2024 UT App 31

THE UTAH COURT OF APPEALS

BRUCE RAY MCFARLAND,

Appellee,

v.

NICOLE S. MCFARLAND,

Appellant.

Opinion

No. 20221044-CA

Filed March 14, 2024

Second District Court, Farmington Department

The Honorable David J. Williams

No. 084701533

Angilee K. Dakic, Attorney for Appellant

Jacob K. Cowdin, Attorney for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and 

DAVID N. MORTENSEN concurred.

HARRIS, Judge:

¶1 This domestic dispute between Bruce Ray McFarland 

(Bruce) and Nicole S. McFarland (Nicole) comes before us for a 

second time. This time, we are asked to assess the propriety of two 

aspects of the district court’s most recent set of orders: the court’s 

decision to modify the parties’ divorce decree and award the 

house in which the parties lived while they were married (the 

Home) to Bruce instead of to Nicole, and the court’s decision to 

require Nicole to pay Bruce’s attorney fees incurred in litigating 

the petition to modify. We see no reversible error in the court’s 

award of the Home to Bruce, and we therefore affirm on that 

issue. But we agree with Nicole that the court erred in awarding 

attorney fees to Bruce, and we therefore reverse that fee award.
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BACKGROUND

¶2 In our previous opinion, we set forth many of the relevant 

facts underlying the parties’ dispute. See McFarland v. McFarland, 

2021 UT App 58, ¶¶ 2–18, 493 P.3d 1146. In the interest of brevity, 

we recite in this opinion only those facts necessary to our decision. 

¶3 Bruce and Nicole’s divorce decree (the Decree) was entered 

in 2009 following a negotiated settlement. As relevant here, the 

Decree required Bruce to pay Nicole $1,700 per month in alimony, 

and it awarded the Home to Nicole “subject to” her “assumption” 

of the mortgage, tax, and insurance obligations associated with 

the Home as well as “a judicial lien in the sum of $12,034.24 

payable to” Bruce. According to the Decree, Nicole was to pay 

Bruce the lien amount on the occurrence of the first of these 

events: (1) when Nicole remarries or cohabits; (2) when the Home 

is sold or rented; (3) when Nicole “moves from” the Home or no 

longer uses it as her primary residence; or (4) when the parties’ 

youngest child graduates from high school. Several of those 

events have long since occurred; indeed, the district court later 

found that Nicole “abandoned” the Home in 2010. At no point did 

Nicole ever make any of the mortgage, tax, or insurance payments 

on the Home, nor did she ever pay Bruce the lien amount. 

¶4 Instead, after a brief period in which he did not live in the 

Home, Bruce moved back into the Home in 2009 and has lived 

there at all times since. And after entry of the Decree, Bruce—

rather than Nicole—has made all mortgage, tax, and insurance 

payments on the Home, and he has also maintained and made 

improvements to the Home. But other than one single payment in 

January 2009, Bruce paid no alimony to Nicole. Thus, soon after 

the Decree was entered, both parties began to ignore many of the 

Decree’s important provisions. But for the next seven years, 

neither party seemed bothered by the other’s noncompliance, and

neither sought to modify or enforce the terms of the Decree.
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¶5 In 2017—apparently motivated by a desire to refinance the 

Home—Bruce filed a petition to modify (Bruce’s Petition), asking 

the court to modify the Decree to (among other things) award him 

the Home. Nicole responded not only by resisting Bruce’s 

Petition, but also by filing two motions asking the court to hold 

Bruce in contempt for (among other things) failing to pay alimony 

and for “willfully occup[ying Nicole’s] property,” namely, the 

Home. Concerning the Home, Nicole asked that the court 

“immediately restore[]” her “to the use and possession of” the 

Home. Later, in 2019, the court found Bruce in contempt for 

failing to pay alimony, and it ordered Bruce to pay Nicole over 

$150,000 in unpaid alimony. But the court declined to find Bruce 

in contempt for occupying the Home. The court made no ruling 

on Bruce’s Petition, however, because that matter had apparently 

not yet been certified for trial. But the court allowed Bruce to 

continue living in the Home “on a temporary basis” until the 

matter was finally resolved. 

¶6 Both parties appealed several aspects of the court’s 2019 

rulings and, in this case’s first trip to this court, we affirmed the 

court’s alimony award to Nicole and remanded “the case for 

further proceedings” regarding (among other things) Bruce’s 

Petition. Id. ¶¶ 46–47. 

¶7 Following remand, the district court held a hearing to 

consider matters regarding the Home. Bruce asserted that any 

claim Nicole might make regarding possession of the Home was 

barred by several equitable doctrines, including waiver and 

laches. In particular, Bruce claimed that Nicole had waived any 

claim to the Home by moving out in 2010 and taking no action in 

the intervening years to challenge Bruce’s possession of it, and 

that Nicole’s claim was barred by laches because her “delay in 

bringing her claim” was “unreasonable” and “prejudicial to 

Bruce.” Nicole resisted all of these arguments and, in addition, 

claimed that Bruce’s Petition was barred by res judicata. 
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¶8 At the conclusion of the hearing, the court made an oral 

ruling granting Bruce’s Petition and denying Nicole’s motion 

regarding the Home. The court later issued a written ruling 

setting forth its findings and conclusions. In that ruling, the court 

found that Nicole’s abandonment of the Home in 2010 constituted 

“a material and substantial change in circumstances.” The court 

also rejected Nicole’s claim that Bruce’s Petition was barred by res 

judicata. And the court determined that modification of the 

Decree to award Bruce the Home was appropriate; the court 

found merit in several of Bruce’s equitable arguments. 

Specifically, the court determined that Nicole had waived any 

claim to the Home by moving out and failing to make any 

payments related to the Home since the Decree was entered. And 

the court concluded that laches also barred Nicole’s claim to the 

Home because she had delayed bringing any such claim and her 

delay had prejudiced Bruce because Bruce had made payments 

and improvements on the Home in the intervening years. The 

court noted that Bruce had also delayed in bringing his petition, 

but it found that Nicole had not been prejudiced by Bruce’s delay. 

¶9 Bruce asked the court to award him attorney fees incurred 

in litigating his petition. As the district court interpreted it, this 

request was grounded not in the attorney fees statute found in the 

family law code, see Utah Code § 30-3-3, but, instead, in Utah’s 

bad-faith attorney fees statute, see id. § 78B-5-825. The court 

granted Bruce’s request, but it made no specific finding that 

Nicole’s claims and defenses regarding the Home had been 

“without merit.” It did make an express finding that “Nicole’s 

effort to pursue an award of [the Home] roughly eight (8) years 

after abandoning [it] was an act of bad faith” that Nicole 

undertook with a “retaliatory” motive in reaction to the filing of 

Bruce’s Petition. And the court noted that, during the intervening 

years, Nicole “had not satisfied the conditions in the Decree that 

allowed her to take possession of” the Home. Based on these 

findings, the court concluded that “law and equity call for an 

award of attorney fees in Bruce’s favor as it relates to the issue of” 
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the Home. The court later quantified that attorney fee award, 

ordering that Nicole pay Bruce $7,390.67 for attorney fees he 

incurred litigating issues related to the Home. 

ISSUES AND STANDARDS OF REVIEW

¶10 Nicole appeals two aspects of the court’s rulings. First, she 

challenges the court’s order modifying the Decree to award the 

Home to Bruce. “In this context, we review the district court’s 

underlying findings of fact, if any, for clear error,” and we review 

“its ultimate determination regarding the petition to modify[] for 

an abuse of discretion.” Myers v. Myers, 2023 UT App 20, ¶ 19, 526 

P.3d 1253. Whether the court chose and applied the correct legal 

standard is a question of law “that we review for correctness.”

Peeples v. Peeples, 2019 UT App 207, ¶ 11, 456 P.3d 1159.

¶11 As discussed below, our analysis on this point focuses on 

the court’s application of the doctrine of laches and, in particular, 

on its determination that Bruce was prejudiced by Nicole’s delay

in asserting a right to possession of the Home. “The application of 

laches to a particular set of facts and circumstances presents a 

mixed question of law and fact.” Peterson v. Pierce, 2019 UT App 

48, ¶ 9, 440 P.3d 833 (quotation simplified). While “[l]aw-like 

mixed questions are reviewed de novo,” mixed questions that are 

more “fact-like” are “reviewed deferentially.” Sawyer v. 

Department of Workforce Services, 2015 UT 33, ¶ 11, 345 P.3d 1253. 

For the reasons discussed more fully later, see infra ¶¶ 18–21, we 

conclude that a district court’s prejudice determination made in 

the laches context is more fact-like than law-like and, therefore, 

calls for a more deferential standard of review. 

¶12 Second, Nicole challenges the court’s award of attorney 

fees to Bruce under the bad faith statute. “We review a trial court’s 

grant of attorney fees under the bad faith statute as a mixed 

question of law and fact.” Outsource Receivables Mgmt., Inc. v. 

Bishop, 2015 UT App 41, ¶ 11, 344 P.3d 1167 (quotation simplified). 
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“A finding of bad faith is a question of fact and is reviewed by this 

court under the ‘clearly erroneous’ standard,” but a “‘without 

merit’ determination is a question of law” that we review “for 

correctness.” Id. (quotation simplified). 

ANALYSIS

I

¶13 We first address Nicole’s challenge to the district court’s 

grant of Bruce’s Petition and its accompanying order modifying 

the Decree to award the Home to Bruce. The court based its ruling 

on several distinct legal doctrines, including waiver and laches.

Nicole challenges the application of these doctrines, asserting that 

none of them apply to the facts at hand. For the reasons discussed, 

we conclude that the court did not abuse its discretion when it 

concluded that Bruce was prejudiced by Nicole’s delay in 

asserting her claim to the Home, and that therefore the doctrine 

of laches operates to bar Nicole’s claim. Because we affirm the 

court’s laches determination, we need not reach the question of 

whether the court erred in its application of waiver or any other 

legal or equitable doctrine.

¶14 “Laches” is an equitable doctrine “founded upon 

considerations of time and injury.” Insight Assets, Inc. v. Farias, 

2013 UT 47, ¶ 17, 321 P.3d 1021 (quotation simplified). The thing 

that the doctrine is concerned about “is not mere delay, but delay 

that works a disadvantage to another.” Id. (quotation simplified). 

“In Utah, laches traditionally has two elements.” Fundamentalist 

Church of Jesus Christ of Latter-Day Saints v. Horne, 2012 UT 66, ¶ 29, 

289 P.3d 502. First, the party claiming laches must demonstrate 

that the other party “unreasonably delayed in bringing” a claim. 

See Veysey v. Nelson, 2017 UT App 77, ¶ 8, 397 P.3d 846 (quotation 

simplified), cert. denied, 400 P.3d 1046 (Utah 2017). Second, the 

party claiming laches must demonstrate that it “was prejudiced 

by that delay.” Id. (quotation simplified); see also Laches, Black’s 
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20221044-CA 7 2024 UT App 31

Law Dictionary (11th ed. 2019) (defining “laches” as “[t]he 

equitable doctrine by which a court denies relief to a claimant who 

has unreasonably delayed in asserting the claim, when that delay 

has prejudiced the party against whom relief is sought”).

¶15 Nicole concedes that the first element of the laches test—

unreasonable delay—is met here, given her eight-year delay in 

objecting to Bruce’s possession of the Home. Because of this 

concession, we need concern ourselves only with the second 

element of the laches test: whether Bruce was prejudiced by 

Nicole’s unreasonable delay. 

¶16 On that point, the district court made a specific finding that 

Bruce would suffer “clear prejudice” if Nicole were allowed to 

claim possession of the Home. The court observed that Bruce had 

raised the parties’ children in the Home, had made 

“improvements” to the Home, and had taken care of “all financial 

obligations related to” the Home since 2009. In light of these 

undisputed facts, the court determined that Bruce would be 

prejudiced if Nicole were allowed to assert, after all these years, a 

right to exclusively use and possess the Home. 

¶17 Nicole challenges the court’s prejudice determination, 

asserting that her delay in asserting her rights to the Home was 

actually “a benefit to Bruce” because it gave him a place to live 

and because he was able to take “significant amounts of equity 

out of” the Home “on multiple occasions.” But before we can 

address Nicole’s challenge to the court’s prejudice determination, 

we must first determine the appropriate standard of review. 

¶18 As previously mentioned, see supra ¶ 11, a district court’s 

“application of laches to a particular set of facts and circumstances 

presents a mixed question of law and fact.” Peterson v. Pierce, 2019 

UT App 48, ¶ 9, 440 P.3d 833 (quotation simplified). “Mixed 

questions fall somewhere in the twilight between deferential 

review of findings of fact and searching reconsideration of 

conclusions of law.” In re adoption of Baby B., 2012 UT 35, ¶ 42, 308 
McFarland v. McFarland

20221044-CA 8 2024 UT App 31

P.3d 382. The level of deference afforded to district courts in such 

situations thus depends on whether the determination at issue is 

more law-like or fact-like. See Sawyer v. Department of Workforce 

Services, 2015 UT 33, ¶ 11, 345 P.3d 1253. We must therefore assess 

whether a determination regarding prejudice, in the laches 

context, is more fact-like than law-like. As far as we are aware, no 

Utah court has yet rendered a specific ruling on this question. 

¶19 When considering whether a question “should be deemed 

law-like or fact-like, we evaluate the marginal costs and benefits 

of conducting either a searching de novo review or a deferential 

review of a lower tribunal’s resolution of the mixed question.” Id.

¶ 12 (quotation simplified). To that end, our supreme court has 

instructed us to consider three relevant factors:

(1) the degree of variety and complexity in the facts 

to which the legal rule is to be applied; (2) the degree 

to which a trial court’s application of the legal rule 

relies on facts observed by the trial judge, such as a 

witness’s appearance and demeanor, relevant to the 

application of the law that cannot be adequately 

reflected in the record available to appellate courts; 

and (3) other policy reasons that weigh for or 

against granting discretion to trial courts.

Id. (quotation simplified).

¶20 The first two factors compare “the relative competencies” 

of “a fact-finding tribunal” and that of “an appellate court.” Id.

¶ 13. District courts and other fact-finding tribunals “are in a 

superior position to weigh facts that depend upon credibility 

determinations, the direct observation of witness testimony, and 

other evidence not fully captured in a written appellate record.” 

Id. On the other hand, appellate courts are in a better position to 

fashion “broad rules that can create a greater degree of 

consistency and predictability to future cases involving a 

particular mixed question.” Id. An inquiry that is highly “fact-
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intensive” is not one that “lend[s] itself to consistent resolution by 

a uniform body of appellate precedent.” Carbon County v. 

Workforce Appeals Board, 2013 UT 41, ¶ 7, 308 P.3d 477 (quotation 

simplified). Thus, a district court is “entitled to deference” where 

its determinations are “fact-intensive” because an appellate court

“would be in an inferior position to review the correctness” of 

such a decision. Id. (quotation simplified). 

¶21 Assessing whether a litigant’s unreasonable delay in 

bringing a claim has caused another party to sustain prejudice is 

a case-specific, fact-bound inquiry that will depend on the 

particular circumstances at hand, as well as—at least in many

cases, including this one—on the district court’s perception of the 

progression of the litigation. Indeed, for this very reason, Utah 

appellate courts have concluded, in a number of analogous 

contexts, that appellate review of a district court’s prejudice 

determination should be deferential. See State v. De La Rosa, 2019 

UT App 110, ¶ 9, 445 P.3d 955 (reviewing deferentially a district 

court’s “substantial adverse effect” determination, made in the 

context of assessing whether a new trial was warranted, “due to 

[the district court’s] advantaged position to judge the impact of 

legal errors on the total proceedings” (quotation simplified)); see 

also State v. Maestas, 2012 UT 46, ¶ 325, 299 P.3d 892 (stating that 

district courts “have discretion in granting or denying a motion 

for a mistrial . . . because of the[ir] advantaged position . . . to 

determine the impact of events occurring in the courtroom on the 

total proceedings” (quotation simplified)); Butler v. Mediaport Ent.

Inc., 2022 UT App 37, ¶¶ 32, 48, 508 P.3d 619 (stating that “we 

review a district court’s harmlessness determination,” made in 

the discovery and disclosure context, deferentially “for abuse of 

discretion” because “a district court will almost always have a 

better vantage point than we do to make such a call”). We also 

observe that laches is an equitable doctrine, see Insight Assets, 2013 

UT 47, ¶ 17, and “equitable inquiries are designed to be flexible, 

taking into account all relevant factors in light of the particular 

circumstances,” Jones v. Layton/Okland, 2009 UT 39, ¶ 17, 214 P.3d 
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859. “Because of the fact-intensive nature of equitable doctrines,” 

we generally grant district courts “broader discretion in applying 

the law to the facts.” Volonte v. Domo, Inc., 2023 UT App 25, ¶ 28, 

528 P.3d 327 (quotation simplified). For all of these reasons, we 

conclude that a district court’s determination that a litigant has (or 

has not) sustained prejudice as a result of another party’s 

unreasonable delay in bringing a claim is entitled to deference 

from appellate courts and is a determination that should be 

reviewed for abuse of discretion. 

¶22 We discern no abuse of discretion in the district court’s 

determination that Bruce sustained prejudice as a result of 

Nicole’s eight-year delay in asserting her right to the Home. The 

court’s ruling was well-reasoned and supported by evidence in 

the record. As noted, the court relied on the fact that Bruce had 

lived in the Home the entire time, raised the parties’ children 

there, and—perhaps most importantly—had taken care of all 

financial obligations related to the Home, including all 

maintenance and improvements. 

¶23 We acknowledge Nicole’s point that Bruce enjoyed certain 

advantages as a result of living in the Home. As Nicole points out, 

Bruce would have had to pay for housing whether he lived in the 

Home or elsewhere, and Bruce was apparently able to take 

advantage of the equity in the Home. These facts could have led 

the district court to make a different determination with regard to 

whether Bruce was prejudiced by Nicole’s delay. But the presence 

of conflicting evidence does not compel reversal here. Given the 

applicable standard of review, the relevant question is not 

whether we would have made the same determination had we 

been sitting as the assigned trial-level arbiters in this case; rather, 

the relevant question is whether we discern an abuse of discretion 

in the decision the assigned judge made. See Stichting Mayflower 

Mountain Fonds v. United Park City Mines Co., 2017 UT 42, ¶ 49, 424 

P.3d 72 (stating that “[t]he question presented is not whether we 

would have granted” the motion in question, but instead 
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“whether we find an abuse of discretion in the district judge’s 

decision to deny the motion”). Where the court’s decision is 

supported by evidence in the record and free from legal error, we 

will not disturb it. And that is the case here. 

¶24 Nicole resists this conclusion on three additional grounds. 

First, she points out that Bruce also delayed in asserting a right 

to the Home, and she complains that the district court applied 

the principles of laches in an uneven manner. But on this point, 

the district court made a specific determination that, although 

Bruce delayed the invocation of his claim to the Home, Nicole did 

not sustain any prejudice as a result of Bruce’s delay. The court 

noted that, during the time between her “abandonment” of the 

Home and the filing of Bruce’s Petition, Nicole “did not have to 

satisfy any financial obligations related to” the Home, “including 

those required by the Decree.” The court’s determination was 

therefore supported by evidence in the record and, while a 

different judge might have reached a different conclusion on these 

facts, we cannot say that the court’s ruling was an abuse of its 

discretion. 

¶25 Second, Nicole asserts that Bruce should not be able to take 

advantage of equitable doctrines such as laches because, in her 

view, Bruce had “unclean hands” due to his failure to pay 

alimony and child support, as required by the terms of the Decree, 

during the years he lived in the Home. See Goggin v. Goggin, 2013 

UT 16, ¶ 60, 299 P.3d 1079 (“The doctrine of unclean hands 

expresses the principle that a party who comes into equity for 

relief must show that his conduct has been fair, equitable, and 

honest as to the particular controversy in issue.” (quotation 

simplified)). But while Nicole (successfully, as it turned out) 

asked the district court to award her back alimony and child 

support, she never asked the district court to apply the doctrine 

of unclean hands, and her arguments in this regard are therefore 

unpreserved for appellate review. See State v. Johnson, 2017 UT 76, 

¶ 18, 416 P.3d 443 (“A failure to preserve an issue in the trial court 
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generally precludes a party from arguing that issue in an 

appellate court, absent a valid exception.”). 

¶26 Nicole does not explicitly ask us to utilize any of the 

exceptions to our preservation requirement, but she does assert 

that the district court erred by failing to “sua sponte” apply the 

unclean hands doctrine. Certainly, a court may invoke that 

doctrine without being asked to do so. See 30A C.J.S. Equity § 116 

(2023) (“A defense of unclean hands need not be pleaded. The 

doctrine may be applied by the court sua sponte.”). But the fact 

that a court may invoke the doctrine in a sua sponte manner does 

not relieve a party of its otherwise-applicable obligation to 

preserve issues for appellate review. Indeed, construed liberally, 

Nicole’s argument—that the district court erred by failing to sua 

sponte invoke the unclean hands doctrine—is an assertion that the 

court plainly erred by not concluding that Bruce’s unclean hands 

barred him from accessing equitable doctrines like laches. But this 

assertion fails because plain error review no longer exists in civil 

cases like this one. Kelly v. Timber Lakes Prop. Owners Ass’n, 2022 

UT App 23, ¶ 44, 507 P.3d 357. Because plain error review is 

unavailable, and because Nicole does not ask us to employ any 

other exception to our preservation requirement, the fact that her 

“unclean hands” argument is unpreserved requires us to reject 

her argument without reaching its merits. 

¶27 Finally, Nicole asserts that Bruce’s Petition was barred by 

the doctrine of res judicata. Essentially, she asserts that, because 

the parties already litigated the issue of entitlement to the Home, 

and because the Decree awarded the Home to her, Bruce is barred 

from relitigating that issue now. Nicole correctly asserts that res 

judicata is not categorically inapplicable in divorce cases. See

Throckmorton v. Throckmorton, 767 P.2d 121, 123 (Utah Ct. App. 

1988) (“The doctrine of res judicata applies in divorce actions.”).

But “[i]n the family law context, our legislature has given district 

courts the authority to revisit many of the provisions contained in 

a typical divorce decree, including provisions pertaining to child 
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custody, child support, alimony, property distribution, and debts.” 

See Robertson v. Stevens, 2020 UT App 29, ¶ 7, 461 P.3d 323 

(emphasis added); see also Utah Code § 30-3-5(5). In this context, a 

party may seek post-judgment modification of the property 

distribution provisions of a divorce decree, but in order to succeed 

in that endeavor the party “must demonstrate that a substantial 

change in circumstances has occurred since the entry of the 

decree.” See Toone v. Toone, 952 P.2d 112, 114 (Utah Ct. App. 1998)

(quotation simplified); see also Throckmorton, 767 P.2d at 123 

(“[T]he application of res judicata is unique in divorce actions 

because of the equitable doctrine which allows courts to reopen 

alimony, support, or property distributions if the moving party 

can demonstrate a substantial change of circumstances since the 

matter was previously considered by the court.”). 

¶28 Thus, modification of the Decree’s property distribution 

provisions is appropriate—even post-judgment and even taking 

into account principles of res judicata—so long as Bruce can 

demonstrate that, since entry of the Decree, there has been a 

substantial change of circumstances that would justify the court 

taking a second look at the terms of the distribution. And on that 

point, Nicole raises no challenge; indeed, in her reply brief on 

appeal she makes clear that she “is not arguing lack of changed 

circumstance,” and she affirmatively acknowledges that, in this 

case, “there have been changed circumstances.” Thus, the court 

had the authority to revisit the property distribution provisions of 

the Decree, and we reject Nicole’s argument to the contrary. 

¶29 For these reasons, we perceive no abuse of discretion in the 

district court’s determination that Bruce was prejudiced by 

Nicole’s unreasonable delay in asserting her right to possess the 

Home. Because Nicole does not contest the other element of 

laches—unreasonable delay—both elements are met. We 

therefore affirm the district court’s determination that the 

equitable doctrine of laches barred Nicole’s claim to the Home, 
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and on that basis we affirm the court’s grant of Bruce’s Petition 

and its accompanying order awarding the Home to Bruce. 

II

¶30 Next, we address Nicole’s challenge to the court’s award of 

attorney fees to Bruce, incurred in connection with litigating 

issues related to the Home. On this point, we find merit in Nicole’s 

arguments, and we therefore reverse the court’s fee award. 

¶31 Bruce’s fee request was grounded in Utah’s bad-faith 

attorney-fees statute, which empowers courts to “award 

reasonable attorney fees to a prevailing party if the court 

determines that the action or defense to the action was without 

merit and not brought or asserted in good faith.” See Utah Code 

§ 78B-5-825(1). Before awarding fees under this section, a district 

court—in addition to determining that the requesting party is the 

“prevailing party”—must make specific findings that the 

opposing party’s claim is (1) “without merit” and (2) “not brought 

or asserted in good faith.” Rocky Ford Irrigation Co. v. Kents Lake 

Reservoir Co., 2020 UT 47, ¶ 76, 469 P.3d 1003 (quotation 

simplified). These two findings “must be made independently” 

from one another. Still Standing Stable, LLC v. Allen, 2005 UT 46, 

¶ 12, 122 P.3d 556. Nicole asserts that the court failed to make a 

specific finding that her claims and defenses regarding the Home 

were without merit, and she maintains that the fee award was 

therefore improper. We agree with Nicole. 

¶32 While the court made a specific finding that Nicole’s claims 

and defenses regarding the Home were asserted in “bad faith” 

and on a “retaliatory” basis, it made no specific finding that 

Nicole’s claims were without merit. Bruce acknowledges the lack 

of an express finding on this point, but he asserts that we can infer 

such a finding from (a) the fact that the court rejected Nicole’s 

claims on their merits (i.e., that she lost) and (b) the court’s specific 

bad-faith finding. We see the matter differently. 
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¶33 First, a determination that a party lost on the merits is not 

equivalent to a determination that the party’s claims were without 

merit for purposes of the bad-faith statute. “Without merit” in this 

context means something worse than just having a losing claim. 

Indeed, our supreme court has stated that the term “without 

merit,” as used in the bad-faith statute, “implies bordering on 

frivolity,” with the term “frivolous” meaning “of little weight or 

importance having no basis in law or fact.” Cady v. Johnson, 671 

P.2d 149, 151 (Utah 1983) (quotation simplified); see also Migliore 

v. Livingston Fin. LLC, 2015 UT 9, ¶ 31, 347 P.3d 394 (“To determine 

whether a claim is without merit, we look to whether it was 

frivolous or of little weight or importance having no basis in law 

or fact.” (quotation simplified)). And on at least one occasion, our 

supreme court has concluded that a losing claim was not “without 

merit,” because the claim—even though it was not the prevailing 

claim—involved a question of “first impression” and “had a basis 

in law and fact.” See In re Olympus Constr. LC, 2009 UT 29, ¶ 31, 

215 P.3d 129. We therefore may not infer, merely from the district 

court’s rejection of Nicole’s claims on their merits, that the court 

considered those claims to be so meritless as to be “bordering on 

frivolity.” See Cady, 671 P.2d at 151. 

¶34 Nor may we draw that inference from the court’s “bad 

faith” finding. As noted already, the two separate findings—

without merit and bad faith—“must be made independently” 

from one another. Still Standing Stable, 2005 UT 46, ¶ 12. And this 

makes sense, because the two elements of the statutory test are

aimed at two different things. The first element (“without merit”) 

is concerned with the objective quality of the claim itself, see

Migliore, 2015 UT 9, ¶ 31, while the second element (“bad faith”) 

is concerned with the party’s subjective motivation for bringing 

it, see Blum v. Dahl, 2012 UT App 198, ¶ 9, 283 P.3d 963 (“A finding 

of bad faith turns on a factual determination of a party’s subjective 

intent.” (quotation simplified)). Both elements must be met before 

a court may award attorney fees under the bad-faith statute. And 
McFarland v. McFarland

20221044-CA 16 2024 UT App 31

the presence of one element does not necessarily imply the 

presence of the other. 

¶35 For instance, a party may have a completely frivolous 

claim that lacks any basis in law or fact, but that party may not be 

aware of the claim’s lack of merit at the time it was filed. In that

situation, the first element of the test is met but, depending on the 

circumstances, the second might not be. Conversely, a party may 

have a solid (albeit losing) claim that has a basis in both law and 

fact, but the party might be bringing that claim for abusive or 

improper reasons. In that situation, the second element might be 

met but the first one wouldn’t be. In the case at hand, our review 

of the record indicates that this might be the situation: Nicole had 

in her corner a provision in the Decree awarding her the Home, 

and Bruce had not taken any action to seek modification of that 

provision in eight years. Given these facts, it is certainly not 

obvious to us that Nicole’s claims and defenses regarding the 

Home were “bordering on frivolity,” see Cady, 671 P.2d at 151, 

even if we take at face value the court’s finding that Nicole 

brought the claims in a bad-faith effort to retaliate against Bruce. 

¶36 Accordingly, we conclude that the absence of any specific 

finding that Nicole’s claims were without merit renders the 

district court’s attorney fees award improper.1

CONCLUSION

¶37 We discern no abuse of discretion in the district court’s 

determination that laches barred Nicole’s claims and defenses 

regarding the Home, and on that basis we affirm the district 

1. Again invoking the bad-faith statute, Bruce asks us to award 

him attorney fees he incurred on appeal. We must reject this 

request because we have reversed the award of attorney fees in 

the district court. Moreover, we do not consider Nicole’s appellate 

arguments to have been brought in bad faith. 
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20221044-CA 17 2024 UT App 31

court’s grant of Bruce’s Petition and its accompanying order 

awarding the Home to Bruce. But due to the absence of any 

finding that Nicole’s claims and defenses were without merit, we 

reverse the court’s award of attorney fees to Bruce pursuant to the 

bad-faith statute, and we vacate the part of the court’s judgment 

that required Nicole to pay $7,390.67 in fees to Bruce.