Volk v. Vecchi

2020 UT App 77
THE UTAH COURT OF APPEALS
C ARMELITA VOLK,
Appellee,
v.
JOHN VECCHI ,
Appellant.
Opinion
No. 20180776-CA
Filed May 14, 2020
Third District Court, West Jordan Department
The Honorable James D. Gardner
No. 154907478
David S. Pace, Attorney for Appellant
Karra J. Porter and Kristen C. Kiburtz,
Attorneys for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES K ATE A PPLEBY and R YAN M. HARRIS concurred.
POHLMAN, Judge:
¶1 	John 	Vecchi 	and 	Carmelita 	Volk 	entered 	into 	a
relationship and began living together around 1999, but the two
never 	formally 	married. 	After 	separating 	in 	2015, 	Volk
petitioned for divorce, asserting that the parties had established
a 	common 	law 	marriage. 	The 	district 	court 	agreed. 	Vecchi
appeals, arguing that the court erred because Volk did not
establish all the required elements for common law marriage in
Utah. He also challenges the court’s alleged failure to order that
the parties equally share the costs of a custody evaluation. We
affirm.

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BACKGROUND1
¶2 	Volk and Vecchi met in approximately 1996. In 1999, they
began dating and moved in together. With the exception of
about 	one 	year 	in 	approximately 	2001 	or 	2002, 	they 	lived
together in California from 1999 until the summer of 2012, when
they moved to Utah.
¶3 	During the parties’ time 	in California, they had two
children together. Around the time their first child was born, the
parties “specifically agreed” that Volk “would be a stay-at-home
mother and [Vecchi] would pursue his career.” To that end, they
“agreed to divide up the responsibilities—with [Volk] taking on
primary responsibility for the children and household duties,”
while Vecchi “provide[d] financially for [Volk] and the kids.”
They also agreed to “pool their resources together and share
equally in everything that was accumulated (and in debts).”
¶4 	As 	evidence 	of 	their 	agreement, 	the 	parties 	jointly
purchased four properties together during their relationship—
two in California, one in Illinois, and one in Utah. They were co-
borrowers on the loans, held title jointly, and shared in the
maintenance 	of 	each 	property. 	They 	also 	maintained 	“joint
checking and savings accounts, joint car loans, and joint credit
cards.” Indeed, as Volk later testified at trial, “none of the
financial aspects of their lives were handled separately.”
¶5 	In early 2012, Vecchi began working for a company in
Utah. Because the parties “agreed that their children should
remain in California to finish the school year,” Vecchi commuted
1. “On appeal from a bench trial, we view the evidence in a light
most favorable to the trial court’s findings, and therefore recite
the facts consistent with that standard.” Chesley v. Chesley, 2017
UT App 127, ¶ 2 n.2, 402 P.3d 65 (cleaned up).

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for 	approximately 	six 	months 	before 	the 	parties 	and 	their
children moved to Utah in the summer of 2012.
¶6 	In late 2014, the parties began experiencing significant
difficulties in their relationship, and they separated in March
2015. 	In 	November 2015, 	Volk 	filed 	a 	petition 	for 	divorce,
seeking, among other things, a declaration of common law
marriage, alimony, child support, and equitable division of the
couple’s assets. During the proceedings, the court ordered a
custody evaluation for the parties’ children. The court required
Vecchi to pay for the evaluation but indicated that “[f]inal
allocation of this cost, if any, shall be reserved for trial.”
¶7 	After a bench trial, the district court concluded that Volk
had carried her burden of demonstrating that the parties had
established a common law marriage for the time they resided in
Utah—approximately thirty months. On that basis, the court
ordered, among other things, equitable division of the parties’
assets as well as alimony in Volk’s favor for thirty months, the
length of the common law marriage in Utah. The court also
determined that it was “fair and equitable” for each party to pay,
aside from one exception not relevant to this appeal, “his or her
own attorneys’ fees and costs.”
¶8 	Vecchi appeals.
ISSUES AND STANDARDS OF REVIEW
¶9 	Vecchi raises two main issues on appeal. First, he argues
that the district court erred in determining that Volk had shown
that the parties established a common law marriage in Utah.
Specifically, he argues that the court erred by determining “that
the parties had acquired a uniform and general reputation as
husband and wife” and that “the parties had consented to a
common law marriage contract while residing” in Utah. We
review the district court’s interpretation of the common law

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marriage statute for correctness, Hansen v. Hansen, 958 P.2d 931,
933 (Utah Ct. App. 1998), but we review the court’s findings of
fact for clear error and its application of the statute to those
findings for abuse of discretion, Clark v. Clark, 2001 UT 44, ¶ 14,
27 P.3d 538.
¶10 	Second, Vecchi argues that the district court erred by
failing to order that the costs of the custody evaluation be shared
equally between the parties. When the issue is preserved, we
review the district court’s denial of costs and fees for abuse of
discretion. See Penunuri v. Sundance Partners, 2017 UT 54, ¶ 15,
423 P.3d 1150; Leppert v. Leppert, 2009 UT App 10, ¶ 10, 200 P.3d
223; Wilde v. Wilde, 969 P.2d 438, 442 (Utah Ct. App. 1998).
However, when, as here, an appellant challenges the adequacy
of the district court’s findings for the first time on appeal, we
consider the issue waived. See 438 Main St. v. Easy Heat, Inc., 2004
UT 72, ¶¶ 50–56, 99 P.3d 801; Shuman v. Shuman, 2017 UT App
192, ¶ 2, 406 P.3d 258.
ANALYSIS
I. The District Court’s Common Law Marriage Determination
¶11 	As discussed above, the district court determined that
Volk proved that the parties established a common law marriage
during their time in Utah. Vecchi challenges this determination
on two grounds. First, he argues that the court erred when it
determined that the parties acquired a uniform and general
reputation as being married. Second, he argues that the court
erred 	when 	it 	determined 	that 	the 	parties 	consented 	to 	a
common law marriage.
¶12 	Before 	1987, 	Utah 	did 	not 	recognize 	common 	law
marriages. 	Whyte 	v. 	Blair, 	885 	P.2d 	791, 	793 	(Utah 	1994).
However, in 1987, our legislature enacted Utah Code section
30-1-4.5, which provides the requirements for establishing the

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validity of a marriage that has not been solemnized. See id. That
section sets out five requirements to establish the validity of such
a marriage:
A marriage which is not solemnized according to
this chapter shall be legal and valid if a court or
administrative order establishes that it arises out of
a contract between a man and a woman who:
(a) are of legal age and capable of giving consent;
(b) are legally capable of entering a solemnized
marriage under the provisions of this chapter;
(c) have cohabited;
(d) mutually assume marital rights, duties, and
obligations; and
(e) who hold themselves out as and have acquired
a uniform and general reputation as husband and
wife.
Utah Code Ann. § 30-1-4.5(1) (LexisNexis 2019).2 Additionally,
the 	marriage 	contract 	must 	arise 	between 	“two 	consenting
parties.” Hansen v. Hansen, 958 P.2d 931, 935 (Utah Ct. App.
1998); see also Whyte, 885 P.2d at 794–95 & n.3 (recognizing that
“whether the parties consented to be married is often disputed,”
and 	setting 	forth 	evidence 	that 	may 	be 	used 	to 	establish
consent). In proving the existence of a common law marriage,
“[n]o single factor is determinative,” but each required element
must be established by sufficient evidence. Whyte, 885 P.2d at
794; Hansen, 958 P.2d at 935.
2. Because there have been no material changes to this statute
since 2015, we cite the current version for convenience.

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¶13 	As we explain below, we conclude that Vecchi has not
shown 	that 	the 	district 	court 	abused 	its 	discretion 	by
determining that the parties had acquired a uniform and general
reputation as a married couple and that they had consented to a
marriage while living in Utah. On this basis, we affirm the
district court’s determinations on both points.
A. 	Uniform and General Reputation
¶14 	Vecchi first challenges the district court’s determination
that the parties had acquired a uniform and general reputation
as husband and wife. See Utah Code Ann. § 30-1-4.5(1)(e). He
points to a few witnesses who testified at trial that they were
informed (and therefore knew) that the parties were not legally
married, and he claims this testimony evidences that the parties
enjoyed 	a 	“divided” 	rather 	than 	a 	“uniform 	and 	general”
reputation as husband and wife.
¶15 	It is true that “a partial or divided reputation of marriage
is insufficient” to establish that a couple has acquired a “uniform
and general reputation as husband and wife,” as required by
section 30-1-4.5(1)(e). Rivet v. Hoppie, 2020 UT App 21, ¶ 11, 460
P.3d 1054; see also Hansen, 958 P.2d at 936. For example, “a partial
or divided reputation of marriage may be shown when the
parties’ closest friends do not consider the parties married and
the parties are not consistent in holding themselves out as
married to the rest of the world.” Rivet, 2020 UT App 21, ¶ 11
(cleaned up).
¶16 	Here, however, the court rejected the notion that the
parties’ reputation was divided and concluded that Volk met her
burden of showing that they had acquired a “general reputation
as husband and wife.” The court found that Volk testified
consistently about the fact that she “regularly referred” to Vecchi
as her husband, that “she considered them to be married,” and
“that she routinely introduced [Vecchi] as her husband to third
parties” and otherwise “regularly represented herself as being

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married.” 	Volk 	also 	testified 	that 	both 	parties 	“provided
documentation 	and 	information 	to 	third 	parties, 	including
lenders, reflecting her and [Vecchi] as married” and that they
also generally “presented themselves as a married couple.” And
the 	court 	found 	that, 	although 	Vecchi’s 	“testimony 	was
inconsistent 	and 	contradictory,” 	Volk’s 	testimony 	on 	these
points nevertheless was “supported in large part by [Vecchi’s]
testimony.”
¶17 	Additionally, 	the 	court 	found 	that 	“a 	number 	of
third-party witnesses called by [Volk] provided consistent and
persuasive 	support 	for 	the 	requirement” 	that 	the 	parties
acquired a uniform and general reputation of being husband and
wife. For example, the court found that a neighbor had the
impression that the parties were married “based on how they
held each other out, interacted with each other and socialized
with others” and that he “did not observe or hear anything
during his acquaintance with [the parties] . . . that made him
question whether they were married.” The court also found that
several of the parties’ acquaintances from their children’s school
similarly held the belief that the parties were married. One
witness testified that “in every discernible way she thought [the
parties] were a married couple,” while another testified that in
her view “there was never a suggestion” in the parties’ behavior
that “they were not married.” Yet another testified that the
parties “appeared to be a normal married couple” and that the
witness observed “nothing” that “suggested otherwise.”
¶18 	Vecchi raises no challenge to these findings. See Clark v.
Clark, 2001 UT 44, ¶ 16, 27 P.3d 538 (concluding that there was
sufficient evidence that a couple had acquired a uniform and
general 	reputation 	as 	husband 	and 	wife 	where 	each 	party
“routinely introduced each other as husband and wife” and “at
least 	two 	witnesses, 	including 	a 	neighbor 	and 	a 	former
daughter-in-law, believed [the couple was] married” based in
part on the fact that the couple “acted like a husband and wife

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would act” (cleaned up)); Hansen, 958 P.2d at 936 (noting that a
uniform and general reputation for marriage may be shown by
“the understanding among the neighbors and acquaintances
with whom the parties associate in their daily life, that they are
living together as husband and wife” (quoting People v. Lucero,
747 	P.2d 	660, 	665 	(Colo. 	1987))). 	Instead, 	Vecchi’s 	entire
challenge is based on the testimony of a few witnesses he claims
knew that their union had not been solemnized, arguing that the
existence 	of 	persons 	who 	“were 	specifically 	informed 	and
aware” 	of 	the 	parties’ 	legal 	marital 	status 	is 	fatal 	to 	the
establishment of this element.
¶19 	In this respect, Vecchi points to testimony by a longtime
coworker and friend (Friend) from California who testified he
knew that the parties had never formally married. He also points
to 	testimony 	of 	the 	human 	resources vice 	president 	of 	his
employer in Utah, who testified that Vecchi informed her of his
legal marital status for health insurance purposes and she had to
change the company’s health insurance plan to accommodate
Vecchi’s relationship status. And he points to testimony of one of
Volk’s witnesses (Witness), who said that Volk told her that the
parties had never formally married.
¶20 	But in crafting section 30-1-4.5, our legislature chose to
base this requirement on the couple’s acquisition of a uniform
and general reputation for being husband and wife, not on the
awareness by a few of the legal status of a couple’s union. See
Utah Code Ann. § 30-1-4.5(1)(e); see also Nichols v. Jacobsen Constr.
Co., 2016 UT 19, ¶ 17, 374 P.3d 3 (“When we interpret a word
within a statute, we first consider its plain meaning. In looking
to determine the ordinary meaning of nontechnical terms of a
statute, our starting point 	is the dictionary.” (cleaned up));
Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d
863 (stating that “our primary goal” when interpreting statutes
“is to evince the true intent and purpose of the Legislature,”
which requires that we look to “the plain language of the statute

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itself” 	and 	presume 	that 	“the 	legislature 	used 	each 	term
advisedly 	according 	to 	its 	ordinary 	and 	usually 	accepted
meaning” (cleaned up)).
¶21 	The 	plain 	meaning 	of 	the 	term 	“reputation”
indicates that it does not rise and fall on particular persons’
knowledge. Rather, a reputation is a collective perception or
estimation 	by 	the 	public 	or 	a 	community. 	See 	Reputation,
Dictionary.com, https://www.dictionary.com/browse/reputation
[https://perma.cc/YU63-VBPZ] 	(defining 	“reputation” 	as
“the 	estimation 	in 	which 	a 	person 	or 	thing 	is 	held,
especially 	by 	the 	community 	or 	the 	public 	generally”);
Reputation, 	Merriam-Webster.com, 	https://www.merriam-
webster.com/dictionary/ 	reputation 	[https://perma.cc/X4GE-
ANSG] (defining “reputation” as an “overall quality or character
as seen or judged by people in general” and “recognition by
other people of some characteristic or ability”).
¶22 	Likewise, the plain meaning of the terms “uniform” and
“general” do not obviously modify the term “reputation” such
that a few persons’ isolated awareness of the legal status of the
parties’ relationship, without more, is sufficient to undermine an
acquired community perception that the parties are husband
and wife. For example, “uniform” is defined as “consistent”
and 	having 	“always 	the 	same 	form, 	manner, 	or 	degree.”
See 	Uniform, 	Merriam-Webster.com, 	https://www.merriam-
webster.com/ dictionary/uniform [https://perma.cc/6EEV-EEQS].
In 	this 	respect, 	a 	couple’s 	acquired 	reputation 	for 	being
married—one 	created 	by 	the 	couple’s 	conduct 	in 	holding
themselves out as such—may be consistent in a community
despite some isolated awareness that the couple is not legally
married. Likewise, even assuming that isolated instances of
awareness alone could affect the parties’ overall reputation for
being married, the definition of “general” inherently includes
“possible 	exceptions.” 	See 	General, 	Dictionary.com,
https://www.dictionary.com/browse/general [https://perma.cc/8S

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CU-Y6HH] (defining “general” as “of, relating to, or true of such
persons or things in the main, with possible exceptions; common
to most; prevalent; usual” and “considering or dealing with
overall characteristics, universal aspects, or important elements,
especially without considering all details or specific aspects”).
¶23 	As described above, the district court determined that
the parties consistently held themselves out, and were also
consistently perceived by others, as though they were legally
married; the court found that the parties and “a number of
third-party witnesses” testified to that end. Vecchi has not
shown 	or 	explained 	how, 	despite 	the 	court’s 	numerous
determinations on this issue, the isolated awareness of his legal
marital status by a confidant or two affected the collective,
community perception and estimation of his relationship with
Volk.
¶24 	Moreover, Vecchi’s reliance on Friend’s and Witness’s
testimonies to make his argument also seems misplaced, given
that each also testified to the marriage-like quality of the parties’
relationship. For example, Friend testified that while Vecchi told
him 	he 	never 	had 	a 	“formal 	marriage 	ceremony,” 	Friend
nevertheless viewed the parties’ relationship as exclusive and
committed—more 	than 	simply 	a 	boyfriend-girlfriend
relationship—and related that when they worked together in
California, it was a joking matter that “even though [Vecchi’s]
not married, he acts as if he’s married.” Likewise, Witness
testified that both parties referred to each other as husband and
wife, and she believed the parties were married based on the
parties’ 	move 	to 	Utah 	with 	their 	children 	and 	her 	own
observations with respect to the parties’ roles in the relationship.
Witness also testified that she did not “think much” of the
conversation she had with Volk about the parties’ lack of a
marriage ceremony “before or after” the conversation occurred,
because Volk “expressed that she felt [the parties] were married”

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and 	Witness 	“didn’t 	see 	any 	difference” 	in 	the 	parties’
relationship.
¶25 	In short, Vecchi has not shown that these witnesses’
awareness of the parties’ legal relationship status created a
“partial or divided” reputation for being husband and wife. We
therefore conclude that the district court did 	not abuse 	its
discretion 	by 	determining 	that 	the 	parties 	had 	acquired 	a
uniform and general reputation for being husband and wife
while in Utah.
B. 	Consent
¶26 	Vecchi next challenges the district court’s determination
that the parties consented to a common law marriage. He points
to the fact that Volk allegedly proposed to him twice, including
once after moving to Utah, and that he declined both times. He
also generally asserts that the parties purposefully declined to
formally marry despite being able to do so at any time.
¶27 	As explained by our courts, parties to a common law
marriage must consent “to the rights and responsibilities that
accompany a legally recognized marital relationship.” Hansen,
958 P.2d at 936; see also Whyte, 885 P.2d at 794 (describing the
consent required as consent “to be married” and to “assume all
marital responsibilities”). While the “best evidence of marital
consent is a written agreement . . . by both parties” manifesting
the requisite consent, our courts have noted that consent may be
established by evidence of certain circumstances in the parties’
relationship, such as “maintenance of joint banking and credit
accounts; purchase and joint ownership of property; the [sharing
of a spouse’s] surname by the [other spouse] and/or the children
of the union; the filing of joint tax returns; speaking of each other
in the presence of third parties as being married; and declaring
the relationship in documents executed by them while living
together, such as deeds, wills, and other formal instruments.”
Whyte, 885 P.2d at 794–95; see also Hansen, 958 P.2d at 936.

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“[C]onsent 	also 	may 	be 	established 	by 	acquiescence,” 	as
evidenced by “objective words and actions” by one spouse that
led the other spouse “to believe that [the first spouse] had
consented to marriage.” Whyte, 885 P.2d at 794 n.3.
¶28 	Here, although Vecchi points to his alleged refusal to
marry Volk while in Utah, he does not acknowledge that Volk
“denied that these proposals had ever occurred.” And the court
found Volk’s testimony about the parties’ relationship status to
be credible, but it found Vecchi’s testimony about it to be
“inconsistent 	and 	contradictory.” 	Thus, 	the 	court’s
determination 	that 	Vecchi 	consented 	to 	the 	rights 	and
responsibilities of a marital relationship is not undermined by
Vecchi’s alleged rejections of Volk’s proposals to marry because
there is no finding that they ever occurred.
¶29 	Vecchi also does not challenge or otherwise deal with the
numerous determinations the court made on the issue of the
parties’ consent while in Utah. See Gines v. Edwards, 2017 UT
App 47, ¶ 31, 397 P.3d 612 (explaining that an appellant must
“engage with the bases” of the district court’s determinations to
carry his or her burden of persuasion on appeal); Duchesne Land,
LC v. Division of Consumer Prot., 2011 UT App 153, ¶ 8, 257 P.3d
441 (same); see also State v. Gibson, 2016 UT App 15, ¶¶ 10–11, 366
P.3d 	876 	(declining 	to 	reach 	the 	merits 	of 	the 	appellant’s
challenge where he failed “to adequately identify and engage
with the evidence supporting the trial court’s decision”).
¶30 	For example, tracking the consent indicia identified in
Whyte, the court found that the “parties cohabitated for over 16
years, including years in Utah,” and that during that time they
“maintained joint bank accounts,” “had joint credit accounts and
car loans,” “purchased and had joint ownership of four (4)
parcels of real property,” and “prepared and filed their tax
returns 	together.” 	The 	court 	also 	found 	that 	the 	parties
“described themselves as husband and wife, or married, in the

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presence 	of 	third 	parties” 	and 	“were 	generally 	known 	by
persons in the Utah area . . . as a married couple”; that “the
children used the surname of both parents”; and that Vecchi
“even referred to [Volk’s] parents as the ‘in-laws’ at trial.”
Additionally, the court found that “the parties were reflected as
married in numerous documents executed . . . while they were
living together, including insurance documents, loan documents
on real property, and the like.” For these reasons, the court
ultimately concluded that the “indicia of common law marriage
[were] present” and that “the parties consented to the common
law marriage.”
¶31 	Because Vecchi does not acknowledge or persuasively
deal with the court’s findings on the issue of consent, Vecchi has
not shown an abuse of discretion in the court’s determination
that the parties consented to a common law marriage. See Gines,
2017 UT App 47, ¶ 31; Gibson, 2016 UT App 15, ¶¶ 10–11.
¶32 	In short, Vecchi has not demonstrated that the district
court 	abused 	its 	discretion 	in 	determining 	that 	the 	parties
consented to a common law marriage and acquired a uniform
and general reputation as husband and wife. Accordingly, we
affirm the district court’s conclusion that Volk “met her burden”
of showing that the parties had established a common law
marriage in Utah.
II. The District Court’s Costs Decision
¶33 	Vecchi also challenges the district court’s failure to order
that the parties share equally the costs of the custody evaluation.
He characterizes the court’s decision on this point as a complete
failure to render a decision on the issue. He also claims that it is
only equitable that both parties bear the cost of the evaluation
because both parties benefitted from it.
¶34 	We are unable to grant the relief Vecchi requests. To begin
with, 	we 	question 	Vecchi’s 	assertion 	that 	the 	district 	court

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completely failed to render a decision on the costs issue. In its
post-trial orders, the court expressly determined that it was “fair
and equitable” for each party to “pay his or her own attorneys’
fees and costs.” On its face, this determination arguably includes
the costs of the custody evaluation.
¶35 	But to the extent Vecchi believed that the district court
failed 	in 	not 	making 	a 	specific 	finding 	about 	the 	custody
evaluation costs, it was incumbent on Vecchi to raise the issue in
that court. See 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶¶ 50–
56, 99 P.3d 801 (explaining that a challenge to the adequacy of a
district court’s findings must be raised before the district court in
the first instance, or the issue will be deemed waived on appeal);
Seamons v. Wiser, 2020 UT App 33, ¶¶ 12–14 (rejecting the
argument that the district court failed to rule on two specific
arguments where the appellant failed to raise the issue before
the district court); PC Crane Service, LLC v. McQueen Masonry,
Inc., 2012 UT App 61, ¶¶ 46–47, 273 P.3d 396 (concluding that the
appellant had waived the issue of the adequacy of the district
court’s costs findings where it did not raise it before the district
court). He did not do so.
¶36 	While Vecchi included the issue of the custody evaluation
costs in his proposed findings of fact and conclusions of law,
after the court issued its post-trial orders Vecchi would have
been alerted to the alleged inadequacy in the court’s findings
with respect to the custody evaluation costs. Yet Vecchi has not
directed us to any place in the record indicating that he alerted
the court at any time following those orders to the alleged
inadequacy he asserts on appeal. Nor have we discovered his
presentation of the issue to the district court in our review.
Accordingly, he has waived this issue for appeal, and we will
not consider the issue further. See PC Crane, 2012 UT App 61,
¶¶ 46–47.

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CONCLUSION
¶37 	We conclude that Vecchi has not demonstrated that the
district court abused its discretion in determining that the parties
entered into a common law marriage in Utah. We also conclude
that Vecchi has waived his argument with respect to the custody
evaluation’s costs. For these reasons, we affirm.