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.”


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