Monday, December 27, 2010

DCFS Guidelines Are Neither Administrative Rules Nor Statute

K.Y. v. DCFS, (Utah Court of Appeals November 26, 2010).

Juvenile Court found K.Y., a teacher, neglected the student according to DCFS Guidelines’ definition of emotional maltreatment.  The teacher taped the student’s wrists to her desk with a six inch piece of scotch tape for two minutes as a method of discipline.
The Guidelines were neither promulgated as rules nor codified in statute and as such were neither rules nor statute and do not have the force of law.  The Juvenile Court based its entire ruling on only the DCFS guidelines, and never considered the statutory definitions of abuse or neglect.
The Court of Appeals found that K.Y.’s actions did not meet the statutory definition of neglect.  Additionally, there was insufficient evidence for any finding of abuse, and the JV court did not evaluate whether the teacher’s actions were a form of reasonable discipline.

In short, the JV Court did not use the correct analysis.  Under the correct analysis, K.Y.’s actions were neither neglect nor abuse.  The ruling of the JV court is Reversed.

Wednesday, December 1, 2010

Subject Orders are Not Final Appealable Orders

In re JMS and JRS, C.S.S. v. Stat e of Utah, (Utah Court of Appeals November 18, 2010).

Juvenile Court entered an order removing Father’s (C.S.S.) children from his home, but stayed the implementation of the order allowing Father to keep his children in his home if he complied with DCFS recommendations.  Father failed to comply, the stay was lifted, and the children were removed from the home.  Father filed an interlocutory appeal, which was denied.  He then filed this standard appeal.
The Court of Appeals found that the removal of the stay was not a final appealable order.  A final order is one that leaves no question open for further judicial action or effects a change in the permanent status of the child.  Removal of children from Father’s home was what the court considered a mere fact that did not indicate finality.  Dismissed for lack of jurisdiction.

Concurrence: Judge Thorne reiterated the Opinion of In re A.R., 982 P.2d 73 (Utah 1999), children should not be removed as punishment for failure to comply with court orders.  He additionally addressed the Constitutional concerns that children might be removed from a parent’s home without a final order leaving the parent without means for appeal.  However, Judge Thorne concluded that the interlocutory appeals system appropriately addresses this concern.  However, he noted that these appeals are discretionary and not allowed as a right of the parent.

Thursday, November 4, 2010

Appellate Brief Must Provide Basis for Appeal

Morford v. DCFS, 2010 UT App. 285, (Utah Court of Appeals October 15, 2010).

The trial court entered summary judgment for DCFS on the Mofords’ negligence and breach of contract claim based on DCFS’s failure to provide reunification services between the Morfords and their foster son prior to the relinquishment of parental rights and DCFS’s alleged misinformed report that the foster son no longer wanted to live with the Morfords.  The Morfords appealed.

The Court of Appeals refused to evaluate the merits of the Morfords’ claims because of severe failings in their appellate brief.  The brief’s table of authorities did not correspond to the brief.  It was as if the submitted table was for a different brief.  The brief failed to supply the text of the statute on which the Morfords were relying.  It failed to cite the preservation of the issues in the trial court record.  It failed to provide an adequate record to even address the Morfords’ claims.  The argument section cites authority, but does not apply the authority to the facts of the Morfords’ claims.  Because of the failure of the brief, the Court of Appeals affirmed the trial court’s entry of summary judgment.

Alimony Must be Based on Sufficient Findings and Alimony Cannot Exceed Needs

Fish v. Fish, 2010 UT App. 292, (Utah Court of Appeals October 21, 2010).

Wife was awarded $800 per month in alimony.  Husband appealed.  He argued that the trial court had insufficient evidence to make findings as to the parties’ ability to earn and their needs.  The Court of Appeals found that testimony alone is sufficient evidence for imputation of income, and that Husband’s enrollment in a Technical College did not preclude imputation of income.  If a party already has basic job skills, he cannot rely on the schooling to avoid the imputation of income.  However, the findings of the trial court did not support the level of income imputed to husband as required by U.C.A. 78B-12-203(7)(b) (2008).  Without such findings, the trial court cannot impute income.  Additionally, the trial court made no findings as to Husband’s ability to pay and therefore the alimony award was an abuse of discretion and reversed.  The Court also found ability to earn cannot be based on monthly income alone, but must be based on the U.C.A. 78B-12-203(7)(b) factors, reversing the trial court’s finding that wife’s ability to earn directly correlates with her current income. 

Lastly, simply because the parties combined needs exceed their combined incomes does not prove that the parties’ standard of living is not commensurate with the standard of living at the time of the marriage, it simply proves that the cost to sustain two households is greater than the cost to sustain one.

Wednesday, October 6, 2010

Stability Is Key Factor in Deciding Best Interests of Special Needs Children

Grindstaff v. Grindstgaff, 2010 UT App. 261, (Utah Court of Appeals September 23, 2010).

Mother appealed the trial court’s award of custody to Father.  Mother and Father had two children, one with special needs.  The trial court found that the parties had been equally engaged in raising the parties’ minor children.  The trial court found that while stability was important for all the children, it was critically important to the parties’ special needs child. Because Mother had planned to move to Nevada, the trial court awarded custody to Father. Mother’s claim for joint custody was likewise denied because of the critical need for stability.

Wife also appealed the trial court’s refusal to admit testimony her expert.  At trial, Wife’s counsel conceded that the expert was not a custody evaluator; as such, any findings by her expert could not be used to rebut the custody evaluator’s findings. 

Finally, as to Wife’s denied attorney fees that were denied at trial because Father did not have the ability to pay the attorney fees,  the Court of Appeals found that while the trial court has a duty to hold a party in contempt, it also has great discretion in crafting a punishment to ensure compliance.

Affirmed on all issues.

Friday, September 17, 2010

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Trial Court has Discretion to Determine the Weight of the Evidence

Richins v. Richins, 2010 UT App. 253, (Memorandum Decision, Utah Court of Appeals September 16, 2010).

Trial Court determined wife’s income based on a loan application The Court of Appeals determined that the trial court has discretion in assigning weight to various pieces of evidence.  In this case, the trial court gave more weight to the 2004 loan application (which on cross, Wife testified that she agreed with everything in the application), than to either a 2003 loan application in which Wife listed a lower income and her handwritten unsigned, and undated document created by Wife in anticipation of litigation.  The trial court has discretion to determine the weight of the evidence, and can only be overturned if it is clearly erroneous, the Court of Appeals Affirmed the trial court’s findings; particularly in light of the trial court’s additional findings that Wife had repeated lied to get what she wanted.

The Court additionally found that dividing the marital estate exactly in half meets the requirement that property distribution be equitable.

Lastly, because Husband was awarded attorney fees at trial and because he prevailed on appeal, his request for attorney fees for the appeal was granted.

Thursday, August 26, 2010

Only the Commingled Portion of Premarital Property is Distributed and A Negative Inference is Drawn Against a Non-Producing Party Who Should Have the Records

Keiter v. Keiter, 2010 UT App. 169, (Utah Court of Appeals June 24, 2010).

In the Decree of Divorce, the trial court determined that a piece of separate real property was commingled with marital property and equitably distributed the entire piece of real property.  Husband Appealed. 

The piece of property was held as a portion of Husband’s defined benefit plan that he began contributing to before the marriage.  During the marriage, Husband made several payments on the land.  Husband failed to show the court where the money for these payments had come from.  The Court found that a negative inference about missing documentation is to be drawn against the party who should have possession of the records.  Because Husband failed to produce the records, Husband could not support his claim that the property was premarital and not subject to distribution. 

Therefore, the Court affirmed the finding that the property was commingled.  However, the Court found that the entire property was not subject to distribution and remanded the case for the trial court to distribute only the commingled portion, reserving the premarital portion to Husband.

Tuesday, August 17, 2010

Remarriage Does Not Bar Retroactive Alimony

Ostermiller v. Ostermiller, 2010 UT 43, (Utah Supreme Court May 28, 2010).

In the final order of the District Court, Husband was ordered to pay retroactive alimony to Wife even though she had remarried by the time the award was made.  The district court also denied Wife a portion of the rental income acquired during separation, and denied Father child support during the temporary separation.  Both appealed to the Utah Court of Appeals.  The court of appeals affirmed the denial of the rental payments and the child support for failure to marshal.  The court of appeals also reversed the award of retroactive alimony because wife was remarried when the award was made.  Both parties requested certiorari to the Supreme Court
The Supreme Court Reversed the court of appeals and found that remarriage does not bar a retroactive alimony award.  Further, it affirmed the court of appeals denial of wife’s claim for rental income because of her failure to marshal.  Lastly, the Court Reversed and Remanded husband’s child support claims, because the hearing in which the district court ruled on his child support claim was not the type of hearing where a transcript is made nor would such a transcript be helpful to deciding the issue of child support.

Must Do More Than Merely State Income of the Payor Spouse to be Entitled to Alimony

Connell v. Connell, 2010 UT App. 136, (Utah Court of Appeals May 27, 2010).

Divorce Decree ordred Husband was ordered to pay $230 alimony and $1797 per month in child support.  Alimony was to terminate when wife obtained full time work.  Wife appeals the Alimony award, the award of attorney fees, and the failure of the trial court to order reimbursement of the payments made toward the marital home.
As to the termination of alimony, the Court of Appeals found a court must do more than simply evaluate the payor spouse’s income.  They must also make findings as to the payor’s needs and expenditures as the trial court did in this case.  The trial court additionally correctly imputed Husband at the income of a previous job, because his loss of the job was based on his voluntary failure to comply with employment requirements.  The court’s ruling as to alimony is affirmed
As to attorney fees, this matter is Reversed and Remanded to determine what fees are suit fees (incurred establish an order) and which are enforcement fees (incurred to enforce orders).  Fees to establish an order are based on ability to pay, but enforcement fees are based on unnecessarily incurred fees because of another’s actions. 
As to the mortgage payment, Husband filed for bankruptcy and the bankruptcy proceedings attached the home and took jurisdiction over the home.  The Court affirmed the trial court’s find that it did not have jurisdiction to grant Wife’s request.

Monday, August 9, 2010

Two Month Relationship with Biological Child is Insufficient for Constitutional Protection

In Re Adoption of T.B.
T.M. v. B.B. & S.B., 2010 UT 42, (Utah Supreme Court May 14, 2010).

From birth, unwed biological father, T.M. (Father) maintained a relationship with his daughter.  He offered to pay expenses for the pregnancy, delivery, and had an informal agreement with Mother regarding care and custody of their daughter.  Prior to Mother’s relinquishment of parental rights to her parents, Father filed a Paternity action and filed a motion to set aside the adoption decree in the adoption case.  The paternity action was consolidated with the adoption action, and his motion to set aside and his petition for paternity were denied.  Father appealed. 

The Supreme Court found that while Father made several steps toward obtaining a right to withhold consent, it was not enough.  He failed to strictly comply with the statute; and his relationship, however regular and important to the child, was insufficient for full blown constitutional protection.  The Supreme Court stated that Father should have complied with strictly the statute.  He had not only the 50 days after Daughter’s birth to comply, but also had the time during the pregnancy.  Because he did not strictly comply, he has no right to withhold consent. Affirmed.

Dissent: Justice Nehring joined by the Chief Justice dissented finding that his relationship with Daughter was sufficient for constitutional protection.  Father did all he could

Special Note: 3-2 Decision

Tuesday, August 3, 2010

Divorce Decree Enforceable Even When Parties Were Never Married

Johnson v. Johnson, 2010 UT 28, (Utah Supreme Court May 7, 2010).

Wife filed for divorce claiming the parties were married.  Husband admitted the same in his answer.  A decree of divorce was entered.  Later, Husband moved to set aside the decree for lack of subject matter jurisdiction because the parties were never married.  The trial court denied the motion to set aside even when Wife admitted the parties had never married.  The Supreme Court Affirmed the trial court’s denial of the motion to set aside, and found that the trial Court had subject matter jurisdiction over the Johnson’s relationship regardless if it was truly marital or not.  It further had  jurisdiction because Husband admitted that the parties were married.  “Just as a court adjudicating a contract dispute has authority to determine that no contract exists without losing subject matter jurisdiction over the dispute, a court has authority to adjudicate a divorce claim even if the court later determines that no marriage ever existed.”

Thursday, July 29, 2010

Unwed Biological Fathers Must Strictly Comply With the Statute to Be Entitled to Contest an Adoption

E.G. and N.G. v. C.C.D., 2010 UT App. 114, (Utah Court of Appeals, May 6, 2010).

C.C.D. challenges the adoption of his biological daughter, which took place without his consent.  The trial court found that C.C.D. did not strictly comply with Utah Code § 78B-6-121 because he failed to plan what he would do if he was deported.  The Court Appeals found that when strict compliance with the statute is required, the trial court shall not require more than the statute, therefore requiring a contingency plan for deportation was in error.  However, Because C.C.D. did not agree to pay child support in his affidavit he did not strictly comply with that provision of the statute.  Because of this failure, the Court Affirmed the trial court’s denial.  The Court also noted C.C.D. failed to properly raise and preserve the constitutional claims raised on appeal.

DISSENT: Judge Thorne opined that C.C.D. did strictly comply with the statute by agreeing to “assist Mother in taking responsibility for the unborn child, and to help mother with expenses.”  Judge Thorne also expressed concerns about the current policies expressed by the statute to divest unwed biological fathers of parental rights with very little due process and strict compliance. 

Full Decision available at

Thursday, April 22, 2010

Stipulation Will be Enforced Unless the Unfair or Unreasonable

Robinson v. Robinson, 2010 UT App. 96, (Utah Court of Appeals, April 22, 2010).

Husband and wife stipulated as to property division.  Husband would refinance a portion of the parties’ marital property and pay Wife from the proceeds.  Husband moved to set aside the stipulation because of mistake and impossibility, as he would not be able to obtain the loan because the property was not producing adequate income.  The trial court commissioner denied the motion to set aside and Husband appealed.

The Court of Appeals affirmed the trial court and found that at the time the parties signed the stipulation, Husband assumed the risk of not having enough information.  His failure to obtain the missing information is not a mutual mistake.  The Court also found that there was no unforeseen event to justify rescinding the contract for impossibility.

Husband also argued that the court never found that the stipulation was fair and reasonable. The Court finds that no such finding is required; a stipulation a trial court should enforce a stipulation unless the trial court finds that it is unfair or unreasonable.  Husband also appealed the denial of his request for an evidentiary hearing.  The Court found that there was not factual dispute and therefore no need for an evidentiary hearing.

Monday, April 5, 2010

Common Residence + Sexual Contact + Husband-Wife Relationship≠ Cohabitation

Myers v. Myers, 2010 UT App. 74, (Utah Court of Appeals, April 1, 2010).

Husband and Wife were divorced and Husband was ordered to pay alimony.  After the divorce, Wife never had a permanent home, but often stayed with her parents.  Husband alleged, and the trial court found, that wife, while in her parents home, engaged in sexual contact with a foster child living in her parents home.  Husband moved to terminate alimony based on cohabitation with the foster child.  The trial court found cohabitation based on a common residence and sexual contact.  Wife Appealed.

The Court of Appeals reversed and remanded the case, finding that the Court failed to establish that Wife and the foster child engaged in a relationship akin to a husband-wife relationship.  The Court found that Husband failed to show Wife shared expenses with the foster child, shared decision-making, shared space, or shared meals.  The Court found that, Husband had shown that Wife and foster child conducted themselves as boyfriend and girlfriend and not as husband and wife.

Monday, February 15, 2010

Again, Fault is Not a Factor in Alimony, and Failure to Preserve = Wavier

Fairbanks v. Fairbanks, 2010 UT 31, (Utah Court of Appeals, February 11, 2010).

Husband and wife were divorced Court awarded Wife alimony and her premarital property. Husband appealed. 

Husband argued that he too had made premarital contributions and the trial court did not compensate him.  The Court of Appeals found that Husband failed to preserve this issue and refused to consider any arguments on this issue. 
Alimony.  Husband also argued that Wife should not have awarded alimony based on her fault in the breakdown of the marriage.  The Court disagreed with husband and affirmed the trial court, finding that fault is not a factor in awarding alimony (because the legislature has not defined it).  Further, the Court found that if fault was a factor, Wife had insufficient fault in this case.  Specifically (1) Wife’s refusal to engage in sexual relations after  Husband to her he felt like he had been raped was not cruel treatment; (2) because the parties mutually agreed that Wife would move, there was no desertion; and (3) Wife’s failure to give Husband financial support because she had no surplus does not qualify as neglect.

Husband argued that the trial court improperly admitted evidence.  The Court of Appeals made no ruling on these issues because Husband failed to object at the time the evidence was offered at trial, and thereby, waived any objection.

Concurrence: We should consider fault as a factor, but since we rely on precedent, we cannot consider it.

Tuesday, February 9, 2010

Student Support Contracts are Enforceable So long as they Satisfy the Normal Conditions Imposed on Post Nuptial Contracts

Ashby v. Ashby, 2010 UT 7, (Utah Supreme Court, February 9, 2010).

Husband attended undergraduate studies in Utah while Wife worked.  They agreed that he would continue graduate studies in St. Louis and Wife would work while he studied in an effort to achieve a future higher standard of living.  At divorce, wife brought claims of unjust enrichment and breach of student support contract.  The trial court dismissed these claims and wife brought a separate civil claim, which the trial court also dismissed.  Wife appealed.  The Court of Appeals reversed the district court’s dismissals and Husband Petitioned and The Utah Supreme Court granted Certiorari.

The Court found that the unjust enrichment claim failed under Martinez.  Finding that any unjust enrichment issue should addressed with alimony.  However, the Court found that the Student Support Contract claim does survive, but that she must bring the claim in the divorce action.  The Court additionally finds that Alimony is not the exclusive remedy to breach of a student support contract, and that Alimony is insufficient in some cases to award the appropriate remedy, such as expectation damages.  As such, the Court affirms the appellate court’s reversal of the dismissal in the civil action.  The Court further instructs the trial court that prior to addressing alimony, it must asses whether there is a postnuptial contract.  If so, it should grant the appropriate remedy prior to making an alimony award or dividing property.

Full Decision available at

Failure to Submit to Corporate Formalities Will Subject Husband and Wife to Corporate Debt.

Olson v. Olson, UT App. 22, (Utah Court of Appeals, February 4, 2010).

When Parties divorced, they had significant business debt.  Parties had so commingled the business and personal debts and assets that the business was simply and alter ego of the parties.  The trial court divided the business debt between the parties and ordered Husband to pay wife $1000 per month after the sale of the home.  Wife appealed those issues and many others including the valuation of the marital home, and the exclusion of her expert. 

The Court of appeals declined to rule on a number of the wife’s issues because she did not adequately brief the issues; she failed to show preservation, standard of review, and failed to cite relevant authority.  

The Court of Appeals affirmed all trial court findings.  The parties business failed to be a corporation in all respects. As to alimony, the tying of alimony to the sale of the home was property and shows that she is living rent free and that when they sell the home she will have need.  The court appropriately based the valuation of the home on Husband’s testimony as a knowledgeable owner.  The trial court appropriately excluded Wife’s expert because she had not provided an expert report from him.  A trial court can strike an expert’s testimony when the proponent failed to file an expert report and failed to list him on her witness list as and expert.

Wednesday, January 27, 2010

One Year Anniversary

This blawg is now one year old and contains all the family law decisions from the Utah Appellate Court and Utah Supreme Court.

It has been a long year and we have lost some dear friends in our legal community.  It would be inappropriate for me to review the last year without recognizing their passing.  I am speaking in with regard to Nyal Bodily and Craig Snyder.

I hold both Nyal and Craig out as my examples and men I consider mentors.  Nyal’s example exhibits that one can be of high moral character while advocating for his client.  Craig’s example exhibits that old dogs can learn new tricks, and he can certainly teach a few.  My hope for myself and for others in our family law community can emulate the good characteristic exhibited by Nyal and Craig.  Our condolences are with their families, but our memories are good and supported by the eternal public record, both exhibit that Craig and Nyal are as good as any and better than most.

We move forward, and I will continue to supply the summaries as the cases become available and I appreciate your comments.

Thanks for reading.

Utah Criminal Blawg

As a spin-off of the Utah Family Blawg, which is now a year old, I have created the Utah Criminal Blawg.

In the Utah Criminal Blawg, I do not plan summarize all the appellate court decisions regarding criminal cases, but will attempt to summarize any and all decisions narrowing or expanding current case law.

Feel free to email me with any comments or suggestions

:: By using this blog site you understand that this information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. This blog site should not be used as a substitute for competent legal advice from a licensed attorney in your state.::


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