2023 UT App 78

THE UTAH COURT OF APPEALS

DEJUAN BLAKE,

Appellee,

v.

JILLYN SMITH,

Appellant.

Opinion

No. 20210779-CA

Filed July 20, 2023

Third District Court, Salt Lake Department

The Honorable Su Chon

No. 184900112

Julie J. Nelson, Attorney for Appellant

DeJuan Blake, Appellee Pro Se

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, 

in which JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY

concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Jillyn Smith appeals the district court’s order regarding

custody and child support for her minor son (Child). Because we 

determine the court abused its discretion by awarding Smith sole 

physical and legal custody while requiring joint decision-making

between Smith and Child’s father, DeJuan Blake, we vacate that 

part of the court’s custody award. Furthermore, because we 

conclude the court made a mathematical error in calculating the 

amount of child support, and that a further examination of the 

evidence of Blake’s income is warranted, we reverse the court’s 

child support award and remand for recalculation as appropriate.
Blake v. Smith

20210779-CA 2 2023 UT App 78

BACKGROUND

¶2 Smith met Blake in 2007 in Las Vegas, Nevada, and the two 

entered into a relationship. As a result of the relationship, Smith 

became pregnant with Child in 2009. At the time Smith learned 

about the pregnancy, she was no longer living in Las Vegas—she 

had moved to Utah to escape her relationship with Blake.

¶3 After a tumultuous pregnancy, during which Blake

continuously asked Smith to have an abortion, Child was born in 

Utah in October 2009. Blake traveled to Utah to visit Child twice 

during the first year of Child’s life, with each visit lasting “maybe 

an hour or two.” The sporadic visits continued over the next few 

years, with Child and Smith traveling with Blake on short trips

together. Although Smith asked Blake for financial support

during this time, Blake did not provide support and instead 

always offered an “excuse.” Eventually, the communications 

between the couple became too toxic and Smith elected to “take a 

break from communication” with Blake.

¶4 Thereafter, Smith decided to “give [Blake] a second 

chance.” Blake and Child had “maybe a few” “infrequent[]”

telephone conversations a year, but the conversations were short 

due to Child’s speech impediment. Blake was not involved in 

Child’s schooling or scheduling, he never attended Child’s 

doctor’s appointments, and he “wouldn’t follow through” or offer 

any explanation as to why he could not help Smith with financial 

support for Child’s medical care or educational needs.

¶5 Blake traveled to Utah in 2015 to attend Child’s birthday 

party. Toward the end of the party, Blake and Smith had a verbal 

altercation regarding Blake’s failure to honor their agreement for 

Blake to pay Smith child support. Following this visit, Blake

returned to Utah once in 2016 to attend Child’s baseball game.

That visit also ended in a verbal altercation.
Blake v. Smith

20210779-CA 3 2023 UT App 78

¶6 In January 2018, Blake petitioned the district court for 

paternity and custody of Child. At the time, Child was eight years 

old and living with Smith.

¶7 After initiating custody proceedings, Blake filed a series of 

three financial declarations with the district court. Blake is selfemployed and owns a company managing professional and 

aspiring boxers. Blake’s stated gross income, monthly expenses, 

and debt listed on each of the three financial declarations differed 

significantly. In the first declaration, Blake claimed $0 in gross 

monthly income, $1,875 in monthly expenses, and a debt of $7,240. 

In the second, Blake claimed $2,000 in gross monthly income, 

$17,797 in monthly expenses, and no debt. And in the third, Blake 

claimed $1,686 in gross monthly income, $3,947 in monthly 

expenses, and no debt. The bank statements filed with each

disclosure were incomplete; however, the bank statements that 

were submitted showed that between August 2017 and January 

2019, Blake made deposits into his personal account totaling 

$456,669.98, and that during that same time, he made withdrawals 

totaling nearly $50,000 for investments in cryptocurrency, 

payments to his mother, payments to the mother of one of his 

other children, and luxury clothing.

¶8 The case proceeded to a bench trial in October 2020. At 

trial, Smith detailed the relationship between Child and Blake. 

She explained that Blake had never been actively involved in 

Child’s life and that Blake had not seen Child at all since May 

2016. Smith testified that she and Blake had reached an “original 

agreement” for child support where Blake would pay her $1,000 

per month. She further testified that this agreement did not start 

until 2015—when Child was already six years old—and that the 

payments had lasted for only one month. In total, Smith estimated 

that Blake had contributed $1,600 in support payments “over the 

entirety of [Child’s] life.”
Blake v. Smith

20210779-CA 4 2023 UT App 78

¶9 Following trial, the district court adjudicated Blake as 

Child’s father, awarded Smith sole physical and legal custody of 

Child, and awarded Blake standard relocation parent-time

pursuant to Utah Code section 30-3-37, which is approximately 

17% of the year. In reaching its legal custody determination, the 

court analyzed the statutory factors outlined in Utah Code 

sections 30-3-10 and 30-3-10.2 and concluded that the 

presumption favoring joint legal custody had been rebutted and 

that joint legal custody was not in Child’s best interest. However, 

the court ordered a joint decision-making arrangement between 

the parties, requiring that the parties “discuss with each other 

decisions that should be made regarding [Child].” The 

arrangement further provides, “If there is a dispute, the parties 

should attend mediation and each pay half of the mediation fees. 

If the dispute remains, then [Smith] will have final say. [Blake] can 

. . . bring the matter to court if he is unsatisfied with the decision.”

¶10 Regarding child support, the district court primarily

calculated Blake’s past child support payments based on his 2018 

tax record, where he claimed $45,050 in gross receipts and $34,483 

in deductions. After reviewing the evidence, the court concluded 

that several of the deductions—totaling $27,530—were 

unsupported and accordingly struck those deductions. Based on 

this, the court found that Blake’s “annual income should be 

$23,790” through March 2020. However, given the outbreak of the 

COVID-19 pandemic, the court concluded that “Blake’s income 

has come to a halt,” and it accordingly found it “appropriate . . . 

to impute minimum wage income of $1,257/month from March 

2020 forward.”

ISSUES AND STANDARDS OF REVIEW

¶11 Smith now appeals the district court’s order regarding 

custody and child support, raising two issues for our review. First, 

Smith argues the court abused its discretion when it “issued an 

internally inconsistent [custody] award” giving Smith “sole legal 
Blake v. Smith

20210779-CA 5 2023 UT App 78

and physical custody but also order[ing] joint decision-making”

between her and Blake. “We review custody determinations 

under an abuse of discretion standard, giving the district court 

broad discretion to make custody awards.” K.P.S. v. E.J.P., 2018 

UT App 5, ¶ 24, 414 P.3d 933 (quotation simplified). “But this 

broad discretion must be guided by the governing law adopted 

by the Utah Legislature. And on matters of statutory

interpretation, we review for correctness.” Dahl v. Dahl, 2015 UT 

79, ¶ 155, 459 P.3d 276 (quotation simplified). And “[w]here the

court’s findings are internally inconsistent on a material point,

reversal and remand are appropriate.” Vandermeide v. Young, 2013 

UT App 31, ¶ 21, 296 P.3d 787, cert. denied, 308 P.3d 536 (Utah 

2013).1

1. Blake did not file a brief or otherwise appear in this appeal. 

Although “an appellee’s failure to file a brief does not amount to 

an automatic default and consequent reversal of the lower court,” 

our supreme court has recently recognized that such failure does 

impact the “typical burden of persuasion on appeal.” See AL-IN 

Partners, LLC v. LifeVantage Corp., 2021 UT 42, ¶ 19, 496 P.3d 76 

(quotation simplified). Because an appellee’s failure to raise any 

argument leaves the appellant’s claims “unrebutted,” see Broderick 

v. Apartment Mgmt. Consultants, LLC, 2012 UT 17, ¶¶ 18–21, 279 

P.3d 391, “when an appellee fails to present us with any 

argument, an appellant need only establish a prima facie showing 

of a plausible basis for reversal,” AL-IN Partners, 2021 UT 42, ¶ 19 

(quotation simplified). We question whether the standard 

articulated in AL-IN Partners should apply the same way in cases 

such as this where the standard of review on appeal is deferential 

to the discretionary decisions of the district court. But because this 

issue was not briefed and our decision on both arguments 

presented ultimately involves the conclusion that the district 

court did abuse its discretion and committed other errors, we 

need not decide the issue today. However, we note the question 

(continued...)
Blake v. Smith

20210779-CA 6 2023 UT App 78

¶12 Second, Smith argues the district court abused its 

discretion when it calculated Blake’s income for purposes of child 

support. “We review the district court’s decisions regarding child

support . . . under the abuse of discretion standard.” Pankhurst v. 

Pankhurst, 2022 UT App 36, ¶ 13, 508 P.3d 612 (quotation 

simplified). Where the court’s findings contain mathematical 

error or conflict with the record, we will remand for recalculation. 

See Miner v. Miner, 2021 UT App 77, ¶¶ 57–60, 496 P.3d 242.

ANALYSIS

I. Custody

¶13 Smith first challenges the district court’s custody award, 

contending the court abused its discretion in crafting the award

because it is “internally inconsistent.” According to Smith, the 

joint decision-making arrangement “undermines” her award of 

sole physical and legal custody because it “allows [Blake] to force 

mediation and litigation whenever he disagrees with a decision 

made by [Smith], even though she has sole legal and physical 

custody.” We agree.

¶14 As an initial matter, the Utah Code does not define “sole 

physical custody” or “sole legal custody.” But in Hansen v. Hansen, 

2012 UT 9, 270 P.3d 531, our supreme court provided guidance as 

to the meaning of those terms. In Hansen, the father and the 

mother were awarded joint custody of their daughter following 

their divorce. Id. ¶ 2. The mother was awarded sole physical 

custody and the father was ordered to pay child support to the 

mother. Id. Sometime later, the daughter entered a private youth 

homeless shelter, where she lived through her eighteenth 

birthday. Id. While the daughter was living at the shelter, the 

father filed a petition with the district court seeking to redirect his 

does warrant additional consideration in a case where it is 

squarely before the court.
Blake v. Smith

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child support payments from the mother to the homeless shelter. 

Id. ¶¶ 2–3. The court denied the motion, which denial was 

ultimately upheld by the Utah Supreme Court. Id. ¶¶ 4–5, 30. 

¶15 The supreme court’s decision centered on the meaning of 

custody. Although the daughter had been residing at the shelter,

the court determined that the daughter’s physical custody had not 

changed; rather, the mother still retained physical custody. Id.

¶¶ 15–19, 28. The court explained,

Family law treatises consistently define custody as a 

bundle of constituent rights and obligations to a 

child’s possession, care, and control, and explain 

that the essence of custody is control over all aspects 

of the child’s life coupled with responsibility for the 

child’s welfare. Standard dictionary definitions of 

custody are to the same effect.

Custody is often divided into two subsets: 

legal and physical custody. Both encompass a duty 

of control and supervision. While legal custody 

carries the power and duty to make the most 

significant decisions about a child’s life and welfare, 

physical custody involves the right, obligation, and 

authority to make necessary day-to-day decisions 

concerning the child’s welfare. Although the latter 

is limited to the right to control the child’s daily 

activities, it still involves a right of control. This 

grant of authority is necessary so that the custodian 

can control and discipline the child or make 

emergency medical or surgical decisions for the 

child.

Id. ¶¶ 16–17 (quotation simplified). Put differently, “the legal duty 

of control or supervision [is] the essential hallmark of custody.”

Id. ¶ 18 (quotation simplified). Legal custody encompasses the 

ability to make major decisions in a child’s life, while physical
Blake v. Smith

20210779-CA 8 2023 UT App 78

custody encompasses the ability to make day-to-day decisions in 

a child’s life.

¶16 Although the Utah Code does not define sole physical or

legal custody, it does define “joint legal custody” and “joint 

physical custody.”2 Under the current statutory scheme, a parent 

may be awarded “joint legal custody,” which is defined as “the

sharing of the rights, privileges, duties, and powers of a parent by

both parents.” Utah Code § 30-3-10.1(2)(a) (emphasis added). As 

this court has long recognized, the purpose of joint legal custody

is to allow “both parents [to] share the authority and 

responsibility to make basic decisions regarding their child’s

welfare.” See Thronson v. Thronson, 810 P.2d 428, 429–30 (Utah Ct.

App. 1991), cert. denied, 826 P.2d 651 (Utah 1991). 

¶17 Taken together, it follows that an award of “sole” legal 

custody does not involve sharing the “rights, privileges, duties,

and powers of a parent.” See Utah Code § 30-3-10.1(2)(a). 

Accordingly, when the district court awarded sole legal and 

physical custody to Smith, it also awarded her alone the “rights

and obligations to [Child’s] possession, care, and control,” see 

Hansen, 2012 UT 9, ¶ 16 (quotation simplified), including the sole

authority to “make the most significant decisions about [Child’s] 

2. In relevant part, the statute defines “joint physical custody” as 

when “the child stays with each parent overnight for more than 

30% of the year.” Utah Code § 30-3-10.1(3)(a). This particular

provision is not applicable here because Blake was awarded 

standard relocation parent-time which falls below the 30% 

threshold. See id. § 30-3-37. Nevertheless, Utah law is clear that 

“[e]ach parent may make decisions regarding the day-to-day care 

and control of the child while the child is residing with that 

parent.” Id. § 30-3-10.9(6). Thus, by statute Smith has sole 

decision-making authority over day-to-day decisions when Child 

is in her care. Likewise, Blake has decision-making authority over 

day-to-day decisions when Child is in his care.
Blake v. Smith

20210779-CA 9 2023 UT App 78

life and welfare,” see id. ¶ 17 (quotation simplified), and the

“authority to make necessary day-to-day decisions concerning

[Child’s] welfare,” see id. (quotation simplified). It therefore was 

inconsistent to simultaneously order a joint decision-making

arrangement. 

¶18 Moreover, the joint decision-making arrangement is at 

odds with the district court’s own findings regarding Child’s best 

interest. “In making a custody determination, a [district] court’s 

primary focus is what custody arrangement would be in the best 

interest[] of the child.” Grindstaff v. Grindstaff, 2010 UT App 261, 

¶ 4, 241 P.3d 365. Utah law presumes that joint legal custody is in 

a child’s best interest, but that presumption may be rebutted by 

showing “by a preponderance of the evidence that it is not in the 

best interest of the child.” Utah Code § 30-3-10(3)–(4). And under 

Utah law, there is “neither a preference nor a presumption for or 

against joint physical custody or sole physical custody.” Id. § 30-

3-10(8). 

¶19 “In determining whether the best interest of a child will be 

served by ordering joint legal custody or joint physical custody or 

both, the court shall consider” a number of statutory factors. See 

id. § 30-3-10.2(2). Here, the court analyzed the statutory factors 

and determined that awarding Smith sole legal and physical 

custody of Child was in Child’s best interest. In particular, the 

court found that there was “very little evidence provided that 

either parent could function appropriately with co-parenting 

skills,” that it was “unclear” whether the parties could work 

together to reach shared decisions in Child’s best interest, and that 

there was “very little evidence” the parties “actually discussed 

and made decisions together.” In light of these findings, it is 

unclear how the joint decision-making arrangement—which is 

not limited to major decisions but instead encompasses all 

decisions—could be properly viewed as advancing Child’s best 

interest. It does not follow from the evidence of the parties’ 

ongoing issues making decisions relating to Child that such an 
Blake v. Smith

20210779-CA 10 2023 UT App 78

arrangement would lead to success in the future. Rather, precisely 

because of the court’s findings, it seems likely that such an 

arrangement would cause ongoing issues, result in costly 

mediation and additional court involvement, and be detrimental 

to Child’s best interest, which is exactly what Utah law seeks to 

avoid.

¶20 In sum, the district court abused its discretion when it

awarded Smith sole physical and legal custody while also 

ordering a joint decision-making arrangement between Smith and 

Blake. Although Utah law does not prohibit a joint decisionmaking arrangement in cases involving an award of joint physical 

and legal custody, an examination of the underlying statutory 

scheme reveals that such an arrangement is not compatible with 

an award of sole physical and legal custody. Furthermore, these 

competing provisions belie the court’s own findings regarding 

Child’s best interest as relates to custody. As such, we vacate the 

portion of the court’s custody award ordering the joint decisionmaking arrangement.

II. Child Support

¶21 Smith next argues the district court erred in calculating 

child support. Specifically, Smith takes issue with the court’s 

calculation of Blake’s income for purposes of child support, 

contending the court’s calculation (1) contains a mathematical

error and (2) is inconsistent with the evidence in the record. We 

agree. 

¶22 The Utah Child Support Act outlines the process by which 

a district court must evaluate the income of a parent when 

calculating child support. See generally Utah Code § 78B-12-202. 

To begin, the court must consider the “gross income” of a parent, 

which the Utah Code defines broadly as including 

prospective income from any source, including 

earned and nonearned income sources which may 
Blake v. Smith

20210779-CA 11 2023 UT App 78

include salaries, wages, commissions, royalties, 

bonuses, rents, gifts from anyone, prizes, dividends, 

severance pay, pensions, interest, trust income, 

alimony from previous marriages, annuities, capital 

gains, Social Security benefits, workers’

compensation benefits, unemployment 

compensation, income replacement disability 

insurance benefits, and payments from “nonmeanstested” government programs.

Id. § 78B-12-203(1). And when a parent is self-employed—as is the 

case with Blake—the statute directs how gross income should be 

handled. It provides that “[g]ross income from self-employment 

or operation of a business shall be calculated by subtracting 

necessary expenses required for self-employment or business 

operation from gross receipts. . . . Gross income . . . may differ 

from the amount of business income determined for tax 

purposes.” Id. § 78B-12-203(4).

¶23 The district court determined that Blake’s income had been 

impacted as a result of the COVID-19 pandemic and accordingly 

evaluated his income for purposes of child support based on what 

he had earned pre-pandemic and what he was earning during the 

pandemic. On the record before us, we see two errors in the 

court’s calculations. First, the court made a discrete mathematical 

error in calculating Blake’s pre-pandemic income. Second, and 

more broadly, the court did not consider all the evidence of 

Blake’s finances when calculating Blake’s income, both prepandemic and at the time of trial.

¶24 First, the district court calculated Blake’s past child support 

payments using his 2018 tax record. On that record, Blake claimed 

$45,050 in gross receipts. From that, Blake deducted $34,483 as 

follows: $5,270 for “materials and supplies,” $3,605 for 

“advertising,” $360 for “legal and professional services,” $500 for 

“office expense,” $21,760 for “other business property,” and 
Blake v. Smith

20210779-CA 12 2023 UT App 78

$2,988 for “utilities.” After viewing the evidence, the court found 

that Blake had failed to adequately explain why he should be 

entitled to deductions for “materials and supplies” ($5,270),

“other business property” ($21,760), or “office expense” ($500),

and it accordingly struck those deductions, totaling $27,530. As a 

result, the court should have concluded that Blake’s income was 

$38,097, or $3,175 per month rounded. But it did not. Instead, it 

concluded that Blake’s income was $23,790, or $1,983 per month. 

This value is mathematically incorrect.

¶25 Second, notwithstanding the mathematical error in the 

court’s calculation of Blake’s income, the value imputed by the 

court is inconsistent with the evidence in the record. Utah law is 

clear that “in contested cases,” a judge is entitled to impute 

income to a parent so long as the judge “enters findings of fact as 

to the evidentiary basis for the imputation.” See id. § 78B-12-

203(8)(a). “The purpose of such imputation is to prevent parents 

from reducing their child support or alimony by purposeful 

unemployment or underemployment.” Connell v. Connell, 2010 

UT App 139, ¶ 16, 233 P.3d 836 (quotation simplified). 

Accordingly, when imputing income, “the income shall be based 

upon employment potential and probable earnings considering,” 

among other things, “employment opportunities,” “work 

history,” and “occupation qualifications.” Utah Code § 78B-12-

203(8)(b).

¶26 As explained above, the court calculated Blake’s income at 

$1,983 per month up until the time that the COVID-19 pandemic

began in March 2020. And at trial, which was held in October 

2020, the court concluded that due to the pandemic, “Blake’s 

income has come to a halt” and therefore determined it was

“appropriate . . . to impute minimum wage income of 

$1,257/month from March 2020 forward.” But the financial 

documents submitted by Blake do not support the low amount of 

income the court chose to impute.
Blake v. Smith

20210779-CA 13 2023 UT App 78

¶27 Blake’s bank records—which were all filed with the 

court—show that Blake made deposits into his personal account

totaling $456,669.98 between August 2017 and January 2019.

These deposits included a check for $200,000, which Blake 

testified “was for my services that was rendered” in connection 

with a high-publicity boxing match. And in addition to the 

deposits, Blake’s bank records show significant withdrawals. For 

example, the records indicate that Blake had regularly invested in 

cryptocurrency, had transferred over $15,000 to his mother, had

transferred over $9,000 to the mother of one of his other children,3

and had spent over $10,000 on luxury clothing.

¶28 Despite the evidence of Blake’s spending, Blake did not 

demonstrate how he was funding his lifestyle, and he claimed 

only one debt of $7,240 in the first of his three financial 

disclosures. In light of the foregoing, the district court’s 

determination that Blake was making no money and therefore 

should be imputed minimum wage is not supported by the 

evidence. Rather, the evidence suggests that Blake was less than 

forthcoming with the court as to the actual amount of his income. 

As such, on remand the court should reevaluate evidence of 

Blake’s finances, his earning capacity, and whether he is 

voluntarily underemployed and should make a further 

determination as to whether greater income should be imputed to 

him.4 In so doing, the court should take special care to ensure that 

the final award is void of mathematical error.

3. This amount does not include child support payments awarded 

to the mother, which were $1,000 per month. Those support 

payments were made directly to Nevada’s State Collection and 

Disbursement Unit.

4. Smith filed a post-trial motion pursuant to rule 59(e) of the Utah 

Rules of Civil Procedure seeking to amend, among other things, 

(continued...)
Blake v. Smith

20210779-CA 14 2023 UT App 78

CONCLUSION

¶29 The district court abused its discretion when it awarded 

Smith sole physical and legal custody of Child while also ordering 

a joint decision-making arrangement with Blake. We therefore 

vacate the court’s custody ruling as it relates to the joint decisionmaking arrangement. The court also abused its discretion when 

calculating child support. The current award contains a 

mathematical error and is not supported by record evidence. 

Accordingly, we reverse the court’s award of child support and 

remand with instructions that the court reexamine the evidence to 

determine whether greater income should be imputed to Blake.

the court’s child support award. The district court issued a 

Memorandum Decision and Order denying the motion. In 

analyzing the child support issue, the court stated that “[g]ifts are 

not generally considered income.” This is legally incorrect. As 

explained above, the Utah Code explicitly defines “gross income” 

as including “gifts from anyone.” See Utah Code § 78B-12-203(1). 

To the extent Blake was gifted items, the court must include the 

value of those gifts when calculating his income.