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Appeals court hears challenge to broad non‑disparagement clause and special‑master language in divorce modification
Summary
In Wallace v. Wallace, the Court of Appeals considered whether a modified divorce decree’s non‑disparagement clause that explicitly mentions social media is a preserved constitutional claim or a waived right, and whether language about possibly changing legal custody over unpaid special‑master fees creates an advisory or reviewable issue.
A Utah Court of Appeals panel heard arguments in Wallace v. Wallace over a family‑law modification that added a broad nondisparagement restriction on social media and included language that the trial judge "may consider" changing legal custody in response to nonpayment of special‑master fees. Mark Barnes, counsel for Joanna Smith, told the court the modified paragraph is "so broad that it really does restrict her rights" to tell her story and engage in advocacy, and that the modified decree arguably reaches political or advocacy speech.
Barnes urged that the modified language goes beyond the original 2017 decree (which he said did not explicitly reference social media) and therefore raises fresh First Amendment questions. The panel asked whether Smith had waived constitutional objections by agreeing to the original stipulated decree and whether the constitutional claim was preserved for appeal; judges also discussed a 2019 order addressing social‑media posts and whether that earlier proceeding changed the preservation analysis.
Respondent counsel (identified in the record as Allison Satterley/Ms. Adleroy) said the district court made extensive findings about the children and that Smith executed a voluntary waiver; counsel argued the court properly balanced the compelling interest in protecting children against parental disparagement and that the court’s order was a clarification rather than a new restriction.
Counsel also debated language in the order suggesting the trial judge "may consider" changing legal custody if a party fails to pay special‑master fees. Appellant said such language could be coercive—especially where one party earns substantially more—and could have practical effects on the lower‑income parent; the panel and counsel observed no custody change had yet occurred and raised prudential concerns about issuing an advisory ruling without a concrete district‑court decision to review.
The court took the case under advisement and said it would issue a decision as soon as practicable.
