Tuesday, December 31, 2013

Trial Court Must Articulate a Reasonable Basis and Adequate Findings When Rejecting the Expert Conclusions

Woodward v. La Franca, 2013 UT App 147 Utah Court of Appeals Court June 13, 2013

Father filed a Petition to Modify requesting custody.  Mother engaged a therapist in an attempt to obtain evidence against Father and to confirm allegations of abuse.  When the therapist failed to provide evidence, Mother obtained a second therapist who also determined that Mothers allegations were unfounded.  At the Rule 106 hearing, Father was awarded custody because of mothers actions of having the child constantly interrogated and because of her coaching the child.  The court appointed a special master and a custody evaluator. Mother objected.  At the objection hearing, the therapists, special master and a custody evaluator agreed with the commissioners recommendation. The court, however, found that each expert was either unpersuasive and/or not credible and sustained the objection and returned custody to Mother. Father Appeals.

Court of Appeals found that the trial court must articulate a reasonable basis and adequate findings when rejecting the expert conclusions and failure to do so is an abuse of discretion.  The Court of Appeals then reviewed the testimony and criticized the trial courts summary dismissal of important evidence of coaching and possible mental illness of Mother.

The trial court further erred when finding that because Mother is an acceptable parent, she should retain custody.  The Court pointed out that a best interest evaluation gives no preference to status quo, but must evaluate which parent is the more acceptable parent.  Because the court failed to make adequate findings as to the expert testimony, and because it improperly evaluated the best interest, this case was Reversed and Remanded.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/woodward061313.pdf 

Child Welfare: Court Cannot Reduce a Parent's Parent-Time at Review Hearing if Parent Objects Prior to the End of the Hearing

E.D. v. State of Utah, 2013 UT App 162  Utah Court of Appeals Court June 27, 2013

Father appeared at review hear at which the court awarded custody of the parties' minor child to Mother.  Father objected at the very end of the hearing and requested an evidentiary hearing.  The Court denied the motion. Father appealed.

The Court of Appeals found that Father's objection was timely under U.C.A section 78A-6-1103 and that based on his objection he was entitled an evidentiary hearing.  However, on appeal, Father failed to demonstrate that if an evidentiary hearing had been held, that he would have obtained a different result.  Because he failed to demonstrate prejudice, the Court of Appeals found this to be harmless error and chose not to reverse the trial court.

3 Grounds for Appeal without Preservation and Contested Adoption Petitions Must be Resolved Through Trial

S.C. v. State of Utah, 2013 UT 26  Utah Supreme Court May 7, 2013

Grandmother sought to adopt her grandson.  Mothers parental rights were terminated and Foster Parents also sought to adopt. The trial court found that under In Re: A.B., the foster parents had priority and they were permitted to adopt.  Grandmother appeals.  This case was certified directly to the Supreme Court by the Court of Appeals.

The Court first finds that while Grandmothers Brief failed to cite where in the record she preserved her claim, that in the reply brief the preservation issue was adequately addressed. And that while A.B. was not directly addressed by Grandmother at the trial level, she did address the best interest standard which opens the door to that argument on appeal.

The Court found that 1) the Best Interest of the child is paramount and 2) in order to evaluate the stability and the likelihood of future disruption in adoptive placements.  In order to evaluate those factors, a full evidentiary hearing is required in contested cases like this one. Reversed and remanded.

Courts have the option of hearing the Petitions together or having separate hearings on the adoption case when privacy is a concern.

Full opinion available at: http://www.utcourts.gov/opinions/supopin/InreCC1326050713.pdf

Continual Attempts to Contact is Stalking

Williams v. Williams, 2013 UT App 111 Utah Court of Appeals May 2, 2013

Parties divorced and Jeri (Ex-wife) requested that Clark (ex-husband) not contact her, but to direct communications to her attorney.  Clark continued to contact her.

Jeri moved and redacted her address from court filings, Clark searched for and found her new home and sent her a text message with a picture of it.  He was contacted by the police and agreed not to contact Jeri.  In the next three months, he sent at least 16 emails to Jeri.  He sent her an envelope with two photographs of a nude woman.  Finding that he had been blocked from calling Jeri, Clark contacted the cellular phone company, impersonated Jeri, had the block removed and then called her several times.  Clark then went to Jeris home to confront her.  When questioned at trial about these incidents, Clark responded, I wanted to leave no doubt in her mind how I felt.  The trial court entered the stalking injunction.  Clark Appealed.

Clark argued that his conduct should not have caused more than mere anxiety or annoyance and it was not outrageous or intolerable.  The Court disagreed.  The Court noted that the requirement for outrageous conduct was removed in current version of the statute, however even if outrageous conduct was required, Clarks actions are sufficient for the entry of a stalking injunction.   Particularly disturbing are his efforts to find her when she concealed her address and to unblock his cell phone calls.  Affirmed.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/williams208050213.pdf

Transitional Alimony Can be Reviewed without a Showing of Change in Circumstances

Beal v. Beal, 2013 UT App 105 Utah Court of Appeals April 25, 2013

Parties were divorced in 2007 and wife was awarded transitional alimony and a review date was set for the issue of alimony.  At the time of review, Wife failed to produce various documents, namely a trust of which she was the beneficiary.  At the first hearing, the Court was unable to determine what the appropriate ongoing alimony amount should be, if any.

At the second hearing, Wife did not appear and the hearing was again continued.  Wife finally produced a copy of the trust, but did not produce the accounting.  At the third hearing, the trial court noted discrepancies between wifes testimony and her financial declaration and ended the transitional alimony.

Wife appealed and argued that there was no basis to change the alimony because there was no substantial change of circumstance since the decree.  The Court of Appeals found that an award of transitional alimony is intended to be temporary, particularly when the Court sets a hearing to review the alimony award.  Therefore, the court could modify without a substantial change in circumstance and the modification was appropriate because of Wifes failure to comply with reasonable discovery requests. Affirmed.

Retirement Can be Valued at Time of Separation

Donnelly v. Donnelly, 2013 UT App 84 Utah Court of Appeals April 4, 2013

In a temporary order the trial court ordered Father pay child support, alimony, and the childrens medical expenses.  Mother relocated and Father bore the costs of visiting the children.

At trial, the court entered a decree awarding lower child support and alimony amounts, but did not make the amounts retroactive.  After the trial, Mother moved to divide retirement.  The court divided the retirement with value at the time of separation.  The Court also denied Fathers motion for credit towards his arrearage for the expenses he incurred to visit the children.   Father appeals the alimony award and expenses incurred for parent-time.  Mother appeals the valuation date of the retirement.

As to alimony, Father failed to preserve the pretrial order of alimony.  Father made several arguments about Wifes diminished need while living with family and her income from gifts from family.  The Court of Appeals found that the trial court took note of gifts when making the alimony award and the award was not an abuse of discretion.

As to reimbursement of transportation costs for Fathers parent-time, the Court of Appeals found no statutory authority for the requested reimbursement and it was not an abuse of discretion to deny the reimbursement because Father failed to raise the issue at trial and made no motion to reopen evidence to address that issue.

As to valuation of the retirement, the Court found that generally retirements are valued at the time of the decree, however, when significant time (in this case 5 years) passes between the separation and Decree, it is not an abuse of discretion to value it at the time of separation.

Court Can Modify Decree without Evidentiary Hearing. Commissioner Cannot Modify Property Agreements Under Rule 106.

Gullickson v. Gullickson, 2013 UT App 83 Utah Court of Appeals April 4, 2013

Wife intended to relocate and filed a Petition to Modify.  Husband opposed Wifes removal of the child from Utah.  Wifes Petition to Modify requested the Decree be modified to accelerate the sale of the marital home.  At the hearing, the Commissioner permitted the relocation and recommended modifying the Decree to allow Wife to rent out the home or, accelerate the sale of the home.  Father objected arguing that such a modification was not permitted by URCP 106 and requested an evidentiary hearing.  The Court overruled the objection and enforced commissioners order.  Father appeals.

The Court of Appeals found that Father was entitled an evidentiary hearing as to property and that no modification should be ordered without compelling reasons.  Further, the recommendation violated Rule 106.  Once a party demonstrates a circumstance not contemplated by the decree, the commissioner is no longer interpreting but modifying.  Further, the Court cannot modify a property award without an evidentiary hearing.  Court of Appeals vacated and remanded this issue.

As to relocation, the Court of Appeals advised that in relocation hearings, trial courts should address parent-time and transportation.  On objection, the trial court refused to hear witnesses relocation testimony. The Court of appeals affirmed on this issue and stated parties are limited by Rule 106, which limits the evidence on objection to the evidence that was presented before the Commissioner.

Husband also appealed the trial courts refusal to hear the Order to Show Cause which commissioner had reserved ruling.  Court of Appeals found trial courts can choose to hear any matter, but is not required to if the issue has been reserved by Commissioner.

Davis Dissents as to the issue of review of objections by Judgebelieves judge should have reviewed it.

Thursday, August 8, 2013

Four Types of Non-Compliance-Based Attorney Fees Awards and Fault and Non-Compliance Cannot be Factors in Property Distribution

Goggin v. Goggin, 2013 UT 16, Utah Supreme Court, March 15, 2013

Husband and Wife Divorced.  Wife was awarded her all her attorney fees and receiver costs based on Husband’s actions of avoiding discovery and failing to comply with court orders.  Court did not distinguish between the fees awarded.  Wife also received a disproportionate distribution of property based on Husband’s dissipation of assets. Husband appealed.

The Supreme Court found that any fees that were related to failure to provide discovery, or fees incurred to enforce the order were appropriate.  The Supreme Court enumerated the four reasons a court can award fees for non-compliance: (1) Fees incurred enforcing an order, (2) Fees incurred under Rule 37 for the failure to comply with discovery, (3) Inherent Powers to reimburse parties for costs incurred defending bad faith actions, and (4) Inherent powers to sanction attorneys and litigants for bad behavior (i.e. Rule 11 sanctions).  However, the awards can never exceed the actual cost incurred by the innocent party. The Court Affirmed any award that was based on Husband’s bad acts, but Reverses any award for Wife’s out of pocket expenses in excess of reasonable attorney fees.

The trial court also found that Husband had dissipated marital assets, however instead of simply awarding wife her portion of the dissipated asset; the trial court awarded her the entire amount of the dissipated asset.  The Supreme Court Reversed and ordered that court equitably divide the marital estate, without considering Husband’s fault.   

3 Ways for Unwed Biological Father to Establish Paternity

In Re: R.M., L.M. v. J.B and A.B., 2013 UT App 27, Utah Court of Appeals, January 31, 2013

L.M. is the biological Father of R.M. He filed a voluntary declaration of paternity signed by Mother with the State Office of Vital Statistics.  Mother married J.B. and J.B. filed a Petition for adoption. The adoption was granted.  Father motion to set aside the Decree of Adoption was granted because Father was not provided notice.  The trial court later found that Father’s filing of a declaration of paternity was insufficient to establish his right to without consent to the adoption.  Trial Court allowed the interlocutory appeal.

The Court of Appeals found that simply because a party may fall into more than one category in U.C.A. 78B-6-120(1), does not mean that the person must follow all the requirements of each category he falls.  (e.g. An unwed biological father does not have to file a declaration of paternity and also strictly comply with U.C.A. §78B-6-121(1)(d)-(f)).

The Court found that there are three ways for an unwed biological father to establish paternity and be entitled to consent to adoption: (1) File a voluntary declaration (2) be adjudicated as the child’s father, or (3) strictly comply with U.C.A. §78B-6-121(1)(d)-(f).

The Court made a special note that since

In this case, Father filed a declaration of paternity and is entitled to withhold consent.  Reversed and Remanded.

No Right to Competency Hearings + No Need to be Competent to Stand Trail in Child Welfare Matters

M.B. v. State of Utah, 2013 UT App 7, Utah Court of Appeals, January 10, 2013

M.B. moved for a stay of the trial until her competency could be determined.  The trial court denied the motion and terminated Mother’s parental rights.  Mother now appeals.

The Court of Appeals affirmed and found that Mother did not have a right to a competency hearing. Further, putting her competency at issue actually could hurt her case because incompetence is a ground for termination of parental rights. See U.C.A. §§ 78A-6-507(c) and 78A-6-503(12).  Further, based on the findings made by the trial court Mother was not incompetent.  There may not had been a hearing on that issue, but the trial court made several findings as to competency based on the psychological evaluation submitted into evidence and Mother’s own testimony.

Unwed Biological Father Cannot Be Held Responsible for Negligence of State Agency.

In re: Baby T, R.C.A. v. A.O.L., 2012 UT 78, Utah Supreme Court, November 23, 2012

Shaud submitted a paternity action with the State Office of Vital Statistics 5 days prior to Mother’s relinquishment, however his documents were not filed by the clerk until 45 minutes after Mother relinquished the child for adoption.  Shaud was found by the trial court not to have fully complied with Utah law §78B-6-121 because the statute places on the unwed biological Father the who responsibility and requires him to be responsible for third parties. and was therefore denied the opportunity to withhold consent and intervene in the adoption action of Baby Girl T.  Shaud appeals.

The Supreme Court found that the Statute as Applied to Shaud violates his Constitutional right to Due Process.  Because Shaud had no control of the documents after they were filed the Supreme Court found that his documents should be deemed filed at the time there were sent to the Office of Vital Statistics because at that point Shaud had completed with all that he could do to comply with Utah Code §78B-6-121.

Reversed and Remanded.

Justice Lee dissents arguing that the Due Process argument was not properly preserved.

Hold Harmless Provision in Decree = to Absolve Other Party From All Responsibility and Damage on A Debt.

Gardner v. Gardner, 2012 UT App. 374, Utah Court of Appeals, December 28, 2012

In the Original Divorce, Wife was awarded the parties marital home and was ordered to make the payments on the home and hold Husband harmless in regards to the debt.  Wife failed to make several payments.  Husband filed an Order to Show Cause and a Petition to Modify.  Husband’s Petition to Modify was denied and Court refused to hold wife in contempt.  Husband Appeals.

The trial court found that Decree’s hold harmless provision only required her to make the payments and not expect any payment from Husband.  The Court of Appeals disagreed and found that a hold harmless provision implies a much stronger obligation than to just make payments.  It also requires the paying party to protect the other party from any damage that may result from late payments. 

The trial court also found that Husband’s damages because of his lower credit score and suspension of credit because of the missed payments were extremely speculative and he could not prove any real damages. However, Husband requested attorney fees.  Attorney fees are not speculative in nature and a real number can be placed on that expense.  Further, Husband asks for an order requiring Wife to refinance the home.  No finding of damages are required to enter an order requiring Wife to refinance.  Reversed and Remanded.

Needs of Recipient Spouse is the Maximum Alimony Award.

Dobson v. Dobson, 2012 UT App. 373, Utah Court of Appeals, December 28, 2012

Wife was awarded $800/ month alimony for 20 years as well as physical and legal custody of her two children.

Wife argued that the Court should not have considered child support as income in calculating alimony.  The Court of Appeals found that is best practice to calculate child support and alimony separately.  However, combining the calculations is not an abuse of discretion, particularly when Wife included the children’s expenses in her monthly need on her financial declaration.

Wife also argued that the trial court failed to consider Husband’s increased ability to pay as his child support obligation decreases.  Wife failed to demonstrate how Husband’s increased ability to pay affects her needs.  Because as Wife’s child support will decrease so should her obligations (i.e. no longer having to pay for the adult child). There was no abuse in discretion in the court’s consideration of Wife’s decrease in need.  Further, income to wife was correctly imputed because of Wife’s advanced decree and the testimony of the employability expert.

The Court of Appeals Reversed and Remanded the alimony award to give proper consideration to the standard of living during the marriage.  The trial court reduced wife’s expenses without adequate explanation and is instructed to supply additional findings as to why it eliminated some of Wife’s claimed expenses as listed on her financial declaration.  Also remanded to correct the mathematical error in Father’s income.

Incidents Constituting a Course of Conduct Need Not Occur Within a Certain Time Frame.

Butters v. Herbert, 2012 UT App. 329, Utah Court of Appeals, November 23, 2012

Butters sought and obtained a civil stalking injunction against Herbert and awarded Butters her attorney fees for the two day trial.  Herbert appealed.

In order to obtain a stalking injunction, a petitioner must show that respondent engaged in a course of conduct (two or more incidents) directed at petitioner that respondent knows or should know would cause a reasonable person fear for their or another’s safety or emotional distress.  Herbert argues that the incidents in this case are too sporadic and not outrageous enough.  Court of Appeals disagreed and affirmed the trial court.

The court of Appeals found that actions in support of a stalking injunction need not occur in any specific time frame. The Court found that Herbert’s actions of speeding towards Butters in a grocery store parking lot, followed by him circling her car for several minutes is a sufficiently outrageous.  That combined with his actions of his approaching of Butters in the mall parking lot and silently staring at her is also sufficiently outrageous.  Those two actions alone are sufficient for the entry of a stalking injunction.  Particularly when coupled with the two incidents at the gym, one which he circled her car on foot, followed her inside the continued to stare at her.

This combination of incidents could cause a reasonable person to fear for his/her safety.

Full opinion available at:  http://www.utcourts.gov/opinions/appopin/butters112312.pdf

Limiting Healthcare to Homeopathic Remedies Against the Other Parent’s Wishes = Sole Custody to Other Parent.

Clarke v. Clarke, 2012 UT App. 328, Utah Court of Appeals, November 23, 2012

At trial, Mother was awarded sole legal and physical custody of the parties minor children, was awarded 100% equity in the marital home, and husband was found in contempt.  Father appealed.

Father asserted that he was the primary caregiver and that the Court did not give proper weight to Mother’s conviction for custodial interference.  However, the Court of Appeals affirmed the trial court’s award of custody finding that Father’s antipathy to scientific medicines and his refusal to have the children immunized caused the court concern for the safety and health of the children.  Further, the Court made no finding as to which parent was the primary caregiver.  Parents worked opposite schedules and cared for the children while the other was at work.  Father could not show that the trial court abused its discretion in awarding Mother sole custody.

Court awarded Mother all the equity in the marital home to reimburse her for the inheritance she received and used to pay of Father’s premarital debt which Father agreed he should repay.  The Court affirmed the award and found that Mother should not lose the benefit of her inheritance simply because it was inverted into Father’s debt.

The Court found that there was adequate grounds for the finding of contempt, however, the Court reversed and remanded the calculation of attorney fees to be limited only to the fees accrued for the contempt hearing and not amounts accrued prior to contemptuous conduct.

Default Divorce Decree ≠ Adjudication of Paternity and If Set Aside Also Sets Aside Paternity Finding

Reller v. Reller, Intervenor Argenziano, 2012 UT App 323, Utah Court of Appeals, November 16, 2012

Argenziano fathered Wife’s child.  Wife divorced Husband by default decree in which Wife alleged that Husband was the father.  Nine months after the default decree was entered, Husband filed a Petition to Modify.  Wife responded, and for the first time alleged that Husband was not the father of the minor child.   

The parties stipulated to set aside the Decree in regards to the minor child and Wife moved to join Argenziano.  Argenziano intervened and moved to dismiss the order setting aside alleging that Husband had already been adjudicated as the father.  The Court denied the motion and ordered Argenziano to undergo genetic testing.  Argenziano was shown to be the, Father.  Argenziano appealed arguing that because Husband had already been adjudicated Father, the parties could not now challenge the adjudication. See U.C.A. §78B-15-607(1)(a).

The Court of Appeals affirmed the trial court decision and agreed that a default decree once set aside is not an adjudication.  They further found that because Argenziano was not a party in the Divorce , he has no standing to challenge the setting aside of the Decree because he was not a party to the action. 


UCCJEA: Presence of the Child is the Only Requirement for Temporary Emergency Jurisdiction and Temporary Emergency Jurisdiction Can Ripen into Full Jurisdiction.

In re: Z.Z. et al; K.Z. and V.Z. v. State of Utah2012 UT App 317, Utah Court of Appeals, November 8, 2012

DCFS filed a Petition for Custody, Mother and Father fled with the children.  The Juvenile Court closed the case neither the children nor their parents resided in Utah.

Later the children were left in Utah with family.  However, neither Mother nor Father picked up the children on the designated date and another Petition was filed.  On the morning of the trial, Father’s motion to continue was denied and Mother and Father had their parental rights terminated.

Parents’ motions for new trials were denied.  Parents appealed.

Parents argued that the Utah Court did not have jurisdiction because Utah was not the home state of the children and had lost.  The Court of Appeals disagreed; they found that the parents’ abandonment of the children gave the Utah Court temporary emergency. 

The Court further found Colorado did not have jurisdiction over the minor children because, they had insufficient evidence to conclude that the children had resided in Colorado for the requisite 6 months.

Lastly, there is no absolute right to be present at the termination trial.  No due process was violated when the Motion to Continue was denied.


Full opinion available athttp://www.utcourts.gov/opinions/appopin/JV_zz110812.pdf

Due Process = Notice + Opportunity to be Heard and Unconscionable = Shock the Conscience

Hartle v. Hartle, 2012 UT App. 312, Utah Court of Appeals, November 1, 2012

Husband moved to set aside an order which was entered based on a stipulation of the parties.  Husband failed to marshal the evidence in support of his claim that the parties did not have a meeting of the minds. 

Husband argued next that he did not receive due process on his Motion to Set Aside.  The Court of Appeals disagreed.  The trial court found that the Court’s hearing as to the enforceability of the agreement was sufficient due process because it provided Notice and Opportunity to be Heard.

Lastly, Husband argued that the agreement was unconscionable.  The Court of Appeals disagreed.  The Court of Appeals found that the agreement did not shock the conscience.  If fact, Wife's agreement to trade away alimony for return of her contribution in investment property was a reasonable trade.


Tuesday, March 26, 2013

Joint Physical Custody Has Two Requirements: 1) More than 30% Overnights and 2) Contribution to the Expenses of the Child in Addition to Paying Child Support.

Spall-Goldsmith v. Goldsmith, 2012 UT 302, Utah Court of Appeals, October 25, 2012

Parties were divorced and Wife was awarded primary physical custody and the parties were awarded joint-physical custody of the minor child.  Wife was also awarded child support based on the sole custody child support worksheet.  Husband, who was awarded more than 30% of overnights appealed.

The Court of Appeals found that Husband did have more than 30% of the overnights, however, joint-physical custody requires more than 30% of overnights, but also requires that both parents contribute to the expenses for the child in addition to paying child support.  See U.C.A. §78B-12-102(14).


Full opinion available at: http://www.utcourts.gov/opinions/appopin/goldsmith102512.pdf

Separate Property Can Become Marital Property Simply if the Other Spouse’s Contribution of Income to the Marriage

Henshaw v. Henshaw, 2012 UT App. 56, Utah Court of Appeals, February 24, 2012

Husband and Wife were divorced.  Wife was awarded half of the equity in a ranch and adjoining property that Husband inherited and paid for with inherited money.  In the time leading up to trial, Husband went through 3 attorneys and file a motion to recuse the judge in order to extend the time until trial.  The trial court found that he violated rule 11.  Husband appealed the property distribution and the Rule 11 findings.

The Court of Appeals declined to disturb the trial court’s finding that Wife contributed to the maintenance of the ranch and that Wife’s parents loaned the parties money to cover their needs and allow them to purchase the additional land and maintain the ranch.  As to the classification of the adjoining property as marital property, Husband failed to properly marshal the evidence and as such, the Court refused to overturn the trial court’s decision.  Further, because of Wife’s contribution of income and contributions to the ranch, it was not an abuse of discretion to award her 50% of the value of the premarital property.  However, the Court found that the Ranch could not be ordered sold because it was already sold.  The Court affirmed the trial court’s division of the value and remanded the issue to determine Wife’s remedy.

Further, Husband’s actions of attempting to delay the proceedings properly resulted in Rule 11 Sanctions.
Full opinion available at: http://www.utcourts.gov/opinions/appopin/henshaw022412.pdf  

Monday, March 25, 2013

Stalking Injunction: Statements About a Petitioner that Cause Reasonable Fear Are a Basis for a Stalking Injunction.

Sloane v. Brown, 2012 UT 300, Utah Court of Appeals, October 25, 2012

Sloane sought and obtained an ex parte stalking injunction against Brown.  Brown requested a hearing. 
At the hearing, the Court heard opening statements and requested that the parties stipulate to the Court considering the opening statements a proffer of the parties testimony.  The parties agreed.  Part of Sloane’s was a proffer of statements made about Sloane on Brown’s blog.  The Blog contained Brown’s summary of events including her desire to kill Sloane’s dog and her attempts to get Sloane evicted.  The Court found that Sloane had sufficiently demonstrated Brown’s course of conduct directed at her that would cause a reasonable person to fear. Brown Appealed.

Brown argued that the Court should not have accepted the proffer as testimony.  The Court of Appeals found that the Court’s action was not plain error; and if there was any error by the trial court, it was invited error because Brown agreed with the court’s consideration of the proffer. 

Brown also argued that her blog posts were protected speech and were not directed at Sloane.  The Court of Appeals found that Brown failed to submit any law that supported her position.  Finally, the law does not require that the threatening statements be made to the petitioner, but also allows for threatening statements made about an individual can also be a basis for the entry of a stalking injunction.  Affirmed.

Full opinion available athttp://www.utcourts.gov/opinions/appopin/slone102512.pdf

Court Can Base It’s Rulings on Hypotheticals; and Animal Feed is Not Included in Child Support or Alimony

Farnsworth v. Farnsworth, 2012 UT App. 282, Utah Court of Appeals, October 12, 2012

Husband and Wife were divorced.  Wife was awarded alimony based on a standard of living that would include a hypothetical $140,000 home.  The Court also awarded $200/month for the cost of animal feed for a minor daughter’s horses.  Husband appealed.

The Court of Appeals found that the relying on the $140,000 home was reasonable without any evidence to support such a number.  The court also found that the $200 for the animal costs appeared to be more related to the child’s extracurricular activity than to Wife’s standard of living.  Because it was an extracurricular expense, the Court of Appeals amended the award to deduct the cost of the animal feed.

The Court was divided on the both issues with a dissenting opinion on each.  Judge Orme dissented on the alimony award and asserted that the trial court should not have awarded alimony based on a hypothetical home.  Jude Orme accused the trial court of punishing husband for his fault for artificially lowering the parties living conditions during the marriage; and since fault cannot be used as a factor (keep in mind the new changes to U.C.A. §30-3-5, passed by legislature, not yet signed by Governor). 

Judge Thorne believed that the $200 for the feed should have been included in the alimony award because Wife’s standard of living had always included horses.    

Full opinion available athttp://www.utcourts.gov/opinions/appopin/farnsworth10122012.pdf

Friday, March 15, 2013

Cryopreservation of Semen Does Not Make the Donor a Parent.

Burns v. Burns, 2012 UT 71, Utah Supreme Court, October 12, 2012

Husband was diagnosed with cancer and preserved his semen prior to chemotherapy.  Husband died and Wife used the sperm for artificial insemination.  Wife gave birth and applied for social security benefits for the child and listed deceased-husband as the father.  Social security denied Mother’s claims.  Mother requested that the Federal District Court review the administrative to the federal district court.  The Federal Court sent the question of law to the Utah Supreme Court to determine if the donor could be a Father under Utah law.

The Supreme Court found that in order to be a parent of a child who resulted from cryopreserved semen or embryo, the donor must agree in a record and consent to be considered the parent of said -child.  (See U.C.A. 78B-15-707). Husband never signed an agreement consenting to being the parent of a child conceived posthumously and as such is not considered a parent.

Full opinion available athttp://www.utcourts.gov/opinions/supopin/Burns1271101212.pdf

Order to Show Cause: Burden is on Moving Party

Black v. Black, 2012 UT App. 259, Utah Court of Appeals, September 20, 2012

Husband and Wife came to an agreement as to ongoing disbursements from a film company.  Husband was to prepare an accounting of each disbursement along with a portion of the payment to wife.  Wife was dissatisfied with the accounting and filed an order to show cause against Husband.  The Commissioner did not hold Husband in contempt and found based on the evidence presented that Husband was in substantial compliance.  Wife objected to the recommendation. 

The Judge received oral argument overruled the objection (affirmed the commissioner’s ruling) and awarded Husband $500 in attorney fees.  Wife appealed.

The Court of Appeals found that it was Wife’s burden to show that Husband knew of the order, had the ability to comply, and failed to comply; and she must do so by clear and convincing evidence.  In this case, the Court found that Husband was in substantial compliance.  Wife asserted that the trial court should have placed the burden on Husband to show that he was in compliance.  The Court of Appeals disagreed with Wife and found that the burden shifts only in instances when a party argues inability to comply, which is essentially an affirmative defense.  In this case, Husband did not argue that he was unable to comply; instead, Husband’s argument was that he was in compliance.  The Court of Appeals agreed with Husband.


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