Thursday, November 12, 2009

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.

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