Monday, November 14, 2011

Must File Adoption and Petition to Terminate Parental Rights in Order for District Court to Take Jurisdiction, However, Adoption Need Not Be 100% Ripe at Time of Filing

In re R.B.F.S., 2011 UT 46, Utah Supreme Court August 2, 2011

Father signed a relinquishment and consent to adoption  at the time of his divorce in 2005.  In 2007, Mother remarried and she and Stepfather filed to terminate Father's parental rights and complete Stepfather's Petition for Adoption without providing notice to Father.  The Trial Court granted the adoption and termination.  Father appealed.  Father argued that since Stepfather did not qualify to file the adoption proceeding (because the children had not lived with him for one year), the adoption was not properly before the district court and accordingly, neither was the Petition for Termination.  The Court of Appeals agreed with Father and set aside the termination and adoption.  Mother and Stepfather petitioned for, and were granted cert.
The Supreme Court found that the District Court did have jurisdiction to hear the termination because Stepfather had filed the adoption with the termination proceedings.  The Court found no additional requirement that Stepfather qualify perfectly for the adoption before filing to terminate Father's parental rights.  In sum, while an adoption must be filed with the Petition to Terminate Parental rights in order for the district court to have jurisdiction, the Adoption Petitioner need not comply with all of U.C.A. 78B-6-135(7)(b) before filing the actions. Reversed to Court of Appeals to consider any other grounds for appeal.

Full opinion available at:

Child Welfare: Completion of Service Plan Does Not Guarantee Reunification; and Award of Permanent Custody is an Appealable Order

In Re: E.L.F., 2011 UT App 244 (Utah Court of Appeals July 29, 2011).
Mother appeals the Juvenile Court award of custody to Father.  The Court of Appeals first finds that the order of permanent custody to Father is a final and appealable order.  As to the merits of the appeal, the Court found that the Juvenile Court had jurisdiction to make the order and refused to disturb the Order of the Juvenile court because it had foundation for the order.  The Juvenile Court found that Father believed that it was important that the children have a relationship with their mother, and Father was actively engaged in children's lives.  The Juvenile Court also found that Mother had completed her service plan, however, according to treatment providers and other testimony at trial Mother had not internalized her treatment.  Affirmed.
Full Decision Available at

Petition to Modify Two-Part Test Must Be Analytically Bifurcated; and Child Support Can be Modified Even if Not Included in Petition to Modify

Doyle v. Doyle, 2011 UT 42 (Utah Supreme Court July 22, 2011).

Mother and Father were divorced and Husband was awarded custody. In the Decree, the Court ordered that if Mother returned to SLC area, the parties would have joint-custody. Mother moved back to SLC area, but Father moved for and obtained a setting aside of that portion of the Decree as a perspective change in custody. Mother then filed a Petition to Modify based on her relocation to SLC and Father’s maltreatment of the minor child. Father moved to bifurcate the trial and have best interests and change of circumstances heard separately. The Trial court denied the motion and the Court of Appeals affirmed. Father petition for writ of cert, which was granted. The Supreme Court found that while the trial court must keep the analysis of changed circumstances and bests interests analytically separate, it need not hold separate trials or limit a witnesses testimony to one or the other. The Court further found that child support is an inherent issue if a change of custody is requested and can be addressed by the court even if not completely pleaded in a complaint.

Full opinion available at:

Friday, November 11, 2011

PKPA Applies in Adoption Cases and Must Preserve Grounds for Appeal at Trial Level

In Re Baby E.Z., 2011 UT 38 (Utah Supreme Court, July 19, 2011)
Mother moved to Utah while pregnant and placed the baby for adoption. Father moved to intervene in the adoption matter, but his intervention was denied. Father Appealed.
Because an adoption proceeding requires a custody determination the PKPA applies. However, Father failed to raise PKPA at the trial court level. Because PKPA is not a jurisdictional issue, he cannot raise it for the first time on appeal. Because he failed to raise PKPA at the trial level, his claim is waived.
Father also raised a due process challenge to the requirement of paternal assertion prior to a mother’s relinquishment. However, Father failed to raise this at the trial level.
In short, because Father failed to preserve his grounds for appeal, both grounds were waived and not fully reviewed by the Court. Affirmed

Thursday, November 10, 2011

Property Not Properly Conveyed Away from the Marital Estate is Marital Property; and Fraud Tolls Statute of Limitations on Quiet Title Actions

Grgich v. Grgich, 2011 UT App 214 (Utah Court of Appeals, June 30, 2011)
Husband and Wife divorced. Wife was awarded 1/2 interest in the parties farm estate where the parties had lived for the majority of the marriage.  Husband appealed claiming the property was deeded to the minor children and Wife's challenge of the deed was barred by the statute of limitations.  The trial court had concluded that Husband's acts of mortgaging the land without permission and over the objection of the children showed his lack of present intent to transfer when he deeded it to his children.  Because he lacked the present intent to transfer, the transfer to the children was invalid.  Further, the trial court found even he had the intent to transfer the property his fraud on Wife tolled the statute of limitations as to Wife because Husband himself had told Wife that it was invalid.  She relied on his statement and his actions of unilaterally mortgaging the property as proof that he was the one true owner.
The Court of Appeals affirmed.

Stalking Injunctions: Fear Can the the Result of Cumulative Actions

Coombs v. Dietrich, 2011 UT App 136 (Utah Court of Appeals, April 28, 2011)
Coombs sought a stalking injunction against Dietrich (his ex-wife's new boyfriend) based on three incidents.  In the first and second incidents, Dietrich merely called Coombs names and attempted to intimidate him.  The third incident culminated in Dietrich slamming Coombs against the car and shutting his arm in the car door.  The Court granted the stalking injunction.  Dietrich appealed.  
Dietrich argued that the first two incidents would not have caused a reasonable person to fear, and the third action alone is insufficient for the entry of a stalking injunction.  The Court of appeals found that the first two incidents coupled with the third was sufficient for the entry of the stalking injunction.  The independent incidents do not need to be fear inducing to warrant a Stalking injunction, but if the cumulative effect of the incidents causes fear that is sufficient. Affirmed

Wednesday, November 2, 2011

No Constitutional Right to Counsel in Civil Contempt Cases

Turner v. Rogers, 564 U.S. ____ (2011).

Turner had been found in contempt five times for failure to pay child support.  The fifth time Turner did not pay the amount owing and served 6 months.  After his release, the court issued another order to show cause and sentenced him to 12 months in jail without making a finding as to Turner's ability to pay.  He appealed.

Turner argued that he should have been provided counsel at the show cause hearing because there was a chance that he would be subject to incarceration.

The Supreme Court found that due process requirements are met and punishment can be imposed if the alleged contemnor is found to have had notice of the order, ability to comply with the order and willful noncompliance with the order.  No further safeguards are required, and if those safeguards are preserved the Court may impose jail time.

Full Decision available at

Tuesday, November 1, 2011

Property Division is to be Equitable not Equal and Alimony Must have a Conclusion

Boyer v. Boyer, 2011 UT App 141 (Utah Court of Appeals, May 5, 2011)
Husband and Wife divorced.  Husband was awarded his retirement and the business.  He was further awarded a majority of the debt and was ordered to pay alimony.  Wife appealed the property division claiming she should be awarded a portion of the business and Husband’s retirement.  She also appealed the alimony award arguing that the Court failed to consider husband’s fault, (Husband had given wife a STD) and wife’s health.  Wife also appealed the Court’s prospective downward adjustments to alimony.
The Court of Appeals affirmed the property division, finding that while not equal as to the individual parts was equitable when evaluating the entire award.  As to alimony, The Court of Appeals found that there was no need to analyze Wife’s health, because that is not one of the statutory factors.  The Court did not have to analyze fault because it is an optional factor (“Court may consider fault”).  However, the Court remanded the award for further findings as to the prospective downward adjustments (which the Court of Appeals found would be appropriate and consistent with rehabilitative alimony, the trial simply needed to categorize the alimony award).  The Court of Appeals further remanded for findings as to the date of conclusion of alimony. 

Wednesday, September 21, 2011

Passage of Time Itself is not Enough to Invalidate a Divorce Agreement and Post Separation Mortgage Payments Entitle Payor to More Equity

Jacobsen v. Jacobsen, 2011 UT App 161 (Utah Court of Appeals, May 19, 2011).
Parties signed a “divorce agreement” in May 2001 and filed for divorce until 2005. The Trial court upheld the agreement. The trial court also awarded Husband a disproportionate portion of the equity because of his use of inheritance and separate income to retire the mortgage after separation. Wife Appealed.
The Court of Appeals found that Wife had marshaled much of the evidence, but failed to illustrate the “fatal flaw.” It is not enough to merely present all the evidence; the appellant must demonstrate why the evidence is insufficient. The Court also found that the passage of time does not invalidate the agreement.
The Court of appeals further found husband’s payments from post separation income and separate property used to retire the mortgage entitled him to a disproportionate amount of equity.
Wife appealed on several other grounds, but failed to preserve some issues and her other arguments were simply not supported by the evidence.

Tuesday, July 26, 2011

UIFSA Grants Jurisdiction to Enforce Not to Modify

Osborne v. Osborne, 2011 UT App 150 (Utah Court of Appeals, May 12, 2011)
Osbornes divorced in Arkansas.  Mrs. Osborne moved to Utah and had her Decree domesticated under UFISA and filed for the entry of a QDRO and back alimony.  She was granted the QDRO and back alimony.  Mr. appealed arguing that the court did not have subject matter jurisdiction.
The Court of Appeals found that UIFSA does not give Utah courts the power to modify the Decree, but does allow for enforcement thereof.  The filing of the QDRO and ordering of back support are enforcement issues.  The case must be transferred in order for a decree to be modified.  Also, the Court did not err in finding that Mr. owed the back alimony payments.  (Mrs. Was to be paid alimony until she began to receive her distribution of the railroad retirement benefits).

Monday, July 11, 2011

Actual Fear Not a Requirement for Stalking Injunction (Reasonable Person Standard Adopted).

Bott v. Osburn, 2011 UT App 139 (Utah Court of Appeals, May 5, 2011)
Wife filed for and was granted a ex parte temporary stalking injunction.  The bases for the stalking injunction were the two telephone conversations in which Girlfriend threatened to shoot Wife.  Wife also knew that Girlfriend had purchased a gun.  The Court entered the permanent stalking injunction.  Girlfriend appealed arguing that Wife did not show she had fear of Girlfriend.
The Court of Appeals affirmed the trial court finding that there were sufficient grounds for the stalking injection because Girlfriend had engaged in a course of conduct that would cause a reasonable person fear (the threats of shooting wife) and Girlfriend knew or should have known that such threats would cause a reasonable person fear.  The Court of appeals found no need for Wife to show actual fear, but that a reasonable person standard should be adopted for the purposes of entering a stalking injunction.

Parties Must be Permitted an Opportunity to Address the Grounds for Dismissal Before the Court May Dismiss

Osburn v. Bott, 2011 UT App 138 (Utah Court of Appeals, May 5, 2011)
Girlfriend filed for, and was awarded an ex parte temporary stalking injunction against Wife.  Wife had allegedly sent several texts, emails, voicemails, and had vandalized Girlfriend's car.  Wife had filed for a Stalking Injunction before Girlfriend.
At the time of the hearing, the judge dismissed Girlfriend's petition stating that her claims should have been and were properly addressed in the previous hearing held before a different judge which addressed Wife's petition.  Girlfriend appealed.
The Court of Appeals reversed and remanded finding that the dismissal was inappropriate without providing Girlfriend an opportunity to address the alleged grounds for dismissal.  If she had been permitted to address the argument that the stalking injunction had been previously adjudicated she could have provided a transcript from the prior hearing, in which the other Judge refused to hear any evidence as to her claims because there were not before him.  Because Girlfriend was not permitted an opportunity to respond to the basis for the dismissal, she was denied due process.

Thursday, April 14, 2011

Right to Counsel in Child Welfare Case is Not a Constitutional Right

State in Re: J.R.G.F., R.F and R. G. v. B.A.F. and T.F. 2011 UT App 97 (Utah Court of Appeals, March 24, 2011).
The trial court terminated Mother’s and Father’s parental rights.  Mother and Father appealed and claimed that they were not informed of their statutory right to counsel prior to trial.  The court also denied their request for counsel mid-way through trial. 
The Court of Appeals found that even if what Mother and Father claimed was true, they must show that the denial of counsel prejudiced their case.  The statutory right to counsel under the child welfare act is different than a constitutional right to counsel.  With a statutory right to counsel, there is no presumption of prejudice when counsel has been denied.  To demonstrate prejudice the party must show a reasonable likelihood of a different outcome if the error had not been made.  Mother and Father failed to meet the burden because of the substantial evidence against them, including: both parents had lengthy criminal histories; both had failed to pay child support; both failed to consistently visit the child.  Conversely the adoptive placement provided a stable loving home, and the individuals were the only consistent parental figures in the child’s life.

Wednesday, April 13, 2011

Subject Matter Jurisdiction Under UIFSA is Based on Domicile

Lilly v. Lilly, 2011 UT App 53 (Utah Court of Appeals, February 25, 2011).
Father physically resides in California due to his active duty service in the military.  The parties were divorced in California and subsequently mother and child moved to Utah.  Father filed a Petition to modify the child support order in Utah because Utah was the resident state of the child, Mother and Father.  The trial court denied the Petition based on a lack of subject-matter jurisdiction because father physically lived in California. Father appealed.
The Court of Appeals found that Utah has subject matter jurisdiction because Father is domiciled in Utah.  Under UIFSA, a state that enters the child support order maintains jurisdiction over child support if the child, obligor, or obligee continue to reside in that state.  The Court of Appeals found that ‘reside’ under the statute refers to a person’s domicile, the place at which the person has been physically present, and where he intends to return, and which he regards as home.  Because the trial court had failed to determine Father’s domicile, the Court of Appeals Reversed and Remanded the case to determine Father’s domicile to determine whether Utah has subject matter jurisdiction to modify the child support.

Monday, March 21, 2011

Before a Court Can Issue a Stalking Injunction, Respondent Must Commit At Least Two Criminal Acts

Allen v. Anger, 2011 UT App 19 (Utah Court of Appeals, January 21, 2011).
Allen sought and was granted a stalking injunction against Anger for her act of posting several posters throughout Allen’s neighborhood criticizing Allen’s choice to place her daughter in a teen ranch.  Further, Anger had encouraged and helped the same daughter seek emancipation.  The Stalking injunction was entered and Anger appealed.
The Court of Appeals found that under U.C.A. §6-5-106.5 a stalking injunction cannot be entered without a showing that the Respondent has committed at least two acts of stalking under U.C.A. § 77-3a-101.  Because in this case there has only been one act that would rise to the level of stalking (the placing of the posters), there is no grounds for the stalking injunction.  Reversed.

Monday, March 7, 2011

In Child Welfare Trials, Parties are Permitted to Present Additional Evidence After the Initial Close of Their Case.

State of Utah In Re: M.G., M.G. v. State of Utah, 2011 UT App 5 (Utah Court of Appeals January 6, 2011).
At trial for termination of parental rights, the State presented its case and Father presented his defense.  At the close of Father’s case, he challenged the sufficiency of the evidence to terminate his parental rights.  The Juvenile Court stated that it had to alternatives (1) to dismiss the petition and require the state to refile, or (2) allow both parties the opportunity to put on additional evidence.  The Juvenile court chose the second option and reopened the case to accept further evidence.  At the conclusion of trial, the Juvenile Court terminated Father’s parental rights.  Father appealed.
On appeal, the Court of Appeals determined that it is within the Juvenile Court’s sound discretion to allow additional evidence to enable the Juvenile Court to make an informed decision.  This is based on the highly equitable nature of the Juvenile Court and the requirement to consider the best interest of the child in child welfare cases.
Note: It is the author’s belief that this decision could be used in all family law cases regarding the best interests of the child (i.e. if you lose on day one ask for an additional day to present further evidence)

Friday, March 4, 2011

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.

Saturday, February 12, 2011

Court Can Change Award on Remand

Baum v. Hayes, 2010 UT App 379 (Utah Court of Appeals December 23, 2010).

The Court of appeals previously remanded this case for lack of findings.  On remand, the trial court made supplemental findings and changed the award.  Husband appealed and argued that the trial court should not have changed the award, but instead should have only made findings that supported the prior award.

The Court of Appeals disagreed, and stated that the trial Court should amend the award according to the evidence and if the findings require the award to be changed it should be changed accordingly.

Husband also appealed the presentation and admittance of certain evidence.  The Court of appeals did not consider this appeal for three reasons first, the trial court stated that it did not consider the evidence; second, Husband failed to preserve his grounds because he never objected to the evidence at the trial level; and third, Husband failed to marshal the evidence in regards to the evidence. Affirmed.

Wednesday, January 19, 2011

Attorney Fees Awarded for Unpreparedness Do Not Require a Needs Analysis

Anderson v. Anderson, 2010 UT App 392 (Utah Court of Appeals December 30, 2010).

Wife appealed several portions of the district court's order.  One such appeal was taken from the Court's order that she pay Husband's attorney fees for a hearing at which she was not prepared and requested a continuance only at the time of the hearing.  The basis of her appeal was that no fees should be awarded because the trial court failed to analyze Husband's need for the fees, Wife's ability to pay the fees, and the reasonableness of the fees.  

The Court of Appeals found that no such analysis was necessary because the awarded attorney fees were not awarded under Utah Code Ann. 30-3-3, but were awarded under the district court's inherent powers to sanction parties for waste of judicial resources.

Wife next appealed the entry of the order without ruling on wife's objection to the order.  There is no rule that requires a court to rule on an objection prior to entering an order that is at the heart of the objection.  In fact, that argument has been specifically rejected by the court.  Affirmed on all grounds

See full decision at

Court Always Retains Ability to Modify Alimony and Alimony Award Can Never Exceed the Recipients Needs

Sellers v. Sellers, 2010 UT App 393 (Utah Court of Appeals December 30, 2010).

In the Decree of Divorce the trial court ordered that neither party was awarded alimony either at the time of the Decree or in the future.  Wife appealed.  Wife further appealed the finding that Husband owed no alimony.  The basis of her appeal was that the trial court made insufficient findings as to Husband’s ability to earn.  (Wife appealed on additional grounds, but failed to properly preserve those grounds at the trial level).  

The Court of Appeals determined that the regardless of the trial court’s order, the court may always modify alimony based on statute, UCA 30-3-5(8); and no divorce decree can change the statute.  As to the zero alimony award, it was shown that wife had sufficient income to meet her needs and did not qualify for alimony; the Court need not determine a party’s ability to pay if the other party’s needs are already being met.  “Regardless of the ability of the payor spouse to pay more, the recipient souse’s need must constitute the maximum permissible alimony award.”

A Party Cannot be Held in Contempt Unless the Order is Unambiguous

State of Utah v. L.A., 2010 UT App 356 (Utah Court of Appeals December 16, 2010).

Mother was held in contempt for failing to comply with an instruction from her minor child’s probation officer.   The parties agreed to assist their child in complying with all probations conditions including transporting the child to meetings with probation department, the juvenile court entered an order on their agreement.  The minor child tested positive for marijuana and the child’s probation officer instructed Mother to bring the child to the detention center.  Mother refused to take the child to detention and was found in contempt.  Mother Appealed.

The Court of Appeals found that the order instructing the parties to provide transportation to meetings was not sufficiently specific to include transporting the child to detention.  Because the order was ambiguous as to whether it required Mother to take the child to detention, or follow such an instruction from the probation officer, the Court of Appeals reversed the finding of contempt.

Dissent: Judge Orme would have found that the order was sufficiently clear to require Mother to comply with the probation officer’s instruction, and thus would have affirmed the Juvenile Court’s order.

Thursday, January 6, 2011

Trial Court Cannot Award Appellate Attorney Fees

Anderson fka Thompson v. Thompson, 2010 UT App 359 (Utah Court of Appeals December 16, 2010).

Husband prevailed on the previous appeal, which resulted in a reversal and remand.  On remand, he requested and the trial court awarded attorney fees for the appeal.  Wife appealed.  The Court found that the trial court does not have the authority to award appellate attorney fees and costs absent an explicit directive from the appellate court.  In this case, there was no such explicit directive so that any award of appellate attorney fees was inappropriate.  Reversed.

Wednesday, January 5, 2011

No Motion to Compel Will Be Granted Unless Rules Are Followed

Rahofy v. Steadman, 2010 UT App 350 (Utah Court of Appeals December 9, 2010).

Steadman had sent letters to Rahofy requesting that she sign release forms for medical and employment information unrelated to her cause of action.  She refused.  The trial court granted a motion to compel forcing Rahofy to sign the releases.  Rahofy appealed.

The Court of Appeals found that the Utah Rules of Civil Procedure allow the parties to seek discovery informally a party cannot be compelled to respond to an informal discovery request.  A party may send a request for production of documents under Utah Rules of Civil Procedure Rule 34(a)(1), however if the documents are not in their possession, they cannot be forced to produce documents that they do not have.  Additionally, formal requests can be objected to, letters cannot.  In short, there was no formal request for the signed releases, and thus no opportunity to formally object to such a request.

It may be that Steadman was entitled to the documents he was seeking.  However, such an entitlement must be established by proper procedure and not by informal requests.  Additionally, Defendant did not even attempt to obtain the records through a subpoena, which is a proper method to obtain documents in the possession of a third party.  Because Defendant did not follow the rules of civil procedure in obtaining the discovery, the Order granting the Motion to Compel is Reversed and Remanded.


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