Divorce: Separate Property Remains Separate in the Absence of Enhancement

Soderborg v. Soderborg, 2009 UT App. 359, (Utah Court of Appeals, December 3, 2009).

Husband inherited two properties. When received, they were in poor shape and husband worked several years to make them profitable. After they became so, Husband spent a large amount of time managing the properties. Upon divorce, the Court awarded the properties to husband. Wife Appeals.

Wife argues that Husband’s labor spent in making the properties profitable and in managing the properties was a marital asset and as such, the marital estate is entitled to reimbursement of the work or, in the alternative, an interest in the properties. The Court of Appeals disagreed with Wife and affirmed the trial court finding that Husband inherited the properties. As an inheritance, it overcomes the presumption that it is marital property and remains separate. Wife makes no argument that she enhanced, maintained, or protected the property as such, the Court ordered it remain separate. The Court found that wife had no claim for husband’s labor and time spent on the properties.

Additionally, Wife argued that she was entitled to alimony. However, the Court again disagreed and affirmed, finding that while Wife physician may not have formerly released her to work, she provided no evidence that she had requested such a release because she of that her ability to work was not adequately shown to be impaired.

Full Decision available http://www.utcourts.gov/opinions/mds/soderborg120309.pdf

Alimony: Fault No Longer a Factor When Considering Alimony

Mark v. Mark, 2009 UT App. 374, (Utah Court of Appeals December 10, 2009).

Wife earned significantly more than Husband. Husband was in school was to complete his degree in one year. The trial court awarded husband $1200 per month as rehabilitative alimony for one year, and denied his request for attorney fees. Husband appealed.

Husband argued that the court failed to make adequate findings to support the alimony award, that the alimony should be permanent (instead of rehabilitative) and that considering fault was inappropriate. The appellate court Reversed the trial court’s alimony award finding without adequate findings the Appellate Court could not determine the validity of the award. The Court further found that Husband had weak employment prospects and that it was unlikely that he could earn enough to maintain the lifestyle enjoyed during the marriage. Thus, the award of only rehabilitative alimony was an abuse of their discretion. Finally, because the policy of alimony is to provide support and not to reward or punish, adjusting any award because of fault is inappropriate. Remanded to trial court for further findings all factors, but eliminating fault as a factor

Court Affirmed the non-award of attorney fees. The Court found that the trial court must only make findings if it makes an award of attorney fees. If there is not award, there is not requirement to make findings.

DISSENT: The trial court should consider fault. The legislature has given the courts the factor of fault and failing to consider it simply because it is not defined is replacing the legislature’s judgment with our own.

Full Decision available http://www.utcourts.gov/opinions/appopin/mark121009.pdf

Interference with Parent-Time + Moving = Sufficient Grounds for a Change of Custody

Hanson v. Hanson, 2009 UT App. 365, (Utah Court of Appeals, December 10, 2009).

Mother had moved to Louisiana and Father had filed a Petition to Modify. At trial, Father offered evidence that besides moving to Louisiana, Mother had also substantially interfered with Father’s visitation. The trial court awarded custody to Father. Mother appealed.

On appeal, Mother argued that increasing the distance from extended family is not sufficient grounds to change custody. The Court agreed, however affirmed the trial court finding that when moving away from family is combined with substantial interference with parent-time it is sufficient grounds to change custody.

DISSENT: The remedy for noncompliance with the parent-time order is contempt, not a change of custody. The primary caretaker factor is paramount and a custody arrangement should rarely be disturbed.

Full Decision available http://www.utcourts.gov/opinions/appopin/hanson121009.pdf

Divorce: Taking Decision Under Advisement = Sufficient Judicial Participation

Brough v. Brough, 2009 UT App. 344, (Utah Court of Appeals, November 27, 2009).

At trial, the district court directed Husband and Wife to prepare proposed Findings of Fact and Decrees. Both did, and the district court took the matter under advisement. The judge adopted wife’s Findings and Decree. Husband appealed claiming that the district court judge did not adequately participate in the proceedings.

The Court of Appeals affirmed the trial court, and found that the trial court’s actions of taking the matter under advisement and asking both parties to prepare proposed orders was sufficient participation. The district court also made notes regarding its initial view of the case. The notes demonstrate that the trial court agreed initially with Wife’s position and found Husband’s position to be “ridiculous.”

Court also found the actions of the parties changed premarital property to marital property and subject to distribution. Husband argues also that the ante-nuptial agreement reserved his property as separate. However, this agreement was made with the understanding that wife was not associated with that property; conversely, during the marriage she became substantially associated to that property.

Finally, the Court that the award of attorney fees was also correct for two reasons: Wife’s financial need and Husband’s ability to pay, and because Wife had substantially prevailed on her claims at trial; and on appeal as well. The Court remanded the matter for the trial court to determine adequate costs for appeal.

Full Decision available http://www.utcourts.gov/opinions/mds/brough112709.pdf

Custody, Petition to Modify: No Bifurcated Trial for Petitions to Modify

Doyle v. Doyle, 2009 UT App. 306, (Utah Court of Appeals, October 29, 2009).

Husband and wife’s stipulation included an automatic change to custody if mother were to move back to Salt Lake City. When mother moved back, father filed and the court granted, a motion amending the decree invalidating the automatic change because it denied him notice and opportunity for a hearing before changing custody. Wife filed a petition to modify. The trial court denied Husband’s motion for a bifurcated trial on the issues of substantial change and best interests. At trial the trial court found a substantial change because mother had moved back to SLC, and that the custody order was uncertain. The trial court also found that it was in the son’s best interests to have mother as his custodian. Father appealed.

The Appellate Court affirmed the trial court and found that bifurcated trials would violate the preference for judicial and fiscal economy. Additionally, as is often the case, separate trials would have been duplicative requiring the parties to present the same evidence on two occasions. Additionally, the Court affirmed the trial court’s ultimate findings as to the best interests of the child because father failed to marshal the evidence.

Father also argued that Mother was not entitled to child support because she did not request it. The Court disagreed, and affirmed the decision of the trial court finding that child support follows the child, and that based on a trial court’s ability to enforce equity it can make awards even where none is requested.

Note: The trial court incorrectly used the new CS table when calculating CS. Because there was a CS order prior to December 31, 2007, the old table should have been used. Remanded as to this issue.

Full Decision available http://www.utcourts.gov/opinions/appopin/doyle102909.pdf

Common Law Marriage: Ongoing Cohabitation Not a Requirement of Common Law Marriage

Richards v. Brown, 2009 UT App. 315, (Utah Court of Appeals, October 29, 2009).

Common Law Marriage. The trial court summarily denied Richard’s petition to recognize a common law marriage because more than one year had passed since the parties cohabitated. Richards appealed. The Court found cohabitation is not an ongoing requirement. If the parties continued to assume rights, duties, and obligation, of the marriage, and continued to hold themselves out as married, the relationship continues. A party may file to have the relationship recognized anytime during the relationship, or within one year. The Court reversed and remanded this claim and instructed the trial court to hear evidence as to the termination date of the relationship.

Unjust enrichment. Richards must show that Brown benefited from payments, which he made to her, and that failure to compensate him is inequitable. The record showed that the payments were commensurate with rents, thus no damages to him and no unjust benefit to him Affirmed.

Promissory Estoppel. Richards must show that he acted prudently and that Brown knew of his reliance on the promise to share the equity. Brown refinanced the home twice without adding him to the title; this notified him that she had no plans share the equity. Richards still had a place to live at a reasonable price. Affirmed.

Protective Order. Richards argued that a Discovery Protective Order prevented him from obtaining needed evidence. However, Richards filed a Certificate of Readiness in which he acknowledged that discovery was complete. Based on that admission, there was no reason for further discovery. Affirmed.

Full Decision available http://www.utcourts.gov/opinions/appopin/richards102909.pdf

Protective Orders: Failure to Request an Evidentiary Hearing is Wavier, Stale Abuse Coupled with New Threats is Admissible

Hedgcock v. Hedgcock, 2009 UT App. 304, (Utah Court of Appeals, October 22, 2009).

Wife obtained an Ex Parte Protective Order. At the hearing, the commissioner recommended that the court enter a permanent Protective Order. The Salt Lake District Court issued the permanent Protective Order on September 4, 2008. Husband objected to Commissioner’s recommendation, but before the judge could hold a hearing on the objection, Wife requested a hearing alleging that Husband had broken into her home on September 6, 2008 (2 days after the hearing, Wife had arrived to her home with her children and new boyfriend to find Husband in the home). Husband responded to the request for hearing and objected to the court considering any new information (i.e. the break-in). The court held a telephone conference, at which time the parties agreed to several things. Among them, that no evidentiary hearing would be required. The district court held a hearing on the objection and denied the motion to dismiss the Protective Order because of past abuse and current threats.

Husband appealed to the Utah Court of Appeals alleging that the district court should not have considered stale abuse (abuse that took place and was subject to a previously dismissed protective order). He also argued that the district court should have held an evidentiary hearing.

The Court affirmed, and found that a district court can consider stale abuse when coupled with current threats. The Court also found that Husband had waived any claim to an evidentiary hearing by not requesting it and by never contesting the district court’s conclusion the parties agreed not to have one.

Full Decision available http://www.utcourts.gov/opinions/appopin/hedgcock102209.pdf

Custody and Visitation: Upon Divorce, Ex Stepparents Have No Standing to Petition Visitation

Strauss v. Tuschman, 2009 UT App. 215, (Utah Court of Appeals, August 6, 2009).

Stepfather developed a parental relationship with Daughter, a child from Mother’s prior relationship. Upon separation, Stepfather requested visitation with the child. Mother allowed it, and the district court granted Stepfather visitation. Visitation became increasing difficult to facilitate. The district court bifurcated the case and signed a divorce decree. Stepfather continued to attempt visitation. Mother now objected to visitation. The district court continued to enforce Father’s visitation under Gribble v. Gribble, 583 P.25 (Utah 1978).

Prior to the trial Mother filed a motion in limine arguing that Stepfather had no standing under the newly decided case of Jones v. Barlow, 154 P.3d 808 (Utah 2007). This time the district court agreed and found that Stepfather lacked standing. Stepfather appealed. The Utah Court of Appeals affirmed the trial court and found that while parties are married a non-biological father may stand in loco parentis and may have standing to petition visitation. However, upon divorce the biological parent may end the in loco parentis relationship at will. Thus eliminating Stepparent’s standing.

Unrelated note: the Court did not award attorney fees to mother because she failed to set forth a legal basis for such an award.

Full Decision available http://www.utcourts.gov/opinions/appopin/strauss080609.pdf

Divorce: Stipulations are NOT binding on the Court—Arbitration of child custody disputes is against public policy.

Bryner v. Bryner, 2009 UT App. 217, (Utah Court of Appeals, August 6, 2009).

The parties reached a stipulation. However, neither the parties nor the mediator put the agreement in writing. Later the parties did not agree to the content of the stipulation. Parties filed cross motions to enforce their respective versions of the agreement. At the hearing, the parties reached a number of agreements, including joint-custody and to arbitrate future custody issues. After the hearing, but prior to final judgment, Father obtained and ex parte civil stalking injunction against Mother. Because of the injunction, the court ruled that it “could not determine the advisability of enforcing the parties’ stipulation.” Additionally, substituting an arbitrator for the district court was against public policy. As a result, the district court awarded mother sole legal custody and joint physical custody to the parties and omitted the arbitration clause.

Father appealed. Father’s brief focused on omitting the arbitration clause, and argued that if part of the stipulation was not adopted the entire stipulation must be rejected. Father never raised this issue at the district court level. First, because Father failed to preserve the issue the Court affirmed the trial court. Second, even if Father had preserved the issue, the appeal failed on the merits. The Court found that the district court has discretion to adopt some or all of the stipulation. Stipulations are not binding on the court and can enforce portions that are fair and reasonable.

Full Decision available at http://www.utcourts.gov/opinions/mds/bryner510080609.pdf

Failure to Marshal=Dismissal; Inheritance=Separate Property; Encouragement≠Enhancement; Repository≠Comingling; Forgery=Unjust Enrichment;

Kimball v. Kimball, 2009 UT App. 233, (Utah Court of Appeals, August 27, 2009).

Prior to the case analysis, the Court summarized the marshaling requirement. In short, when marshaling the evidence the appellant must provide all evidence in support of the trial court’s ruling, and then must identify which evidence carries the “fatal flaw.” Failure marshal results in dismissal. When reviewing the property distribution, the Court that although husband had encouraged wife to wait for a better offer on her inherited stock (which resulted more money for wife), such encouragement was not sufficient enhancement to overcome the separate property presumption on inheritance. Similarly, placing of proceeds from the sale of stock into a marital account does not automatically change separate property into marital property. Particularly if the property is adequately traced out and removed from the joint account. Husband forged several checks drawn against the stock account and could not prove that he was not unjustly enriched (because he cashed the checks without wife’s permission, the trial court inferred that he was enriched). Finally, Husband requested payment of his attorney fees. Wife argued that he had no need because his family had paid for his attorney (in divorce, to be entitled to attorney fees, one must show need, the other’s ability to pay, and reasonableness of the fees). The trial court agreed with Wife, however it made inadequate findings. The Court of Appeals reversed and remanded this issue. Moreover, the appellate court directed that the trial court found need and ability to pay, the court need only find what award would be reasonable, not that the fees incurred are reasonable.

Full Decision available at http://www.utcourts.gov/opinions/appopin/kimball082709.pdf

Paternity: Failure to Comply Strictly with the Statute = Waiver Temporary Residence is a Qualifying Circumstance Appeals: Failure to Preserve the Iss

O’Dea v. Olea, 2009 UT 46, (Utah Supreme Court, July 28, 2009).

Father appeals district court’s order dismissing his paternity claim. Mother and Father had separated before Father learned of the pregnancy. Mother told father she had miscarried. Father learned that Mother had not miscarried, but instead was preparing for adoption. Father registered as a putative father in Wyoming and Montana and contacted LDS family services (the adoption agency). He again contacted Mother; she asked him not to contact her and told him she was in Utah and that he would never see the child.

Father engaged the police in his search for Mother, and made a website to find out about the child. On the website Mother’s mother responded that the child had been born and placed for adoption.

The child was born June 15, Father filed his notice with department of Human Services on September 8, (he testified that he had attempted to send it earlier, but the third party charged with mailing it failed to mail it).

The Court affirmed the trial court finding that because Father knew or should have known that Mother was in Utah, he was required to comply with the Utah statute by registering with Human Services within 80 days. Because he did not, he waived his right to notice.

Full Decision available at http://www.utcourts.gov/opinions/supopin/ODea072809.pdf

Child Support: Social Security Benefits are Not Included in Income for Child Support Calculation

Wolfe v. Wolfe, 2009 UT App. 186 (Utah Court of Appeals Memorandum Decision July 9, 2009)

Trial court included Father's Social Security Benefits in the Child Support Calculation. The Office of Recovery Services appealed. The Court of Appeals Reversed and Remanded the case with instructions to recalculate the child support without the social security benefits.

Court Noted that U.C.A. § 78B-12-203(3)(b) also excludes Medicaid, Food Stamps, Housing Subsidies, Benefits from the Job training Partnership Act, Supplemental Security Income, Social Security Disability Insurance and General (government assistance).

Full Decision available at http://www.utcourts.gov/opinions/mds/wolfe070909.pdf

Prenuptial Agreement: Interpreted as any Other Contract

Levin v. Carlton, 2009 UT App. 170 (Utah Court of Appeals, June 25, 2009).

Trial Court found that the prenuptial agreement governed the parties' divorce. Wife appealed to the Utah Court of Appeals. She argued that the trial court's interpretation of the agreement was incorrect. The Court found that although it must look closely for abuse at the time of execution of the prenup, its means of interpreting the agreement are no different from any other contract.

Wife also appealed the trial court's narrow interpretation of Husband's earnings. Under the prenup, husband's earnings were to be community property. The prenup defined earnings as excluding income from investments. The trial court adopted the prenup' definition. The Court Affirmed.

Wife also appealed a denial of her discovery request. The trial court had found that the California law did not permit the post-separation discovery request and the prenup's had a choice of law provision choosing California law. The Court found that the prenup can even govern discovery issues during litigation and Affirmed the trial court.

Finally, Wife appealed the trial court's decision of attorney fees. The Court Affirmed the trial court both in denying her request and granting Husband's. This too was based on the prenup provision on attorney fees.

Full Decision available at http://www.utcourts.gov/opinions/appopin/levin062509.pdf

Child Support: Child Support Follows the Child

Hansen v. Hansen, 2009 UT App. 152, (Utah Court of Appeals, June 11, 2009).

Trial Court denied Father's Petition to Modify Child Support. Father appealed to the Utah Court of Appeals. Father argued that his daughter was living in a transitional home supported by Volunteers of America. Since support should follow the child, he argued that both parties should pay support to VoA. The Court found that this statute only applied to when a child moves to the other parent, a relative, or the state. In this case, the child is not in the custody of the state for two reasons: (1) Volunteers of America is not run by the state, but by volunteers and (2) Mother is still responsible for the child and has retained custody. The Mother remains liable for the support of the child, including the responsibility to pay school fees, buy clothing, transport the child to the doctor and counseling appointments, attend to her medical needs and pay her medical expenses. The Child also stays frequently in the Mother's home. The Court affirmed; finding that since custody had not changed, child support should not change.

Note: Mother asked for attorney fees. However, Mother failed to set forth a specific legal basis for the award of fees. No attorney fees awarded.

Full Decision available at http://www.utcourts.gov/opinions/mds/hansen061109.pdf

Alimony: Imputed Income Must Be Based on More Than Mere Conjecture

Hawks v. Hawks, 2009 UT App. 149, (Utah Court of Appeals, June 4, 2009).

Trial Court imputed Wife's income at minimum wage of part-time work. Husband appealed to the Utah Court of Appeals. The trial court must consider (1) the financial condition and needs of the recipient spouse, (2) the recipient's earning capacity, and (3) the ability of the payor spouse to provide support. When considering the recipient's earning capacity, the court may impute income. However, imputed income cannot be premised upon mere conjecture, but demands a careful and precise assessment requiring detailed findings. The trial court had determined Wife's need, Husband's ability to pay and based her capacity to earn on the difference between the two. Because the trial court had failed to make adequate findings their imputation of income was reversed and the Court found that there was nothing that suggested that wife was not able to work full time at minimum wage. As such she was imputed income of minimum wage on a full time basis. The Court than deducted the added amount from the alimony award.

Full Decision available at http://www.utcourts.gov/opinions/mds/hawks060409.pdf