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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