Can divorce non-disparagement clauses restrict social media speech? Wallace v. Wallace Explained

In Wallace v. Wallace, the Utah Court of Appeals addressed whether a non-disparagement provision in a divorce decree that extends to social media posts violates First Amendment free speech rights. The case highlights critical preservation requirements for constitutional challenges in family law proceedings.

Background and Facts

James and Joanna Wallace divorced in 2017 under a stipulated divorce decree containing a broad non-disparagement provision prohibiting “negative, disparaging or derogatory comments to or about each other” including “all communication between the parties or to third parties.” When Joanna posted allegedly disparaging content about James on social media, he filed a motion to enforce. The trial court ruled that social media posts constituted communications “to third parties” under the provision’s broad language and ordered Joanna to remove the posts. During subsequent modification proceedings addressing custody and support issues, the court clarified that the non-disparagement provision “extend[ed] to all social media platforms.”

Key Legal Issues

Joanna challenged the social media restriction as violating her First Amendment rights, arguing she had the right to express opinions that didn’t rise to defamation. She contended that any waiver of free speech rights required “clear and compelling evidence” that it was “voluntary, knowing, and intelligent.” The court also addressed child support calculations for hybrid custody arrangements, summer parent-time scheduling, and attorney fee awards.

Court’s Analysis and Holding

The Court of Appeals declined to reach the merits of the constitutional challenge because it was not properly preserved. Joanna raised her First Amendment claim for the first time in a post-trial motion to amend, after the modified divorce decree was entered and without requesting a hearing. The court emphasized that issues must be “specifically raised by the party asserting error, in a timely manner” with supporting evidence and legal authority. Since Joanna could have raised the social media issue earlier—particularly after the trial court’s adverse 2018 ruling on James’s motion to enforce—her constitutional challenge was waived.

Practice Implications

This decision underscores the critical importance of timely preservation for constitutional challenges in family law cases. Practitioners cannot wait until post-judgment motions to raise First Amendment or other constitutional issues that could have been addressed at trial. The case also demonstrates courts’ broad discretion in interpreting stipulated provisions and establishing custody arrangements that serve children’s best interests, even when deviating from statutory guidelines.