Tuesday, December 31, 2013

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.

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