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.


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