When does Utah's "support follows the child" statute apply to modify existing orders? McFarland v. McFarland Explained

In McFarland v. McFarland, the Utah Court of Appeals addressed two critical issues in family law: when alimony can be terminated for cohabitation and when Utah Code Section 78B-12-108’s “support follows the child” provision allows retroactive modification of child support orders.

Background and Facts

Bruce and Nicole McFarland divorced in 2009 with a stipulated decree requiring Bruce to pay $1,700 monthly alimony and $739.73 child support, despite Bruce having 24 of 30 overnight visits with the children. After divorce, both parties largely ignored the decree’s terms. Bruce made minimal payments, Nicole made no mortgage payments on the marital home, and Bruce moved back in. The parties cohabited from September 2009 to April 2010. When Nicole joined the military in 2010, Bruce assumed full care of the children and all household expenses. Neither party sought court intervention for eight years until Bruce filed a petition to modify in 2017.

Key Legal Issues

The court addressed two primary questions: (1) whether Bruce’s alimony obligation terminated due to the parties’ cohabitation in 2009-2010, and (2) whether Section 78B-12-108 (“support follows the child”) relieved Bruce of child support obligations retroactive to 2009 when he assumed primary care of the children.

Court’s Analysis and Holding

Regarding alimony, the court applied Scott v. Scott to hold that Utah Code Section 30-3-5(10) requires the payor spouse to establish that the former spouse “is cohabitating” at the time the petition is filed. Since any cohabitation ended in 2010 but Bruce didn’t file until 2017, his petition was untimely. For child support, the court found Section 78B-12-108 inapplicable because no legal change in physical custody occurred. The statute requires formal legal processes to effectuate custody changes, and merely providing additional care doesn’t satisfy this requirement. Additionally, both arrangements (before and after Nicole’s departure) constituted sole physical custody to Bruce, so no custody category change occurred.

Practice Implications

This decision emphasizes the importance of prompt action in family law modifications. Practitioners should advise clients to file petitions to modify immediately when circumstances change, particularly for alimony termination based on cohabitation. The court rejected equitable arguments that would override statutory requirements, reinforcing that generalized fairness concerns cannot supersede legislative mandates. The decision also clarifies that Section 78B-12-108’s retroactive modification exception has narrow application limited to formal legal changes in physical custody arrangements.