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.


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