Saturday, March 7, 2009

Divorce: Judicial Statements Without findings Cannot be the “Law of the Case;” and Court Cannot Disregard Admissions

Kotter v. Kotter, 2009 UT App. 60, ---P.3d---, (Utah Court of Appeals, March 5, 2009).
Bart Kotter was ordered to pay Elizabeth Vienna (Kotter) alimony and $800,000 for half of the value of the parties’ business. A previous judge conducted a judge-led arbitration off-the-record in which he considered only the final award of the parties’ business. The judge awarded the business to Husband and indicated that half the value should be awarded to Wife, along with alimony. The judge ruled that based on the previous judge’s statements as to alimony and the cost of the business, to be law of the case, in spite of the lack of findings. He also dismissed Husband’s motion for summary judgment which was based on Wife’s failure to respond to Request for Admissions. Husband appealed to the Utah State Court of Appeals. 

he Court Reversed and Remanded the case and found that because the previous judge did not make the requisite findings to support alimony or the business valuation. So, there was no “law of the case.” As such, the Court reversed both rulings.
The Court also found that the issues of alimony and business valuation were settled because Wife failed to respond to a Request for Admissions. Wife conceded that she had not responded; and, neither she nor her counsel ever requested that the admissions be amended. Therefore, they were deemed admitted, and the Court instructed the lower court to enter summary judgment.

The more important point is that even without the admission, Wife failed to provide her monthly accounting and provided no evidence as to her income.  Without evidence on her monthly income and expenses the Court could not make any award of alimony.


Grant said...

This case seemed to handled terribly at the trial level. Three judges and a judge-led arbitration does make for a clean case. The Appellate Court made good sense of the case for us and made a great ruling.
Key thing that the Appellate Court said on admissions is that the trial court cannot disregard admissions. Additionally, in dicta, the Court stated that anything short of a certain order WITH FINDINGS, cannot be the law of the case.

Grant said...

Utah County Note: Commissioner Patton commented that this case prohibits him from awarding alimony if the requesting party fails to provide his/her monthly expenses. i.e. if you fail to provide a financial declaration-- you cannot get alimony.


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