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.

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