Tuesday, March 24, 2009

Custody: Joint-Custody Cannot Be Ordered Unless One of the Parties Submits a Parenting Plan

Trubetzkoy v. Trubetzkoy, 2009 UT App. 77, ---P.3d---, (Utah Court of Appeals, March 19, 2009).

Sergei Trubeztkoy was awarded joint-legal custody of the parties’ minor children, and a larger portion of the marital estate. Leslie Smith Trubetzkoy (Wife) appealed the trial court’s decisions as to custody, parent-time, the accounting of the business, and grounds for divorce. The Court of appeals affirmed the property distribution and the grounds for divorce, but reversed and remanded the trial court decision on custody.

The Court found that before a trial court can award joint-legal custody either or both parties must submit a proposed parenting plan. Without a parenting-plan the trial court cannot award joint-custody of the children. If a parenting plan has been submitted, then the court should then evaluate the best interests of the children. Addtionally, the court found that the statutory parent-time schedule is presumed to be in the best interests of the children. The burden is on the party attempting to deviate from the statute. Mother failed to justify the deviation. While the property distribution was disproportionate it was not disproportionate enough to be an abuse of discretion. Wife’s final request was for the Court to change the grounds of divorce from irreconcilable differences to adultery. The Court denied this request because it was based solely on Wife’s preference.

Full Decision available at http://www.utcourts.gov/opinions/appopin/trubetzkoy031909.pdf

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.


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