Friday, December 4, 2009

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.

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