Tuesday, December 31, 2013

Trial Court Must Articulate a Reasonable Basis and Adequate Findings When Rejecting the Expert Conclusions

Woodward v. La Franca, 2013 UT App 147 Utah Court of Appeals Court June 13, 2013

Father filed a Petition to Modify requesting custody.  Mother engaged a therapist in an attempt to obtain evidence against Father and to confirm allegations of abuse.  When the therapist failed to provide evidence, Mother obtained a second therapist who also determined that Mothers allegations were unfounded.  At the Rule 106 hearing, Father was awarded custody because of mothers actions of having the child constantly interrogated and because of her coaching the child.  The court appointed a special master and a custody evaluator. Mother objected.  At the objection hearing, the therapists, special master and a custody evaluator agreed with the commissioners recommendation. The court, however, found that each expert was either unpersuasive and/or not credible and sustained the objection and returned custody to Mother. Father Appeals.

Court of Appeals found that the trial court must articulate a reasonable basis and adequate findings when rejecting the expert conclusions and failure to do so is an abuse of discretion.  The Court of Appeals then reviewed the testimony and criticized the trial courts summary dismissal of important evidence of coaching and possible mental illness of Mother.

The trial court further erred when finding that because Mother is an acceptable parent, she should retain custody.  The Court pointed out that a best interest evaluation gives no preference to status quo, but must evaluate which parent is the more acceptable parent.  Because the court failed to make adequate findings as to the expert testimony, and because it improperly evaluated the best interest, this case was Reversed and Remanded.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/woodward061313.pdf 

Child Welfare: Court Cannot Reduce a Parent's Parent-Time at Review Hearing if Parent Objects Prior to the End of the Hearing

E.D. v. State of Utah, 2013 UT App 162  Utah Court of Appeals Court June 27, 2013

Father appeared at review hear at which the court awarded custody of the parties' minor child to Mother.  Father objected at the very end of the hearing and requested an evidentiary hearing.  The Court denied the motion. Father appealed.

The Court of Appeals found that Father's objection was timely under U.C.A section 78A-6-1103 and that based on his objection he was entitled an evidentiary hearing.  However, on appeal, Father failed to demonstrate that if an evidentiary hearing had been held, that he would have obtained a different result.  Because he failed to demonstrate prejudice, the Court of Appeals found this to be harmless error and chose not to reverse the trial court.


3 Grounds for Appeal without Preservation and Contested Adoption Petitions Must be Resolved Through Trial

S.C. v. State of Utah, 2013 UT 26  Utah Supreme Court May 7, 2013

Grandmother sought to adopt her grandson.  Mothers parental rights were terminated and Foster Parents also sought to adopt. The trial court found that under In Re: A.B., the foster parents had priority and they were permitted to adopt.  Grandmother appeals.  This case was certified directly to the Supreme Court by the Court of Appeals.

The Court first finds that while Grandmothers Brief failed to cite where in the record she preserved her claim, that in the reply brief the preservation issue was adequately addressed. And that while A.B. was not directly addressed by Grandmother at the trial level, she did address the best interest standard which opens the door to that argument on appeal.

The Court found that 1) the Best Interest of the child is paramount and 2) in order to evaluate the stability and the likelihood of future disruption in adoptive placements.  In order to evaluate those factors, a full evidentiary hearing is required in contested cases like this one. Reversed and remanded.

Courts have the option of hearing the Petitions together or having separate hearings on the adoption case when privacy is a concern.

Full opinion available at: http://www.utcourts.gov/opinions/supopin/InreCC1326050713.pdf

Continual Attempts to Contact is Stalking

Williams v. Williams, 2013 UT App 111 Utah Court of Appeals May 2, 2013

Parties divorced and Jeri (Ex-wife) requested that Clark (ex-husband) not contact her, but to direct communications to her attorney.  Clark continued to contact her.

Jeri moved and redacted her address from court filings, Clark searched for and found her new home and sent her a text message with a picture of it.  He was contacted by the police and agreed not to contact Jeri.  In the next three months, he sent at least 16 emails to Jeri.  He sent her an envelope with two photographs of a nude woman.  Finding that he had been blocked from calling Jeri, Clark contacted the cellular phone company, impersonated Jeri, had the block removed and then called her several times.  Clark then went to Jeris home to confront her.  When questioned at trial about these incidents, Clark responded, I wanted to leave no doubt in her mind how I felt.  The trial court entered the stalking injunction.  Clark Appealed.

Clark argued that his conduct should not have caused more than mere anxiety or annoyance and it was not outrageous or intolerable.  The Court disagreed.  The Court noted that the requirement for outrageous conduct was removed in current version of the statute, however even if outrageous conduct was required, Clarks actions are sufficient for the entry of a stalking injunction.   Particularly disturbing are his efforts to find her when she concealed her address and to unblock his cell phone calls.  Affirmed.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/williams208050213.pdf

Transitional Alimony Can be Reviewed without a Showing of Change in Circumstances

Beal v. Beal, 2013 UT App 105 Utah Court of Appeals April 25, 2013

Parties were divorced in 2007 and wife was awarded transitional alimony and a review date was set for the issue of alimony.  At the time of review, Wife failed to produce various documents, namely a trust of which she was the beneficiary.  At the first hearing, the Court was unable to determine what the appropriate ongoing alimony amount should be, if any.

At the second hearing, Wife did not appear and the hearing was again continued.  Wife finally produced a copy of the trust, but did not produce the accounting.  At the third hearing, the trial court noted discrepancies between wifes testimony and her financial declaration and ended the transitional alimony.

Wife appealed and argued that there was no basis to change the alimony because there was no substantial change of circumstance since the decree.  The Court of Appeals found that an award of transitional alimony is intended to be temporary, particularly when the Court sets a hearing to review the alimony award.  Therefore, the court could modify without a substantial change in circumstance and the modification was appropriate because of Wifes failure to comply with reasonable discovery requests. Affirmed.


Retirement Can be Valued at Time of Separation

Donnelly v. Donnelly, 2013 UT App 84 Utah Court of Appeals April 4, 2013

In a temporary order the trial court ordered Father pay child support, alimony, and the childrens medical expenses.  Mother relocated and Father bore the costs of visiting the children.

At trial, the court entered a decree awarding lower child support and alimony amounts, but did not make the amounts retroactive.  After the trial, Mother moved to divide retirement.  The court divided the retirement with value at the time of separation.  The Court also denied Fathers motion for credit towards his arrearage for the expenses he incurred to visit the children.   Father appeals the alimony award and expenses incurred for parent-time.  Mother appeals the valuation date of the retirement.

As to alimony, Father failed to preserve the pretrial order of alimony.  Father made several arguments about Wifes diminished need while living with family and her income from gifts from family.  The Court of Appeals found that the trial court took note of gifts when making the alimony award and the award was not an abuse of discretion.

As to reimbursement of transportation costs for Fathers parent-time, the Court of Appeals found no statutory authority for the requested reimbursement and it was not an abuse of discretion to deny the reimbursement because Father failed to raise the issue at trial and made no motion to reopen evidence to address that issue.

As to valuation of the retirement, the Court found that generally retirements are valued at the time of the decree, however, when significant time (in this case 5 years) passes between the separation and Decree, it is not an abuse of discretion to value it at the time of separation.


Court Can Modify Decree without Evidentiary Hearing. Commissioner Can Modify Property Agreements Under Rule 106.

Gullickson v. Gullickson, 2013 UT App 83 Utah Court of Appeals April 4, 2013

Wife intended to relocate and filed a Petition to Modify.  Husband opposed Wifes removal of the child from Utah.  Wifes Petition to Modify requested the Decree be modified to accelerate the sale of the marital home.  At the hearing, the Commissioner permitted the relocation and recommended modifying the Decree to allow Wife to rent out the home or, accelerate the sale of the home.  Father objected arguing that such a modification was not permitted by URCP 106 and requested an evidentiary hearing.  The Court overruled the objection and enforced commissioners order.  Father appeals.

The Court of Appeals found that Father was entitled an evidentiary hearing as to property and that no modification should be ordered without compelling reasons.  Further, the recommendation violated Rule 106.  Once a party demonstrates a circumstance not contemplated by the decree, the commissioner is no longer interpreting but modifying.  Further, the Court cannot modify a property award without an evidentiary hearing.  Court of Appeals vacated and remanded this issue.

As to relocation, the Court of Appeals advised that in relocation hearings, trial courts should address parent-time and transportation.  On objection, the trial court refused to hear witnesses relocation testimony. The Court of appeals affirmed on this issue and stated parties are limited by Rule 106, which limits the evidence on objection to the evidence that was presented before the Commissioner.

Husband also appealed the trial courts refusal to hear the Order to Show Cause which commissioner had reserved ruling.  Court of Appeals found trial courts can choose to hear any matter, but is not required to if the issue has been reserved by Commissioner.

Davis Dissents as to the issue of review of objections by Judgebelieves judge should have reviewed it.



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