                 This opinion is subject to revision before final
                        publication in the Pacific Reporter

                                 2018 UT 40


                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH

                  In re DEBORAH MICHELLE KILEY
       _________________________________________________

                      DEBORAH MICHELLE KILEY,
                        Appellant and Debtor,
                                       v.
                       MARY M. HUNT, Trustee,
                             Appellee.

                              No. 20170472
                          Filed August 14, 2018

                      On Certification from the
       United States Bankruptcy Court for the District of Utah
             The Honorable Judge Kevin R. Anderson
                         Case No. 15-27838

                                 Attorneys:
           Matt Wadsworth, Salt Lake City, for appellant
 Peggy Hunt, Michael F. Thomson, Megan K. Baker, Salt Lake City,
                          for appellee


    JUSTICE PEARCE authored the opinion of the Court in which
  ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS, JUSTICE PETERSEN,
                    and JUDGE HAGEN joined.

Having recused himself, CHIEF JUSTICE DURRANT did not participate
       herein; COURT OF APPEALS JUDGE DIANA HAGEN sat.

   JUSTICE PEARCE, opinion of the Court:
                            INTRODUCTION
    ¶ 1 The bankruptcy court certified two questions of Utah law
that lie at the intersection of family and bankruptcy law. Based upon
a compelling certification order, we accepted the invitation to resolve
those questions. After receiving briefing and conducting oral
                             In re KILEY
                        Opinion of the Court

argument, we are left with dual concerns—that the parties have not
given us the briefing we need to actually answer the questions and
that our opinion might ultimately be for naught. At oral argument,
Kiley’s counsel admitted the deficiencies in the briefing. And the
bankruptcy trustee suggested that the marital property division at
the heart of this case may have violated the automatic stay that
accompanies a bankruptcy petition’s filing. Because of the
inadequate briefing and the problematic procedural posture, we
revoke certification.
                          BACKGROUND
   ¶ 2 In 2012, Deborah Kiley filed for divorce from Jarod Marrott.
The district court entered temporary orders and bifurcated the
proceeding; that is, the district court granted the divorce but
deferred resolution of other questions, including the division of
marital assets. About a year later, after Marrott had fallen behind on
alimony and child support payments, Kiley filed a motion to show
cause and a motion to clarify. Kiley sought to enforce the temporary
orders and to recover unpaid child support and alimony.
    ¶ 3 The district court granted the motions and entered
judgment for $121,188.22. Two months later, Kiley and Marrott
participated in mediation and stipulated to a property settlement.
The parties then, according to Kiley, read the stipulation into the
record before the domestic relations commissioner. As part of that
stipulation, and to satisfy the judgment for unpaid child support and
alimony, Kiley received “all of the value in any and all of her former
spouse’s retirement accounts . . . .”
    ¶ 4 The day after mediation, Kiley petitioned for bankruptcy.
About a month after that, the district court entered a supplemental
decree reifying the settlement the parties had placed on the record. A
couple months later, the district court entered the qualified domestic
relations order (QDRO)—the document that would permit Kiley to
access Marrott’s retirement funds.
    ¶ 5 Kiley did not list the retirement plan proceeds on her initial
bankruptcy disclosures. At a meeting with her creditors—a meeting
that took place before the district court entered the order
memorializing the stipulated property division—Kiley disclosed her
interest in the retirement funds. A few months later, after the QDRO
was entered, Kiley filed an amended schedule that included the
retirement funds.




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                        Opinion of the Court

    ¶ 6 But Kiley claimed the retirement funds were exempt from
the bankruptcy estate under Utah Code section 78B-5-505(1)(a)(xiv). 1
The trustee argued that the exemption was inapplicable because,
among other reasons, Kiley was entitled to the value of the
retirement funds, not the funds themselves. About a month later,
Kiley filed another amended schedule and claimed that the
retirement funds were exempt under Utah Code section
78B-5-505(1)(a)(xv). 2 The trustee asserted that this exemption was not
available to Kiley either.
   ¶ 7 Against this backdrop, the bankruptcy court certified two
questions to us:
       1. What is the nature and scope of a party’s interest in
          marital property as of the filing of a divorce
          complaint—contrasted with the nature and scope of
          such interest upon the entry of a divorce decree
          allocating such marital property? Stated differently,
          upon the filing for divorce, is a spouse’s interest in
          marital property merely contingent, unliquidated,
          and inchoate until the entry of a divorce decree
          creating a vested right to receive a specific sum of
          money or a specific marital asset?

_____________________________________________________________

   This exemption provides that:
   1

     (1)(a) An individual is entitled to exemption of the
     following property: . . . (xiv) except as provided in
     Subsection (1)(b), any money or other assets held for or
     payable to the individual as a participant or beneficiary
     from or an interest of the individual as a participant or
     beneficiary in a retirement plan or arrangement that is
     described in Section 401(a), 401(h), 401(k), 403(a),
     403(b), 408, 408A, 409, 414(d), 414(e), or 457, Internal
     Revenue Code . . . .
UTAH CODE § 78B-5-505(1)(a).
   And this exemption provides that:
   2

     (1)(a) An individual is entitled to exemption of the
     following property: . . . (xv) the interest of any money
     or other assets payable to an alternate payee under a
     qualified domestic relations order as those terms are
     defined in Section 414(p), Internal Revenue Code . . . .
UTAH CODE § 78B-5-505(1)(a).


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                        Opinion of the Court

      2. Is an individual entitled to an exemption under Utah
          Code Ann. § 78B-5-505(1)(a)(xv) in money or other
          assets payable to that individual as an alternate
          payee under a [qualified domestic relations order]
          (QDRO)? Stated more simply, is the Debtor entitled
          under Utah law to exempt the Retirement Plan
          Proceeds?
   ¶ 8 We accepted the certified questions, ordered briefing, and
held oral arguments.
                               ANALYSIS
    ¶ 9 Certified questions can present unique challenges, as we
recently noted in Zimmerman v. University of Utah, 2018 UT 1, 417
P.3d 78. In Zimmerman, we declined to answer two certified
questions involving the Free Speech Clause of our constitution. Id.
¶¶ 1–2. We noted that “[i]f this case were before us on appeal we
would have the benefit of a lower court’s disposition of [these]
claims. We would also be presented with the legal standards
adopted by the trial court and the application of those standards to
the evidence in the record.” Id. ¶ 14.
    ¶ 10 We reasoned that these “obstacles alone are not
insurmountable.” Id. ¶ 16. But we concluded that the limited briefing
the parties had presented us amplified the challenges inherent in
answering a certified question. Id. Specifically, we were concerned
that the parties had not provided the state constitutional analysis we
needed to answer the certified questions. Id. ¶¶ 17–23. We noted that
“[o]ur jurisdiction in answering certified questions . . . is elective”
and that our discretion “necessarily encompasses the authority to
decline to provide a conclusive answer after reviewing the parties’
briefing.” Id. ¶ 27. We ultimately declined to answer the Free Speech
Clause questions because the briefing did not provide us what we
needed to tackle a question of that importance.
    ¶ 11 This case offers similar challenges. The first certified
question asks us to address what interest Kiley had in the marital
property at various points in time. During oral argument, Kiley’s
counsel acknowledged: “I am apologetic because in reading both my
brief and counsel’s brief, for the appellee in this case, I don’t think
either of us really addressed [the first question] very well.” And,
indeed, instead of analyzing what interest Kiley had in the martial
estate, Kiley spends a portion of her brief asserting that the question
did not matter.



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    ¶ 12 Kiley argues that the “matter before the Court is far
broader than an academic discussion over the distinction between
equitable interests in marital property as opposed to vested
interests.”
       The state court cites the rule that dominates current
       divorce law in Utah—that regardless of who the owner
       of record is, both parties share an interest in marital
       property. The nature of that interest (i.e. equitable,
       contingent, vested etc.) is academic. The point is that
       both parties share interest . . . . Here, Ms. Kiley owns ½
       of the marital share of her husband’s 401k—whether it
       was as an actual owner or equitable ownership is
       immaterial.
(Emphasis omitted).
    ¶ 13 But the bankruptcy court did not think the distinction
immaterial or academic. Indeed, we believe that is why the court
specifically asks us to define “[t]he nature of that interest” in the first
certified question. And taking on that task, already complicated in a
certified case, see supra ¶ 9, becomes even more challenging when we
have inadequate briefing on the question from one of the parties.
Though we appreciate counsel’s candor about the lackluster briefing,
we are left with the task of answering the bankruptcy court’s
question with one party declining to engage meaningfully on the
central issue.
    ¶ 14 We have constitutional and rule-based authority to decide
when to answer a certified question. Zimmerman, 2018 UT 1, ¶ 2
(“Our authority to answer certified questions, however, is a matter of
discretion (citing UTAH CONST. art. VIII, § 3 and UTAH R. APP.
P. 41.”)). And, given the importance of the question and the potential
to decide it with only one side of the argument before us, we believe
it best to leave this question for another day.3

_____________________________________________________________
   3 That the question arises in the context of funds in a retirement
account further complicates the question and informs our decision to
decline to answer the first certified question. The parties agree that
the Employee Retirement Income Securities Act (ERISA) may have
some impact on the disposition of the funds. The bankruptcy court
appears to have carefully drafted the question to leave the ERISA
issues out of our court. Nevertheless, both parties analyze the
question with reference to ERISA. For example, Kiley argues that
                                                      (continued . . .)
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                         Opinion of the Court

    ¶ 15 The second certified question asks us to interpret the Utah
Exemptions Act. 4 Specifically, the bankruptcy court asks us to
determine whether an alternate payee under a QDRO can claim the
exemption in Utah Code section 78B-5-505(1)(a)(xv). Because the
Act’s exemptions are applied in a variety of contexts, our
interpretation has the potential to reverberate throughout the Utah
Code. See, e.g., Oliver v. Mitchell, 376 P.2d 390, 391–93 (Utah 1962)
(applying exemptions statute to the garnishment of wages); Cricket
Commc’ns, Inc. v. All You Can Talk Partners, Inc., No.
2:11-cv-315-DB-PMW, 2011 WL 4591099, at *1–2 (D. Utah Sept. 30,
2011) (applying exemptions statute to determine what property is
subject to “prejudgment writ of attachment”).
    ¶ 16 Once again, the briefing hampers our ability to answer the
question. Kiley refused, both in her brief and at oral argument, to
engage with the statute’s plain language. Kiley’s brief focuses
instead on the “cataclysmic change” that might result from a
decision that the exemption does not apply to Kiley. And Kiley trots
out a pretty serious parade of horribles for many debtors and
divorcing spouses that she claims would occur if we were to credit
the trustee’s interpretation. She also claims that this interpretation
would disrupt the “status quo”—which we understand to mean the
manner in which the bench and bar currently understand the way
the exemptions operate. But Kiley cites no authority to support that
assertion.
    ¶ 17 Instead, Kiley’s legal argument focuses on the interpretive
canon that exemptions should be read in favor of the debtor. See, e.g.,
Russell M. Miller Co. v. Givan, 325 P.2d 908, 909 (Utah 1958). The
problem with Kiley’s legal argument is that this canon comes into
play if the statute is ambiguous. See Marion Energy, Inc. v. KFJ Ranch
P’ship, 2011 UT 50, ¶ 15, 267 P.3d 863 (“When the ‘meaning of [a]
statute can be discerned from its language, no other interpretive


“ERISA qualified accounts are sacrosanct to creditors” and that
Kiley’s entitlement to the account is “pursuant to ERISA.” Similarly
the trustee argues that—whatever interest Kiley might have under
state law—that interest is preempted by ERISA. So, despite the
bankruptcy court’s effort to present us with a question that avoided
the ERISA concerns, the parties have briefed the issue in a way that
presumes we will analyze ERISA’s impact.
   4   UTAH CODE §§ 78B-5-501 to 513.


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tools are needed.’” (alteration in original) (citation omitted)). And
despite repeated questions during oral argument aimed at
permitting, and indeed imploring, Kiley to identify an ambiguity,
Kiley refused to play ball. Instead, Kiley’s counsel responded with a
discussion of how practitioners interpreted the exemptions and the
dire consequences flowing from a reading that would deny his
client, and those like her, from claiming the exemption. In other
words, because Kiley refused to engage with the statute’s language,
we have only one reading of the statute in front of us. And we
hesitate to opine on a matter of Utah law that could have serious
impacts beyond this case with only one side of the issue analyzed.
   ¶ 18 One final consideration motivates us to decline to answer
the certified questions. There appears to be a question regarding
whether the automatic stay that accompanies a bankruptcy filing has
the potential to void the property settlement at issue in this case. 5
    ¶ 19 We asked the bankruptcy trustee about the automatic stay’s
potential impact. The response did not assuage our concerns that our
decision could be mooted. At oral argument, the trustee’s counsel
stated that:
       Section 362(b)(2) of the Bankruptcy Code does . . . state
       that the automatic stay does not apply to certain
_____________________________________________________________
   5When a bankruptcy petition is filed, the petition:
       (a) . . . operates as a stay, applicable to all entitles, of—
        ...
            (3) any act to obtain possession of property of the
            estate or of property from the estate or to exercise
            control over property of the estate . . . .
       (b) The filing of a petition . . . does not operate as a
       stay— . . .
            (2) under subsection (a)—
                 (A) of the commencement or continuation of a
                 civil action or proceeding— . . .
                     (ii) for the establishment or modification of
                     an       order     for     domestic     support
                     obligations; . . .
                     (iv) for the dissolution of marriage, except to
                     the extent that such proceeding seeks to
                     determine the division of property that is
                     property of the estate . . . .
11 U.S.C. § 362.


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                         Opinion of the Court

       divorce-related proceedings. Property division is not
       one of them. . . . [The automatic stay] was not lifted. We
       haven’t gone to those issues, quite frankly, because,
       from our perspective, . . . if we go down the road of
       “was the automatic stay violated?” and “is that order
       void?”, . . . from our perspective, we don’t have to go
       there because I think we win on these grounds.
    ¶ 20 Trustee’s counsel did assert that, “I think the same
argument with respect to the exemption will apply regardless of
whether those orders violated the automatic stay.” But the potential
for the bankruptcy trustee to effectively moot our decision, coupled
with the concerns we have about the briefing in this matter, convince
us that the best course of action is to decline to answer these certified
questions.
                          CONCLUSION
   ¶ 21 The Utah Constitution provides us with jurisdiction to
answer questions of state law certified by the federal courts. We have
discretion to answer those questions or not. Although we appreciate
the work that the bankruptcy court invested in the certification
order, we decline to answer the questions because the issues have
not been adequately briefed and because of the potential impact of
the automatic stay on the property settlement at the heart of this
case. We revoke certification.




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