Friday, March 8, 2013

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

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