Military Retirement Divided Identically to Corporate Retirement

Johnson v. Johnson, 2012 UT App 22, January 26, 2012

Johnson and Zoric were married for ten years.  At the time of the divorce (1984), Johnson was and E-5 in the Air Force.  In 1999, Johnson retired and began receiving his pension and Zoric filed a QDRO to divide the pension.  The Trial court awarded Zoric her portion based on Johnson’s E-7 level, which was his pay level at the time of retirement.  The trial court also ordered that Zoric’s portion be awarded prior to all other deductions giving her an even greater amount of the pension. Johnson appealed.  Johnson also argued that Zoric’s QDRO was filed too long after the decree and violated the statute of limitations.

The Court of Appeals in a divided (2-1) decision affirmed the trial court’s award at the E-7 pay grade.  The Court of Appeals found that such an award a direct application of the Woodward formula. See page 433 of Woodward. Trial court divided the number of years in service during the marriage (10) divided by the total number of years to accrue the benefit (24) and awarded Zoric 20.8% of the retirement.

The Court of Appeals reversed and remanded with instructions to recalculate Zoric’s potion after the deduction of taxes.  The trial court was instructed that it must only divide disposable retirement.

As to the issue of the statute of limitations (SOL), the Court of Appeals affirmed finding that the SOL does not begin to run until be the payment is due.  Because QDRO was filed within SOL it was enforceable.

Davis Dissent: Would divide pension and award only a portion of E-5 to Zoric.  Also believes that the appellate court should review the matter under a matter of law standard and not abuse of discretion standard.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/johnson705012612.pdf

Being Fired is Insufficient Proof of Underemployment

Busche v. Busche, 2012 UT App 16, January 20, 2012

Parties divorced in January 2005.  Husband Petitioned to Modify the Decree because he had been fired from his employment.  At the time of trial on the modification, Husband was employed but at earning less.  The trial court found that because Husband was fired, that he was voluntarily underemployed.  The trial court also awarded Wife attorney fees.  Husband appealed.

The Court of Appeals found that evidence because a party was fired is insufficient to prove underemployment.  The Court is required to not only review the circumstances of a party’s loss of employment, but also their conduct after the end of the employment.  See U.C.A. § 78B-12-203 (7)(b) for imputation factors.  Because the trial court did not consider the imputation factors, the matter is Reversed and Remanded for further findings by the district court.  Court of Appeals noted later in the decision that in order to include income above regular employment, the income must be regular and consistent.

As to attorney fees, the Court found that the fees awarded for Wife’s substantially prevailing in an Order to Show Cause hearing was appropriate.  The trial court also awarded Wife attorney fees for the remainder of the case but reduced the amount.  However, the trial court made only cursory findings as to the reasonableness of the fees.  Court of Appeals Reversed and Remanded the award of fees and instructed the trial court make detailed findings to support the award of fees.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/busche012012.pdf

In a Protective Supervision Case, Court Not Required to Provide Strict Procedural Due Process
K.D. v. State, In Re C.F., 2012 UT App 10, January 12, 2012

Children were removed by DCFS.  Legal and physical custody were later returned to Father.  The Juvenile Court retained Protective Supervision (PSS) case with the family.  While the PSS case continued, the children were exposed to a domestic violence incident involving Father and Mother.  Based on that incident, the court removed the children and set a hearing on Father’s motion for reunification services.  The juvenile court indicated no other purpose beyond addressing Father’s motion.  At that hearing, the Juvenile Court denied reunification services and at trial, terminated Father’s parental rights.  Father appealed.

The Court of Appeals found that because the court’s jurisdiction had not ended and had not modified the finding of neglect, Father was not entitled to a specific hearing on the permanency goal.  Father had a permanency hearing prior to custody being returned.  The hearing on Father’s motion fulfilled all statutory due process requirements because Father was able to present evidence and challenge the State’s allegations.  Further, because the Court maintained jurisdiction, Father was on notice that the goal for the children and custody of the children could be modified by court without further notice.  Affirmed.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/AMDJV_kf011212.pdf

Detailed and Unchallenged Expert Testimony is Sufficient Basis for Trial Court Findings

Liston v. Liston, 2011 UT app 433, December 22, 2011

Husband appealed the Decree which found wife’s credit card accounts and Husband investment accounts to be marital property. The trial court further awarded wife a sum of money for her ½ interest in water rights associated with the marital home. Husband Appealed.

Court of Appeals affirmed the trial court’s finding that Wife’s detailed and specific explanation that the credit card expenses were marital expenses was more credible when compared to Husband’s lack of explanation of the credit card expenses.  Indeed, Husband’s testimony that he had no idea of what expenses were on the Credit Cards displayed his ignorance on the issue.

Husband had a sizeable investment account to which he added funds that he claimed were from his mother.  The combined amounts were then placed in an account held solely in Wife’s name, then the entire amount (including Wife’s investments) were transferred into an account held in Husband’s deceased mother’s name.  Upon distribution, the Court described how it determined that Husband original investment in the account along with other token investments and interest thereon was Husband’s separate property. The remainder, including the portion that allegedly came from Husband’s mother, the Court found to be marital.   The Court of Appeals affirmed the trial court based on the trial court’s detailed findings and reliance on the CPA report.

Husband argued that the water rights were resolved in the parties’ partial stipulation.  As part of the stipulation husband was awarded the marital home and water rights “appurtenant thereto.”  An unchallenged expert testified that three of the four shares were not appurtenant to the home, but could be sold separately.  Court affirmed the trial court based on the expert’s unchallenged testimony.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/liston122211.pdf

Trial Court Can: (1) Appoint Special Master and Require Professional Supervision for Exchanges; (2) Require a 3 Hour Minimum Before ROFR; and (3) Adjust Parent-Time Specific that Do Not Exceed Statutory Minimum Parent-Time

Wight v. Wight., 2011 UT App 424, Utah Court of Appeals December 15, 2011

Husband appeals the Decree of divorce on 12 different grounds.  The Court of appeals found that Husband’s appeal failed procedurally on several issues.

THIRD PARTY SUPERVISED EXCHANGES

The Court of appeals affirmed the trial court’s order for the third party supervising agency for parent-time exchanges based on “ample and compelling emotional issues between the parties,” and because the agency had been beneficial to the parties by helping them communicate, and limiting potential emotional issues occurring between the parties at the exchange.

SPECIAL MASTER FOR PARENT-TIME ISSUES

The Court further affirmed the appointment of a special master because based on the record, the parties had agreed to the appointment for the resolution of parent-time disputes. The Court found that Special Masters can be appointed under URCP 53 and are permitted to “do or perform particular acts.”  Further, because the appointment did not limit the parties ability to object to the orders of the special master, the appointment was appropriate under URCP 53.

RIGHT OF FIRST REFUSAL

The Court also affirmed the three hour minimum before the noncustodial parent could provide daycare for the minor children.  The Court of Appeals noted that the statute (§30-3-33(15)) does not give a right to provide day care, it simply states that “parental care is preferred to surrogate care.”

SPECIFIC EXCHANGE TIME

Father argued that the Court exceeded its discretion by ordering that pickup time in the summer midweek parent-time would be at 5:30 when U.C.A. §30-3-35 would allow Father to pick-up the children at 9:00 am.  The Court of Appeals affirmed the specific pick-up times were appropriate because the statute is the minimum schedule and the schedule that the Court imposed allowed for two midweeks and thus exceeded the minimum parent-time requirements and as such did not violate the statute.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/wight121511.pdf

Guardianship Placement May Lead to Change in Home-State of Child.

D.T. and S.T. v. C.M., 2011 UT App 407, Utah Court of Appeals December 1, 2011

Parents of 2 children had given voluntary custody and guardianship of the minor child to their older daughter, Sister.  Sister refused to return the child, and Parents moved the Court to terminate the voluntary guardianship.  The Court granted the motion.  Sister then obtained a protective order on behalf of the minor child and petitioned the Court to terminate parents’ parental rights based on Father’s sexual abuse of Sister and the minor child, and Mother’s facilitation of the abuse.  Parents moved to dismiss the petition to terminate their rights because Tennessee was the child’s home state.  The juvenile court found that, in spite of parents’ argument, Utah was the home state, but was an inconvenient forum.  Tennessee declined jurisdiction.  District Court denied the Motion to Dismiss and terminated Parents’ parental rights.  Parents appealed.

The Court of Appeals found that Utah Sister’s did not engage unjustifiable in conduct by retaining custody of the minor child.  Instead, Utah had jurisdiction because the child resided in Utah from April 2007 until November 2007 at the allowance of Parents.  The Court of Appeals also found that there is no violation of due process in excluding the parties from the jurisdictional conversation in the Court-to Court conversation.   Affirmed.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/JV_syt120111.pdf

Termination of Parental Rights Must Be in Child’s Best Interests

A.A. v. State of Utah, 2011 UT App. 397, Utah Court of Appeals November 25, 2011

District Court terminated Mother’s (A.A.’s) parental rights based on Mother’s unfitness because of mental illness.  Mother appealed and argued that the termination was not in the child’s best interest.

Mother argued that Daughter does not want to be adopted.  Daughter was having visits with mother and the state argued that such visits were an impediment to Daughter being adopted.  Several adoptive homes were tested, but at the time of trial and continuing during appeal is the fact that the child has no current prospective adoptive home.  While the lack of an adoptive placement does not preclude termination, it is a relevant factor.  Mother and daughter had established a loving relationship.  While Mother could not care for her daughter, the visits with Mother had been an integral part of the setting in which Daughter had flourished.  While Mother admits she is unfit, and generally terminating an unfit parent is in the child’s best interests, this is an exception.  Reversed and Remanded.


Full Decision Available at :http://www.utcourts.gov/opinions/appopin/JV_dra112511.pdf

Unwed Father’s Defective Paternity Action Cannot be Amended After Mother’s Relinquishment

DonJuan v. McDermott, 2011 UT 72, Utah Supreme Court November 22, 2011

DonJuan an unwed father of filed a paternity action in Utah prior to the birth of his child.  Father failed to include a sworn statement in compliance with Utah Code 78B-6-121(3) as required by 78B-6-120.   78B-6-120 also requires strict compliance with the requirements.  When DonJuan was made aware of the defect, he filed an amended petition.  The trial court dismissed the action.  DonJuan appealed.  The Court of Appeals certified the matter to the Supreme Court. 

The Supreme Court found that in spite of DonJuan’s near completion of all the statutory requirements (filed paternity action, filed with vital statistics, even filed in Georgia where the parties were living prior to the child’s birth), DonJuan failed to strictly comply, his pleadings did not include a sworn statement attesting to his ability and willingness and plans to have custody and provide for the minor child.  Because he failed to include such statements, his affidavit did not strictly comply and was properly dismissed.  PKPA and constitutional claims were not preserved in the trial court.

Full opinion available at: http://www.utcourts.gov/opinions/supopin/Donjuan112211.pdf

Petitioner Has No Ongoing Duty to Notify Respondent of Divorce Action

Miles v. Miles, 2011 UT App 359, Utah Court of Appeals October 27, 2011

Wife filed a Petition for divorce in June 2008.  Husband left wife and moved to Florida.  He did not leave a forwarding address with the post office and simply turned in his leased vehicle to the dealer.  Wife tried to have Husband served and his girlfriend’s sister’s home in Florida, but service could not be completed.  Wife filed a motion for alternative service.  The Court granted the same and granted a default divorce decree in November 2008. 

Husband filed motion to vacate the decree in January 2009 and argued that Wife did know where he was and that she should have notified him of the divorce action.  The Court of Appeals found that Wife had no such duty.  Wife had used substantial efforts to attempt to locate Husband; she made attempts by searching with the postal service, she used the internet to search for any new addresses for Husband.  The only address she had for him was that of his girlfriend’s sister’s home where girlfriend’s sister received service on his behalf and even admitted to Wife’s daughter that Husband was living with girlfriend at sister’s home.  Because of these facts, service was proper and there was no further duty (or any duty at all) to make ongoing attempts to notify of the divorce action after service was complete.

Full opinion available at:  http://www.utcourts.gov/opinions/appopin/miles102711.pdf

Cohabitation = Marriage-Like Relationship Not Merely Sex + Same Roof

Myers v. Myers, 2011 UT 65, Utah Supreme Court October 21, 2011

Husband and Wife were divorced in 2006.  Husband was ordered to pay alimony.  For a time Wife resided with her parents.  The trial court found that while living with her parents, Wife engaged in sexual relations with a foster child teenager of Wife’s parents.   The trial court found that this was sufficient to show cohabitation and terminated alimony.  Mother Appealed.  The Court of Appeals reversed finding that cohabitation is more than having sex and sharing a residence, but must be a relationship akin to a marriage.

The Supreme Court granted cert and affirmed the Court of Appeals.  The Supreme Court reached its finding in much the same way as the Court of appeals.   In this case, Mother and foster child shared a home, but it was not their home.  They did not share expenses, nor did they hold themselves out as a married couple.  The relationship was also temporary; there was no sign of permanence.  The Court indicated that the correct question for the trial court to consider is not the sharing of a residence or the existence of a sexual relationship, but whether cohabitation occurred.

Full opinion available at:  http://www.utcourts.gov/opinions/supopin/Myers2102111.pdf

Extra-Curricular Activities Must Be Budgeted for in Child Support

Davis v. Davis, 2011 UT App 311, Utah Court of Appeals September 9, 2011

Husband and wife divorced in 2002.  The Decree was modified in 2005 because of Husband’s loss of employment and bankruptcy.  In 2008, Wife filed a Petition to Modify because Father’s failure to pay credit card costs had resulted in the creditors seeking payment from her thus lowering her credit score and making it more difficult for Wife to obtain additional credit.  Wife sought to have the child tax benefits awarded to her because of Father’s failure to pay the credit card debt.  She further sought an order requiring Father to pay half of the children’s extracurricular costs, and that the Court modify child support commensurate with the parties’ incomes.  The court granted wife’s Petition.  Father appealed.

The Court of Appeals reversed the trial court on the issue of the past due debt because it should have been dealt with in the 2005 modification.  The Court further reversed on the issue of extracurricular expenses and found that they are not the type of expenses that are required to be equally divided but must be budgeted for with child support or separate agreements to share those costs can be made.

As to child support the Court affirmed the lower court because the issue was not properly preserved by Father.

Full opinion available at:  http://www.utcourts.gov/opinions/appopin/davis090911.pdf

Placing Property in Joint-Tenancy Does Not Always Mean Marital Property

Poll v. Poll, 2011 UT App 307, Utah Court of Appeals September 9, 2011

Husband and Wife were married in April 2005.  Wife had substantial amount of money in trust which she used to purchase the parties’ home.  Both parties were listed on the deed.  At divorce the trial court awarded the home in its entirety to wife because of her separate investment in the home.  Husband appealed.

The Court of Appeals found that under Bradford, a transfer of otherwise separate property to joint tenancy with the grantor’s spouse is generally presumed to be a gift and, when coupled with an evident intent to do so, effectively changes the nature of the property to marital property.  In this case, Wife lacked the evident intent to transfer the property to marital property.  The parties made substantial efforts to keep all their accounts separate, which bolstered Wife’s testimony that she had not intent of making the house a gift to the marital estate or to husband.  Affirmed.

Full opinion available at:  http://www.utcourts.gov/opinions/appopin/poll090911.pdf

Rebuttal Evidence Need Not Meet the Same Standard as a Prima Facie Case

R.E. v. B.B., 2011 UT 51, Utah Supreme Court August 23, 2011

Father and Mother divorced in 2003.  Father sporadically exercised his parent-time with the parties’ minor child.  On one visit, when mother picked up the child, the child smelled of marijuana. On that basis, Mother obtained a protective order, which prohibited Father’s contact with the child from February 2004 to December 2005.  In December 2005, Mother filed a Petition to Terminate Father’s Rights.  It was denied. Because the parents could not get along, Father’s mother would arrange the visits.  After a visit on April 1, 2007, Mother ceased to take Grandmother’s calls.  In 2007, Mother reinitiated her attempts to terminate Father’s parental rights on the grounds of abandonment. 

The trial court found that Father had abandoned the child shown by his lack of contact with the child for more than 6 months.  The Court of Appeals affirmed.  Father Appealed.

The Supreme Court found that while Mother had met the prima facie case for abandonment by showing a 6 month period with no contact, Father’s evidence need not rise to the level of clear and convincing in order to properly rebut the presumption of abandonment.  Instead Father must only persuade the fact finder that the petitioner has not established abandonment by clear and convincing evidence.

Full opinion available at: http://www.utcourts.gov/opinions/supopin/TE082311.pdf

Relocation Clauses in Decrees that Change Custody are Unenforceable

Elison v. Elison, 2011 UT App 272, Utah Court of Appeals August 18, 2011

Father and Mother were divorced in November 2004.  The stipulated Decree of Divorce included a provision that transferred custody to Father if Mother relocated outside of Utah.  Mother moved and the District Court enforced the decree and the custody transferring provision.  Mother Appealed.

The Court of Appeals found that enforcement of status quo and best interests is the intent of Rule 106 rather than enforcement of the decree.  Rule 106 provides that the Decree that is to be modified stays in effect until the modification is complete.  The court may only change custody or parent-time to address and immediate and irreparable harm.

The Court read this rule to mean that during a modification action, the children should remain with the same primary custodian, unless remaining would threaten immediate and irreparable harm.  Reversed and Remanded

Full opinion available at: http://www.utcourts.gov/opinions/appopin/taylor081811.pdf