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:

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 at

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.



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