of the district court for some eight years, 

until Bruce filed a petition to modify in 2017, and Nicole 

followed up with a request that the court hold Bruce in 

 

1. Because the parties share the same surname, for clarity we 

identify them by their first names, with no disrespect intended. 
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contempt. Both parties now appeal the court’s ruling on those 

requests and, for the reasons discussed herein, we affirm in part, 

reverse in part, and remand for further proceedings. 

BACKGROUND

The Divorce Decree

¶2 In 2008, after almost sixteen years of marriage, Bruce and 

Nicole separated, and Bruce filed a petition for divorce. Soon 

thereafter, the parties negotiated a resolution to the divorce 

proceedings, and filed papers memorializing their agreement. In 

February 2009, the court entered a decree of divorce (the Decree) 

that incorporated the parties’ stipulated agreement. With regard 

to alimony and the house in which they lived while they were 

married (the Home), the parties’ agreement was straightforward: 

Bruce was ordered to pay $1,700 per month in alimony to Nicole, 

beginning in November 2008 and continuing until Nicole 

“remarries, cohabits, dies, for a term equal to their marriage, or 

further order of the Court,” and Nicole was awarded the Home, 

including the obligation to make the mortgage payments.

¶3 But the parties’ agreement regarding custody and child 

support was unusual. Bruce was to have overnight custody of 

the parties’ four children every week from Sunday evening until 

Friday morning, with the parties each enjoying weekend 

overnight custody on an alternating basis. During the 

modification proceedings at issue here, Nicole acknowledged 

that the arrangement entitled her to fewer than 30% of the 

overnights; indeed, the district court found that this 

arrangement resulted in Bruce having “24 overnights per month 

with the children,” leaving Nicole with just six, and neither party 

takes issue with that finding. But despite the fact that Bruce was 

awarded more than 70% of the overnights, see Utah Code Ann. 

§ 30-3-10.1(2)(a) (LexisNexis 2009) (defining “joint physical 

custody” as any arrangement in which “the child stays with each 

parent overnight for more than 30% of the year”), the parties 
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labeled their arrangement “joint . . . physical custody,” perhaps 

because the arrangement contemplated that Nicole would pick 

the children up from school every day and care for them until 

eight o’clock p.m., at which point Bruce was to retrieve the 

children so that they could “stay with him overnight.” 

¶4 With regard to child support, the parties agreed to 

calculate the amount using the sole custody worksheet, even 

though they labeled their arrangement as joint custody, and 

agreed that Bruce—and not Nicole, notwithstanding the fact that 

Bruce had the lion’s share of the overnights—would be 

considered the “Obligor Parent” on the worksheet. Using these 

parameters, the parties agreed that Bruce would pay Nicole 

monthly child support equating to one-half of what the 

worksheet said Bruce would owe if he were the Obligor Parent, 

an amount the parties computed to be $739.73 per month at the 

time the Decree was entered, when all four children were still 

minors.2

 

2. Divorcing parties have limited ability to make child support 

obligations the subject of a stipulated agreement. See Utah Code 

Ann. § 78B-12-201(4) (LexisNexis 2018) (“A stipulated amount 

for child support . . . is adequate under the guidelines if the 

stipulated child support amount . . . equals or exceeds the base 

child support award required by the guidelines.”); see also Baggs 

v. Anderson, 528 P.2d 141, 143 (Utah 1974) (stating that a child’s 

right to receive child support is his or her own and “is not 

subject to being bartered away” by the litigating parents); Price v. 

Price, 289 P.2d 1044, 1044 (Utah 1955) (“Future child support 

effectively cannot be the subject of bargain and sale.”). Because 

no party asks us to do so, we do not reach the question of 

whether it was appropriate for the district court, at the time the 

Decree was entered, to approve this particular child support 

arrangement. 
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Post-Divorce Events and Conduct

¶5 Soon after the court entered the Decree, both parties 

began to ignore many of its provisions. For instance, Nicole 

made no mortgage payments on the Home. And Bruce made 

only one alimony payment (in January 2009) and three child 

support payments (in December 2008, and January and February 

2009), but after that made no payments of either kind. 

¶6 In addition, with Nicole’s permission, Bruce moved back 

into the Home in April 2009. After that point, although Bruce 

made no payments denominated as alimony or child support, he 

did resume paying the mortgage on the Home, a payment that 

happened to be $1,728 per month, only slightly more than 

Bruce’s alimony obligation. When Bruce first moved back in, he 

and Nicole lived separately for a time, but beginning in 

September 2009, and lasting until April 2010, Bruce and Nicole 

resumed cohabiting as a couple, which included sharing familial 

expenses and reinitiating sexual relations. It is not a matter of 

dispute in this case that, during that seven-month period, the 

parties were cohabiting, as that term is used in relevant statutes 

and case law. See Myers v. Myers, 2011 UT 65, ¶ 17, 266 P.3d 806 

(identifying the “hallmarks of cohabitation, including 

participation in a relatively permanent sexual relationship akin 

to that generally existing between husband and wife and the 

sharing of the financial obligations surrounding the maintenance 

of the household” (quotation simplified)); see generally Utah 

Code Ann. § 30-3-5(10) (LexisNexis 2017) (stating that alimony 

“terminates upon establishment by the party paying alimony 

that the former spouse is cohabitating with another person”). 

¶7 In April 2010, Nicole enlisted in the military, and left Utah 

for basic training. Over the next seven years, Bruce resided in the 

Home with the children, and provided all necessary childcare 

and financial support, including making the monthly mortgage 

payments on the Home. Nicole served two tours of duty 

overseas with the military, and visited the children or took them 

on vacation periodically while on leave. But other than these 
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short visits, Nicole exercised no custody or parent-time, and 

provided no significant financial support to the children. 

Eventually, in 2015, Nicole remarried. 

¶8 For the seven years following Nicole’s enlistment, both 

parties seemed content with their arrangement and, even though 

both were materially violating the terms of the Decree, neither 

filed so much as a single document with the court. In particular, 

neither party sought to modify the terms of the Decree, and 

neither party sought contempt sanctions against the other.

The Post-Divorce Filings

¶9 The parties’ tacit arrangement came to an end in 2017 

when Bruce sought to refinance the Home. Because Nicole had 

been awarded the Home in the Decree, Bruce asked Nicole to 

deed him the Home to facilitate the refinance. Nicole refused to 

authorize the refinance unless Bruce paid her half the equity, 

asserting that she owned the Home and that any mortgage 

payments made by Bruce constituted “either rent or alimony 

payments” that he owed her. Then, in June 2017, Bruce filed a 

petition to modify, followed by a motion for temporary orders in 

February 2018, bringing three separate provisions of the Decree 

to the court’s attention. First, Bruce requested that alimony be 

terminated, dating back to 2009. Second, Bruce asked the court to 

modify the Decree to award him sole physical and legal custody 

of the two remaining minor children, and asked that he be 

awarded child support payments from Nicole going forward. 

And finally, Bruce asked the court to modify the Decree to 

award him the Home, alleging that he assumed the mortgage to 

avoid foreclosure because Nicole had “abandoned the property 

when she joined the military.” While the petition and motion for 

temporary orders were pending, Bruce completed a refinance of 

the Home, apparently finding a way to close the transaction 

without Nicole’s authorization. 

¶10 Nicole responded by filing two orders to show cause, 

asking the court to hold Bruce in contempt in three respects: 
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(1) for failing to make alimony payments; (2) for failing to make 

child support payments; and (3) for occupying the Home and for 

refinancing it without her authorization. Nicole asked the court 

to enter judgment in her favor for alimony and child support 

arrears, as well as for “the amount that [Bruce] cashed out when 

he refinanced” the Home, and asked the court to order that she 

obtain immediate “use and possession” of the Home. 

¶11 After a hearing, a domestic relations commissioner 

certified a number of issues as ripe for an evidentiary hearing 

before the district court, including the following: (1) whether 

Bruce should be held in contempt for failing to pay alimony and, 

if so, the amount of arrears at issue; (2) whether Bruce should be 

held in contempt for failing to pay child support and, if so, the 

amount of arrears at issue; (3) whether Bruce should be held in 

contempt for refinancing the Home without Nicole’s consent; 

and (4) whether Bruce should be held in contempt for occupying 

and refusing to vacate the Home. All of the issues certified by 

the commissioner were framed as contempt or temporary order 

issues; the commissioner apparently did not envision that the 

hearing would be a final dispositive hearing on Bruce’s petition 

to modify. 

¶12 In anticipation of the evidentiary hearing before the 

district court, both parties filed papers outlining their positions. 

Citing section 30-3-5(10) of the then-applicable Utah Code, Bruce 

argued that he did not owe any alimony arrears because his 

obligation to pay alimony terminated in 2009 due to “the 

cohabitation relationship” that the two established when they 

moved back into the Home together. Citing Scott v. Scott, 2017 

UT 66, ¶¶ 10, 26–27, 26 n.7, 423 P.3d 1275, Nicole argued in 

response that, under the applicable statute as interpreted by our 

supreme court, a party attempting to terminate alimony for 

cohabitation must file a motion or petition “during [the] alleged 

co-habitation.” 

¶13 Regarding child support, Bruce asserted that he should 

not be required to pay Nicole for any point after 2009, because 
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the children had been almost entirely in his care since then. In 

particular, Bruce argued for the applicability of section 78B-12-

108 of the Utah Code, which provides that child support 

payments generally “follow the child,” and that changes in child 

support obligations can, under certain circumstances, occur 

“without the need to modify” the governing decree. See Utah 

Code Ann. § 78B-12-108(1), (2) (LexisNexis 2017). Bruce’s 

arguments in the pretrial briefing were entirely defensive—that 

is, he asserted that he should not be required to make child 

support payments to Nicole after 2009, but at no point did he 

assert an entitlement to child support arrears from Nicole 

regarding any time period prior to the filing of his petition to 

modify. 

The Hearing and Subsequent Ruling

¶14 At the ensuing evidentiary hearing, the court heard live 

testimony from Bruce, Nicole, Bruce’s father, and the parties’ 

adult daughter. At the conclusion of the evidence, the court took 

the matter under advisement, and asked the parties to submit 

written closing arguments in the form of post-trial briefs. 

¶15 In her closing brief, Nicole attempted to rebut Bruce’s 

cohabitation claim with two arguments. First, Nicole asserted 

that the governing statute, as interpreted in Scott, required Bruce 

to have requested termination of alimony during the period of 

cohabitation. Second, Nicole argued that, even if Bruce’s request 

was timely, no cohabitation occurred because Bruce, the payor 

spouse, did not qualify as “another person” within the meaning 

of the governing statute. See Utah Code Ann. § 30-3-5(10) 

(LexisNexis 2017) (stating that alimony terminates if “the former 

spouse is cohabitating with another person”). For his part, while 

he attempted to rebut all of Nicole’s claims, Bruce again made no 

affirmative claim to child support arrears running in his 

direction. 

¶16 A few weeks later, the court issued a written ruling. With 

regard to alimony, the court found Bruce in contempt for failing 
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to make payments. First, the court concluded that the mortgage 

payments Bruce made were just that—mortgage payments on a 

house Bruce lived in—and could not be considered alimony, and 

it found that Bruce had not paid any alimony since 2009. Second, 

the court determined that, even if all of the hallmarks of 

cohabitation were present between September 2009 and April 

2010, cohabitation had not occurred because “‘cohabitation’ does 

not include meeting the elements of cohabitation with the exspouse.” Accordingly, the court concluded that Bruce’s alimony 

obligation had not terminated in 2009 when the parties moved 

back in together, and that Bruce was in contempt for not paying 

alimony between 2009 and Nicole’s remarriage in 2015. Based on 

those findings, the court computed the alimony arrearage 

amount to be “$150,744.50 plus post-judgment interest,” and 

ordered Bruce to pay that amount. 

¶17 With regard to child support, the court found that Bruce 

was not in contempt. The court accepted Bruce’s argument that, 

pursuant to section 78B-12-108 of the Utah Code, the child 

support obligation was to follow the children, and concluded 

that, pursuant to subsection (2) of that statute, which the court 

found applicable, Bruce was relieved of his child support 

obligation dating back to 2009, even though he did not file a 

petition to modify until 2017. In addition, the court offered its 

view that, even if section 78B-12-108 were inapplicable, “it 

would not be equitable to require” Bruce to pay child support to 

Nicole for time periods in which he cared for the children. On 

those bases, the court determined that Bruce had no obligation to 

pay child support to Nicole after 2009. But the court did “not 

find that [Nicole] was required to pay child support payments to 

[Bruce] after leaving for military service,” noting that, in its 

view, Bruce had not made any such affirmative claim, and 

instead had raised only defensive claims regarding any 

obligations he might have to Nicole. 

¶18 With regard to the Home, the court declined to find Bruce 

in contempt for not vacating the Home, refusing to quitclaim it 

to Nicole, or refinancing it. However, the court made no ruling 
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on altering the Decree’s provision that originally awarded the 

Home to Nicole, stating simply that Bruce “shall be allowed, on 

a temporary basis, to remain” in the Home “until the matter is 

brought forth and certified” by the commissioner as ripe for an 

evidentiary hearing. 

ISSUES AND STANDARDS OF REVIEW

¶19 Both parties appeal the district court’s ruling, raising two 

main issues for our review. First, Bruce challenges the court’s 

determination that his alimony obligation was not terminated by 

cohabitation. In advancing this argument, Bruce relies entirely 

on Utah’s alimony statute, and asserts that the court’s 

interpretation of that statute was incorrect. See Utah Code Ann. 

§ 30-3-5(10) (LexisNexis 2017) (stating that a payor spouse’s 

obligation “terminates upon establishment by the party paying 

alimony that the former spouse is cohabitating with another 

person”).

3 “The proper interpretation and application of a statute 

 

3. The Decree contains slightly different language than the 

alimony statute; it states that the alimony obligation continues 

until Nicole “remarries, cohabits, dies, for a term equal to their 

marriage, or further order of the Court.” Thus, unlike the statute, 

the operative language of the Decree contains no language 

requiring that the payor spouse prove that the payee spouse “is 

cohabitating” at the time of the petition to modify, and contains 

no language specifying that cohabitation, in order to terminate 

alimony, must be “with another person.” See Utah Code Ann. 

§ 30-3-5(10) (LexisNexis 2017). But no party argues that the 

language of the Decree mandates a different result than the 

language of the statute; rather, in making their arguments about 

alimony, both parties rely exclusively on the statute. As our 

supreme court has done under similar circumstances, we limit 

our analysis to the language of the alimony statute. See Scott v. 

Scott, 2017 UT 66, ¶¶ 3 n.1, 21 n.5, 423 P.3d 1275 (stating that, 

because “neither party argues . . . that [the court] should decide 

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is a question of law which we review for correctness . . . .” Veysey 

v. Veysey, 2014 UT App 264, ¶ 7, 339 P.3d 131 (quotation 

simplified). 

¶20 Next, both parties challenge the court’s child support 

rulings. Nicole takes issue with the court’s determination that 

Bruce did not owe her child support payments, pursuant to the 

terms of the Decree, after 2009. And Bruce asserts that the court 

erred by declining to order Nicole to pay child support arrears to 

him. Because the parties’ arguments center on interpretation and 

application of section 78B-12-108 of the Utah Code (Section 108), 

we review the district court’s decision for correctness. See Veysey, 

2014 UT App 264, ¶ 7.4

 

(...continued)

this case under the language of the divorce decree or that the 

decree’s language demands a different result,” the court would 

“limit [its] analysis to the parties’ arguments and [would] not 

consider the decree’s language”).

4. In addition, Nicole argues that the court erred by “failing to 

enter requisite findings for final disposition” of the Home. But 

final disposition of the Home was not an issue certified for 

adjudication at the evidentiary hearing, so it is not surprising 

that the court did not issue a final decision on that matter. In 

general, a district court is allowed “considerable discretion to 

administer the business of its docket and determine how a trial 

should be conducted.” Walker Drug Co. v. La Sal Oil Co., 972 P.2d 

1238, 1244 (Utah 1998) (quotation simplified). The commissioner 

certified issues regarding whether Bruce should be held in 

contempt for occupying the Home, refusing to deed it to Nicole, 

and refinancing it, as well as issues relating to “occupancy” of 

the Home, as raised in Bruce’s motion for temporary orders. But 

neither the commissioner nor the court viewed the evidentiary 

hearing as the final trial on Bruce’s petition to modify; indeed, 

the court clearly used language in its conclusions of law 

(continued...)
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ANALYSIS

I. Alimony

¶21 We first address Bruce’s claim that his alimony obligation 

terminated by operation of statute when the parties cohabited in 

2009 and 2010. Because Bruce’s position is directly foreclosed by 

our supreme court’s decision in Scott v. Scott, 2017 UT 66, 423 

P.3d 1275, we reject his challenge to the district court’s ruling. 

¶22 At all relevant times during the events precipitating this 

appeal, Utah’s alimony statute provided that alimony 

obligations “to a former spouse terminate[] upon establishment 

by the party paying alimony that the former spouse is 

cohabitating with another person.” Utah Code Ann. § 30-3-5(10) 

(LexisNexis 2017) (emphasis added).5 In Scott, our supreme court 

 

(...continued)

indicating that it contemplated further proceedings regarding 

whether to modify the Decree’s provision regarding the Home. 

We anticipate that, on remand, the court will address in some 

fashion the remaining issues raised in Bruce’s petition to modify, 

including this one. Nothing in this opinion should be construed 

as preventing the parties from asking the district court to 

adjudicate those issues in due course. 

5. The same version of the relevant subsection of the alimony 

statute quoted above was in effect when the Decree was entered 

in 2009, see Utah Code Ann. § 30-3-5(10) (LexisNexis 2009), when 

the parties ceased cohabiting in 2010, see id. (2010), and when 

Bruce filed his petition to modify the alimony provision of the 

Decree in 2017, see id. (2017). At oral argument before this court, 

both parties agreed that this version of the alimony statute is 

applicable here. In the wake of the Scott ruling from our supreme 

court, however, the legislature amended the alimony statute. See 

id. § 30-3-5(10)–(12) (Supp. 2018). As it presently reads, the 

statute allows a payor spouse to file a valid petition to modify 

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was asked to interpret the same version of this statute. See 2017 

UT 66, ¶ 3. After noting the statute’s use of present tense 

language—“is cohabitating”—the court interpreted the statute as 

requiring “the paying spouse to establish that the former spouse 

is cohabiting at the time the paying spouse files the motion to 

terminate alimony.” See id. ¶¶ 23, 33. While the Scott opinion 

was not published until 2017, the statutory language the court 

was interpreting in that case had been in effect at all times 

relevant to this case. See supra note 5. That is, Scott did not 

introduce a new rule that was effective only prospectively; 

rather, it provided an interpretation of statutory text that had 

already been in effect for several years. See DIRECTV, Inc. v. 

Imburgia, 577 U.S. 47, 56 (2015) (“[J]udicial construction of a 

statute ordinarily applies retroactively.”); see also Rivers v. 

Roadway Express, Inc., 511 U.S. 298, 311–12 (1994) (stating that 

“the principle that statutes operate only prospectively, while 

judicial decisions operate retrospectively, is familiar to every law 

student” (quotation simplified)). 

¶23 Under the circumstances presented in this case, any 

cohabitation between Bruce and Nicole ceased sometime in early 

2010. But Bruce did not file his petition to modify until 2017. It is 

therefore undisputed that the cohabitation to which Bruce points 

had long since ceased by the time he filed his petition to modify. 

Thus, under the statute then in effect (as interpreted by Scott), 

 

(...continued)

alimony for cohabitation within “one year from the day on 

which the party knew or should have known that the former 

spouse has cohabited with another individual.” Id. § 30-3-

5(12)(b) (2019). The payor spouse no longer needs to file the 

petition while the former spouse is presently cohabiting, so long 

as the petition is filed within one year of notice. Id. § 30-3-

5(12)(a)–(b). Both parties in this case agree that, under the 

current statute, if it applied, Bruce’s petition would be 

considered untimely, because Bruce did not file it within one 

year of learning of Nicole’s cohabitation. 
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that petition was filed some seven years too late. Accordingly, 

Bruce cannot now complain that his alimony obligation should 

be terminated, by operation of statute, due to the parties’ longsince-concluded cohabitation. Bruce has therefore not carried his 

burden of demonstrating error in the district court’s ruling that 

Bruce’s alimony obligation lasted until Nicole’s 2015 

remarriage,6 or in the court’s rulings holding Bruce in contempt 

for failing to pay alimony from 2009 through 2015 and ordering 

him to pay past-due alimony.7

 

6. Neither party disputes that Nicole’s remarriage terminated 

Bruce’s alimony obligation. See Utah Code Ann. § 30-3-5(9) 

(LexisNexis 2017) (providing that the obligation to pay “alimony 

to a former spouse automatically terminates upon the 

remarriage . . . of that former spouse”). 

7. Because Bruce’s argument is foreclosed by Scott, we need not 

reach Nicole’s other argument, adopted by the district court, that 

no cohabitation occurred because Nicole cohabited with Bruce—

the payor spouse—as opposed to someone else. Under the 

applicable version of the alimony statute, alimony terminates 

when the payor spouse demonstrates that the payee spouse “is 

cohabitating with another person.” See Utah Code Ann. § 30-3-

5(10) (LexisNexis 2017) (emphasis added). In Nicole’s view, 

Bruce—as the payor spouse—does not count as “another 

person.” The district court accepted that argument, based in part 

on case law from another jurisdiction. See In re Marriage of 

Antonich, 499 N.E.2d 654, 656 (Ill. App. Ct. 1986). We have our 

doubts about the applicability of the holding of that case to 

Utah’s alimony statute, and about the correctness of the district 

court’s ruling predicated upon it. Compare id. (suggesting that 

“[t]he proper interpretation of a statute cannot always be based 

on its language alone; it must be grounded on the nature, object, 

and consequences that would result from construing it one way 

or another”), with Scott, 2017 UT 66, ¶ 26 (recognizing that courts 

must “start from the premise that we should discern what the 

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II. Child Support

¶24 Next, we address the parties’ respective challenges to the 

district court’s child support rulings. As noted, Nicole takes 

issue with the court’s ruling that Bruce’s child support 

obligations to her, as set forth in the Decree, ended in 2009, and 

that therefore Bruce could not be held in contempt for not 

meeting those obligations. Building on that same ruling, Bruce 

takes issue with the court’s reluctance to go a step further and 

order Nicole to pay him child support arrearages dating to 2009. 

We begin our analysis by discussing some of the broad 

overarching principles governing modification of child support 

orders, including a discussion of Section 108 in particular. We 

then address the parties’ respective challenges, in turn, 

beginning with Nicole’s. 

A

¶25 In general, decrees in domestic relations cases are binding

final judgments that may be modified “only under certain 

conditions.” Kielkowski v. Kielkowski, 2015 UT App 59, ¶ 21, 346 

P.3d 690; see also Robertson v. Stevens, 2020 UT App 29, ¶¶ 6–7, 

461 P.3d 323 (explaining that once “judgment is entered” in a 

divorce case, “the court’s power to modify the judgment is 

limited” (quotation simplified)). While there are several tools 

that can generally be used to modify final judgments, see, e.g., 

 

(...continued)

legislature intended from the plain language of the text 

unencumbered by notions of what we think the legislature must 

have wanted to accomplish”). At least at first blush, the plain 

meaning of “another person” would seem to include the payor 

spouse. However, we need not reach a conclusive ruling on this 

point because we can readily affirm the district court’s ruling on 

another ground—the timeliness ground made clear in Scott, as 

discussed supra ¶¶ 21–23—that is apparent from the record. See 

Bailey v. Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158.
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Utah R. Civ. P. 60(b), one tool that is specific to family law cases 

is the petition to modify, see id. R. 106(a) (stating that, in most 

cases, “proceedings to modify a divorce decree . . . shall be 

commenced by filing a petition to modify”); see also Ross v. Ross, 

2019 UT App 104, ¶ 11, 447 P.3d 104 (“[R]ule 106 establishes a 

general rule . . . that any changes to divorce decrees must be 

brought about by the filing of a petition to modify.”). Parties in 

family law cases may use this tool, in accordance with applicable 

statutes and rules, to seek modification of various provisions of 

decrees, including child support provisions. See Utah Code Ann. 

§ 78B-12-210(9)(a) (LexisNexis 2017) (“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.”); 

see also id. § 30-3-5(3) (“The court has continuing jurisdiction to 

make subsequent changes or new orders for the custody of a 

child and the child’s support, maintenance, health, and dental 

care, and for distribution of the property and obligations for 

debts as is reasonable and necessary.”); id. § 30-3-5(8)(i)(i) (“The 

court has continuing jurisdiction to make substantive changes 

and new orders regarding alimony based on a substantial 

material change in circumstances . . . .”). 

¶26 But in general, modifications to a decree’s provisions 

regarding child support payments may date back only to “the 

month following service” of the petition to modify “on the 

parent whose support is affected.” See id. § 78B-12-112(4); see also

McPherson v. McPherson, 2011 UT App 382, ¶ 17, 265 P.3d 839 

(stating that “the statute does limit the time period during which 

retroactive modification is available”). That is, as concerns child 

support provisions, parties are generally barred from obtaining 

modifications that date back further than the first day of the 

month after the month in which the petition to modify was 

served on the opposing party. 

¶27 One potential exception to this general rule appears in 

Section 108, a statutory provision entitled “Support Follows the 

Child.” See Utah Code Ann. § 78B-12-108 (LexisNexis 2017). That 

section, in relevant part, reads as follows:
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(1) Obligations ordered for child support and 

medical expenses are for the use and benefit of 

the child and shall follow the child.

(2) Except in cases of joint physical custody and split

custody as defined in Section 78B-12-102, when 

physical custody changes from that assumed in 

the original order, the parent without physical 

custody of a child shall be required to pay the 

amount of support determined in accordance 

with [calculation guidelines found in other code 

sections] without the need to modify the order for 

. . . the parent who has physical custody of the 

child. 

Id. (emphasis added). Thus, Section 108 contains an overarching 

mandate that child support payments “shall follow the child,” 

and provides that, under certain limited circumstances, child 

support obligations can change “without the need to modify” 

the child support provisions in the governing decree. Id.; see also

Hansen v. Hansen, 2012 UT 9, ¶ 13, 270 P.3d 531 (stating that, 

under certain circumstances, Section 108 “allows redirection of 

child support [payments] without modification of the support 

order”). In this way, Section 108 constitutes an exception to the 

general rule that modifications to child support provisions may 

date back only to the month following service of the petition to 

modify on the opposing party: where Section 108 applies, it may 

allow modification of child support awards even further back in 

time. 

¶28 But this exception comes with distinct statutory limits. 

Indeed, our supreme court has noted that Section 108 “contains 

two provisions: (1) a general statement that support shall follow 

the child and (2) a specific provision providing guidelines for 

redirection of child support to a new physical custodian.”

Hansen, 2012 UT 9, ¶ 7. And the court has already foreclosed any 

argument that subsection (1)’s general statement—that child 
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20190541-CA 17 2021 UT App 58

support “shall follow the child”—operates by itself “to redirect 

support payments any time anyone provides any shelter or 

sustenance to a child.” See id. ¶ 10. Instead, the specific 

requirements of subsection (2) operate to “modif[y] the general 

statement in subsection (1),” and those specific requirements 

serve as the prerequisites for entitlement to a retroactive change 

in child support that dates back further than the date of a duly 

served petition to modify. See id. ¶ 11. 

¶29 Under the provisions of subsection (2), a litigant can 

obtain a change in a child support provision even “without the 

need to modify the order” itself, but only if two conditions are 

met: (a) there must be a change in “physical custody . . . from 

that assumed in the original order,” and (b) the case must not be 

one involving “joint physical custody.” See Utah Code Ann. 

§ 78B-12-108(2). 

B

¶30 Bruce asserts that Section 108 applies here, and allows 

him to obtain retroactive modification, dating all the way back to 

2009, of the Decree’s child support provisions, even though he 

did not seek modification of either the custody provisions or the 

child support provisions until 2017. The district court agreed 

with Bruce’s interpretation of Section 108, and determined that 

Bruce was not in contempt for failure to pay Nicole child 

support between 2009 and 2017 because he had been caring for 

the children during that time and because child support should 

“follow the children.” (Citing Utah Code Ann. § 78B-12-108.) 

¶31 Nicole challenges the court’s interpretation of Section 108. 

We agree with Nicole because, for two independent reasons, 

Section 108 is inapplicable here. First, this is not a case in which 

physical custody ever legally changed “from that assumed in the 

original order.” See Utah Code Ann. § 78B-12-108(2) (LexisNexis 

2017). And second, even assuming that some sort of de facto 

change of parent-time occurred in 2010 when Nicole joined the 

military, that change did not constitute a change in physical 
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20190541-CA 18 2021 UT App 58

custody under the operative definition of that term. See id. §§ 30-

3-10.1(3)(a), 78B-12-102(15) (each defining “joint physical 

custody” for its respective chapter). 

1

¶32 In order for Section 108’s exception to apply, the situation 

must involve a change in “physical custody . . . from that 

assumed in the original order.” See id. § 78B-12-108(2). The term 

“physical custody,” as used in this statute, is a “legal term of art” 

that “involve[s] much more than actual possession and care of a 

child.” See Hansen, 2012 UT 9, ¶¶ 12, 15, 19. “A physical 

custodian also has a legal responsibility to provide supervision 

and control.” Id. ¶ 15 (emphasis added). 

¶33 Given this definition, a change in “physical custody” 

cannot occur without some sort of “formal legal process[].” Id.

¶¶ 19, 24. In most cases, this occurs by court order following the 

filing of a petition to modify. See id. ¶¶ 21, 25. In other “rare 

circumstances,” this can occur “by statute without the need for a 

hearing or court order.” Id. ¶ 25. But in any event, 

child support should be redirected only to those 

persons or entities who acquire the rights and 

responsibilities of the child’s new “physical 

custodian” under the law. Usually that will happen 

only after adjudication and a formal order, but in 

all cases it requires fulfillment of the statutory 

procedures and standards for a change in physical 

custody. The actual provision of sustenance and 

support is insufficient.

Id.

¶34 In this case, no one disputes that Bruce assumed all 

responsibility for “sustenance and support” of the children after 

April 2010. See id. But in this context, provision of additional 

sustenance and support to the children beyond that anticipated 
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20190541-CA 19 2021 UT App 58

in the Decree is not enough to effectuate an actual, legal change 

in physical custody. See id. Bruce took no steps—at least not until 

2017—to follow the “formal legal processes” typically used to 

effectuate an actual change of physical custody. See id. ¶ 24. And 

Bruce makes no argument that this case presents any “rare 

circumstances” in which custody can change by operation of 

statute, even in the absence of a petition to modify. See id.

¶35 Thus, no change in “physical custody”—in an actual legal 

sense, as required by the “term of art” definition of the statutory 

phrase, see id. ¶ 12 (quotation simplified)—occurred in April 

2010, or at any time prior to the filing of Bruce’s petition to 

modify. Because physical custody did not change, Section 108’s 

narrow exception to the usual retroactivity rules governing 

modification of child support orders does not apply here, and 

therefore it does not enable Bruce to seek changes to the Decree’s 

child support obligations dating any further back than 2017. 

2

¶36 Moreover, even if we were to assume, for purposes of 

argument, that a change in “physical custody” could 

theoretically be effectuated merely by a parent’s provision of 

additional sustenance and support beyond that required by the 

governing child support order, no such change occurred on the 

facts of this case. We have previously stated that “[c]ustody and 

parent-time are conceptually distinct.” See Ross v. Ross, 2019 UT 

App 104, ¶ 14 n.3, 447 P.3d 104. By statutory definition, there are 

two kinds of physical custody—sole physical custody and joint 

physical custody—with the dividing line based on the number of 

overnight visits enjoyed by each parent. See Utah Code Ann. 

§§ 30-3-10.1(3)(a), 78B-12-102(15) (both stating that “joint 

physical custody means the child stays with each parent 

overnight for more than 30% of the year, and both parents 

contribute to the expenses of the child in addition to paying 

child support” (quotation simplified)). Because either parent, in 

any given case, could be awarded sole physical custody—

defined as having at least 70% of the overnights—there are three 
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20190541-CA 20 2021 UT App 58

possible physical custody arrangements: (a) Parent 1 has sole 

custody; (b) Parent 2 has sole custody; and (c) the parents share 

joint custody. When a change occurs that causes one parent to 

obtain enough additional overnights to move from one category 

to another (e.g., from 25% of overnights to 35%, or from 65% to 

75%), there has been a change in physical custody. See Ross, 2019 

UT App 104, ¶¶ 16–17, 17 n.5. But when a change occurs in 

which one parent obtains a few additional overnights but not 

enough to move from one category to another, the change 

constitutes only a change in parent-time, and not a change in 

physical custody, as that term is statutorily defined. See id. ¶ 16 

(noting that, in relocation cases, a parent need not file a petition 

to modify if scheduling changes necessitated by the proposed 

relocation would not change the statutory custody designation, 

and would change only parent-time).

¶37 In this case, the parties started out with an arrangement, 

under the Decree, in which Bruce had twenty-four overnights 

each month and Nicole had only six. Although the parties 

described that arrangement, in the Decree, as a joint custody 

arrangement, the label the parties assigned to the arrangement is 

inconsequential. See Stephens v. Stephens, 2018 UT App 196, ¶ 29, 

437 P.3d 445 (stating that the “designation of ‘joint physical 

custody’ or ‘sole physical custody’” used in a decree “is not as 

important as whether the custody arrangement [actually] 

exceeds the statutory threshold for joint physical custody” 

(quotation simplified)). And here, despite the parties’ label, their 

arrangement was actually a sole custody arrangement. See Utah 

Code Ann. § 78B-12-102(15). As noted, the district court made a 

specific (and unchallenged) finding on this point, and correctly 

concluded that, because the Decree awarded Nicole only 

“approximately 20% of the overnights,” it described a sole 

custody arrangement. 

¶38 Thus, the more recent arrangement, following Nicole’s 

departure into the military, did not result in a change of custody. 

After Nicole left, Bruce went from about 80% of the overnights to 

nearly 100% of the overnights. Thus, Bruce had sole physical 
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20190541-CA 21 2021 UT App 58

custody of the children under the original arrangement, and he 

maintained sole physical custody of the children after Nicole left. 

See id. In this situation, while Nicole’s departure did result in 

practical (if not official) changes to the parties’ division of parenttime, it did not effectuate any change in physical custody, under 

the statutory definition of that term. 

¶39 Section 108 applies only in instances where “physical 

custody changes.” See id. § 78B-12-108(2). For both of the reasons 

just discussed, no change in physical custody occurred here, and 

therefore Section 108 cannot provide Bruce an escape from the 

usual rule that modifications to a domestic decree’s child 

support provisions cannot date back any further than the month 

following service of the petition to modify. See id. § 78B-12-

112(4). We therefore sustain Nicole’s challenge to the district 

court’s interpretation of the relevant statutes. 

3

¶40 The district court’s ruling also included an alternative 

basis for declining Nicole’s request that Bruce pay child support 

arrearages. Specifically, the court stated as follows:

Finally, and regardless [of] whether [Section 108] 

applies here, it would not be equitable to require 

[Bruce] to pay child support arrearages to [Nicole] 

in this case. Even if that statute does not apply 

directly, subsection (1) is instructive of the 

legislature’s intent that child support “is for the use 

and benefit of the children.” . . . It would not be 

equitable to acknowledge that [Bruce] was the sole 

provider after moving back into the [Home] and 

especially after [Nicole] entered the military, 

acknowledge that [Nicole] provided very little, if 

any, support to the children since that time, but 

nonetheless require [Bruce] to pay the alleged child 

support arrearages requested by [Nicole]. 
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20190541-CA 22 2021 UT App 58

¶41 We do not necessarily disagree with the court’s sentiment 

(although we note that, in a big-picture sense at least, there are 

equities on the other side of the equation too: we can see wisdom 

in a bright-line rule requiring parties to file petitions to modify 

child support provisions, and in limiting parties’ ability to obtain 

changes to decrees that date back any further than the month 

following service of the relevant petition to modify). Looking 

just at the facts of this case, there does seem to be something 

intuitively inequitable about requiring Bruce to pay child 

support arrearages to Nicole. And we acknowledge that district 

courts are often given wide discretion to apply equitable 

principles in family law cases. See Harmon v. Harmon, 491 P.2d 

231, 232 (Utah 1971) (“In order to carry out the important 

responsibility of safeguarding the interests and welfare of 

children, it has always been deemed that the courts have broad 

equitable powers.”). 

¶42 But our legislature has enacted a number of statutes that 

govern certain aspects of family law cases, and we are aware of 

no principle of law that allows courts to override statutes, in 

particular cases, simply out of generalized equitable concerns.

See Martin v. Kristensen, 2021 UT 17, ¶ 53 (stating that courts 

have “no equitable power to override” statutory mandates due 

to generalized concerns of “public policy and equity”). At a 

minimum, the district court has not adequately explained how 

its equitable concerns, in this situation, allow it to supersede 

statutory mandates or interpretations of those statutes by our 

supreme court. For instance, the district court’s reliance on 

subsection (1) of Section 108 as being “instructive of the 

legislature’s intent” that child support obligations shall “follow 

the child[ren]” appears misplaced, given our supreme court’s 

explanation, in Hansen v. Hansen, that “[s]ubsection (1)’s general 

directive cannot possibly be interpreted unqualifiedly . . . to 

redirect support payments any time anyone provides any shelter 

or sustenance to a child,” and that subsection (1) is “modifie[d]” 

by the “specific limitation[s]” found in subsection (2). See 2012 

UT 9, ¶¶ 10–11, 270 P.3d 531. And as we have noted, supra 

¶¶ 30–39, the prerequisites of subsection (2) are not satisfied 
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20190541-CA 23 2021 UT App 58

here. Apart from the language in subsection (1), the court does 

not otherwise explain how generalized equitable considerations, 

no matter how weighty, can justify modification of a child 

support order back beyond the month following service of the 

petition to modify, given our legislature’s clear directive that 

such orders may be modified “only from the date of service of 

the pleading on the obligee.” See Utah Code Ann. § 78B-12-

112(4). 

¶43 We observe that there may well be specific doctrines of 

equity or discretion that could apply in this situation to temper 

Nicole’s requests. Nicole presented her request in the context of 

an order to show cause seeking contempt, a legal doctrine that 

has its own elements and requirements, see Von Hake v. Thomas, 

759 P.2d 1162, 1172 (Utah 1988) (setting forth the required 

showing for a contempt finding), in which courts are afforded 

discretion in selecting an appropriate sanction once contempt is 

found, see Utah Code Ann. § 78B-6-310(1) (LexisNexis 2018) 

(stating that, “[i]f the court finds the person is guilty of the 

contempt, the court may impose a fine” or other punishment 

(emphasis added)); id. § 78B-6-311(1) (stating that a court “may

order” the contemnor to pay the aggrieved party “a sum of 

money sufficient to indemnify and satisfy the aggrieved party’s 

costs and expenses” (emphasis added)). Alternatively, various 

equitable doctrines may apply in situations like this, depending 

on the circumstances. See, e.g., Soter’s, Inc. v. Deseret Fed. Sav. 

& Loan Ass’n, 857 P.2d 935, 939–40 (Utah 1993) (discussing the 

doctrine of waiver and its elements); Veysey v. Veysey, 2014 UT 

App 264, ¶ 16, 339 P.3d 131 (discussing the doctrine of laches 

and its elements); Bahr v. Imus, 2009 UT App 155, ¶ 6, 211 P.3d 

987 (discussing the doctrine of equitable estoppel and its 

elements). We express no opinion as to the applicability of any 

such doctrine to the facts of this case. But the district court did 

not ground its child support ruling—that Bruce should not be 

required to make child support payments—in its post-contempt 

sentencing discretion or in any specific equitable doctrine; 

instead, as we interpret its order, it concluded that, due to 

unspecified equitable considerations, Bruce should be relieved 
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20190541-CA 24 2021 UT App 58

from any obligation to make payments in the first place. In our 

view, the court has not adequately explained how equitable 

considerations can override statutory commands in this case. 

¶44 Accordingly, we reverse the district court’s determination 

that Bruce was not “required to pay child support payments to 

[Nicole] after [Nicole left] for military service,” and we remand 

the matter for further proceedings on Nicole’s request that Bruce 

be held in contempt for failing to make child support payments. 

C

¶45 Finally, given our conclusion regarding Nicole’s challenge 

to the district court’s child support ruling, we can readily 

dispose of Bruce’s challenge to that same ruling. As an initial 

matter, we agree with the district court’s conclusion that Bruce 

made no affirmative claim, before the district court, to any child 

support arrears dating back further than the service of his 

petition to modify. On that basis alone, the district court was 

justified in not awarding him any. But more substantively, for 

the reasons already explained, we find no merit in Bruce’s 

argument that Section 108 operates to allow him to look all the 

way back to 2009 for modification of the Decree’s child support 

provisions. 

CONCLUSION

¶46 The district court correctly determined that Bruce’s 

alimony obligation was not terminated—at least not under the 

alimony statute—by the parties’ cohabitation in 2009 and 2010, 

because the statute required Bruce to file a petition seeking 

termination while the cohabitation was still occurring, and he 

did not do so. Accordingly, the district court did not err by 

holding Bruce in contempt for failing to pay alimony after 2009, 

and in ordering Bruce to pay past-due alimony through 2015, 

and we affirm those orders. 
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20190541-CA 25 2021 UT App 58

¶47 However, the district court erred in its interpretation of 

Section 108, and erred in concluding that Section 108 operated to 

relieve Bruce of his obligation, under the Decree, to continue to 

pay Nicole child support after 2010. In this case, neither Section 

108, nor generalized equitable concerns, operates to relieve Bruce 

of that obligation, and neither allows Bruce to obtain a 

modification of his child support obligations dating back any 

further than the month following service of his petition to 

modify. Accordingly, we reverse the district court’s 

determination to the contrary, and remand the case for further 

proceedings, consistent with this opinion, on Nicole’s request for 

contempt relating to child support and on Bruce’s petition to 

modify.