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.

Friday, March 8, 2013

Child Welfare: Strict Due Process Not Required and Court’s Failure to Allow Withdrawal of Admissions is Harmless Error

In Re: A.K. (H.K. v. State of Utah), 2012 UT App. 232, Utah Court of Appeals, August 16, 2012

Mother and children were under Juvenile Court jurisdiction.  Mother failed to comply with the reunification plan and attempted to flee with the children.  The children were removed from Mother.

The State petitioned to terminate mother’s rights.  The State sought discovery from mother in the form of 206 Requests for Admissions.  Mother gave a blanket denial on the last possible day and later admitted to 126 of the requests.  The trial court found mother’s blanket denial ineffective and deemed all 206 admitted, granted the state summary judgment as to unfitness and held a trial as to best interests.  The trial concluded in the termination of mother’s parental rights.  Mother appealed the trial court’s action of deeming the requests admitted, and the trial court’s failure to hold a shelter hearing after the final removal.

The Court of Appeals found the right to due process (i.e. the request for a shelter hearing) was not violated by the lack of a shelter hearing because mother admitted to sufficient grounds for the removal.  Even if the shelter hearing was required and was held the result would have been held, the result would be the same.

The Court of Appeals also found that the trial court’s alleged misconduct as to the Request for Admissions could be no more than harmless error. This is because Mother admitted to 126 of the requests and the remaining requests were proven by testimony.

Lastly as to mother’s criticism of the Court of Appeals manner of handling juvenile court matters (i.e. awarding special deference to conclusions of the juvenile court), the Court of Appeals again rejects any need for de novo review of child welfare cases.

Divorce: If a Decree Misclassifies a Payment, the Effective Date of the Reclassification is the Date of the Petition to Modify.

Cox v. Cox, 2012 UT App. 225, Utah Court of Appeals, August 16, 2012

In Husband and Wife’s stipulated divorce decree, husband was ordered to pay $3000 per month as a property settlement and child support.  Wife remarried.  Husband did not learn of the remarriage for two years, upon learning of the remarriage he petitioned the court to modify his decree and to properly classify the monthly payments as child support and alimony.

Because there was no consideration for the property payments, the trial court classified payments as alimony.  However, the Court terminated alimony on the day of the trial and not the date of remarriage. Husband appealed.

The Court of Appeals affirmed the trial court’s denial of retroactively modifying the alimony award to the date of remarriage. The Court found it was Husband’s burden to have the payments classification corrected.  The court analogized this re-classification procedure with having to establish cohabitation in order to end alimony.  The misclassification in the decree is effective until a party asks to correct it.  The Court of Appeals did modify the award retroactively to the date the Petition to Modify was filed.

Striking Pleadings Appropriate When a Party fails to Comply with Discovery, and Lack of Findings on Property Distribution and Attorney Fees Results in Reversal.

Allen v. Ciokewicz, 2012 UT App. 162, Utah Court of Appeals, June 1, 2012

Husband appeals the trial court’s order striking his pleadings and entering his default.  Husband argues (1) that the court erred in striking his pleadings, (2) that he did not have proper notice of the case, (3) that the district court erred in its classification, and (3) its division of property.

The Court of Appeals found that the trial court did not err when striking Husband’s pleadings for his failure to participate in the Utah Case.  Husband had frustrated discovery on several occasions throughout the case by attempting to continue hearings and avoid his own deposition.  In the meantime, he filed several actions in the California court.  He claimed his anxiety and depression prohibited him from participating in the Utah court, while filing several motions in California court.  Because of Husband’s actions the trial Court did not err striking his pleadings.  Additionally, Husband’s appellate brief did not marshal all of the evidence in support of the trial court’s order and as such, the Court of Appeals could not consider his argument on the merits.

Court of Appeals also found that Husband had actual notice of the hearings and never challenged jurisdiction based on inadequate notice.  Husband failed to appear at most hearings, even those that had been continued at his request.

The trial court failed to make adequate findings as to the property distribution, indeed there was insufficient evidence to support the trial court’s award of nearly all the property to wife.  This portion is Remanded for more detailed findings on property distribution.

The trial court also failed to support its award of attorney fees.  This too is Remanded for more adequate findings.

Full opinion available at http://www.utcourts.gov/opinions/appopin/allen009060112.pdf

Contempt: Must Show Direct Harm to Appeal a Finding of Noncontempt of an Opposing Party

Summer v. Summer, 2012 UT App. 159, Utah Court of Appeals, June 1, 2012

Wife obtained a Temporary Order that required Husband to pay her health insurance. Husband failed to pay for the insurance.  The insurance cancelled her coverage. Husband was found in contempt. 

Husband and Wife agreed Husband reinstate the insurance.  Husband failed to do so and was found in contempt again, he was ordered him to serve the original 30 days for each contempt.  The parties also agreed that they would “look into filing a bankruptcy.”  Husband filed bankruptcy. Wife did not.

Husband appealed both the trial court’s failure to hold Wife in contempt for her failure to file bankruptcy.

The Court evaluated first whether a party has standing to appeal a failure of a court hold a person in contempt.  The Court determined in this case that because Wife’s failure to file bankruptcy resulted in a disproportionate property and alimony award, Husband did have standing because a finding of contempt on that issue could have decreased his alimony obligation and could have resulted in a more equitable property distribution.  However, because the agreement was only to “look into” filing bankruptcy, there was no requirement for wife to file bankruptcy. The Court of Appeals affirmed the trial court’s finding of noncotnempt.

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