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