Tuesday, May 26, 2009

Divorce: Failure to Supply Transcript= No Appellate Review, AND Separate Property with Appreciation Thereon Should be Awarded to its Owner

Thompson v. Thompson, UT App. 10, (Utah Court of Appeals, April 16, 2009).

Husband appealed trail court’s equitable division of premarital 401(k) and premarital portion invested in the home.

The Utah Court of Appeals first laid out the procedure for property distribution: (1) the court must categorize the asset (is it marital or separate property?); (2) if the property is separate property, the property and the appreciation is awarded to the owner unless the other party meets one of the exceptions (the exceptions are: enhancement, maintenance, or protection of asset, (b) commingling, (c) to obtain a just and equitable result); (3) if it is a marital property each spouse receives a roughly equal share. The court should detail the steps it took in making the distribution.

Home—yet again the Court was deprived of the opportunity to make a decision on this issue be because Husband failed to provide a transcript. Affirmed on this issue.

401(k)—Like other separate property, if a retirement account is separate property it should be awarded to the owner with appreciation thereon. Therefore, the Court Reversed and Remanded this issue to determine the appreciation on the separate property and ordered the trial court to award the premarital contribution with its appreciation to Husband.

Full Decision available at http://www.utcourts.gov/opinions/appopin/thompson041609.pdf

Thursday, May 14, 2009

Divorce: Failure to Present Adequate Evidence on Property Results in Remand.

Child v. Child, UT App. 97, (Utah Court of Appeals, Memorandum Decision, April 9, 2009).

Procedural History: This matter was before the Court of Appeals in September of 2008 (2008 UT App 338).  At that time, the Court of Appeals described the strict evidence marshalling standard that applies to issues of fact on appeal.  The appellant must marshal all the evidence and show that even in when viewed in a light most favorable to the appellee, it is legally insufficient.  The Court of Appeals also found that a portion of the property was premarital and summarily awarded it to the Husband.

Wife appealed this issue and the Supreme Court reversed the appellate court and remanded because there was inadequate evidence to make any finding as to the ownership of the property in question.  (see Child v. Child, 2009 UT 17).

The Appellate Court specially ruled that a party [is presumed to retain] his separate property brought into the marriage, as well as any appreciation thereon.  To rebut this presumption the other party must show that it has done something to establish one of the exceptions (enhancement, maintenance, or protection of the property). See Dunn and Mortensen.


The Court of Appelas remanded the matter for further findings as to the ownership of the property.

Full Decision available at http://www.utcourts.gov/opinions/mds/child040909.pdf

Divorce: Trial Court’s Failure to Make Adequate Findings on Property and Attorney Fees Results in Remand.

Jensen v. Jensen, UT App. 1, (Utah Court of Appeals, January 2, 2009).

Trial Court awarded Wife half of the increase in value of Husband’s premarital business interest.  The Court also awarded Wife attorney fees.  Husband appealed.  The Utah Court of Appeals reversed and remand finding, that the trial court failed to make an express finding of ownership of the business (required by Stonhocker); second, the court had erred when it awarded wife 50% of the total business’ increase in value, since Husband only owned 50% of the business the Court could only award Wife half of his 50% share of the increase in value, instead; third, however, since the business was separate property and because wife had not made any significant specific contribution specific to the business (i.e. did not assist in running the business) that she was not entitled to any portion of the increase.

As to attorneys fees, the court failed to make proper findings regarding Wife’s need, Husband’s ability to pay, and Reasonableness of the fees, as required by Stonehocker.  As such the award of fees was also reversed and remanded.

Full Decision available at http://www.utcourts.gov/opinions/appopin/jensen010209.pdf


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