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.


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